Court Information

DATE: 2023.12.05 ONTARIO COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING — AND — MICHAEL BENNETT DYLAN GRIGGS

Before: Justice Fergus ODonnell

Reasons for sentence imposed on 5 December, 2023

Counsel: Darren Anger, for the Crown Deepak Paradkar, for the defendant, Michael Bennett Androu Gerges, for the defendant, Dylan Griggs

Fergus ODonnell J.:

Overview

[1] I found Michael Bennett and Dylan Griggs guilty after a trial of possession of fentanyl and crystal methamphetamine for the purpose of trafficking and possession of the proceeds of crime. They appear before me today for the imposition of sentence.

[2] The facts of the case can be found in significant detail in my reasons for conviction. In short, on 10 December, 2019 the Niagara Regional Police executed search warrants at two houses, one in Thorold, the other in Niagara Falls. Very large amounts of fentanyl, crystal methamphetamine and cash were found in each house. Ultimately, I was satisfied beyond a reasonable doubt that the Crown had proved that Mr. Bennett and Mr. Griggs were guilty of possession of controlled substances for the purpose of trafficking and possession of the proceeds of crime with respect to the drugs and money found in each bedroom of the Niagara Falls house that was specifically linked to each man.

[3] In Mr. Bennett's case, the amounts involved were 54.4 grams of fentanyl and 61.5 grams of crystal methamphetamine and $8,690 in cash.

[4] In Mr. Griggs's case, the amounts involved were 497.2 grams of fentanyl, 433.4 grams of crystal methamphetamine and CAD$9,770 and USD $710 in cash.

[5] Mr. Bennett and Mr. Griggs are both first offenders.

[6] I revoked Mr. Bennett's and Mr. Griggs's bail when I found them guilty on 9 August, 2023. Taking into account the short period before they were released on bail after arrest and their time in custody since I found them guilty, they have spent four months in custody, which is treated for sentencing credit purposes as the equivalent of six months.

[7] In addition to credit for his time in custody, Mr. Bennett also asks for credit for six months he spent on house arrest (two months of additional credit) and for time on a curfew from then until when I found him and Mr. Griggs guilty and revoked their bail orders.

[8] In addition to credit for his time in custody since conviction, Mr. Griggs also asks for credit towards the sentence for six months on house arrest (two months of additional credit) and 38 months of curfew (five-and-a-half months of additional credit).

[9] There was no evidence called with respect to specific impacts of the house-arrest and curfew conditions on either defendant, although some impact can be presumed. House arrest conditions are more likely to have a significant impact than curfew conditions, which for a lot of people realistically mimic how people live their lives to a large extent. Unlike credit for actual pre-sentence custody, credit for time spent on bail conditions does not call for a specific or quantified credit on sentencing. Judges are free either to specify a particular credit for bail conditions or to build those considerations into the sentence imposed. In this case, I shall build credit for the bail conditions into the sentences imposed. But for the house arrest and curfew conditions, the total sentences I impose would have been longer than those imposed below.

[10] The Crown, Mr. Anger, says that I should impose a sentence of seven years on Mr. Bennett less credit for pre-sentence custody and that I should impose a sentence of thirteen years on Mr. Griggs less credit for pre-sentence custody. Speaking for Mr. Bennett, Mr. Paradkar says that the Crown's position on sentencing comes in at the top of the range, which he defines as being between five and eight years. He suggests that a sentence of five years less pre-sentence custody credit would be appropriate. Speaking for Mr. Griggs, Mr. Gerges suggests that a sentence of ten years less pre-sentence custody and bail credit would be fit.

[11] I have a pre-sentence report for each of Mr. Bennett and Mr. Griggs. I have also been provided with a series of letters in support of each of them. As I noted earlier, neither of them has any previous record.

[12] Mr. Bennett is thirty years old. He was 26 years old at the time of the offences. He and his twin brother were raised by their parents, who split up when the boys were sixteen years old, at which time each twin went to live with one of the parents due to space constraints in each parent's home. The divorce had a significant impact on Mr. Bennett. Although there was no abuse in the home, Mr. Bennett said he had a "rough" upbringing including a few moves and that he experienced bullying and racism at school. [1] Mr. Bennett's relationships with his parents and twin remain strong. The letters presented on his behalf do not seek to diminish the seriousness of his offences, but demonstrate who Mr. Bennett has been outside the context of these charges including his enduring dedication to those within his orbit, including being there in a very significant way for family members dealing with serious health issues, including his father and his own son whose care and developmental needs are great.

[13] Mr. Bennett has no alcohol or drug issues. He appears to have a good work ethic and work history and has fairly clear plans for his future, which are supported by the comments and intent of his most recent employer who has known him very closely for two-thirds of his life and whose letter makes clear both her disappointment in his crimes and her informed view that the crimes and the person, namely Mr. Bennett's past behaviour and his future potential, do not match.

[14] As referred to above, Mr. Bennett has a five-year-old child who requires special care due to autism. He and the child's mother co-parent and he has access on weekends.

[15] Based on the materials filed, I am satisfied that Mr. Bennett is genuinely remorseful for the serious offences he has committed.

[16] Mr. Griggs is 29 years old. He was 25 years old at the time of the offences. He was raised by his mother after his parents split up while he was an infant. Mr. Griggs retains a strong relationship with his father despite his parents' break-up. Mr. Griggs's relationship with his first stepfather was strong, enduring long after that stepfather's relationship with his mother and up to that stepfather's death. Mr. Griggs's relationship with his second stepfather, who is still with his mother to date, was initially rocky but became positive relatively quickly and remains so to the present time.

[17] Mr. Griggs's mother reported that she raised Mr. Griggs in a rough part of Toronto where their home was broken into five times and Mr. Griggs himself was robbed when he was ten years old, although the building they lived in benefited from a sense of community. She otherwise described a positive upbringing. It appears that Mr. Griggs's needs were met and there was no abuse, although alcohol consumption appears to have been prevalent in Mr. Griggs's home when he was growing up.

[18] Mr. Griggs also has one child, who is now about twelve years old. He has a right of access to that child, gained after a six-year-long legal struggle. He is in a long-term relationship with Paige Brennan and acts in a parental role to her nine-year old daughter. Ms. Brennan spoke positively of Mr. Griggs and said he was her and her daughter's primary financial provider even though they did not live together.

[19] The pre-sentence report and letters suggest that Mr. Griggs is not afraid of hard work, a pattern begun in his early teens. He has an employment path ahead of him upon his release.

[20] Although he uses marihuana regularly, Mr. Griggs appears to have no issues with drugs and no issue with alcohol despite (or perhaps because of), the environment he was raised in. He is in good physical and emotional health.

[21] The letters in relation to Mr. Griggs come from his partner, his partner's sister who works in mental health support, his partner's father, his employer and an older friend who has known him since he was eighteen. Collectively, the letters speak of a caring, committed, diligent, personable and responsible man, a good partner, father-figure and employee.

[22] It is, quite frankly, very difficult to juxtapose what their families, friends and employers have to say about Mr. Bennett and Mr. Griggs with the enormity of their crimes because the non-addict trafficking in life-destroying controlled substances like fentanyl and crystal methamphetamine is a shocking violation of the social contract that should govern all humans' interactions with one another. The ethical directive of, "first, do no harm" is best known as a part of the medical doctor's guidance, but it should surely guide all of us in our daily lives and the trafficking of hard drugs, especially these hard drugs, is a direct assault on the safety, health, well-being and even the lives of the purchasers, of their families, of their loved ones and of their communities.

[23] The seriousness of these drugs is well known, but bears repeating. Over the past decade or more, fentanyl has quite simply ravaged society. While I would say it has affected all parts of Canada, and beyond, fentanyl has affected some communities much more than others. And when I say "affected", that is a very delicate way of saying it has killed a lot of people. In dealing with an addict trafficker I recently described the reality in this region [2] as follows, in R. v. Jama, 2023 ONCJ 183:

17 . I agree entirely with Mr. Anger's submissions about the awfulness of fentanyl and its horrific effect on communities. Niagara Region is awash in the stuff. We tend to be very close to the top of the standings for opioid mortality, for which fentanyl is mostly responsible. Tragically, the pole position and the next few ranks in the standings of opioid mortality belong to several public health regions in northern Ontario, but Niagara has a bigger problem than its neighbours in the golden horseshoe, ranks a bit worse than Hamilton, and ranks twice as high as Toronto and four to six times worse than places like Peel or York regions. In Niagara in 2021, one-hundred-and-sixty-three people died from total opioid overdoses largely driven by fentanyl, or almost one person every two days in a region that has less than five-hundred-thousand inhabitants. The immediate victims come from all walks of life and the sources of their addiction are incredibly varied. The consequences of their deaths reach out far and wide--to families, friends, workplaces and communities like many, many malevolent ripples from a rock thrown into a pond.

[24] None of this is new. None of it was unknown in 2019. The only thing that is unknown is precisely how many people might have died had the fentanyl in Mr. Bennett's and Mr. Griggs's possession actually made it onto the street. Obviously, Mr. Bennett and Mr. Griggs have not been found guilty of manslaughter and are not being sentenced for it, but it would do them good to ask themselves that question. If we do some very basic arithmetic, though, those one-hundred-and-sixty-three opioid overdose deaths in this relatively small region in a single year amount to one person dying from an opioid overdose almost every two days, or one life snuffed out today, with another family devastated, another on Thursday, another on Saturday and so on. These are not theoretical consequences; they are repugnantly real. Courts are known for describing the "carnage" that impaired drivers wreak on society, again doing irreparable damage to countless families every year, which is a very fair use of that very strong word. If impaired drivers cause carnage, however, when it comes to the impact of opioid overdose deaths, we need a much, much, much stronger word than "carnage".

[25] Of course, Mr. Bennett and Mr. Griggs are not just being sentenced for possessing fentanyl to traffic, they are also being sentenced for possessing crystal methamphetamine to traffic, for each man had roughly the same amount of crystal methamphetamine as they had of fentanyl. While the reality is that sentences for possession of multiple drugs will necessarily be compressed as a result of the principle of totality and to avoid imposing unduly crushing sentences, it is important not to forget how incredibly ugly and nasty crystal methamphetamine itself is as a drug.

[26] History recalls that methamphetamine used to be a relatively rare and uncommon drug, typically limited to particular pockets within the province. This is no longer so.

[27] It is sometimes worthwhile to go back to the basics and revisit what it is that we talk about day in and day out. It is human nature, as G.K. Chesterton pointed out, that when we deal with something all of the time, even awful things, we simply get used to it. The nature of crystal methamphetamine warrants such a refresher. This province's Centre for Addictions and Mental Health has the following to say about crystal methamphetamine: [3]

a. Originally a niche drug, its low cost has led to its use by a larger number of people, including young people. b. Its effects can last from six to twelve hours. c. It suppresses the need for food or sleep. d. It creates a rush of euphoria soon after use and makes users feel energetic and confident, but "users are also likely to feel the many unwanted effects of the drug, including racing of the heart, chest pain, dryness of the mouth, nausea, vomiting and diarrhea and physical tension." e. Many users experience, "restlessness and irritability." f. "The negative effects of methamphetamine can be extreme and alarming, including paranoid delusions, hallucinations, aggressive behaviour and impulsive violence." g. "Some use the drug continuously over a period of days or weeks in a “binge and crash” pattern, inviting serious health risks and leading to drug addiction." h. It is addictive, and quickly so: "Tolerance to the effects of methamphetamine builds up quickly in regular users, meaning they need more and more of the drug to achieve the desired effect. When addicted users stop taking methamphetamine, they have strong cravings for the drug, and within a few days will experience withdrawal symptoms, including stomach pain, hunger, headaches, shortness of breath, tiredness and depression." i. It is dangerous: "An overdose of methamphetamine can result in seizures, high body temperature, irregular heartbeat, heart attack, stroke and death." Use by pregnant women can impact the baby. j. Like other drugs including alcohol, driving while under the influence endangers the user and everyone on or near the roads. k. Quite apart from its inherent toxicity and the risk of death by overdose, regular use can result in serious tooth decay, the sensation of bugs under the user's skin leading to unintentional self harm by constant picking at the skin, problems with sleep, and increased risk of heart disease, stroke and Parkinson's disease. l. Methamphetamine use, "may cause long-term damage to cells in those areas of the brain associated with thinking, memory and movement," at least temporarily

[28] None of this is new. None of this should be surprising. The only thing that seems uncertain is precisely how many people the quantities of crystal methamphetamine involved here would have affected and how dire, perhaps fatal, those effects would have been.

[29] No community deserves to be besieged by traffickers preying on some of the community's most vulnerable citizens.

[30] I say all of the foregoing, about Mr. Bennett and Mr. Griggs, about fentanyl and crystal methamphetamine, because the prime directive of sentencing in Canada is "proportionality", that is, measuring the moral responsibility of the offender and the seriousness of his or her offences. Sentencing is, of course, more detailed than that, but those measurements and the balancing of them are central to my task. What is the appropriate punishment for two people with no previous criminal record but also with no drug-dependence issues of their own who engage in such an outrageous assault on their fellow citizens at such a significant level? This was a lot of fentanyl and a lot of crystal methamphetamine. This was the conscious sale of poison for profit. The deaths of customers were always lurking in the background.

[31] Among the principles that I must keep in mind are the following:

a. The relative seriousness of the drugs involved, which is very high for both types of drugs. b. The clear profit motive as demonstrated by the amounts involved, the amount of cash seized and the fact neither Mr. Bennett nor Mr. Griggs is an addict. c. The amounts involved. Sentences for drug offences do not increase in a pure arithmetical way based on the amount involved (so for example, the appropriate sentence for Mr. Griggs will not be seven times the sentence for Mr. Bennett even though Mr. Griggs had about seven times as much drugs), but the sentence will be longer as the amount of drugs increases. d. The entire backgrounds of each of Mr. Bennett and Mr. Griggs, including the circumstances of their upbringing, their behaviours beyond these offences, their work and family histories and so on. Again, this includes the fact that each is a first offender. e. I must use jail with restraint. That principle has added impact when the defendant is a first offender or the offence is a first serious offence or a first sentence of imprisonment. I would not go so far as to say that Mr. Bennett and Mr. Griggs fall within the category of particularly youngish offenders as they were 26 and 25 years old at the time of their offences, but this principle of restraint does not come with a categorical cut-off as is found, for example, in the Youth Criminal Justice Act. That being said, they are nowhere near the same position as eighteen- or nineteen-year-olds committing the same offences. f. The totality of the sentences for each of their offences--two types of drugs and possession of proceeds should be tempered so as not to be crushing.

[32] I have been referred to numerous authorities by Mr. Anger, Mr. Gerges and Mr. Paradkar, ranging from the Supreme Court's decision in R. v. Parranto, 2021 SCC 46 down through decisions of the Court of Appeal and decisions of the two trial courts in the province. [i] Sadly, very few of the authorities on fentanyl sentencing ranges or the principles involved in determining a fit sentence for crimes like these are unfamiliar. A huge amount of the time of the Ontario Court of Justice in Niagara is taken up with these offences. I do not propose to refer to all of the authorities placed before me, although I take them into account in determining the appropriate sentences. It is self-evident that while other cases will provide a sense of the sentencing landscape, it is equally true that every sentencing decision is captive to its own facts: these include the type of drug, the presence of multiple drugs, the amounts involved, the level of commerciality, any reliance on weapons (not present here) and whether or not there was a guilty plea (the value of which will vary from case to case – in this case the Crown did not make out its charges in relation to all of the drugs Mr. Bennett was charged with). Circumstances specific to the offender will also differ from case to case, including his or her age, indigeneity or lack thereof, any previous record (none here for either man), addiction, previous trauma, remorse, previous behaviour in society, potential for rehabilitation and so on.

[33] I have referred earlier to the fact that Mr. Bennett and Mr. Griggs, like other offenders in similar situations, will benefit from a certain amount of compaction of the sentence because the sentence imposed does not simply add up the fentanyl sentence plus the crystal methamphetamine sentence plus the proceeds sentence. This is the concept of totality. That being said, the total sentence must not ignore the convictions for those other charges. I would categorize crystal methamphetamine as being a more serious and dangerous substance than cocaine given its nature and effects and the amounts of crystal methamphetamine possessed by each of Mr. Bennett and Mr. Griggs was far from trivial. For example, a sentence of five years for Mr. Griggs's crystal methamphetamine, standing alone, would be at the low end of the range for the amount involved.

[34] Ultimately, a sentence must impose measured and appropriate consequences on individual offenders both to reflect the seriousness of the harm their offences do to society and to send a clear message to other people who may be inclined to commit similar offences, in this case for simple monetary gain at the expense of others' suffering and death. It must also aim to balance those objectives with the rehabilitation of offenders, who will ultimately re-enter society, hopefully having learned the error of their ways and hopefully bringing with them a commitment never to put themselves or their community in harm's way again. In terms of moral responsibility in this case we are dealing with profit-motivated, youngish first offenders whose precise role in any hierarchy that might have been involved here is unknown, but who were clearly, at a minimum, trusted with control of large amounts of two very dangerous drugs and of significant amounts of cash. They chose to profit from drug users' vulnerability. In terms of measuring the seriousness of the offences, it is inescapably obvious that these are quite simply offences of a type that kill very large numbers of Canadian and whose impact on the direct victims and on their families, friends and communities is enormous.

[35] With respect to Mr. Bennett:

a. On the conviction for possession of fentanyl for the purpose of trafficking, having factored into the total sentence a consideration for time on house arrest and under curfew, I am of the view that the lowest appropriate sentence is five-and-a-half years, from which six months of credit for his four months of pre-sentence custody since his conviction will be deducted, leaving a net sentence to be served of five years in the penitentiary. b. On the conviction for possession of crystal methamphetamine for the purpose of trafficking, there shall be a sentence of three years to be served concurrently. c. On the conviction for possession of proceeds of crime there will be a sentence of two years to be served concurrently. d. The total sentence to be served from today, therefore, is a sentence of five years.

[36] There will be an automatic order under s. 109 of the Criminal Code prohibiting you from possessing various classes of weapons for ten years.

[37] There will be an order that you provide a sample of your DNA for inclusion in the DNA databank. These are what are called secondary offences for the purposes of DNA sampling and you are a first offender, but the standard set out in the Criminal Code and elaborated upon by the Court of Appeal for taking DNA samples is clearly made out here.

[38] These offences were committed after Parliament re-wrote the provisions concerning victim surcharges. Unless Mr. Paradkar has persuasive submissions to make about the appropriateness of the surcharge, Mr. Bennett will pay a total of six hundred dollars in victim surcharges not later than 31 December, 2028.

[39] With respect to Mr. Griggs:

a. On the conviction for possession of fentanyl for the purpose of trafficking, having factored into the total sentence a consideration for time on house arrest and under curfew, I am of the view that the lowest appropriate sentence is eleven-and-a-half years, from which credit of six months for four months of pre-sentence custody since conviction will be deducted, leaving a net sentence to be served of eleven years in the penitentiary. b. On the conviction for possession of crystal methamphetamine for the purpose of trafficking, there shall be a sentence of five years to be served concurrently. c. On the conviction for possession of proceeds of crime there will be a sentence of two years to be served concurrently. d. The total sentence to be served from today, therefore, is a sentence of eleven years.

[40] There will be an automatic order under s. 109 of the Criminal Code prohibiting you from possessing various classes of weapons for ten years.

[41] There will be an order that you provide a sample of your DNA for inclusion in the DNA databank. These are what are called secondary offences for the purposes of DNA sampling and you are a first offender, but the standard set out in the Criminal Code and elaborated upon by the Court of Appeal for taking DNA samples is clearly made out here.

[42] These offences were committed after Parliament re-wrote the provisions concerning victim surcharges. Unless Mr. Gerges has persuasive submissions to make about the appropriateness of the surcharge, Mr. Griggs will pay a total of six hundred dollars in victim surcharges not later than 31 December, 2030.

[43] Unless counsel have submissions on the point, there shall be an order forfeiting the cash seized at both residences as proceeds of crime. There will likewise be an order for forfeiture of any offence-related property seized at either address.

Footnotes

[1] Other than the seriousness of his offences (not a trivial consideration), I felt that Mr. Bennett came across well. His pre-sentence report was favourable, and I had the impression that he was genuinely remorseful for his offences. He had a trial, but he is not to be punished for that and I was not satisfied that the Crown had proved its charges in relation to a second location against him, involving a significant amount of controlled substances. When I read of him facing racism and bullying at school, I take those assertions as genuine, even though there was no “Morris” report in relation to Mr. Bennett. ( see: R. v. Morris, 2021 ONCA 680.) Quite apart from that decision, the existence of anti-black (and other) racism has been for a long time and remains an undeniable reality in Canadian society and its impacts are often deep and toxic. While Mr. Bennett’s experience is relevant only to his moral responsibility (as opposed to the seriousness of his crimes), even in the absence of a Morris report, it is a factor I have taken into account in determining the appropriate sentence for Mr. Bennett. That being said, in the circumstances of this case it is of limited value (a) because the seriousness of his crimes is so elevated as a sentencing consideration; and (b) because even Mr. Bennett’s counsel specifically submitted that not much weight could be placed on that factor on the record before me.

[2] See R. v. Lacasse, 2015 SCC 64, paragraphs 87 onwards.

[3] https://www.camh.ca/en/health-info/mental-illness-and-addiction-index/methamphetamines

[i] The cases counsel discussed with me included: R. v. Ribble, 2021 ONCA 897; R. v. Parranto, 2021 SCC 46; R. v. Griffiths, 2022 ONSC 6406; R. v. Duregger, 2018 ONSC 1749; R. v. Bridgen, 2023 BCCA 229; R. v. Priest: R. v. Niyonzima, 2021 ONCA 409; R. v. Kochanska, 2020 ONCJ 385; R. v. Olvedi, 2018 ONSC 6330 (upheld: 2021 ONCA 518); R. v. Messoudi, 2022 ONSC 2252; R. v. Imeson, 2019 ONCJ 245; R. v. Doan, 2021 ONSC 8590; R. v. Harmes, 2022 BCSC 663.