Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 01 19 INFORMATION NUMBER: 21-5546

BETWEEN:

HIS MAJESTY THE KING

— AND —

SHAWN ATKINSON

Before: Justice M.K. WENDL

Heard on: November 10, 2022, December 14, 2022 & January 4, 2023 Reasons for Sentence Released: January 19, 2023

Counsel: K. McGilly, Counsel for the Federal Crown C. Raftery, Counsel for S. Atkinson

WENDL J.:

Facts

[1] Shawn Atkinson pleaded guilty on November 10, 2022, to possession for the purpose of trafficking. The Crown is requesting a sentence of 8-11 years. Mr. Raftery is simply requesting the lowest sentence possible.

[2] The facts are straightforward. On May 31, 2021, Shawn Atkinson was brought into custody at the Hamilton-Wentworth Detention Centre. Upon entering the facility, it was discovered that Mr. Atkinson had secreted 25.45 grams of carfentanil into himself in an attempt to smuggle the illicit substance into the detention centre.

Background

[3] Mr. Atkinson was 18 at the time of the offence. He is now 20 years old. He had a difficult upbringing. His father was in and out of jail while he was growing up. His mother has mental health concerns. Both his parents suffered alcohol abuse issues and he witnessed numerous instances of domestic violence between them during the course of his upbringing. As a result, Hamilton Children’s Aid Society [HCAS] has been involved with the family since 2003 and continues to be involved with them intermittently.

[4] Given the family problems, HCAS ultimately removed Mr. Atkinson from the care of his parents, and he was put into seven different residential placements over the course of his youth. All the placements broke down because he exhibited problematic behaviors in the residences and frequently ran away. He has been diagnosed with ADHD and a mild intellectual disability. He only completed grade 8 and has no history of employment.

[5] Mr. Atkinson has a 2-year-old daughter and in a case of history repeating itself, Mr. Atkinson has faced allegations of domestic abuse, alcohol abuse and the involvement of HCAS with his daughter. He is no longer involved with the mother of his child and is in a new relationship.

[6] Mr. Atkinson, at his young age, has a four-page criminal record. The pre-sentence report notes that Mr. Atkinson’s “unabated involvement in criminal behaviours since the age of 13 continues” and the author of the report remains concerned with his ongoing connections to anti-social individuals. Institutional reports from January 2021 to July 2022 reveal 14 misconducts. There is also a finding of guilt for uttering a threat to other individuals in custody. Probation services assess him at a high risk to reoffend.

[7] There was, however, a brief period of compliance with probation around the end of 2019. This was directly connected to residential stability while at White Rabbit Treatment home where he was removed from his peers and maintained his sobriety. The report also records a history of suicide attempts.

[8] Finally, Mr. Atkinson has accepted responsibility for his actions and acknowledges the significant issues that he faces.

Analysis

[9] Carfentanil is one of the most, if not the most, dangerous drug available. As Justice Mackay noted in R. v. Imeson, 2019 ONCJ 2018 at para 9, carfentanil is a tranquillizing agent for large animals and has never been approved of for use on humans. It is 100 times more potent than fentanyl and has been used as an agent of chemical warfare [1]. Trace amounts of carfentanil can kill [2].

[10] Smuggling drugs into a custodial setting is particularly aggravating since drugs play a role in fostering violence and undermining rehabilitation efforts within the institution [3]. Justice Duncan of the Nova Scotia Supreme Court summarized the effects of bringing drugs into a custodial setting in R. v. David, 2013 NSSC 123 at paras 31-34:

Inmates who have drugs to traffic have a form of wealth. It can be used to create debts that must be paid back either in services or on the street. Inside, it can buy enforcers and protection for the inmate drug trafficker. Outside it can create debts that family members may be called upon to pay.

The variety of drugs and in particular the Schedule I drugs seized in this case are consistent with an inmate who is operating a "multi drug marketplace", which would give him enhanced authority and power.

In the close quarters of a penal institution drug use lends itself to increased violence. That violence can be directed at other inmates or at the staff.

Prisoners who are trying to cope with drug addictions or with the anti-social aspects of their previous drug use should be in a drug free environment when in prison. The availability of drugs inside counteracts that objective. Ultimately society pays for failed rehabilitation and for the negative consequences on correctional staff.

Drugs, especially when taken by needles, present increased health risks to the inmates taking them. Allergic reactions, overdoses, unrecognized incompatibility of drugs ingested can trigger significant health problems, including in extreme cases, death [4].

[11] I would add here that the possibility of overdose is magnified with carfentanil. Moreover, not only does carfentanil pose a significant risk of overdose to the inmates that use it, but it also poses a risk to all inmates, whether or not they use it, and all the custodial staff since trace amounts can kill. It is not an exaggeration to say that bringing carfentanil into the jail is the equivalent of bringing a bomb into the jail. It has the possibility of harming a significant portion of the inmates and staff.

[12] There can be no doubt that denunciation and deterrence are the prominent sentencing principles when dealing with the smuggling of carfentanil, a dangerous and lethal drug, into the jail for the purpose of trafficking. However, I cannot lose sight of rehabilitation. As the Court of Appeal stated in R. v. Borde (QB) at [2003] OJ No 354 [5]:

Aside from the gravity of the appellant's crimes, the overwhelming factor is his youth. In my view, the trial judge erred in principle in focusing almost exclusively on the objectives of denunciation and general deterrence, given the appellant's age and that this was his first adult prison sentence and his first penitentiary sentence. The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to the penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.

[13] While the presentence report was bleak and Mr. Atkinson’s behavioural issues continue into the custodial setting, as evidenced by his 14 misconducts, I find there remains a glimmer of hope. As the presentence report author states “[t]he subject proved at this time that he can make a positive change when he has the want, will and desire.” I also note that while he has a four-page criminal record, a significant amount of those charges are breaches of court orders and property offences. This is his first possession for the purpose of trafficking charge.

[14] As the Court of Appeal stated in R. v. Olvedi, 2021 ONCA 518 at 51 [6], the fentanyl range is still evolving. There is even less sentencing precedent for carfentanil. Ultimately, there is little precedent to be found for these facts. Therefore, in balancing all the factors including his age, prospects for rehabilitation, guilty plea and background, against the strong deterrent message that this court needs to send in relation to bringing in such a murderous substance into such a vulnerable setting and the fact that on a local level opiates are the scourge of Hamilton, the sentence must be at the high end of the range requested by the Crown. I impose 10 years minus pre-sentence custody. I add that, but for his age, I would have considered a sentence in the range of 12-15 years to be appropriate.

Released: January 19, 2023 Signed: Justice M.K. Wendl