CITATION: Her Majesty the Queen v. Bemister, 2017 ONSC 5611

COURT FILE NO.: CR15-134

DATE: 20170920

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Elizabeth Barefoot, for the Federal Crown

• and -

Michael Bemister

Bernard Cugelman, for the Accused

Accused

HEARD: September 20, 2017

REASONS FOR SENTENCE

Conlan J.

I. Introduction

1This is not a simple sentencing, nor is it an easy decision to make.

2Commencing on October 12, 2016 in Owen Sound, Mr. Bemister was tried before me, without a jury. The trial concluded on October 17, 2016. It lasted four days, including final submissions by counsel.

3The accused was originally facing eleven counts on the Indictment. After some pretrial rulings, guilty pleas and withdrawals, six charges remained.

4At the end of the trial on those six counts, in Reasons for Judgment dated October 25, 2016 and reported at 2016 ONSC 6620, Mr. Bemister was acquitted on five counts but found guilty of trafficking fentanyl contrary to subsection 5(1) of the Controlled Drugs and Substances Act (count 1 on the Indictment).

5He is to be sentenced on that conviction for trafficking fentanyl, plus three charges that he entered guilty pleas to on October 12, 2016: unlawful possession of cannabis marihuana contrary to section 4(1) of the Controlled Drugs and Substances Act, possession of a 22 calibre rifle without being the holder of a valid license contrary to section 91(1) of the Criminal Code, and unlawful possession of another rifle contrary to the same section.

II. The Facts

6On August 14, 2013, Mr. Bemister trafficked a 75 mg patch of fentanyl to a male named Jesse Watson who, in turn, sold it to an undercover police officer.

7Mr. Watson had met with the officer in the downtown area of Owen Sound and then walked to Mr. Bemister’s residence to retrieve the fentanyl.

8The above facts are taken from the trial evidence and the Reasons for Judgment.

9We also have the agreed facts that underlie the three guilty pleas. Succinctly put, Mr. Bemister’s residence in Owen Sound was searched by the police under warrant on September 12, 2013. One gram of cannabis marihuana was found on a living room coffee table. In addition, two 22 calibre rifles and related ammunition were found. The rifles had no locking devices on them and were in the closet of a bedroom, one in a zipped gun bag and the other loose. The ammunition was in an unlocked box in the kitchen. Mr. Bemister had no license to possess the firearms.

III. The Offender

10Mr. Bemister is currently 38 years old. He is a licensed carpenter and member of the Carpenters & Allied Workers Local 27 Union. Apparently, his membership in that Union has resulted in current employment opportunities for the offender.

11Mr. Bemister has a terrible criminal record, though nothing since 2008 and only one prior drug conviction for possession of cocaine in 2007. Between 1993 and 2008, Mr. Bemister racked-up about 35 convictions for a wide variety of criminal offences including breaches, assaults, threats, crimes against the administration of justice, property offences, and crimes of dishonesty.

12As alluded to further below, Mr. Bemister suffers from a serious strain of hepatitis C.

13I have the benefit of a thorough letter from Mr. Bemister’s physician, Dr. Newton, dated August 18, 2017. The offender has been a patient of Dr. Newton for many years.

14Dr. Newton is a specialist in respiratory and internal medicine. In addition to authoring several letters, he testified at the sentencing hearing held today in Owen Sound.

15Dr. Newton confirms that the offender has been addicted to prescription narcotics for a long time. In 2007 or 2008 (the evidence is unclear), Mr. Bemister was hospitalized with an illness known as neuroleptic malignant syndrome. He also had a pulmonary embolism.

16The syndrome had been contracted at the Owen Sound Jail while Mr. Bemister was being administered medication during his incarceration.

17Upon discharge from the hospital, Mr. Bemister was prescribed OxyContin. He was later, in 2013, moved to fentanyl.

18In late 2011, Mr. Bemister contracted severe pneumonia which led to a large abscess between his lung and his chest wall. He required chest tube drainage.

19In 2013, Mr. Bemister had surgery for severe reflux disease.

20Since his arrest on the offence that he is to be sentenced for, according to Dr. Newton, the offender has been cooperative and responsible with regard to his treatment program. A new strategy has been put into place to avoid any further “drug diversion”, to borrow the doctor’s expression. Now, at the pharmacy, Mr. Bemister is required to turn in his old fentanyl patches in order to obtain new patches that are prescribed for him.

21Dr. Newton is no doubt a caring and committed physician. His letter is informative and, in essence, a plea for leniency for his patient, Mr. Bemister. It speaks about years of dependence on prescription narcotics, caused largely by chronic pain. It speaks as well about the stress and lost employment opportunities that the offender has experienced since his arrest four years ago. It also opines that Mr. Bemister has matured and can be a productive member of our society.

22Currently, as confirmed by Dr. Newton, Mr. Bemister takes the following medications: Clonazepam, Oxazepam, Remeron and Fentanyl patch.

23In addition to the letter authored by Dr. Newton, I have reviewed correspondence from the offender’s mother, his sister, and his brother. The mother describes a difficult life for Mr. Bemister, including being bullied at school as a young teenager, living in a boys’ home for a while, moving around a fair bit, getting involved with hard drugs like heroin, contracting hepatitis C, being homeless, spending time in rehabilitation centres and jails, suffering from renal failure and a pulmonary embolism, having surgery, struggling with finances, and losing his father to cancer in early 2016 while his own criminal charges were outstanding.

24Not surprisingly, Mr. Bemister’s mother speaks highly of him. She makes an earnest plea for some mercy from this Court. She states that her son, ironically, is in a healthier and better position now than he has been in for a long time.

25The mother’s sentiments are echoed by the offender’s sister and his brother.

26I feel much compassion for Mr. Bemister’s mother. She recently lost her husband to cancer. And now she sits in a Courtroom awaiting the fate of her son, Michael.

27I also have a letter, dated August 25, 2017, from the pharmacy manager that Mr. Bemister deals with. It states, in part, that “Michael has been compliant with the Narcotic Monitoring System. Michael has been and still is compliant with controlled substances. This is my reference for Michael that he is a responsible person in his life medically”.

28Another pharmacist confirms in a letter dated August 31, 2017 that Mr. Bemister has been complying with the requirement that he return all fentanyl patches, receipts, boxes and bags upon receiving any new prescription. That letter concludes that “[p]atient has been very compliant and respectful with all prescriptions during this time [June 2016 to August 2017]”.

29In addition, I have a recent letter from the offender’s landlord. It speaks highly of Mr. Bemister in terms of being an excellent tenant and an honourable, fair and respectful person.

30Aside from Dr. Newton, Christopher Pardy, the nephew of the offender, testified at the sentencing hearing. He described his uncle Michael as a mentor and life-coach who has for years now steered Christopher away from drugs.

31Finally, no discussion about the offender would be complete without addressing the comments made to the Court by Mr. Bemister himself. He spoke at length today at the conclusion of the sentencing hearing. He is an articulate and intelligent man. In my view, he expressed genuine remorse and regret for his criminal conduct and accepted full responsibility for what happened. He is clearly frightened at the prospect of going to jail for a long time and anxious to put this saga behind him.

IV. The Positions of the Crown and the Defence

32Ms. Barefoot filed very useful sentencing decisions. The Federal Crown seeks a penitentiary sentence of 3.5 years or 42 months in duration, plus ancillary Orders.

33Mr. Cugelman invites this Court to consider this case as presenting exceptional circumstances justifying a much shorter custodial sentence or perhaps no jail at all.

V. Analysis

34At the outset, something needs to be said about the lengthy (approximately one year) delay in the sentencing of Mr. Bemister.

35The sentencing hearing was scheduled to occur long ago, however, it was adjourned at the request of the Defence to allow Mr. Bemister to attend for treatment of hepatitis C.

36Mr. Bemister was a candidate for treatment with a newly available medication called Epclusa. Upon receiving a letter from Mr. Bemister’s treating physician, Dr. Newton, supplemented by oral evidence from the doctor received at Court on March 21, 2017, the sentencing was postponed. It eventually occurred today in Owen Sound.

37In retrospect, I am thankful that I allowed the adjournment of the sentencing. Dr. Newton and Mr. Bemister’s family confirm that the offender successfully completed the treatment program in London and is much healthier today as a result of that.

38I turn now to the sentence for Mr. Bemister.

39The ancillary Orders sought by the prosecution are all unopposed and are hereby granted: (i) a secondary DNA Order, (ii) a forfeiture Order for items seized by the police, and (iii) a section 109 firearms and weapons prohibition Order for ten years and life as per the two paragraphs under subsection (2).

40With authority to do so given the offence dates, in light of Mr. Bemister’s personal circumstances, the victim fine surcharges are waived on all four convictions.

41In terms of the legal parameters, on the major conviction of trafficking fentanyl, there is no minimum penalty facing Mr. Bemister. The maximum penalty is life imprisonment.

42Any sentence imposed on Mr. Bemister must be proportionate to the gravity of the offences and must take into account the offender’s personal circumstances. As has been stated many times by many different Courts, sentencing is a highly individualized process.

43The paramount principles of sentencing in this case are denunciation, general deterrence, specific deterrence, and rehabilitation.

44Both sides filed much case law.

45The Crown filed the decision of the Court of Appeal for Ontario in R. v. Loor, 2017 ONCA 696. The facts are not at all similar as Mr. Loor trafficked in some 45 patches of fentanyl. For six convictions after trial, three counts of using a forged document and three counts of trafficking fentanyl, he was sentenced to six years in jail less credit for presentence custody. His appeal was dismissed. The Court concluded by stating that, generally speaking, those who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences, even first offenders.

46The Crown also relies on the decision of the Court of Appeal for Ontario in R. v. Lu, 2016 ONCA 479. Mr. Lu was convicted after trial of possession for the purpose of trafficking a massive amount of fentanyl – four boxes of patches, each box containing 100 patches. His appeal was dismissed. The Court described fentanyl as “one of the most highly addictive and dangerous drugs”. The sentence of 2.5 years in custody was deemed to be entirely fit.

47The Crown filed the unreported decision of a Judge of the Ontario Court of Justice in Her Majesty the Queen v. Srokosz, December 12, 2014, at Chatham, Ontario. Mr. Srokosz pleaded guilty to trafficking fentanyl in two transactions with an undercover operator. Mr. Srokosz was in his twenties and without any criminal record. He was sentenced on other charges as well, however, for the fentanyl he received 30 months in jail. It appears that it was a joint submission.

48In R. v. Rak, [2015] O.J. No. 5182, also a decision of the Ontario Court of Justice relied upon by the Crown, Mr. Rak pleaded guilty to one count of trafficking fentanyl. He sold one fentanyl patch to an undercover officer. Counsel agreed that the Court also consider the admitted fact that Mr. Rak had previously facilitated the sale to an undercover officer of 10 to 20 hydromorphone pills. Mr. Rak had a substantial criminal record including drug trafficking convictions. He was sentenced to the equivalent of 21.75 months in jail.

49The Crown relies as well on the decision of the Superior Court of Justice in Her Majesty the Queen v. Mudford, unreported, June 3, 2016, at Simcoe, Ontario. After trial, Mr. Mudford was convicted of trafficking one patch of fentanyl for $100.00. He had a dated criminal record. He was sentenced to 27 months in custody.

50The Crown filed the Ontario Court of Justice decision in R. v. Gatfield, [2015] O.J. No. 5019. Mr. Gatfield pleaded guilty to trafficking fentanyl, two patches, to an undercover officer. He had no related criminal record. He was sentenced to 30 months in jail, the same sentence imposed on Mr. Srokosz. It was the same learned Justice in both of those decisions and, in fact, the case of Mr. Srokosz was referred to in the Gatfield, supra decision.

51Finally, the Crown relies on the Ontario Court of Justice decision in R. v. Cloutier, [2014] O.J. No. 4783. Mr. Cloutier pleaded guilty to trafficking fentanyl, two patches, to an undercover officer. He had no criminal record. He was sentenced to 27 months in jail.

52Of the cases filed by the Defence, I comment below only on those that I find most relevant to my decision.

53The Defence relies on the decision of the British Columbia Court of Appeal in R. v. Smith, 2017 BCCA 112. There, the Crown appealed a six-month jail sentence imposed after guilty pleas to possession of cocaine and possession of fentanyl, both for the purpose of trafficking. The offender tried to sell drugs to an undercover officer and was then found to be in possession of 2.6 grams of fentanyl and 7.4 grams of cocaine. Mr. Smith was in his late fifties and had no criminal record when sentenced. The Crown’s appeal was dismissed by the majority, although all three Justices agreed that the usual range would have been 18 to 36 months in custody, possibly higher.

54The Defence filed the decision of the British Columbia Court of Appeal in R. v. Rutter, 2017 BCCA 193. There, the Crown appealed suspended sentences and periods of probation imposed on two offenders after guilty pleas to trafficking fentanyl and cocaine. The persons were both in their twenties and first offenders. Both were involved in “dial-a-dope” operations, where customers would call a cell phone and order drugs. The Crown’s appeals were allowed for both offenders. One offender was sentenced to six months in jail plus two years of probation, while the other was sentenced to six months in custody plus 12 months of probation.

55Other cases relied upon by the Defence emphasize the importance of rehabilitation and the mitigating effect of an offender who is or was addicted to narcotics and is now committed to relapse prevention.

56What can be gleaned from these cases is that sentencing really is an art more than a science. Decisions depend entirely on the facts and the circumstances of the offender.

57One thing is certain, however. Fentanyl is highly addictive, powerful and an increasing scourge on our society. It needs to be dealt with strongly and relatively harshly by the Court, evidenced by the Court of Appeal’s statement that even first offenders who traffic significant quantities can expect to be incarcerated in federal penitentiaries.

58I agree with Ms. Barefoot that the normal range of sentence in this case would start at penitentiary time, two years, and go as high as the 42 months suggested, perhaps a little higher. Remember, although not aggravating, this is not a guilty plea case. Further, despite the recent gap in the criminal history, Mr. Bemister is not a first offender. In addition, the mix of firearms and trafficking narcotics is troubling, to say the least.

59I also agree with Mr. Cugelman, however, that this case is exceptional. So much so that a reformatory jail sentence is appropriate.

60To impose no jail goes too far and would not do justice to the principles of denunciation and deterrence, but something less than two years behind bars can be tolerated.

61Why is this case exceptional? There are two reasons.

62First, through no fault of Ms. Barefoot who was not counsel at the time, the other half of the trafficking fentanyl transaction that Mr. Bemister is being sentenced for, Jesse Watson, was sentenced in 2014 to an extraordinarily short period in jail.

63The transcript reveals that Mr. Watson was found guilty of numerous offences including the trafficking of the fentanyl to the undercover police officer that Mr. Watson had obtained from Mr. Bemister, two counts of trafficking in cannabis marihuana, possession of the proceeds of crime, possession of hydromorphone, uttering death threats, theft and breach of bail.

64In the Ontario Court of Justice on December 19, 2014, and not on a joint submission, Mr. Watson was sentenced to time served – the equivalent of just 214 days in jail on enhanced credit, plus probation and ancillary Orders.

65Yes, there were differences between Mr. Watson and Mr. Bemister. The former pleaded guilty, had no criminal record, has serious mental health issues stemming from a brain injury and is Aboriginal, as examples, but to go from about seven months in jail for a crime spree committed by Mr. Watson to 3.5 years in a penitentiary for a single and related transaction engaged in by Mr. Bemister would offend the parity principle, in my view.

66Second, Mr. Bemister is a truly pathetic man. He lived a crime-ridden, drug-induced existence for many years. He is a chronic addict of prescription narcotics. He almost died after a stint in the Owen Sound Jail. He almost died from hepatitis C. His confidante, his father, died of cancer last year while staring down the barrel of his son’s outstanding criminal charges.

67If Mr. Bemister does not attract some compassion from this Court, nobody could.

68Finally, today, Mr. Bemister appears ready to actually do something worthwhile in his life. His hepatitis C is essentially cured. He has job prospects after his release from custody. He has the continuing support of Dr. Newton, now no longer ignorant of his patient’s prior transgressions.

69Essentially, but for these offence dates, for nine years now, Mr. Bemister has been a better person than he was. And, since his arrest four years ago, he has been out of trouble while the subject of bail conditions which were not insignificant.

70I have decided to extend some leniency to Mr. Bemister. This decision has no precedential value because of this case’s exceptional circumstances and because of the aged offence dates, well before the recent plethora of fentanyl-related horror stories in the media and in Courtrooms across this country.

VI. Conclusion

71Given the facts and the circumstances of Mr. Bemister, considering the principles of sentencing, and in light of what sentence was imposed on Mr. Watson, I am of the view that Mr. Bemister must be sentenced to a period in jail that is longer than 214 days but still within the reformatory system.

72Two significant mitigating factors were present for Mr. Watson which are not present here – the very early guilty pleas and the lack of any criminal record at all.

73Accounting for that, on the trafficking fentanyl conviction, I sentence Mr. Bemister to 15 months in custody.

74On the simple possession of cannabis marihuana, the sentence is 3 days in jail, concurrent.

75On each of the firearms convictions, the sentence is 60 days in jail, concurrent and concurrent.

76The global sentence is therefore 15 months in jail, on top of a few days of presentence custody.

77The jail sentence shall be followed by two years of probation. All of the statutory terms apply. The optional conditions are reporting, counselling as directed, the signing of any releases necessary to monitor the counselling, no contact with anyone directed, and no drugs except in accordance with a medical prescription.

78As mentioned above, the ancillary Orders sought by the Crown are granted.

79I am indebted to Ms. Barefoot and Mr. Cugelman for their assistance with this difficult sentencing decision.

Conlan J.