R. v. Russell, 2023 ONCJ 133

CITATION: R. v. Russell, 2023 ONCJ 133

DATE: March 22, 2023

ONTARIO COURT OF JUSTICE

Old City Hall - Toronto

BETWEEN:

HIS MAJESTY THE KING

— AND —

KEVIN RUSSELL

For the Crown: C. Macorin

For the Defendant: P. Singh

Heard: April 10, 2021 and February 1, 2023

REASONS for SENTENCE

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] On August 10, 2021, Mr. Russell pleaded guilty before me to one count of possession of fentanyl for the purpose of trafficking and one count of possession of proceeds of crime.

[2] The case was then adjourned for sentencing pending the preparation of a presentence report.

[3] After several further adjournments, submissions on sentence were made on February 1, 2023.

B. THE CIRCUMSTANCES OF THE OFFENCE

[4] On July 13, 2020, Mr. Russell was being followed by police who suspected him of trafficking in a controlled substance. He was arrested and a search warrant was then executed at his home where police discovered 7.73 grams of fentanyl, 33 grams of cocaine and $5,500 in cash.

C. THE CIRCUMSTANCES OF THE OFFENDER

[5] Several supporting documents were presented on Mr. Russell’s behalf. These documents, Mr. Singh’s submissions and the presentence report provide a detailed picture of Mr. Russell’s history, and in particular, his progress since being charged.

[6] Mr. Russell is 37 years old.

[7] Mr. Russell has a criminal record, including convictions for trafficking in a controlled substance and weapons trafficking in 2010 for which he received a penitentiary sentence. His most recent conviction is for fraud in 2019.

[8] He is originally from Jamaica. His father left the family home when Mr. Russell was eight years old. Mr. Russell struggled with unstable housing as a teenager yet managed to complete high school at age 20. He went on to obtain a Civil Engineering diploma in 2018. He attributes his 2010 convictions to getting mixed up with a bad peer group.

[9] He is a single father with four children, two of whom reside with him. He financially supports all four children. He is in a common-law relationship with Brenda Bedai-Manu who supplied a strong letter of support that describes Mr. Russell as a caring and charitable individual with a strong work ethic. He has been supportive of her and his children.

[10] Mr. Russell’s mother, Beverley Daniels, who attended court for the sentencing hearing, has supplied a letter that explains that she is 65 years old, not in good health, and is quite reliant on him. She describes him as a loving father, son, and brother.

[11] Mr. Russell began as a volunteer for the Salvation Army who, after 565 hours of volunteer time, were so impressed with him that they offered him full time employment, which he accepted. He has been with them since August 2022. He also works for the Agincourt Community Services Association.

[12] Mr. Russell also works part-time as a self-employed fitness trainer. One of his clients, Imran Bulbuliya wrote a letter of support for Mr. Russell. Mr. Bulbuliya describes Mr. Russell as respectful and supportive in the gym environment.

[13] Mr. Russell also does some photography and social media programming for Danny Plamondon’s barbershop.

[14] Mr. Russell has expressed remorse in court, to his community and to the probation officer who prepared the presentence report.

D. THE POSITION OF THE PARTIES

[15] Mr. Macorin, for the Crown, seeks a sentence of 3 ½ years. He also seeks various routine ancillary orders.

[16] Mr. Singh concedes that a period of imprisonment is called for but urges me to see this as an extraordinary case and asks that I impose a conditional sentence of two years less a day on the strictest of terms, followed by three years of probation.

E. THE PRINCIPLES OF SENTENCING AND THEIR APPLICATION

[17] According to s. 718 of the Criminal Code, the "fundamental purpose" of sentencing is to contribute to "respect for the law and the maintenance of a just, peaceful and safe society" by imposing "just sanctions" that have one or more of the following objectives, namely: (a) to denounce unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

[18] Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[19] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles including the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,

• All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[20] Section 10 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 provides the following with respect to the purpose of sentencing in drug matters:

Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

(a) Aggravating Factors

[21] The most aggravating factor in this case is the nature of the drug Mr. Russell was intending to traffic. Fentanyl is a notoriously dangerous drug, accounting for an alarming, and growing number of overdose deaths in Toronto and Canada. 7.73 grams is not an insignificant amount. It takes very little fentanyl to kill someone.

[22] The concurring minority decision of Moldaver, J. in R. v. Parranto, 2021 SCC 46, summarized the seriousness of the opioid epidemic in Canada at para. 96:

"More broadly, federal statistics on opioid-related deaths show that, between January 2016 and March 2021, approximately 23,000 Canadians lost their lives due to accidental apparent opioid-related deaths, with fentanyl involved in 71 percent of these deaths (Special Advisory Committee on the Epidemic of Opioid Overdoses, Opioid and Stimulant-related Harms in Canada (September 2021) (online). The epidemic also shows no signs of abating, with over 6,000 accidental deaths occurring in 2020 alone, 82 percent of which involved fentanyl (Government of Canada, Federal actions on opioids to date (June 2021) (online)). These figures throw into stark relief the dark and inescapable reality that "[e]very day in our communities, fentanyl abuse claims the lives of Canadians" (R. v. Loor, 2017 ONCA 696, at para. 33)."

[23] The 33 grams of cocaine in Mr. Russell’s possession are a further aggravating circumstance.

[24] Unlike many of those who traffic in fentanyl, Mr. Russell is not an addict who had to sell drugs to deal with his addiction. Rather, Mr. Russell’s trafficking was for profit.

[25] Mr. Russell has been convicted before for, among other crimes, a similar drug trafficking offence.

(b) Mitigating Factors

[26] There are several mitigating circumstances in this case.

• Mr. Russell’s guilty plea and expressions of remorse

• His abandonment of potentially fruitful Charter challenges to the search warrant

• Mr. Russell’s significant and successful pro-social efforts since his arrest

• The degree to which his children and mother rely on him and the degree to which he fulfills that reliance

• Mr. Russell is in a strong supportive relationship.

• He enjoys the support of his employers and other members of the community.

(c) The Caselaw

[27] Sentences for possession for the purpose of trafficking in fentanyl cover a fairly broad range. As noted by Davies J. in R. v. Oksem, 2019 ONSC 6283 at para. 19:

Because of the dangers associated with fentanyl, convictions for possessing even small amounts of fentanyl for the purpose of trafficking can attract very long sentences in the range of 5 to 7 years: for example, R. v. Cinelli, 2018 ONSC 4983, R. v. Prestula, 2018 ONSC 4214. There have also been cases where courts have imposed sentences in the range of 12 months to 2 years less a day: R. v. Derycke, 2016 BCPC 291 and R. v. M.H., 2018 ONCJ 397. In very exceptional cases involving small amounts of fentanyl, suspended sentences have been granted; R. v. Dixon, [2017] O.J. No. 3477 (Ont. C.J.), R. v. M.H., [2018] O.J. No. 3126

[28] As Nordheimer J.A. said in R. v. Lynch, 2022 ONCA 109 at para. 15, "[f]entanyl is now known to be a much more dangerous drug than almost any other. That reality directs that a sentence imposed for trafficking in fentanyl should be as long or longer than a corresponding sentence for trafficking in cocaine". He went on to say at para. 17:

The problems that dangerous drugs pose for our society are well known. They involve drug addiction, adverse health consequences and, unfortunately all too often, death. Further, drugs are often sold to already vulnerable people thereby exacerbating their difficult circumstances. Still further, there are the indirect costs to society through increased health care expense, increased demands on the health care system, increases in robberies or other forms of criminal activity, and increases in violence. Simply put, the greater those risks are when a particular drug is being trafficked, the greater the offender's culpability or moral blameworthiness for choosing to traffic in that drug.

[29] Denunciation and general deterrence are the primary considerations in the sentencing of traffickers of fentanyl. R. v. Smith, 2017 BCCA 112 at para. 45; R. v. Halk, [2022] O.J. No. 5356 (S.C.J.).

[30] Yet, these sentencing goals must not overwhelm the analysis. As noted by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, at para. 4:

One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate."

(d) Other cases

[31] In R. v. Grant 2021 ONCJ 507, after trial, an 18-year-old accused with no prior record was sentenced to a conditional sentence of two years less a day and three years’ probation for possession of fentanyl for the purpose of trafficking (9.5 grams), possession of crack cocaine for the purpose of trafficking (13.2 grams), possession of powder cocaine for the purpose of trafficking (13.2 grams), and possession of -methamphetamines for the purpose of trafficking (4 grams), and possession of oxycodone (1.5 pills). In this case, Mr. Grant was not an addict trafficker, however he had had a challenging upbringing, including bouts of depression and anxiety, and had shown significant maturation and rehabilitative efforts while on bail pending trial and sentencing, demonstrating that he was committed to pursuing a better path in the future: R. v. Grant, supra, at para.30.

[32] In R. v. Shearer, 2022 ONCJ 288, Porter J. sentenced the offender to a 20-month conditional sentence with 100 hours of community service for one count of trafficking, one count of possession for the purpose of trafficking and carrying a concealed weapon. The offender was a young addict first offender who had trafficked $100 worth of fentanyl to an undercover officer. His bedroom was searched and a further 2.84 grams of fentanyl was seized.

[33] The sentencing in R. v. White, 2019 ONCJ 191 involved the accused giving fentanyl to his friend, an addict who needed a fix, believing it to be heroin, resulting in his friend's death. A sentence of 18 months in jail was imposed at a time when conditional sentences for trafficking were not available.

[34] Similarly, in R. v. Oksem, 2019 ONSC 6283, when conditional sentences were not available, a global sentence of 1.5 years was imposed on an addict trafficker for possession of 5.62 grams of fentanyl for the purpose of trafficking and simple possession of 7.64 grams of cocaine in circumstances where he was on bail for the cocaine offence at the time he possessed 5.64 grams of fentanyl for the purpose of trafficking.

[35] In R. v. Broderick, 2020 ONSC 7434, the accused had a significant prior criminal record including prior convictions for trafficking in drugs, and possessing drugs for the purpose of trafficking, along with eight non-drug-related offences including sexual assault. Mr. Broderick was convicted of possessing 6.79 g of purple fentanyl mixed with heroin for the purpose of trafficking, Mr. Broderick received a time served sentence that was the equivalent of two years and six months.

[36] R. v. Gatfield, [2015] O.J. No. 5019 (O.C.J.) involved a sale of fentanyl for financial gain. The accused had a prescription for fentanyl patches and working in conjunction with another person, supplied two patches for sale to an undercover officer for $680, and volunteered to sell more if needed: Mr. Gatfield was working in conjunction with another individual, and was functioning as the supplier in the commercial sale of fentanyl to the undercover officer. He was sentenced to 30 months.

[37] In R. v. Menzie, [2020] O.J. No. 654, on January 29, 2020, when conditional sentences were not available, the court sentenced Mr. Menzie, after trial, to a sentence of 2 years, 2 months and 7 days, for the possession for the purpose of trafficking of 5.05 grams of fentanyl. At the time of the offence, when police approached, he attempted to flee from police and drove into a police vehicle. He was in breach of a bail release and was found in possession of 5.05 grams of fentanyl and over $6,000. This was possession of fentanyl for the purpose of trafficking for financial gain, in substantial quantities, by a person who was not an addict.

[38] In R. v. Lynch, supra, the Court of Appeal considered the appropriate sentence for a mid-level trafficker in fentanyl. The court increased the sentence from four to six years for selling fentanyl or cocaine to an undercover officer on six occasions. He was convicted of trafficking in fentanyl, trafficking in cocaine, and possession of cocaine for the purpose of trafficking, and possession of the proceeds of crime. As summarized by Nordheimer, J.A.: "he accepted responsibility for 965.01 grams of cocaine, 149.28 grams of MDMA, and 41.37 grams of fentanyl": R. v. Lynch, supra, at paras1-2.

[39] In R. v. Hillier and Blain, 2018 ONCJ 397, West, J. sentenced two accused for possession of fentanyl for the purpose of trafficking. The total weight of the fentanyl seized at the time of the arrest of the accused was 3.5 grams. At a time when conditional sentences were not available, the court imposed a custodial sentence of two years less a day followed by three years of probation on Mr. Hillier, who the court found was a low-level street trafficker trafficking for a commercial purpose, which was found to be an aggravating circumstance. Ms. Blain, who was an addict and came from tragic personal circumstances, and had a lesser involvement in the offences, received a suspended sentence and probation.

[40] In the course of sentencing these accused West J. stated at p. 30:

Certainly when conditional sentences were available as part of the sentencing options for trafficking or possession for the purpose of trafficking in Schedule 1 substances, numerous decisions have recognized that a conditional sentence could and did address the principles of deterrence and denunciation. Further, numerous judges recognized that an appropriately designed conditional sentence could balance deterrence and denunciation, while at the same time acknowledging the progress in overcoming a drug addiction an offender had made and putting in place appropriate support and enforcement mechanisms that would assist in the offender's continued rehabilitation. Justice Gillese referred to this in Lazo, where she held: "...his steps towards rehabilitation will be encouraged by a conditional sentence, given the likelihood of incarceration in the event of a breach." It is unfortunate sentencing judges no longer are able to fashion custodial sentences, served in the community through the use of conditional sentences, given the recognition by the Ontario Court of Appeal that successful drug treatment and rehabilitation of the addict trafficker provides the best protection for the public.

F. SHOULD THE SENTENCE OF IMPRISONMENT BE SERVED IN THE COMMUNITY?

[41] The parties agree that a sentence of imprisonment is clearly warranted in Mr. Russell’s case.

[42] Section 742.1 sets out the conditions allowing for the imposition of a conditional sentence. There remain five (5) prerequisites for the imposition of a conditional sentence:

• The offender must be convicted of an offence that is not specifically excluded.

• The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment.

• The court must impose a sentence of imprisonment that is less than two years.

• The safety of the community would not be endangered by the offender serving the sentence in the community.

• The conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Code.

[43] Possession for the purpose of trafficking is no longer specifically excluded from the imposition of a conditional sentence, nor is it punishable by a minimum term of imprisonment.

[44] Mr. Russell’s progress since his offence and his current station in the community satisfy me that the safety of the community would not be endangered by Mr. Russell serving his sentence in the community.

[45] The two remaining criteria: (1) is a sentence of less than two years appropriate, and (2) is a conditional sentence consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Code, are the difficult ones.

[46] As concerns the length of sentence, in my opinion, a sentence of less than two years is palatable, given the wealth of mitigating circumstances. In my opinion, whether a conditional sentence is appropriate for Mr. Russell stands to be determined on the basis of the last inquiry, i.e., is it consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Code?

[47] As concerns this last inquiry, it is appropriate to bear in mind that a properly structured conditional sentence can satisfy the sentencing objectives of deterrence and denunciation. As stated by Lamer C.J. in R. v. Proulx, 2000 SCC 5 at para. 22:

The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, ...

[48] In R. v. Proulx, supra, the Court rejected a presumption against conditional sentences for certain categories of offences. Lamer C.J. stated at paras. 79, 81 and 83:

Thus, a conditional sentence is available in principle for all offences in which the statutory prerequisites are satisfied...

In my view, while the gravity of such offences is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances, it would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences. Offence-specific presumptions introduce unwarranted rigidity in the determination of whether a conditional sentence is a just and appropriate sanction. Such presumptions do not accord with the principle of proportionality set out in s. 718.1 and the value of individualization in sentencing, nor are they necessary to achieve the important objectives of uniformity and consistency in the use of conditional sentences.

My difficulty with the suggestion that the proportionality principle presumptively excludes certain offences from the conditional sentencing regime is that such an approach focuses inordinately on the gravity of the offence and insufficiently on the moral blameworthiness of the offender. This fundamentally misconstrues the nature of the principle. Proportionality requires that full consideration be given to both factors. As s. 718.1 provides:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." [Emphasis added.]"

[49] In my opinion, the fundamental goals of sentencing can be achieved through a conditional sentence that is properly fashioned to provide the necessary denunciation and deterrence that Mr. Russell’s crime calls for.

[50] Even though Mr. Russell was trafficking his fentanyl for profit, and even though he has a dated conviction for a similar offence, I am impressed with the way he has turned his life around since committing this offence. I am also concerned about the collateral consequences of incarcerating him, and I refer to his mother, his children and those in the community he now serves in his charitable work. His remorse and his decision to abandon arguable Charter arguments also cut in favour of a conditional sentence.

G. CONCLUSION

[51] There is no denying the seriousness of Mr. Russell’s conduct. Having reviewed the large body of caselaw dealing with sentencing offenders such as Mr. Russell, applying the principles of sentencing set out above, I conclude that the appropriate sentence for Mr. Russell is a conditional sentence of two years less a day followed by three years of probation. The conditional sentence will involve house arrest for the entirety of the duration of the sentence with exceptions for employment and a limited window for personal needs.

[52] I will hear oral submissions as to the further details of the conditional sentence and the probation order.

Released on March 22, 2023

Justice Russell Silverstein