CITATION: Her Majesty the Queen v. Gagnon, 2017 ONSC 7470

COURT FILE NO.: CR16-946-0000

DATE: 20171213

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Elizabeth Barefoot, for the Federal Crown

• and -

Jamie Lee Gagnon

Ian Robertson, for the Accused

Accused

HEARD: December 13, 2017

REASONS FOR SENTENCE

Conlan J.

I. Introduction

1Jamie Lee Gagnon needs to be sentenced for possessing, for the purpose of trafficking, two very serious narcotics, and in sizeable quantities.

2Mr. Gagnon was tried before me, without a jury, in Walkerton in January 2017. He was facing three drug charges. There was a co-accused, Ms. Carson, who has already been dealt with.

3In written Reasons for Judgment reported at 2017 ONSC 516, I found Mr. Gagnon not guilty of one of the charges but guilty of the two more troubling counts.

4The sentencing hearing was held in Owen Sound on today’s date, December 13, 2017.

5The lengthy delay in the sentencing hearing was occasioned, in the main, by Mr. Gagnon terminating his trial lawyer and then having difficulties securing new counsel. In the Court’s view, it was important that the offender have counsel for the sentencing given the seriousness of the convictions and the lengthy prison sentence being sought by the prosecution.

II. The Facts

6For the background, set out below are the following paragraphs taken from the Reasons for Judgment: 1 through 7, 23, 32(i), 59, 60, 84, 95, and 97 through 99.

1On May 6, 2016, members of the Ontario Provincial Police (“OPP”), tactics and rescue, emergency response and drug enforcement units, under warrant, engulfed a residence on the Saugeen First Nation, Bruce County.

2The house was searched.

3A potpourri of illegal narcotics was found inside the house – 43.76 grams of methamphetamine (“meth”), 12.34 grams of powder fentanyl, and a small amount of hydromorphone.

4Other items were seized as well, including $1705.00 in Canadian currency and two cellular telephones.

5A motor vehicle on the property was also searched, under warrant, and cannabis was discovered, plus two more cellular telephones. A wallet was found inside the car which contained a Birth Certificate in the name of the accused, Jamie Lee Gagnon.

6The two accused persons, male Jamie Lee Gagnon (“Gagnon”) and female Jordyn Carson (“Carson”), were the only ones inside the residence when it was entered by the police.

7Gagnon and Carson are charged with two counts of possession of a controlled substance for the purpose of trafficking. The formal charges read:

Jamie Lee Gagnon and Jordyn Carson stand charged that, on or about the 6^th day of May, 2016 at the First Nation of Saugeen in the Judicial Region of Central West, did possess a substance included in Schedule I to wit: methamphetamine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.

AND FURTHER THAT Jamie Lee Gagnon and Jordyn Carson stand charged that, on or about the 6^th day of May at the First Nation of Saugeen in the Judicial Region of Central West, did possess a substance included in Schedule I to wit: fentanyl for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.

23Gagnon and Carson are also charged with simple possession of a controlled substance. The formal charge reads:

AND FURTHER THAT Jamie Lee Gagnon and Jordyn Carson stand charged that, on or about the 6^th day of May 2016 at the First Nation of Saugeen in the Judicial Region of Central West, did possess a substance included in Schedule I to wit: hydromorphone contrary to section 4(1) of the Controlled Drugs and Substances Act.

32For the Crown, I heard from the following 18 witnesses (a summary of each witness’ involvement is included below):

(i) Spencer Knoll of the OPP, the acting supervisor of the drug team who participated in the search of the residence and found in the bathroom a satchel that contained 43.76 grams of meth, 12.34 grams of powder fentanyl, $1705.00 in Canadian cash in various denominations, and men’s camouflage pants that held a BLU cellular telephone;

59In summary, the car at the rear of the property was not registered to but was, for all practical purposes, Gagnon’s. It contained his Birth Certificate and his Samsung cellular telephone. The pants on the floor in the bathroom were Gagnon’s and contained his BLU electronic device. The satchel with the drugs was right there as well, beside the sink in the bathroom. And Gagnon was observed by the police standing nearby, within inches or feet of the narcotics, in his underwear, with the shower running. The only other civilian around, Carson, was fully clothed in a separate room of the house.

60I am convinced that the black satchel and its contents belonged to Gagnon. He knew about and had control over the meth and the fentanyl.

84Regarding count 3, the hydromorphone, I accept the combined evidence of officers Brazeau and Snedden and find as facts that Carson admitted to ownership of the two spoons on top of the dresser in the same bedroom that she was found in, which spoons she acknowledged to the police contained morphine.

95In other words, regarding Gagnon, possession of the hydromorphone, whether personal, joint or constructive, has not been proven.

97On count 1, possession of meth for the purpose of trafficking, I find Gagnon guilty and Carson not guilty.

98On count 2, possession of fentanyl for the purpose of trafficking, I find Gagnon guilty and Carson not guilty.

99On count 3, simple possession of hydromorphone, I find Gagnon not guilty and Carson guilty.

7In summary, Ms. Carson was found guilty of the simple possession of hydromorphone charge, but Mr. Gagnon was found guilty of possessing, for the purpose of trafficking, 43.76 grams of meth and 12.34 grams of fentanyl.

III. The Offender

8A miserable presentence report was prepared (Exhibit 1). That is, miserable for Mr. Gagnon.

9He is currently 39 years old. He is single and without any dependants. He has the support of his mother, who lives in Atlantic Canada.

10His criminal record (Exhibit 3) consists of eleven prior convictions since 2007, including, in July 2014, a conviction for simple possession of a Schedule I substance (methamphetamine), for which Mr. Gagnon was sentenced to 21 days in jail, concurrent with a breach of recognizance, and, in January 2015, a conviction for simple possession of a Schedule I substance (cocaine), for which Mr. Gagnon was sentenced to time served which was 20 days in custody.

11While the subject of two prior probation orders since 2014, Mr. Gagnon responded poorly to supervision and reoffended.

12The offender has two children from two prior relationships, neither of whom he has a relationship with. One daughter is 8 years old and lives in Ontario. The other daughter is 13 years old and lives in Atlantic Canada. Tragically, the mother of the teenager has been diagnosed with terminal colon cancer. Mr. Gagnon wants to develop a relationship with his children, particularly the girl who may lose her mother.

13Although a high school graduate with a truck driving licence, Mr. Gagnon has a limited work history. In the past, for money, he trafficked narcotics (admitted to by the offender when interviewed for the presentence report).

14Mr. Gagnon has a lengthy history of drug use and a serious addiction to a variety of illicit substances.

15He struggles with bouts of depression and anxiety.

16He was relatively cooperative during the interview, but he offered little insight into his problems or what to do about them.

17According to the author of the presentence report, “the subject does not appear to have a realistic discharge plan which serves to increase his risk to reoffend and continue his pro-criminal lifestyle”. It is important to note, however, that the presentence report was prepared quite some time ago. Mr. Gagnon’s level of insight has certainly improved since then.

IV. The Positions of the Parties

18The Crown requests the following sentence: 5 to 6 years in custody, less time served to date (586 days grossed up to 879 days), leaving a balance from today of 946 to 1311 days or about 2.5 to 3.5 years.

19Ancillary Orders are also sought, all unopposed except as elaborated on below.

20The Defence requests a sentence of time served and agrees with the calculation of pre-sentence custody.

V. Analysis

The Legal Parameters

21In this case, there is no minimum penalty for either conviction.

22The maximum penalty for each of the convictions is imprisonment for life.

The Basic Legal Principles on Sentencing

23Sentencing is a highly discretionary and individualized process.

24I must have regard to the principles of sentencing outlined in section 718 of the Criminal Code of Canada – denunciation, specific and general deterrence, the need to separate certain offenders from society, rehabilitation, restorative justice and the promotion of responsibility in offenders.

25The sentencing principles most applicable here are denunciation, general deterrence, specific deterrence, and rehabilitation.

26Any sentence imposed must be proportionate to the gravity of the offences and the degree of responsibility of the offender – section 718.1.

27These are serious drug offences. Both substances are very dangerous. The quantities involved were not small by any means.

28Mr. Gagnon should not be deprived of his liberty if less restrictive sanctions are appropriate in the circumstances – subsection 718.2(d). I should consider all available sanctions other than imprisonment that are reasonable in the circumstances – subsection 718.2(e).

29In fashioning an appropriate sentence, I am at liberty to consider what other consequences will be suffered by the accused besides a period in jail. Those other consequences include the criminal justice system experience itself and the criminal record. R. v. M.B., [2006] O.J. No. 5876 (S.C.J.), at paragraph 27.

The Aggravating and Mitigating Factors

30The chief aggravating features are (i) that Mr. Gagnon possessed for trafficking purposes not one but two very dangerous substances, each not in an insignificant quantity, and (ii) that Mr. Gagnon has now been convicted of his third and fourth narcotics-related crimes.

31The only mitigating factor, albeit an important one, is what Mr. Gagnon has accomplished since he was tried.

32The Defence materials on sentencing, Exhibit 2, reveal that the offender is, today, not the same person that possessed these narcotics in order to traffic in them. I accept that. I agree with Mr. Robertson’s theme in that regard.

33Mr. Gagnon, since very early in 2017, has completed some 26 courses with New Life Prison Ministry, achieving an average grade of almost 93%. That is impressive. In my view, that is not “manufactured”, to borrow the Crown’s word.

34Mr. Gagnon, in February 2017, earned a Certificate from the School of Correspondence Bible Studies. Both his instructor and the School’s manager speak very highly of Mr. Gagnon’s commitment to changing his ways.

The Jurisprudence

35No two cases are ever the same. Sentencing decisions can always be distinguished on their facts. The following cases filed by counsel are especially helpful.

36In R. v. Loor, 2017 ONCA 696, [2017] O.J. No. 4628, filed by the Crown, the Court of Appeal for Ontario, at paragraph 50, held that, generally speaking, even first offenders who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.

37I agree with Ms. Barefoot that “significant amounts” must be looked upon in the context of the insidious nature of fentanyl. A very small amount of fentanyl can be fatal – that is now well-accepted in the jurisprudence.

38Just how much of a problem is fentanyl in this area of Ontario? The evidence filed by the Crown illustrates that fentanyl, more so than any other illegal substance, proved deadly in 2016. Five deaths resulted from its use, according to Grey-Bruce Health Unit records.

39In the case of Mr. Gagnon, I am satisfied that he was in possession of a “significant amount” of fentanyl. Although he has not been convicted of trafficking, he has been found guilty of having that fentanyl for the purpose of trafficking in it.

40In R. v. Smith, 2017 BCCA 112, filed by the Defence, the Court of Appeal for British Columbia placed the usual range of sentencing for possession of fentanyl for the purpose of trafficking as starting at a low of 18 months in jail.

41Very recently, in R. v. Vezina, 2017 ONCJ 775, filed by the Defence, Justice Sopinka of the Ontario Court of Justice in Kitchener provided an exhaustive summary of the relevant case law to date and concluded that there exists a wide range of sentences for possession of fentanyl for the purpose of trafficking, although almost all of them amounting to significant custodial penalties (paragraph 56), and the key principles of sentencing are denunciation and general deterrence (paragraph 58).

42I agree with Justice Sopinka on both points.

What is a fit Sentence for Mr. Gagnon?

43I am of the opinion that, for this offender on these facts, a sentence of time served, the equivalent of less than 2.5 years in a reformatory jail, is insufficient to meet the sentencing objectives of denunciation and general deterrence.

44Something more harsh is required. The scourge of fentanyl has become so intense that those who live in Grey and Bruce Counties must understand that possession of it for trafficking purposes will result in a stiff prison sentence.

45Powder fentanyl is even worse than patches. That is simply common sense as the latter are often prescribed and properly labelled, while the former is not.

46But for Mr. Gagnon’s sincere efforts to better himself over the past year, illustrated by the documents marked Exhibit 2 and in his remarks to the Court filed as Exhibit 4, I would readily sentence this offender to the range suggested by Ms. Barefoot.

47Rehabilitation cannot be ignored, however, and I do not want to crush Mr. Gagnon’s significant progress to date.

48Thus, I am of the view that a fit effective sentence for Mr. Gagnon is 4 years in the penitentiary. 1460 days (4 years) less the pre-sentence custody of 879 days leaves 581 days in jail from today (a little more than another 1.5 years).

49As it was not requested, no probation is ordered.

50Unopposed, the secondary DNA Orders and section 109 firearms and weapons prohibition Orders are issued on both convictions. The latter shall be for ten years and life as per the two subsections.

51The mandatory victim fine surcharges are imposed, with 6 months to pay upon release from custody.

52As to the forfeiture Order sought by the Crown, I have signed it as presented. The Defence asked for two things to be exempt from that Order: some or all of the money seized so that it could go to the teenager’s mother as child support, and one of the cell phones seized. I am convinced that those are proceeds of crime and a tool of Mr. Gagnon’s criminal trade, respectively, and I therefore decline to exclude them from the Order.

VI. Conclusion

53The sentence of the Court is as follows.

54Convictions are registered on both counts.

55A secondary DNA Order is issued on each conviction.

56On each conviction, a section 109 Order is issued for ten years and life according to the two subsections.

57The forfeiture Order is granted.

58The mandatory victim fine surcharges are imposed, with six months to pay upon release from custody.

59Finally, on the fentanyl conviction, the sentence is 1460 days (4 years) less the pre-sentence custody of 879 days, leaving 581 days in jail from today. On the other conviction, the sentence is 581 days in jail, concurrent.

Conlan J.