R. v. Toth-Dogaru, 2015 ONSC 480
COURT FILE NO.: 14-24
DATE: 2015/01/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GHEZA TOTH-DOGARU
Respondent
Tilton Donihee, counsel for the Crown
Brett McGarry, counsel for the Respondent
HEARD: December 4, 2014
reasons for SENTENCE
LAFRANCE-CARDINAL, J.
[1] On November 13th, 2014 Gheza Toth-Dogaru plead guilty to possessing a substance included in Schedule I of the Controlled Drugs and Substances Act that being Fentanyl, contrary to Section 4(1) of the said Act. On the same date, Mr. Gheza Toth-Dogaru plead guilty to failing to comply with his recognizance, that being to abstain from the possession or consumption of any drug or narcotic listed in the schedules of the Controlled Drugs and Substances Act, contrary to Section 145(3) of the Criminal Code of Canada. Mr. Toth-Dogaru had in his possession 30 Fentanyl patches at 100 micrograms per patch.
[2] The maximum sentence that can be imposed on a case of simple possession of Fentanyl is that of seven years.
[3] It is the Crown’s position that a proper sentence in the circumstances would be a sentence of 9 months incarceration for the possession of the drugs and 30 days consecutive for the breach. Defence argues that a proper sentence in the circumstances would be that of 90 days incarceration on section 4(1) of the Controlled Drugs and Substances Act and 15 days consecutive on the breach. It is Mr. McGarry’s position that considering the 301 days that Mr. Toth-Dogaru presently has in pre-trial custody that no extra time would be served. Both Mr. Donihee and Mr. McGarry concede that there is no need to put Mr. Toth-Dogaru on probation, on these charges, as he has just commenced serving a two year probation term in October of 2014 and the Crown would basically be asking for the very same conditions on a new probation order.
Circumstances of the accused
[4] In an Affidavit sworn the 8th day of October, 2014 for the purposes of a Bail Review, Mr. Toth-Dogaru advises the Court that he is 46 years of age, that he was born in Romania and came to Canada in 1995. He became a Canadian citizen in the year 2000. He attests that he served in the Romanian Military, that while growing up in Romania he participated in track and field and that both his track and field participation and his military service involved a large number of physical training which led to wear and tear of his body. A few months after his deployment to Bosnia he hurt his knee while playing with his son and as a result of the injuries he has suffered over the years he now has chronic pain in his shoulders, knees, neck and back. It should be noted that the Court has not received any medical evidence to substantiate any of these injuries. However, Mr. Toth-Dogaru indicates that he started using Opiates about three or four years ago and developed an Opiate dependence. It started with Oxycontin and moved to Fentanyl patches when the Oxycontin was no longer readily available on the street. If he is in fact suffering from chronic pain, it is surprising that he is not able to obtain a prescription from his medical doctor.
Sentence principles
[5] Section 718.1 of the Criminal Code indicates that the sentence must be proportionate to the gravity of the offense and the degree of responsibility of the offender. The Criminal Code also states under section 718.2(b) that similar offenders who commit similar offenses in similar circumstances should receive similar sentences. When considering a proper sentence, the Court must take into account mitigating and aggravating factors.
Mitigating factor
[6] Mr. Toth-Dogaru had no criminal record until an entry on September 8th, 2014 when he plead guilty in front of Justice Leroy to having possession of seven Fentanyl patches as well as twenty-six 30 milligrams of Hydromorphone tablets. Although it was the first entry on his criminal record, it was a second offense in time as the offense before the Court today was committed first in time. This plea of guilt to simple possession resulted in a 90 day jail sentence together with a two year jail probation. It is the only entry on his criminal record. Mr. Toth-Dogaru has pled guilty to the charges presently before the Court saving two weeks of trial time. The gist of the court applications would have been Charter motions and a Garofoli application. There were serious legal arguments with regards to the arrest of the accused and the warrantless search of the car that he was driving but did not own. The supporting grounds were based on information from confidential informants. Regardless of these very arguable issues, the accused pled guilty to the charges before the Court.
[7] It is mitigating that the accused is addicted to the drug.
Aggravating factors
[8] We are dealing with Fentanyl, a drug that is stronger and more addictive than heroin. It is beginning to create havoc in our community as did Oxycontin when it was readily available. In our case, Mr. Toth-Dogaru had 30 patches of 100 micrograms per patch, the maximum dose of Fentanyl one can buy, prescribed or otherwise.
Jurisprudence
[9] Most reported cases deal with possession for the purpose of trafficking and consequently offer very little guidance.
[10] Leroy, J. on September 8, 2014 sentenced Mr. Toth-Dogaru to 90 days for simple possession of 12 Fentanyl patches and 26 Hydromorphone tablets. It is one of the only reported cases on simple possession and it happens to be for the same accused. This offense was committed after the offense I am presently dealing with and sentenced prior to this decision. The Chief Justice in R. v. Skolnick 1982 54 (SCC), [1982] 2 S.C.R. 47 summarizes the Coke principle as follows:
“The general rule is that before a severer penalty can be imposed for a second or subsequent offence, the second or subsequent offence must have been committed after the first or second conviction, as the case may be, and the second or subsequent conviction must have been made after the first or second conviction, as the case may be.”
[11] Consequently, Mr. Toth-Dogaru is sentenced as a first offender on these charges. I agree with defense counsel that Fentanyl is a Schedule 1 substance, it does not have its own Schedule, its own category and, consequently, it should be dealt with the same way as in any other simple possession of a Schedule 1 substance offense.
Conclusion
[12] Consequently, having regards to the circumstances of this offender, the quantity of Fentanyl in his possession, the strength of the patches, the potential difficulties with the Crown’s case, I believe a proper sentence for the possession of the Fentanyl patches is one of 4 months.
[13] With regards to the breach of recognizance being in possession of drugs the sentence will be that of 30 days consecutive.
[14] As this gentleman presently has 201 straight days with no enhanced credit as time served, there will be no extra jail time. The record will simply indicate time served. As conceded by both lawyers, no extra probation is necessary at this time.
Madam Justice Lafrance-Cardinal
Released: January 29, 2015
CITATION: R. v. Toth-Dogaru, 2015 ONSC 480
COURT FILE NO.: 14-24
DATE: 2015/01/29
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
GHEZA TOTH-DOGARU
REASONS FOR SENTENCE
Madam Justice Lafrance-Cardinal
Released: January 29, 2015