CITATION: R. v. Hibbert, 2022 ONCJ 650

St. Catharines

DATE: 2022.11.16

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— and —

JOHN JOSEPH HIBBERT

Before Justice Fergus ODonnell

Reasons for sentence imposed on 16 November, 2022

Mr. Darren Anger..................................................................................... for the Federal Crown

Mr. Mark Eshuis & Ms. J. Strecansky............................................... for the Provincial Crown

Mr. Andrew Burton.................................................... for the defendant, John Joseph Hibbert

Fergus ODonnell J.:

Overview

1. John Hibbert pleaded guilty to three charges, namely possession of fentanyl and crystal methamphetamine for the purpose of trafficking and possession of a firearm without a permit. He argues through Mr. Burton that an appropriate total sentence is eight years, while the federal and provincial Crowns argue that an appropriate total sentence is ten years.

2. The facts are fairly typical. Officers of the Niagara Regional Police Welland Street Crime Unit were investigating Mr. Hibbert for suspected drug trafficking and conducted surveillance on him over about ten days, culminating in them obtaining a search warrant for his home. Before executing the search warrant, they pulled Mr. Hibbert over after he left his residence. As he ran from them, he threw a .25 calibre handgun, a prohibited weapon, over a fence. He also three away three bundles of controlled substances, amounting to about three grams and he had $6,045 in cash in his possession.

3. When the police executed their search warrant, they found a drug processing station in the basement of the house. Mr. Hibbert had a key to a safe, in which the police found 298 grams of fentanyl (including the packaging weight) in twenty-two packages as well as 131 grams of crystal methamphetamine. Some of the fentanyl was mixed with benzodiazepine and some had trace amounts of ketamine, but all three hundred grams contained fentanyl. The police also seized thirty-five pills of suspected oxycodone, which turned out instead to be fentanyl.

Mr. Hibbert’s Background

4. Mr. Hibbert is now fifty-five years old and he has a long criminal record, the roots of which will become apparent when I discuss his pre-sentence report. The criminal record begins as a youth record in 1984 and runs to December, 2021. It shows that Mr. Hibbert was on two separate probation orders at the time of the offences before me, one of them arising from four convictions for possession of controlled substances for the purpose of trafficking in 2018. Those convictions carry an automatic s. 109 weapons prohibition, which Mr. Hibbert violated by his possession of the .25 calibre handgun.

5. Including his youth record, Mr. Hibbert has about forty-seven convictions. These include property and driving offences as well as numerous failure-to-comply and drug possession convictions. Leaving aside for the time being the violent impact of drug trafficking offences generally, Mr. Hibbert has only one assault conviction and that was thirty years ago.

6. Most of Mr. Hibbert's custodial sentences fall within the three- to five-month range, although his first adult sentence (thirty-five years ago, when he was twenty), was just over a year, a sentence that I suspect would not conform to modern principles of sentencing. More recently, however, in 2018 his sentence for the four convictions for possession for the purpose appears to be either ten months plus a ninety-day intermittent sentence (which he breached) or perhaps twenty-months of pre-sentence custody (the record is unclear as to whether various amounts of pre-sentence custody are consecutive or concurrent). I shall work on the more favourable assumption, i.e. that that was ten months of pre-sentence custody plus the intermittent ninety days. Accordingly, Mr. Hibbert’s longest previous sentence was a recent sentence equivalent to thirteen months in custody.

7. There are a few gaps in Mr. Hibbert's record in the range of two- to three years including about a three-year gap from a 2014 conviction to when he would have been arrested for the trafficking offences he was convicted for in 2018.

8. In his pre-sentence report, Mr. Hibbert reported having had a good relationship with his mother and his siblings, but a poor relationship with his father, whom he described as an alcoholic who emotionally and physically abused him and who engaged in domestic violence against his mother, to the point that she left the family briefly on two occasions. The family relied mainly on social assistance. Sadly, he found the time he spent in a foster-home advantageous because it provided stability and no abuse, in contrast with his home life. However, he said that when he was twice sentenced to a training school as a young person, he was repeatedly sexually abused by one of the priests. This is an issue he has never addressed, at least in part because doing so would be a sign of weakness.

9. Mr. Hibbert has been in a number of relationships over the years, with the potential of resuming a relationship with a former partner who has expressed a no-tolerance philosophy towards any future misconduct by Mr. Hibbert. She also promises a job for him in her cleaning company upon his release. Mr. Hibbert does have a fairly good history of employment and his sister and his son comment favourably on his skill and work ethic.

10. Mr. Hibbert has an enduring relationship with that son, who is now in his early thirties and who appreciates that Mr. Hibbert has maintained continual contact over the years, but who notes that their contact has been far from continuous because of Mr. Hibbert's many incarcerations and that the relationship between them would shift and would have to be recalibrated each time it resumed.

11. Mr. Hibbert's sister, his son and his new partner all speak positively of him, for example as, "hard working and funny", "fun, loving, caring and courageous," and being ready to distance himself from his criminal lifestyle.

12. Mr. Hibbert drank a lot between the ages of eighteen and thirty and attributed his criminal offences in part to that lifestyle, saying some of his offences were committed while drunk. He reduced his drinking when his son was born.

13. However, Mr. Hibbert's drug use did not decline. He had started smoking marihuana around the age of twelve and even sold marihuana he got from his father at school. He used marihuana daily from the age of twelve to when he was forty. For almost twenty years, starting when he was twenty, Mr. Hibbert abused cocaine, including taking it by injection until about seven years ago. While he has stopped injecting cocaine, he did not stop abusing it entirely. He then added crystal methamphetamine to his regimen about five years ago, at which time his cocaine use diminished.

14. Of interest, Mr. Hibbert denied any dependence on opioids within the last twenty years, despite opioids constituting the largest amount of drugs seized from his safe. He did have an opioid overdose a couple of years ago, but that was from using a pipe contaminated with fentanyl to smoke methamphetamine.

15. Mr. Hibbert did start taking suboxone while in the Niagara Detention Centre, starting in June of this year, but he was weaned off it when he announced that he did not want to proceed with sublocade treatment, sublocade being the injectable, long-term form. This decision, while Mr. Hibbert's to make, does not bode well for his prospects of overcoming his substance dependence. He has expressed a desire to stop abusing controlled substances many times in the past, but follow-through seems lacking. Over seven periods of community supervision, Mr. Hibbert has "consistently displayed poor compliance," including failure to, "report, pay restitution, attend counselling/programming, complete community service hours, advise in advance change of address" and he has re-offended while on probation, including when he committed these offences.

16. It is concerning that Mr. Hibbert minimized the significance of his possession of the loaded handgun when talking to the probation officer for the pre-sentence report, saying that he needed it for self-protection

Sentencing

17. The determination of an appropriate sentence for an offender is one of the most nuanced tasks a judge will undertake. The appropriate sentence should be tailor-made to reflect the offender and his crimes. That is the commandment of "proportionality", which the Supreme Court of Canada has clearly established as the cardinal principle of sentencing. Accordingly, while the objectives and other principles of sentencing set out in the Criminal Code remain relevant, as do any aggravating or mitigating circumstances, it is against the principle of proportionality that any proposed sentence must ultimately be measured. As set out by the Supreme Court, proportionality balances the seriousness of the offender's conduct with the offender's moral responsibility for his offence.

18. The seriousness of an offender's conduct will often be obvious. The offender's moral responsibility may reflect considerations such as his or her role in an offence where there are multiple offenders operating at different levels and his or her background, to the extent that that background may provide a context for the offending behaviour (or where that background may make it incomprehensible that the offender would end up following a path of criminality).

19. In the present case, all of Mr. Hibbert's offences are serious. Crystal methamphetamine is a nasty, nasty drug. It is relatively cheap, it is highly addictive and its physical and mental effects on long-term users are dire. It has historically been a drug that presents itself only in limited areas of the province, but wherever it is sold its impact is felt.

20. Without wishing to make crystal methamphetamine look benign by any measure, fentanyl significantly ups the ante. A synthetic drug like methamphetamine, it effectively displaces organic opiates such as heroin in the illicit drug market, at a lower cost to the trafficker and with a lower overall exposure to detection, arrest and prosecution than with a transnational product like heroin. Unlike organic opioids like heroin, the trafficker does not have to run the expenses and risks of apprehension inherent in importing fentanyl from traditional heroin source countries since it can be made domestically in a laboratory. Fentanyl, too, is highly addictive, more so than other opioids. Given that breathing is essential to human life and that opioids suppress breathing, fentanyl use carries with it a very real risk of causing death, whether used alone or in combination with other substances or in conjunction with other risk factors. This risk is neither theoretical nor rare and it is not always predictable. In the Niagara Region, opioid-related deaths quadrupled in the five year period from 2016 to 2021, accounting for 165 deaths in 2021. This is a per capita rate in Niagara almost double the provincial average that year.[^1] Sadly, Niagara is not alone in ‘outperforming’ the provincial average and it is not even the worst-off region for opioid mortality, with Algoma Region almost tripling the provincial per-capita incidence of such deaths.

21. It has become a recognized and hugely worrisome reality that a purchaser of any chemical street drug now runs the risk of it being adulterated with the highly addictive and potentially fatal fentanyl. This is somewhat of a sea-change from a couple of decades ago, when a purchaser of cocaine or heroin, for example, would worry mostly about how much his trafficker had diluted his cocaine or heroin with a cheaper but benign adulterant and hardly at all that the purchase would end up killing him or her. The risk in that time was that one's supplier was ripping off the customer with a low-quality product. The risk now is that one's supplier will indeed provide a product that will kill. That risk is exacerbated by the reality that the person from whom one buys a drug may himself not know what is in it or what its purity is. It may seem counterintuitive to provide a product that will kill a certain number of one's customers, but to the callous trafficker, in particular the purely economically motivated upper-end supplier, it is just a matter of extremely cynical arithmetic, rising to the level of pure evil. The loss inherent in a few end-user customers dying of overdoses is more than made up by creating an ever-larger body of addicts, whether selling fentanyl as fentanyl or by adulterating other drugs with it and thereby creating likely fentanyl dependency (and perhaps death) in people who had no intention of using fentanyl. This is the morality attributed perhaps apocryphally to Joseph Stalin in World War II, but instead applied to the marketing of controlled substances: "A single death is a tragedy; a million deaths is a statistic."

22. Society, in which I include not only the courts but also Parliament and the Legislative Assembly among others, must never lose sight of the fact that each one of those 165 Niagarans who died in the past year from opioid overdoses was our neighbour and each of their deaths left holes in the lives of those left behind, no different than the holes left by the victims of impaired drivers. To borrow the words of John McCrae from a very different, but also shamelessly brutal context, until their sudden, unpredictable and largely avoidable deaths, each of both classes of victim, "lived, felt dawn, saw sunset glow, loved and were loved."

23. It is clear against this backdrop that the growing traffic in fentanyl is a very serious threat to public safety. As the Court of Appeal noted in R. v. Hamilton, 2004 5549, the drug trade is inherently violent. As Doherty J.A. said for the Court (at paragraph 104), speaking in that case of cocaine rather than fentanyl, which was then about a decade away from sneaking over society's parapet:

The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be disassociated from its inevitable consequences. Unlike the trial judge (para. 224), I characterize cocaine importation as both a violent and serious offence....

24. The widespread consequences of drug addiction include the great number of offences, minor, middling and major, committed by offenders to support their addictions, along with the impact of those offences on countless of the addicts’ fellow citizens, and the death of chilling numbers of our drug users as a direct result of opioid overdoses (which are now massively fentanyl overdoses).

25. In the present case, the generic risk of violence and criminality surrounding drug trafficking is exacerbated by the fact that Mr. Hibbert was in possession of a loaded, prohibited firearm, while subject to a prohibition order, for the express purpose of defending himself. The danger here is thus not just theoretical, but real.

26. The amount of crystal methamphetamine and especially the amount of fentanyl here is a significant consideration in relation to the seriousness of Mr. Hibbert's offences.

27. When it comes to the question of Mr. Hibbert's moral responsibility, it is clear that he was the principal trafficker--that is to say there is no basis to theorize that he was just a mere runner for someone else--and that his quantity in possession significantly exceeded the typical amounts in such cases. I do not mean to suggest that Mr. Hibbert is some sort of high-ranking criminal mastermind at the apex of a sophisticated drug network as seen in cases such as R. v. Parranto, 2021 SCC 46, but he is certainly not a low-level player and the simple reality is that the larger the amount of fentanyl an offender has put on the market, the greater the harm that offender will cause.[^2]

28. Mr. Hibbert's moral responsibility may be diminished somewhat by the fact that he is a drug addict, but not by much in light of: (a) the fact that his addiction was to crystal methamphetamine, but he was principally trafficking in the more dangerous fentanyl; (b) the amount of fentanyl, which is a thousand miles away from the classic "pieced-off" addict-trafficker sentencings of the 1980s and 1990s; (c) the amount of cash in his possession, which demonstrates trafficking well above a mere subsistence level.

29. An assessment of Mr. Hibbert's moral responsibility must also take into account his background. That is not to say that an "unfortunate" upbringing provides a licence to commit crime, but it would be odious entirely to divorce origin and endpoint when measuring an offender's moral culpability. The root causes of crime are many, often complex and sometimes not fully known even to the offender, but the reality remains that many offenders never stood much of a chance in life. Very few of us sitting in judgment have come anywhere close to walking a mile in those offenders’ shoes. Physical, emotional and sexual abuse, family dysfunction, poverty and early drug use (in this case parent-driven) are not the stuff of which dreams are made. In the words of W.H. Auden:

I and the public know What all schoolchildren learn, Those to whom evil is done Do evil in return.

All of the factors I have listed above were present in Mr. Hibbert’s past. It is not, however, a comprehensive list of the background circumstances of substance abuse.

30. We are currently at a point where the sentencing landscape for fentanyl traffickers is not fully defined, although the prevalence of fentanyl has allowed many trial judges and several Court of Appeal panels and now the Supreme Court to contribute to the ongoing definition of ranges for fentanyl trafficking and importing. See, for example: R. v. Loor, 2017 ONCA 696; R. v. Disher, 2020 ONCA 710; R. v. Olvedi, 2021 ONCA 518; R. v. Lynch, 2022 ONCA 109. Some of these offenders were addicts; some were not. There are some similarities between Mr. Hibbert and Mr. Disher and some distinctions.

31. In defining the ranges and in tailoring the appropriate sentences for individual offenders, however, this is a time for prudence. That is not to dispute the appropriateness of very severe, even double-digit penitentiary sentences for fentanyl traffickers of the sort seen in Parranto, supra. That class of offender and their cynical, profit-motivated exploitation of vulnerable members of society clearly warrant sentences in which the Criminal Code consideration of restraint in the use of jail becomes the least-relevant sentencing principle. The fifteen-year sentence imposed after trial for receiving about half a kilogram of imported, pure fentanyl upheld in Olvedi, supra, also shows how serious fentanyl trafficking is.

32. The danger, however, is the risk that sentences for much lower-level traffickers of fentanyl may also be driven too high if the courts fail to take into account the principle of proportionality and if we overestimate the extent to which sentencing those lower-level offenders has the potential to solve or to reduce society's drug problem in general or its fentanyl problem in particular. The danger is that we might blindly apply the arithmetic reasoning that heroin was bad and led to very severe sentences so we should automatically apply much more severe sentences to every offender and every class of offender who traffics in fentanyl. While superficially attractive, that arithmetic would ignore many of the realities of substance abuse and trafficking. It would also show that we have learned little or nothing from decades of failure and it would suggest that our understanding of the realities of addiction is sadly deficient. This is an extremely concerning prospect because the addict-trafficker is not an outlier; to the contrary, a five-year study sponsored by the National Institutes of Health in the United States shows that forty- to fifty-percent of drug users also traffic.[^3]

33. Controlled substances are both a health problem and a criminal law problem. The criminal law approach has dominated the conversation for decades, at enormous human, financial, social and civil liberties costs and with results that have been incredibly unimpressive, a reality that policymakers have ignored with remarkable and sustained indifference. To expect that we shall solve the fentanyl problem by pressing harder on the sentencing accelerator for addict traffickers would be an act of folly. The "war on drugs" is a catchy label, but it is fast approaching (if not past) the equivalent of The Hundred Years War.

34. As courts, we operate within a relatively narrow framework. We do not legislate. We have not been elected by anyone. Other than in measuring constitutional standards we do not define public policy. We implement the will of Parliament or the legislature within the boundaries of the laws they pass and of the constitution. That being said, those laws give us very significant latitude, for example, when it comes to sentencing. And in light of the Supreme Court's guidance on issues such as proportionality, "the cardinal principle," applicable to sentencing, that is a responsibility we must take seriously every day with every offender. An important part of that responsibility lies in not overestimating the extent to which increasingly severe sentences will protect society from particular classes of offenders or will reduce future harm. While decisions such as R. v. Hamilton, supra, and the British Columbia Court of Appeal decision in R. v. Ellis, 2022 BCCA 278, rightly caution against sentencing judges engaging in royal commissions on societal shortcomings, sentencing judges—and those who review the sentences we impose—are obliged to ask ourselves some fairly basic questions, including questions for which the answers might be inconvenient. First of all, for example, can we presume that the moral responsibility of an addict trafficker is other than materially different than the moral responsibility of a non-addict trafficker? Second, we must confront certain of our established inconsistencies. Courts often emphasize the importance of fact-based or science-based decision making, rightly so. Thus, for example, if I wish to rely on the significance of a teardrop tattoo on a person’s face or the meaning of jargon in a text message, I would typically have to rely on evidence unless the meaning was inescapably obvious in society at large. If I propose to rely on hearsay evidence, I must be satisfied that it has hallmarks of reliability. Yet the position advocated repeatedly on sentencing hearings, without any evidence whatsoever, is that the moral responsibility of addict traffickers is the same as the moral responsibility of the non-addict. This submission may be couched in the language of “deterrence”, but the notion that deterrence works the same for an addict as it does for a non-addict cannot presumptively be anything but an absurdity. Yet the impact of many sentencing decisions historically has been to behave as if that were gospel in the sense that very little or no distinction is actually drawn between the addict trafficker and the non-addict trafficker. I reflect with more than passing familiarity, for example, on the addict-trafficker heroin sentences imposed by the Court of Appeal for Ontario in cases such as R. v. Bahari,[^4] 1994 1425 and R. v. Farizeh,[^5] 1994 1145, both of which imposed very substantial sentences on low-level, low-quantity addict traffickers on guilty pleas. Decisions such as those remain foundational to the dominant approach to sentencing addict traffickers, almost thirty years later.

35. Numerous factors affect the impact that controlled substances have on society, either directly through the deaths of users or indirectly through the impacts on society of those deaths and the impact on society from the many, many secondary crimes committed against other members of society in order to support the user's addiction or as a result of their addiction. This includes non-violent property crimes, which have a significant impact on homeowners and small businesses as well as crimes that endanger human life such as robberies, assaults and driving while under the influence of controlled substances.

36. To a certain extent drug control is a question of supply and demand.[^6]

37. On the supply side of things, we have seen decades of efforts to prevent drugs getting from their source to their users, with enormous amounts of money spent on domestic and international interdiction efforts, often accompanied by increased militarization of police and other agencies, incomprehensibly large drug dealer profits sufficient to contribute to corruption of public officials in favour of drug suppliers and to undermine democratic norms, enormous and violent impacts on drug source and trans-shipment countries and more. Alas, if the war on drugs had been World War II, English and French would no longer be the languages of England and France. The most charitable view of the war on drugs is that it has led to a stalemate, albeit with a horrific annual death toll and ongoing profits for the dealers. A less charitable view, but one that seems more accurate, would be that the drug dealers have long ago won the war on drugs, accepting that frequent jail sentences for their dispensable (and often addicted) street-level traffickers and very rare apprehension of the upper echelons are an acceptable risk when the reward is such enormous profit.

38. Part of that reality lies in enforcement: how many resources are dedicated to drug enforcement and against whom are those resources focused? Have police resources focused on drug traffickers in Niagara, by way of example only, increased since the advent of fentanyl? To what extent are the resources available focused on the low-hanging fruit, the street dealers who are most likely addicts themselves and thus often both the victims and purveyors of fentanyl at the same time? To what extent do police resources focus on more complex and more skill-dependent investigations that target middle-and upper-end suppliers as in cases like Parranto?

39. The other side of the equation, of course, is demand. One might have thought that by this point in the "war on drugs" and in societal development generally, the percentage of people who believe enforcement to be the primary appropriate response to substance abuse in society as opposed to treating substance abuse predominantly as a public health issue and only secondarily as a criminal law issue would be comparable to the percentage of people who are members of the Flat Earth Society, but it is not so. Limited progress has been made in converting substance abuse from primarily a criminal law problem to primarily a public health problem in some parts of the world, but precious little progress overall.

40. When I was much, much younger and prosecuting drug offences in Toronto's Old City Hall, a member of the then Provincial Court was in the habit of engaging drug possessors in discussion, pointing across the street to the then Simpsons department store and asking the offender what would happen to Simpsons if nobody ever bought anything from them. After some bewilderment, the typical defendant would figure out that the answer was, "They would go out of business", at which point the judge would ask what would happen to the defendant's supplier if nobody bought drugs. Aided by the answer to the first question, the second answer was more easily come by. Perhaps if society focused resources meaningfully on addressing addiction in the community and ameliorating its root causes, society could simply starve the high-level traffickers that we are not particularly skilled at apprehending and imprisoning. Even when high-level traffickers are occasionally caught and sentenced, the perpetual supply of untreated addicts as customers means there will always be others willing to take the imprisoned high-level trafficker’s place given the low risk of high-level trafficking relative to the rewards available.

41. The reasons for substance abuse are numerous. For some people, recreational use becomes dependency. Many people self-medicate using street drugs for a variety of reasons, including trauma, often from childhood, mental health issues, stress, etc. The percentage of defendants in a criminal court whose childhood environment and upbringing fell somewhere in the range between disadvantaged and dire is enormous. There is no court in which that reality is more inescapable than in the provincial court, where the enormous majority of criminal cases, minor and major, are dealt with. This is a problem that will become even more significant as income inequality moves more and more from being the gap it has always been to the chasm it has become over the past several decades.

42. Other opioid users have been introduced to opioids by doctors for the management of pain, often rather too liberally and perhaps through uncritical over-reliance by those doctors on the pharmaceutical companies' false representations about the risk of dependence. The injured high-school football player, the person hurt in a serious motor-vehicle collision and the injured assembly-line worker fall in this category, eventually cut off from their prescriptions, but only after the damage has been done, leaving them drug dependent and leaving them to rely on street drugs to satisfy a craving they never foresaw. Although the poor will suffer disproportionately from the roots of substance abuse, no part of society is immune.

43. Paragraphs 15-33 of the British Columbia Provincial Court judgement in R. v. Ellis, 2021 BCPC should be mandatory reading for any judge trying to determine the appropriate sentence for an addict trafficker or sitting on appeal on a fentanyl trafficking case. While no two offenders’ circumstances will be the same there is nothing remotely surprising in Judge Flewelling’s description of that addict-trafficker’s reality.

44. Innovations like drug treatment courts can play a limited role in incentivizing treatment, reducing dependence and chipping away at recidivism and safe injection sites can reduce the risk of mortality from substance abuse. However, meaningful progress almost certainly requires a reversal from the current approach (which treats drug abuse as primarily a criminal law problem and secondarily a public health problem), to a recognition that the drug challenge requires primarily a health-care focus, backed up by suitable resources to reduce drug dependency rather than the current "Groundhog Day" approach of a never-ending supply of drug users, drug suppliers and drug defendants. The appropriate mixture of public health tools that is needed is the proper object of more qualified expertise than my own, but presumably would include safe injection, safe supply, outpatient and in-patient counselling and treatment, mental health supports, early childhood intervention, poverty mitigation and the like. That is not to say that traffickers should not be investigated and prosecuted and face sentences commensurate with their moral responsibility and the severity of their offences. There will likely always be a need for that tool to protect the public and there will likely always be cases in which the courts should be parsimonious with their mercy towards offenders who have shown no mercy towards vulnerable victims. However, if the underlying causes of drug dependency are addressed, over time most traffickers might be starved out of business.

45. Obviously, much of which I have written lies squarely in the field of public policy and outside the immediate field of the determination of an appropriate sentence for a particular offender, but it remains relevant in this sense. It is not the courts' place to dictate public policy. That much is clear. However, to the extent that the courts seek to protect the public from a particular danger such as fentanyl, it is also not the court's role to impose generic sentences that impose an undue burden on particular types of offender, likely ineffectually so, and in violation of the principle of proportionality in order to appear to address legitimate public concerns that the courts have limited capacity to ameliorate, and which truly are concerns that would be well within the reach of Parliament and the legislature. Legislative inaction on drug abuse as a public health issue may be rooted in disinterest, ignorance, cynical political calculation or many other factors. One could fairly ask, if there were 165 middle-class impaired driving deaths in Niagara Region in a year or 165 other homicides (and comparable numbers in ever region across Canada), would the reactions of Parliament, the legislature and enforcement agencies be the same as they have been to addressing substance abuse or would past failures be recognized for what they are and "new" alternatives considered and implemented on a priority basis?

46. That, however, is a question for Parliament and the legislature and those who elect and influence them, not for me. From a judicial perspective, the uncritical, over-long warehousing of many addict-traffickers is simply not consistent with proportionality. Just as it is not the courts’ place to legislate, it is not our place to provide artificial cover for the failings of other branches of government at the cost of individual offenders' freedom and in violation of constitutional norms such as proportionality. Putting fentanyl sentencing ranges on steroids for vulnerable defendants will not make society safer.

What is the Appropriate Sentence for Mr. Hibbert?

47. How all of the sentencing considerations play out will obviously depend on the individual details of each case.

48. In the present case, Mr. Hibbert's guilty plea, his seriously disadvantaged background and his crystal methamphetamine dependence are factors that weigh in his favour.[^7] So, too, do the observations of his son, his sister and his future partner about his character and work ethic, albeit to a limited extent in light of what follows.

49. The extent to which a disadvantaged or traumatic upbringing or addiction or mental health issues will mitigate sentence will always depend on the circumstances. For example, the person who is guilty of trafficking a moderate amount of a controlled substance in exchange for a small amount to meet his or her own addiction, may well fare very favourably in the sentencing calculation. A defendant who has done that and who, between offence and sentencing, has meaningfully addressed her addiction might justifiably get a sentence well outside the "normal" range, even for half an ounce of fentanyl. See: R. v. Kandice Han, 2022 ONCJ 343, for example.[^8]

50. That calculation will change, however, over time and circumstance. The longer a person has suffered from an underlying addiction or mental health issue that contributes to his trafficking or other offending and the less he has done to seek help over the years, the less he seems committed to active engagement with that help, the less progress he makes, etc., any such abatement in sentence will diminish. At a certain point, the courts must place the protection of offenders' victims ahead of offenders' circumstances where, for example, there is no effort and no prospect of change. In the present circumstances, Mr. Hibbert's choice to discontinue his suboxone treatment, while his to make, demonstrates that he is not seriously committed to addressing his drug dependence, which means that he is more likely to return to a life of criminality to support himself since his drug dependence will make supporting himself legitimately more challenging. Likewise, his unwillingness to address perhaps the most serious trauma of his upbringing, namely the sexual predation against him while in the training school, means that trauma will go unaddressed in perpetuity, again increasing the risk of re-offending.

51. The types and quantities of drugs count heavily against Mr. Hibbert. I have already said I do not see Mr. Hibbert as an apex trafficker, but he is far beyond the typical trafficker found in possession of several grams or half an ounce or an ounce of fentanyl for example, never mind the methamphetamine he had in his possession for trafficking. We are dealing here with about eleven ounces of fentanyl and almost five ounces of methamphetamine.

52. The fact that Mr. Hibbert was on probation at the time of these offences is an aggravating factor. The fact that his possession of the prohibited firearm was while he was on a prohibition order, while not pleaded to, remains an aggravating factor. The criminal record is a significant factor in sentencing, including the series of possession-for-the-purpose convictions about two-and-a-half-years before these offences.

53. Whether placed into the mix as either a concurrent or consecutive sentence, always subject to the principle of totality, Mr. Hibbert’s possession of the loaded handgun, which is one of the offences pleaded to, calls for a significant sentence in its own right. Drug supplies can be valuable; Mr. Hibbert’s stash certainly was valuable and that carries a risk of being targeted by people who want their own short-cut to profit. Had it not been the police chasing Mr. Hibbert but rather rival traffickers, can there be any confidence that he would have discarded the gun rather than using it to protect himself and his drug supply? He had the gun for a specific reason and that reason created a significant public safety danger, separate and apart from the public danger his fentanyl and methamphetamine trafficking created.

54. The sentence under consideration here is obviously a massive increase from Mr. Hibbert’s previous sentences, but that fact reflects the massive increase in his level of criminality rather than any disregard for other sentencing principles. On both the firearm and drug convictions, denunciation and deterrence are the pre-eminent considerations. Given Mr. Hibbert’s history, specific deterrence is a live concern. Rehabilitation can never be disregarded, but as noted earlier, by his own choices not to continue with suboxone/sublocade and his rejection of counselling for his childhood sexual abuse, Mr. Hibbert has effectively undermined his prospects of rehabilitation, which increases the future risk to the public. The pre-sentence report does reflect some glimmers of awareness on Mr. Hibbert’s part that he needs to engage with counselling for some issues, but there are serious doubts about whether those glimmers are anything more than aspirational given the refusals set out above and given a long and unpromising history with probation over the years as set out fairly starkly in the pre-sentence report. While one can hope that his partner’s optimism that Mr. Hibbert is at long last at a turning point will be proved right, there are no historic foundations on which to base such optimism. There may be a genuine hope for change, but whether or not that is a rational hope is far from clear.

55. As of the date of imposition of sentence, Mr. Hibbert has a total of six-hundred real days in custody, which comes to nine-hundred days when the usual one-and-a-half to one bump-up is made to allow for the fact that pre-sentence custody does not earn remission of any kind. I shall treat that as the equivalent of thirty months of pre-sentence custody or two-and-a-half years.

56. Keeping in mind the principle of totality, the sentences I consider appropriate are as follows:

    1. On the charge of possession of fentanyl for the purpose of trafficking, two-and-a-half years of pre-sentence custody will be noted in addition to which a sentence of five-and-a-half years will be imposed. Five-and-a-half years concurrent will be imposed on the possession-for-the-purpose-of-trafficking in methamphetamine.
    2. On the charge of possession of the prohibited firearm, a sentence of one-and-a-half years will be imposed, consecutive to the five-and-a half years.

This amounts to a total sentence of seven years effective today, in addition to two-and-a-half years of pre-sentence custody for an effective total sentence of nine-and-a-half years.

57. But for the principle of totality, each of those sentences could have been a year longer. But for the mitigating factors, including his own methamphetamine addiction, the sentences would be longer still.

58. There will also be the following orders:

    1. Both of Mr. Hibbert’s offences are secondary designated offences for DNA purposes, so he shall supply a sample of his DNA for the DNA databank. The offences alone, never mind Mr. Hibbert’s record, clearly warrant that order as those provisions have been interpreted by the Court of Appeal (indeed no dispute was raised).
    2. There will be a lifetime prohibition order under s. 109(3) of the Criminal Code insofar as the Controlled Drugs and Substances Act possession for the purpose conviction is a subsequent conviction for that offence.
    3. There will be a forfeiture order in relation to the proceeds of crime and offence-related property under the Controlled Drugs and Substances Act.
    4. The firearm and ammunition are forfeited as offence-related property under the Controlled Drugs and Substances Act.
    5. In light of Mr. Hibbert’s spotty recent history of employment and the uncertainty of his employment status upon release, the victim fine surcharges, which would have amounted to four-hundred dollars will be waived.

Fergus ODonnell J.

[^1]: Accessed on-line, 24 October, 2022: https://www.publichealthontario.ca/en/Data-and-Analysis/Substance-Use/Interactive-Opioid-Tool

[^2]: In Parranto, at paragraph 70, the Supreme Court said that offences that involve a, “reckless disregard for human life,” not only reflect increased seriousness of the offence but also increase the moral culpability of the offender, those being the two foundation stones of the principle of proportionality in sentencing. The unresolved question, less relevant in this case than in many other fentanyl cases, is how one measures moral culpability when a drug affects a vulnerable population and the trafficker is a low-level trafficker who is himself a member of that vulnerable population, trafficking at or near the subsistence level.

[^3]: See the evidence of Dr. Ryan McNeil as set out in R. v. Ellis, 2021 BCPC 280, from paragraph 46 onward.

[^4]: Mr. Bahari, with a minor previous record and no previous jail sentences, had pleaded guilty to trafficking .08 gram, .51 gram, 1.12 grams and 5 grams of heroin. He was a go-between for each sale. The sentence imposed by the Court of Appeal was six years on top of 3 ½ months of pre-sentence custody.

[^5]: Mr. Farizeh’s offences and sentence range were described by the Court of Appeal as follows: All transactions involved sales of heroin to the same undercover officer during a six-day period. The first transaction involved a sale of .08 grams of heroin for the sum of $40.00. The second and third transactions involved a sale of a total amount of 1.51 grams of heroin for the sum of $330.00. Two other charges relating to sales of .06 grams of heroin for $40.00 each were withdrawn although referred to by the Crown in the sentencing proceedings. The appellant had no previous criminal record and was a heroin addict. He spent four months in pre-trial custody. On sentencing the Crown asked for a sentence of three to four years in totality. In our opinion, such a sentence would have been consistent with sentences imposed on first offenders who are "addicts" involved in sales of relatively small amounts of heroin. We stress the fact that the sale of heroin even in small amounts by first offenders who are addicts will call for a penitentiary sentence unless exceptional circumstances exist and the present case does not fall within the exception.

[^6]: One quite recent positive development on the enforcement side of things is that the criminal prosecution of offenders for simple possession of controlled substances has fallen out of style. Whether that was a decision rooted in resource preservation or in a nascent recognition of the flaws inherent in the "war on drugs", it is nonetheless a small step forward. As of August, 2020, the Public Prosecution Service of Canada has largely gotten out of the business of prosecuting drug users, as set out in section 5.13 of the PPSC Deskbook. Accessed online on 27 October, 2022: https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p5/ch13.html

[^7]: The federal Crown argued that the Court of Appeal decision in R. v. Ribble, 2021 ONCA 897, stands for the proposition that addiction is not necessarily a mitigating factor when considering a commercial operation. I have read and re-read Ribble and do not agree that it stands for any proposition broader than that the Court of Appeal panel felt there was no merit to Mr. Ribble’s argument that the trial judge should have given his addiction more weight. I note that it is always a risky proposition to place too much weight on Court of Appeal comments in “Reasons for Decision” (formerly “Endorsements”), as they do not carry the same weight as that court’s more formal and detailed judgments, which are the product of longer-term consideration than “Reasons for Decision”.

[^8]: For any judicial appraisal of the appropriate ranges of sentence for various levels of fentanyl traffickers to stand up to scrutiny, the concept of what constitutes an “addict trafficker” will have to be considered, along with the consequences of any such finding. Obviously, in its plainest form it is a person who is an addict who traffics. To some extent or another, drug dependence will likely almost always constitute some form of mitigation on sentence, although it may be slight in some cases, presumably declining as the seriousness of the offence rises or as the participation in the trafficking extends beyond mere subsistence. It is to be hoped that a more acute analysis of the moral blameworthiness of low-level addict traffickers--for example, analysis that is not unquestioningly rooted in sentences imposed for heroin traffickers three decades ago--will lead to sentences that, while perhaps still significant, do not trample moral blameworthiness under the seriousness of fentanyl trafficking. There has, regrettably, been a tendency on some occasions for courts, including appellate courts, to pay only lip-service to the principle of proportionality as set out by the Supreme Court in R. v. Lacasse, 2015 SCC 64 and subsequent cases and to narrow the ambit of proportionality. The work-in-progress of developing sentencing ranges for fentanyl trafficking allows the courts an opportunity to establish a nuanced and principled approach to all categories of traffickers that would earn the courts greater public legitimacy and do more public good than a mere lock-step increase in sentencing ranges for all fentanyl offenders.