ONTARIO COURT OF JUSTICE DATE: 2024 07 25 COURT FILE No.: Kenora 1511-998-23-15101198, 1511-998-23-15101197
BETWEEN:
HIS MAJESTY THE KING
— AND —
Rhett Wrightsell
Before: Justice E J Baxter Heard on: May 3, 2024 Reasons for Judgment released on: July 25, 2024
Counsel: JiHyun Youn........................................................................................ counsel for the Crown Jeffrey Gindin, K.C......................................... counsel for the accused Rhett Wrightsell
Baxter J.:
[1] On May 3, 2024, Mr. Wrightsell pleaded guilty and was convicted of three counts of possession of a narcotic for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, SC 1996, c. 19 (CDSA). The substances were fentanyl, cocaine and methamphetamine.
[2] The Defense elected the matter proceed in the Ontario Court of Justice as these are “straight” indictable offenses.
[3] The facts to which the offender agreed in court pertain to events that occurred on June 16, 2023, in Kenora. At approximately 6:23 pm on that day, the Kenora OPP received a call from a complainant, Chantel Cyr, the assistant manager of the Comfort Inn. She informed police she was in room 120 with contractors to do repairs in the bathroom. There was no Do Not Disturb sign on the door to the room. When she entered the room, she noticed a number of packages of what appeared to be drugs on the couch.
[4] She put on gloves and moved the packages to the bed and called 911. When the police arrived, they took note of what appeared to be fentanyl, methamphetamine, a black scale, latex gloves, a box of “zip lock” bags and a backpack on the bed.
[5] Police sealed the room and obtained a search warrant. Ms. Cyr informed police a lone male rented the room on June 15, 2023, for two nights. He provided identification in the name of Mohamed Zakaria Ahmed with a BC driver’s licence and address in Chilliwack.
[6] The male also provided a Manitoba licence plate for his parking pass at the motel. He paid cash for the room with $100.00 bills from a large roll of cash he had. She provided police with a physical description of the male.
[7] The search warrant was executed at 8:34 pm on June 16, 2023. Police seized 182 grams of fentanyl, 352 grams of methamphetamine and 119 grams of cocaine. They also seized a scale with white residue, and the motel room rental paperwork. The car assigned to the motel parking spot was determined to be a rental car. The car and the male were not located that day.
[8] The following day, at 10:23 am, Ms. Cyr alerted police that the male and the vehicle had returned to the motel. He was apparently agitated as he could not access the room since it was under police seal.
[9] At 10:34 am police arrive at the motel. Ms. Cyr confirmed to police the male in the lobby was the same male who had rented the room. Upon searching the male, after arresting him, they located the BC driver’s licence noted above in his wallet.
[10] The vehicle he was driving was towed to the OPP detachment for search. At the detachment, the male was further searched after he was cautioned. An Alberta driver’s licence in the name of Rhett Wrightsell was found, and the photo matched the likeness of the male they had in their custody. They also found other items bearing the name of the offender whereupon he admitted he was Rhett Wrightsell, from Edmonton, Alberta.
[11] On June 17, 2023, the police obtained a warrant to search the vehicle. Inside the car, police found 202 grams of cocaine and 28 grams of MDMA (“ecstasy”).
[12] The total amounts of drugs seized was: 182 grams of fentanyl; 353 grams of methamphetamine; 321.7 grams of cocaine and 28 grams of MDMA. The fentanyl was tested and found to contain another sedative substance. The estimated street value of the drugs was $345,000.00. In addition, two cell phones, another scale, and $570.00 in Canadian currency were seized.
[13] The Crown seeks a penitentiary sentence of 7 years, while the defense seeks a sentence of 5 years.
[14] Gladue considerations do not apply to this case. No presentence report was ordered. No victim impact statements were obtained.
Position of the Crown
[15] The Crown relied on the Supreme Court of Canada’s decision in R. v. Parranto, 2021 SCC 46, at paragraphs 96 and 97, to outline some of the disturbing statistics related to drug trafficking and the havoc fentanyl is creating in Canada. Fentanyl kills more people in Canada than homicides.
[16] The Court recognized society now understands the seriousness of fentanyl trafficking, and as a result, sentences need to be harsher as trafficking is now understood to be a crime of violence that can lead to “debilitating adverse health effects, and all too frequently, death by overdose”. Trafficking leads to an increase in other crime, including the activities of organized crime syndicates. It can destroy families and cause intergenerational trauma and unnecessary suffering in children who are exposed to addiction at home. (Paragraphs 86-90)
[17] “Trafficking in hard drugs is thus a ‘crime with such grievous consequences that it tears at the very fabric of society’. Significant penitentiary sentences are regularly imposed for individuals who traffic in large quantities of such drugs, which, as we shall see, are far less deadly than fentanyl”. (Paragraph 92)
[18] “…Those individuals responsible for the largescale distribution of fentanyl within our communities are a source of far greater harm than even those responsible for the most violent of crimes…It is the most efficient killer of drug users on the market today”. (Paragraphs 97, 98)
[19] In R. v. Schramek, 2021 ONSC 436, the court sentenced at 37-year-old trafficker to 7.5 years for trafficking 156.7 grams of fentanyl and 3.4 grams of methamphetamine. He was also sentenced for other offenses, and those sentences were concurrent to the federal drug charges. He did not have a criminal record at the time of the offenses. He developed an addiction to opioids after he suffered a knee injury. Once his prescriptions ended, he sought drugs on the street.
[20] Again, the court in Schramek reiterated the seriousness of trafficking in fentanyl. Fentanyl is a highly addictive, powerful and dangerous drug. Because of the high number of overdose deaths in Canada, the “moral blameworthiness of traffickers can be extremely high”. (Paragraph 72)
[21] Powdered fentanyl is more dangerous when it is cut into other drugs. Users do not know how much has been mixed in or whether it is evenly distributed. Users often are not aware that a drug they are taking is also cut with fentanyl, thereby increasing the risk of overdose or death significantly.
[22] Schramek provides a helpful summary of the developing sentencing law regarding powdered fentanyl. Depending on the circumstances of the offenders in the cases summarized in Schramek, a range of penitentiary sentences has been determined to be appropriate for fentanyl trafficking. The question is how much prison time is warranted in each case?
[23] In R. v. Musa, 2022 ONSC 3734, a 20-year-old with no criminal record convicted of possessing fentanyl, cocaine and methamphetamine for the purpose of trafficking, in addition to possessing a loaded prohibited firearm, received a sentence of 7 years.
[24] The court noted Mr. Musa was a mid-level trafficker, and in referencing Moldaver J. in Parranto at paragraph 19, noted “…trafficking in fentanyl…is a crime marked by greed and the pursuit of profit at the expense of violence, death and the perpetuation of a public health crisis previously unseen in Canadian society.”
[25] In R. v. Shaikh and Tanoli, 2024 ONSC 774, Mr. Tanoli was a 20-year-old first time offender. At the time of his arrest, he was found to be in possession of 114 grams of fentanyl. The court noted at paragraph 59, “trafficking in fentanyl will result in higher sentences than for any other drug, and deservedly so.”
[26] At paragraph 61 the court noted, “There is no prescribed starting point for fentanyl offences in Ontario. However, the Supreme Court stated in Parranto, that in the circumstances of that case the range…would be in the region of 8 to 15 years.”
[27] In the result, Mr. Tanoli received a 7-year sentence which took into account some additional Duncan credit for his presentence custody and was also reduced for the totality principle.
[28] In R. v. Achilles, 2022 ONCA 382, the court of appeal upheld an 8-year sentence for possession for the purpose of trafficking 135.1 grams of fentanyl and 729.9 grams of methamphetamine.
[29] In R. v. Leite, 2018 ONCJ 132, the offender was 29 years old with no criminal record and had obeyed his release conditions. He was sentenced to 8 years for the fentanyl he possessed. His sentenced was adjusted by the Ontario Court of Appeal to reflect the 2 fentanyl counts were to have been concurrent, thereby reducing the sentence by 2 years.
[30] In R. v. Loor, 2017 ONCA 696, the court of appeal upheld Mr. Loor’s sentence for trafficking fentanyl patches. He was a 39-year-old offender and a lower-level member of a trafficking ring.
[31] In her submissions, the federal crown in the present case outlined its position with respect to Mr. Wrightsell. She stressed he had a “catastrophic” amount of fentanyl in his possession. In her estimation, the amount of fentanyl Mr. Wrightsell had was enough to kill 91,000 people, which is many times the number of people who live in Kenora (approximately 16,000).
[32] Despite his young age and the fact Mr. Wrightsell had false driver’s licences, a rental car, trafficking tools, was not from Kenora and had a hotel room for only a few days, demonstrated he was in Kenora to sell his inventory and move on. The Crown pointed out Mr. Wrightsell was clearly a mid-level dealer. He had obviously been involved in trafficking long enough to earn the trust of the higher ups in whatever organization he was selling for to be in possession of the amounts and types of drugs he had with him.
[33] Although Mr. Wrightsell was himself addicted to cannabis and later harder substances, the types and amounts of drugs he was selling point directly to greed and a complete disregard for others’ lives. This level of trafficking goes beyond supporting his own consumption. He left the fentanyl laying around in a hotel room where an employee could have come into contact with it. It was not known if the fentanyl cross contaminated the other substances he had, thereby putting users who buy from him at further risk.
[34] The fentanyl in Mr. Wrightsell’s possession was cut with benzodiazepine, which of late has become a more common substance traffickers are cutting in to increase the sedative effects of the fentanyl. However, this renders the fentanyl resistant to Narcan and naloxone, thus making it more deadly and dangerous.
[35] Kenora is a small Northwestern Ontario city of about 16,000 and is surrounded by 24 First Nations in the Treaty 3 territory. The city is struggling with a serious homelessness, mental health, methamphetamine and fentanyl crisis. It is no secret that many Indigenous people are suffering from this crisis, which is having a devastating impact on the community.
[36] While the Crown acknowledged Mr. Wrightsell is youthful, has no record, has good supports and did some rehabilitation work while on release, the letters from his counsellors do not outline the type, length and his level of participation in the rehabilitative work he did. It appeared to be rather vague in her submission.
[37] Given Mr. Wrightsell’s apparently supportive family and community connections and all the opportunities he had, he appeared to have fallen into a peer group which lead him to abusing cannabis, leaving home and falling into harder drugs. There is no evidence of why this happened and how a seemingly normal, well adjusted young man winds up trafficking hard drugs. What happened to him? Why is he before the courts in this manner?
[38] There was no presentence report ordered, which is his right not to have one, but the lack of a report does deprive the court of learning more of Mr. Wrightsell’s history and prospects for rehabilitation.
[39] Rather than embark on a prosocial path, Mr. Wrightsell embarked on a for-profit criminal enterprise that brought him into contact with very dangerous criminals who’s trust he earned to allow him to sell their products. In the Crown’s submissions, this elevates Mr. Wrightsell’s moral culpability despite his youth.
[40] The Crown expressed concerns for Mr. Wrightsell’s lack of empathy for his fellow community members. He was not operating under duress. He made decisions and choices that lead him to his current situation. General and specific deterrence are important factors in sentencing this offender. This case made the news in Kenora given there have not been many situations like this here.
[41] Mr. Wrightsell is young. He has his whole life ahead of him – unlike the scores of people who have died using the types of drugs he was selling. His chances of rehabilitation are high as long as he maintains his sobriety and makes better choices. A message must be sent to others considering selling fentanyl that doing so will result in significant penitentiary time – even for first offenders.
[42] As for the defense request for a R. v. Downes, (2006), 205 C.C.C. (3d) 488, consideration for the period of release, the Crown opposes a reduction in sentence. Mr. Wrightsell has been on conditions for 54 weeks as of today. His conditions were not onerous. He was not under house arrest. He had his curfew increased from 8 pm to 11 pm. He could be out with his sureties. A reduction of sentence for his release conditions is not justified in comparison to the types of more strict conditions he could have received.
Defense submissions
[43] Defense referred to the Downes and R. v. Quast, 2020 ONSC 6870, cases to support his position for a 5-year sentence for Mr. Wrightsell.
[44] In Quast, the offender was imprisoned for 4 years for possessing 2.5 kg of cocaine, 517 grams of fentanyl, 143 grams of heroine and 103 grams of methamphetamine. The offender was 21 at the time of the offenses and 24 at sentencing. He had no criminal record. The offender was in the throes of an addiction and was extremely remorseful. However, there were triable issues in that case in terms of what the offender knew about the contents of the bag police seized, or whether it was his bag. In this case the court found the exceptional circumstances of the offender – his youth, no record, rehabilitative prospects, remorse etc. justified a sentence well below the current range the courts examine in these cases.
[45] Defense argued Mr. Wrightsell completed Grade 12 and was 18 years old when he left home. He was to go to college, but his cannabis use in the family home was not acceptable to his parents. Mr. Wrightsell has 4 younger siblings, and the smell of cannabis was not wanted in the home. He left home, did not attend or complete college, and was doing odd jobs, but he did not keep an apartment long and developed an addiction to pills and cocaine. He was recruited to sell drugs given his need for money to support his addiction. The court heard no evidence about who recruited him and whether this was his first time being recruited to sell drugs.
[46] For a period of time, Mr. Wrightsell was under an absolute curfew and could only be out with a surety. He did manage to do some online courses, and volunteer work around Edmonton in addition to rehabilitative work. He took over 40 counselling sessions and has several letters of support. The counselling sessions were done by video, and if he was not sober, he would be removed from the program at the Edmonton West Primary Care centre.
[47] Mr. Wrightsell tendered numerous letters of support from friends and family. They describe him to be “kind, caring, loving, hard working, athletic, compassionate, funny, intelligent, responsible, helpful, resilient, respectful and remorseful”. He was also described as a “gifted athlete”, a role model, supportive and protective of his younger siblings and mature beyond his years. Everyone stated Mr. Wrightsell to be a “good kid” who made some terrible decisions that lead to his current situation. All expressed a hope for leniency in this sentence to allow him to contribute to society as this was out of character for him.
[48] He also tendered a certificate of completion from Clean and Sober Life for the online intensive outpatient program. His attendance record for the program was filed. In addition, the executive director of the program of Clean and Sober Life wrote a support letter praising Mr. Wrightsell and his “unwavering integrity, compassion and responsibility”. He noted Mr. Wrightsell is of “high moral character, displaying honesty and truthfulness in all his interactions”. He described Mr. Wrightsell as someone who made a mistake for which he is deeply remorseful and who deserves “an opportunity for redemption and rehabilitation”.
[49] A letter from Valerie Taylor, Behavioural Health Consultant, of the same program noted Mr. Wrightsell excelled at the program, attended all sessions, engaged well and surpassed goals. She was optimistic Mr. Wrightsell has high rehabilitative prospects and will use his time in custody productively. Counsel agreed Mr. Wrightsell left home far too early and fell into the wrong crowd.
[50] He spent 21 days in jail before being released. He has not had a cell phone while on release. His parents were his sureties.
[51] In this case, there were no weapons involved like in the cases cited by the Crown, children were not put at risk or exposed to his activities, and some of the cases were post-trial convictions. The aggravating factors in this case are not as serious as those cited in the Crown’s supporting cases.
[52] Mr. Wrightsell is a young man who was told to come to Kenora to sell. He was not as sophisticated as the Crown made him out to be. He did not handle the drugs with the proper precautions and was somewhat careless with them. He did not get rich from the trafficking and did not achieve a higher standard of living. Mr. Wrightsell’s particular circumstances justify a 5-year sentence based on the sentencing principles to be applied in his case.
[53] Mr. Wrightsell availed himself of the opportunity to address the court. He indicated he was “deeply remorseful” and was sorry to his parents and family. He understands the seriousness of the offenses and the alarm his behaviour has caused. He has taken addictions counselling and continues to do so. He is also reading books and addressing his mental health. He wishes to stay on this path and never be in this situation again.
Analysis
[54] The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society." (See s. 718)
[55] Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community. (See s. 718(a) – (f))
[56] Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it. (See s. 718.1) This means that, for the sentence I impose to be appropriate, it must be tailored to Mr. Wrightsell’s circumstances, and the circumstances of the offences he committed.
[57] In determining an appropriate sentence, it is helpful to consider any relevant aggravating or mitigating circumstances that are present. (See s. 718.2(a)) This would include features of Mr. Wrightsell’s background, features of the crimes he has committed, the timing of his guilty plea, and any other evidence I have received during this sentence hearing. It would also include any legal direction, whether found in the Criminal Code, for example section 718.2(a), or provided by the higher courts, about particular aspects of this case that I must consider.
[58] Listing the applicable aggravating and mitigating features assists me in evaluating this case properly and imposing a sentence that is just and appropriate. I note the following aggravating features of this case:
- The amounts of drugs found, especially the amount of fentanyl is significant.
- The fentanyl was in powdered form.
- The fentanyl was “cut” with a benzodiazepine, which is resistant to naloxone or Narcan, thereby making it more deadly.
- Mr. Wrightsell was trafficking in multiple substances.
- Mr. Wrightsell brought the substances to Kenora, a small Northwestern Ontario city with a large vulnerable Indigenous population in and around it.
- He endangered the hotel staff by leaving the fentanyl out in the open.
- He is a mid-level dealer.
- He was motivated by greed in addition to supporting his addiction.
- Despite his youth, his moral culpability is elevated.
[59] I find the following mitigating features of this case:
- Mr. Wrightsell is a youthful offender.
- He has no criminal record.
- He has pleaded guilty at a relatively early opportunity.
- He has taken some rehabilitative steps prior to sentencing.
- He has significant family and community support, demonstrating a high probability for rehabilitation.
- While on release, he has not reoffended.
- He was suffering from a substance use issue when he undertook this enterprise.
- Weapons were not involved in his offenses.
[60] While the positions of counsel on this matter are a matter of two years difference in length of sentence proposed, it is a difference that will have a significant impact on Mr. Wrightsell.
[61] Based on what I have heard and read in this matter, and in understanding the duty of a sentencing judge, I am mindful sentencing is an unscientific exercise, and it is one that is highly individualized. When sentencing a youthful offender, one must be careful not to impose a sentence that is so crushing that it negates any prospects for rehabilitation.
[62] Restraint becomes a significant sentencing principle in addition to the others I must apply. However, in exercising restraint, I must be careful not to impose a sentence that is rendered unfit or inappropriate for the circumstances of the offenses (proportionality). I must ensure I uphold the sentencing principles in the Criminal Code and jurisprudence while balancing the factors I must consider.
[63] In this matter, it is clear Mr. Wrightsell must serve a penitentiary sentence given the seriousness of the offenses here and the aggravating factors I have noted. Trafficking in substances, particularly fentanyl, demands a focus on general and specific deterrence. Denunciation can also be achieved through a fit and appropriate sentence.
[64] I am satisfied the goal of specific deterrence can be achieved by this sentence. I am hopeful Mr. Wrightsell will never consider committing any further offenses in the future. His prospects for rehabilitation seem high given the family and community support he has in addition to the up-front rehabilitative work he has done.
[65] General deterrence is hopefully achieved by this sentence sending a message to others who may consider such behaviour to support a drug addiction or to make money easily. If you traffic in fentanyl, expect to go to the penitentiary.
[66] I agree with the submissions of counsel and the guiding jurisprudence provided in this matter. Trafficking in drugs is a serious problem in Canada, but to traffic in powdered fentanyl cut with additional sedatives makes that offense much more egregious.
[67] However, I cannot accept the submissions of the Crown that amount to expert type assertions and speculations regarding the substances, their impacts and of Mr. Wrightsell’s intentions or mind-set. If the Crown wanted to bring such evidence forward, she ought to have called an expert witness to support her positions. It is not appropriate for the Crown to lead unsubstantiated evidence, and in the result, I have not taken that portion of the submissions into consideration, or I have given them little to no weight.
[68] One only has to walk the streets of Kenora or sit in our courts these days to see how deeply the social problems described above are impacting our most vulnerable citizens. Mr. Wrightsell’s enterprise, had he not been caught, would have added to the struggles and ongoing overdose deaths of those who suffer from substance use issues we have seen in recent years in Northwestern Ontario. As it is, we do not know if or how much of his product he was able to sell before he was caught.
[69] Of additional concern is more and more of these dangerous substances are finding their way into remote northern First Nations that are simply not equipped to combat the impacts these substances bring. First Nations have enough to contend with without adding to their burdens.
[70] While the circumstances of Mr. Quast were similar to those of Mr. Wrightsell here, the sentence I will impose here does take his personal circumstances into consideration, as well as the principle of totality, and I note this sentence will be below the range we have seen of late. Nonetheless, I am satisfied it is fit and appropriate given the aggravating and mitigating factors I have identified and considered. Since the Quast decision, the problem of trafficking fentanyl and the new more dangerous forms of it has continued, seemingly unabated. Now that it has moved into small communities, the problem continues to threaten community safety and the lives these substances impact.
[71] Therefore, I sentence Mr. Wrightsell to 5.5 years in the penitentiary for trafficking in fentanyl. I will deduct 21 days from the sentence, enhanced on a 1.5:1 basis to 32 days of his presentence custody.
[72] For the count involving possessing cocaine for the purposes of trafficking, I sentence Mr. Wrightsell to 4 years concurrent and for the methamphetamine count, I sentence Mr. Wrightsell to 4 years concurrent.
[73] I will not deduct any additional time from his sentence for his bail conditions as contemplated in Downes. I am not satisfied his conditions were strict or onerous enough in terms and duration to justify such a consideration.
[74] I will grant the forfeiture order requested and have signed the Order provided. A DNA order will be made as well as a s. 109 weapons prohibition for 10 years.