ONTARIO COURT OF JUSTICE
DATE: 2025-03-18
COURT FILE No.: 1211210 4038
BETWEEN:
HIS MAJESTY THE KING
— AND —
DOUGLAS IRWIN
Reasons for Sentence released on March 18, 2025
T. Moran — counsel for the Crown
A. Valeri — counsel for Douglas Irwin
Puddington J.:
OVERVIEW
[1] On October 30, 2024, I found Mr. Irwin guilty of possession for the purpose of trafficking 56.2 grams (2 ounces) of Fentanyl. Unfortunately, Mr. Irwin was not there to hear my judgment, as he had absconded. I delivered my judgment in his absence and gave Ms. Valeri several opportunities to track him down so that he may participate in the sentencing. That was unsuccessful, and the Crown’s sentencing submissions therefore proceeded in his absence on January 6, 2025. I adjourned the matter to January 29, 2025 for my reasons on sentence, but a few days prior to that, the court learned that Mr. Irwin had been arrested and was now in custody. Rather than deliver my judgment on January 29th, I ordered a Pre-Sentence Report and adjourned the matter to March 5, 2025 so that Ms. Valeri could make submissions on sentence on his behalf.
[2] Also on March 5, 2025, Mr. Irwin pled guilty to failing to attend court before me for judgment as required.
[3] I do not intend to repeat the facts of this case, as they are contained in my reasons for judgment released on October 30, 2024.
POSITIONS ON SENTENCE
[4] The Crown suggests that a sentence of 8-9 years jail is appropriate, given Mr. Irwin’s criminal record and the amount of Fentanyl found in his possession for the purpose of trafficking. They also request a section 109 of the Criminal Code weapons prohibition order for life, and that a sample of Mr. Irwin’s DNA be taken. They furthermore request a forfeiture order, forfeiting a knife and other drug paraphernalia that was seized.
[5] Defence counsel suggests that a sentence of 2-3 years is appropriate in the circumstances. They take no issue with the ancillary orders being sought by the Crown.
PERSONAL CIRCUMSTANCES OF THE OFFENDER
[6] A Pre-Sentence Report (“PSR”) was prepared while Mr. Irwin was in custody after being detained at Maplehurst Institution in Milton, Ontario. It paints a fuller picture of Mr. Irwin’s background, education, and personal relationships.
[7] He does not have an enviable criminal record. It begins in 2011 and continues consistently until 2023, with drug, driving and property offences. He also has had encounters with the criminal justice system since then, including the incident before me.
[8] Mr. Irwin grew up in Sarnia, Ontario and had a close relationship with his mother, who unfortunately passed away in 2013. He graduated from high school, but unfortunately his problems appear to have begun after he had an All Terrain Vehicle accident, where he was injured and prescribed opiates to deal with the accompanying pain. This led to his future addiction to such substances, including Fentanyl. He joined the Canadian Military in 2008 but left in 2011, in part to look after his ailing mother. He has one son, aged 12.
[9] Despite the length of time he has had a substance abuse issue, I am told he now wishes to get that under control through treatment and counselling.
PRINCIPLES OF SENTENCING AND ANALYSIS
[10] I must consider what constitutes a proportionate sentence in these circumstances, having regard to the objectives and principles of sentencing outlined in section 718 of the Criminal Code and in the case law.
[11] As both counsel pointed out, denunciation and deterrence are the primary considerations when sentencing individuals found guilty of trafficking or possessing for the purpose of trafficking schedule I substances such as Fentanyl.
[12] The destructive nature of Fentanyl, and the opioid crisis in general are well known.
[13] As our Supreme Court noted in R. v. Parranto, 2021 SCC 46 at paragraph 96, Fentanyl on our streets has a real and deadly impact on the lives of Canadians. “Indeed, trafficking in Fentanyl is so deadly that various courts have described it as a national crisis, reflective of an increased understanding of the gravity of the harm it causes”. It has led to countless overdoses and severe addictions that, of course, lead to other crimes. Mr. Irwin himself testified that his addiction to Fentanyl has led him to commit thefts on a daily basis to support his habit. While I rejected much of his testimony, I accept the commonsense statement that in order to pay for these highly addictive drugs, users will often commit other offences to obtain them.
[14] Section 718.2(b) states that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. For this reason, our courts look to other sentencing decisions to determine the appropriate range of sentence for particular offences. While the sentencing of Fentanyl cases continues to develop, it has been accepted by our Court of Appeal and Supreme Court that high penitentiary sentences for trafficking in Fentanyl are to be expected.
[15] Although parity of sentence (as outlined in section 718.2(b) above) is appropriate, sentencing must always remain an individual process which requires flexibility in the application of all the principles of sentencing to the relevant factors related to the offence and the offender.
[16] The seriousness of Mr. Irwin’s offences is evident. As outlined in my reasons for judgment at trial, I do not accept that Mr. Irwin was simply possessing the 2 ounces of Fentanyl for his personal use. The 2 ounces of Fentanyl in his possession were possessed for the purpose of trafficking, and by selling it, he was in turn going to contribute to the misery that it causes to his users and our community.
[17] I do accept, however, that Mr. Irwin was in fact an addict himself. He was clearly suffering from housing insecurity, and I have no doubt that he would either use some of the Fentanyl in his possession, or use the proceeds from selling it to support his habit.
[18] I will, therefore, accept that he was an “addict trafficker”. Given that he had no significant funds in his possession, nor was he under any surveillance prior to his arrest, I have no evidence as to his role in the trafficking scheme – whether he was a supplier to other street dealers or selling it himself. The amount of Fentanyl, however, was large. The expert at trial, whose evidence I found to be credible and reliable, testified that a heavy user of Fentanyl will consume between 1-3 grams of Fentanyl per day. It is more common to see 0.5 – 1 gram used per day. He also conceded, however, that these amounts can vary depending on the user. With respect to pricing, 0.1 grams (or a typical “hit”) of Fentanyl, can cost $20-$40. 0.5 grams would be $100 to $150, 1 gram would be $200 to $300, and if sold by the ounce (28 grams), the price would be between $1200 and $2000. The Fentanyl in Mr. Irwin’s possession was therefore high in monetary value, as well as capable of providing several weeks of supply to a heavy user.
[19] The case law with respect to possessing two ounces of Fentanyl for the purpose of trafficking has developed to attract jail sentences in the sentencing range suggested by the Crown. This is because, as our courts have noted, like minded individuals must be deterred and the conduct of selling this toxin must be denounced. (See paragraph 17, of R. v. Ribble, 2021 ONCA 897 citing with approval the reasons of the trial judge).
[20] In R. v. Disher, 2020 ONCA 710 our Court of Appeal imposed an 8-year sentence on Mr. Disher, who had been found with 42.6 grams of a mixed powder substance containing Carfentanil, Heroin and Fentanyl. Mr. Disher had pled guilty, was on release on other drug charges at the time of the offence and had a serious and related criminal record spanning 15 years. When reviewing the caselaw at the time, the Court found that a sentence of 8 years was consistent with that received by offenders similarly situated to Mr. Disher, a mid-level recidivist trafficker of heroin adulterated with fentanyl. (See paragraph 30)
[21] I must also consider the mitigating circumstances. Mr. Irwin had a relatively positive upbringing prior to developing his addiction. He is also open to treatment, and has the support of family and friends, as outlined in the PSR. I also take into account, as a further mitigating factor, that he was on lockdown for 65 days and subject to triple bunking for 68 days as of the February 26, 2025 Maplehurst Lockdown Report.
[22] While this was not a guilty plea, most of the case was conceded by Mr. Irwin, and the ½ day trial was focussed solely on the possession for the purpose element of the offence. This saved court time and eliminated the need for other witnesses to testify. It was therefore akin to a guilty plea, in that the possession of the drugs were conceded and only the trafficking element was left to be proven by the Crown.
[23] Defence submits that a 8-9 year sentence would be crushing on Mr. Irwin, and his desire to pull himself out of his addiction. I also note that while he has a significant criminal record, he does not have any prior convictions for trafficking a schedule I substance, nor has he ever gone to the penitentiary.
[24] In all the circumstances, taking into account the range of sentence suggested by our higher courts, but also considering Mr. Irwin’s personal circumstances, I find that a 78 month sentence, or 6 ½ years is appropriate. This sentence also takes into account the harsh conditions at Maplehurst, where according to the records provided by counsel he was subject to lockdowns and triple bunking I mentioned above.
[25] As an aside, I do note that more than half of his time in custody at Maplehurst thus far was as a result of not attending at the judgment on this trial and being arrested on my bench warrant. That time in custody was therefore not as an individual presumed innocent, but rather, because he had failed to attend his judgment. In other words, he was on bail at the time of his trial and likely would have remained on bail until sentencing, wherein all are in agreement he would have gone directly to the penitentiary. By not appearing for his judgment, he subjected himself to further unnecessary time in the remand facility.
[26] With respect to the Fail to Attend court count, he will be sentenced to an additional 1 month consecutive. He has numerous breaches of court orders on his record, and had he not been caught by the police, I doubt he ever would have appeared for his sentencing.
[27] The total sentence, therefore, is 79 months. I am told that as of March 5, 2025 (the date of submissions on sentence), Mr. Irwin had 218 real days in custody. As of today’s date, that number is therefore 230 days. At 1.5 to 1, that number is 345. That will be rounded up to be 12 months of Pre-Trial Custody.
[28] Mr. Irwin is therefore sentenced to 67 additional months or an additional 5 years and 7 months.
[29] There will be a section 109 weapons prohibition order for life, as well as a sample of his DNA taken today. There will also be a forfeiture order, forfeiting the seized knife and drug paraphernalia.
CONCLUSION
[30] Mr. Irwin, as you know, possessing Fentanyl for the purpose of trafficking, particularly a large amount such as this, brings with it stiff consequences. But I have considered your personal circumstances, the fact that you are an addict yourself and your desire to do better and determined that the 6 ½ year sentence is the appropriate sentence.
[31] This is your first sentence to the penitentiary, and it is a significant one. But it is not one that should be crushing on your ability to do better for yourself, your family and in particularly your son in the future.
[32] Good luck, sir.
Released: March 18, 2025
Justice B.G. Puddington