COURT FILE NO.: 17-75
DATE: 20180312
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Andrew Ross
Defendant
T. Donihee, counsel for the Federal Crown
M. Purcell, counsel for the Provincial Crown
J. Hale, counsel for the Defendant
HEARD: December 7th, 2017 and February 13th, 2018
reasons for Sentence
Lafrance-cardinal, j.
[1] On December 7th, 2017 Andrew Ross plead guilty to six counts including Manslaughter, possession of an explosive substance, proceeds of crime, arson, explosion (by fire), production of shatter and possession for the purpose of trafficking in methamphetamines.
INTRODUCTION
[2] The facts are uncontested. On the 26th day of March 2017, Michel Lalonde was killed when he opened the fridge door which caused an explosion, engulfing Michel Lalonde in flames. Mr. Lalonde was never able to leave the apartment, he died of his injuries.
[3] It is accepted that there were three individuals in the apartment at the time of the fire being the victim Michel Lalonde, his son David Lalonde and Andrew Ross the accused before the Court.
[4] It is accepted that Mr. Andrew Ross had been cooking shatter in this apartment for quite some time. Mr. Ross had cooked shatter the night before, and had placed the resin in the freezer of the refrigerator. The combustible fumes from the butane had built up inside the freezer/fridge compartment and an ignition source within the residence (possibly a cigarette) had caused the butane fumes to ignite causing an explosion which caused the death of Michel Lalonde. The investigator was able to determine that the fire was caused by an explosion which originated from the fridge in the kitchen. The fridge door was observed to have been blown clear off the hinges, approximately 10 to 12 feet away. The fridge was blown apart. Both David Lalonde and Andrew Ross were able to flee the residence unharmed, both thinking that Michel Lalonde had been able to exit from the back door. Unfortunately, that was not the case. The investigator from the Ontario Fire Marshall was able to confirm that there were empty bottles of butane by the back door and two full ones in the drawer in the kitchen. There were 31 empty cans of butane found in the apartment with an intact clear glass tube with marihuana still in the tube. There were also dishes containing a substance believed to be marihuana resin.
[5] Over and above the numerated items confirming that shatter was being produced in the apartment, police found 703 pills of methamphetamines, 72.2 grams of magic mushrooms and ½ a pound of marihuana.
[6] Mr. Ross admitted that he had in his possession an explosive substance while he was prohibited from doing so by reason of an order that had been made pursuant to section 109 of the Criminal Code. Mr. Ross also had in his possession proceeds of crime of a value not exceeding $5000 dollars and admitted to producing a substance called shatter. Finally, Mr. Ross admits intentionally or recklessly causing damage by explosion and fire to a dwelling home which was the property of a Mr. James Kelley and Christopher Hetherington. The damage was in the thousands of dollars.
POSITION OF THE CROWN
[7] The Provincial prosecutor is seeking a sentence of 6 ½ years for the provincial offenses less time served. They are seeking forfeiture of the money found to be proceeds of crime, a DNA order and a lifetime weapon prohibition.
[8] The Federal prosecutor is seeking a concurrent sentence of 18 months for the production of shatter and a consecutive sentence of 6 months for the possession for the purpose of trafficking in methamphetamines. They are seeking a forfeiture order of all drugs and items seized, and as ancillary orders, a DNA order and a lifetime weapon prohibition.
POSITION OF THE DEFENCE
[9] Counsel for Mr. Ross believes that the appropriate sentence would be 4-5 years jail minus the equivalent of 10 months pre-trial custody.
CIRCUMSTANCES OF THE OFFENDER
[10] Mr. Ross was a 27 ½ year old at the time of the offence. Mr. Ross has fathered two daughters, one who is 10 years old and one who is now 3. The girls do not share the same mother. He does not have a relationship with either of them and admits that the Children’s Aid Society was involved with both girls during the time he was cohabitating with either of their mothers. He has had a girlfriend in the last year prior to this event. He says she is kind and supportive. The girlfriend admits that they have used illicit drugs together and that she knew he supported himself by selling drugs. She states that the plan is to move in a rural area away from his contacts.
[11] Mr. Ross has always found school difficult, however he is less than 3 credits short of a high school diploma. He was diagnosed with ADD, ADHD and being bi-polar. These conditions remain untreated as he refuses to take his medication.
[12] He did not have an easy upbringing. His parents separated when he was very young. The siblings were separated, he went to live with his dad and his twin sisters went and lived with their mother. Throughout the years he has had an estranged relationship with his mother. Mr. Ross states that his mother “doesn’t care for him”, “doesn’t acknowledge him” because he picked his dad over her. He does not remember the last time he spoke to her but he acknowledges that his life would have been much different had he lived with his mother. He states that both his sisters finished school. They did well, they have no substance abuse. He, on the other hand, was raised by an alcoholic father. He acknowledges that he started to experiment with alcohol at the age of 5 and smoked his first joint at the age of 10. At one point in time, he was drinking heavily but was able to curtail his drinking on his own. He admits having tried every type of illicit drug except heroin and fentanyl or any drugs that need to be injected. At the time of the offence his daily consumption was ½ ounce of marihuana, ¼ ounce of shatter and countless pills of speed. He admits that he has only had one job in his whole life and that was in a manufacture which lasted about a year. At all other times, he supported himself by dealing drugs. He stated he enjoyed the money and was good at it. His criminal record has 10 entries and reflects that stated lifestyle with possession of Schedule 1 substances, many breaches, obstruct police, break and enters and assault. His longest period of custody was 30 days. Most of the entries on his criminal record resulted in a conditional jail sentence.
VICTIM IMPACT STATEMENTS
[13] There were 4 victim Impact Statements filed, they all talk of the horrific demise of their dad, grandfather, friend. Mr. Lalonde’s son David who resided at the apartment states that not only did his best friend pass away, the one person whom he truly could confide in, but he also lost his 2 cats, all of his furniture and all of his belongings.
[14] His daughter Tina in a very well written statement says that all she has left as memory is a Morbern crest that the safety crew were kind enough to cut away from the scorched jacket. All she has left for memories is a crest in a baggie.
[15] His granddaughter Shiara explains vividly all of the range of emotions she constantly is obliged to live through each and every day
“Fire trucks and sirens make my cheeks turn into streams running down them.”
She constantly thinks of the fire, of his body melting, of skin dripping from his face. Her son will never know papa.
[16] Lastly, His grandson Jonathan states:
“he was a man who emerged victorious after a long battle of alcoholism… I was just getting to know him”
That opportunity was taken from him.
ANALYSIS AND DECISION
[17] The purpose and principles of sentencing are set out in s.718 of the Criminal Code. It states:
s.718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
b) to deter the offender and other persons from committing offences;
c) to separate offenders from society, where necessary;
d) to assist in rehabilitating offenders;
e) to provide reparations for harm done to victims or to the community; and
f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.
[18] Section 718.1 of the Criminal Code sets out that the sentence must be proportionate to the gravity of the offence to the degree of responsibility of the offender.
[19] Section 718.2 sets out other sentencing principles, they are:
718.2. A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or offender;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.
[20] In this particular case the two paramount sentencing considerations are denunciation and deterrence. The sentence must denounce this alarming practice that endangers the lives and safety of others and it must deter others from so doing. There must be a clear message sent to the community at large of the legal repercussions they will face if they chose to engage in such reckless behavior.
MITIGATING FACTORS
[21] The mitigating factors can be described as follows:
Mr. Ross has plead guilty admitting that his actions caused the death of Mr. Lalonde thereby saving the Court weeks of Trial time and saving the Province huge costs. He indicated his intention to plead guilty at the very beginning of the Superior court proceedings.
Mr. Ross is very remorseful. He never thought that the illegal cooking of shatter would cause the death of his good friend. He was very emotional during the reading of the Victim Impact Statements, no one doubts the sincerity of his remorse.
He is an addict, he is addicted to crystal meth.
AGGRAVATING FACTORS
[22] The aggravating factors can be listed as follows:
Mr. Lalonde died a very tragic death that was motivated by greed. Mr. Ross only source of income was dealing in drugs and the production of shatter permitted him to add to his inventory of available drugs.
There was a high degree of recklessness and Mr. Ross is lucky that there were not more victims.
Mr. Ross has a criminal record with drug related offenses and offences of violence (break and enter, assault).
Mr. Ross was bound by 2 probation orders at the time of these offences, he was also under 2 different weapon prohibitions. That did not deter him from committing these offences.
His post offence conduct is also aggravating 2 days after Mr. Lalonde’s death he was caught selling drugs.
As we heard, Mr. Lalonde’s death has a profound effect on his family.
[23] Mr. Hale is asking that the sentence be more lenient as this is the first criminal shatter case in the City of Cornwall. He pleads that Mr. Ross was naïve and that I have no evidence that he knew how dangerous it was to cook marihuana with butane. He pleads that there was no notoriety yet with regards to producing shatter, however, after this decision is known in the community that that same argument would no longer have the same weight.
[24] I am unable to accept that Mr. Ross did not know of the danger of cooking shatter, of the recklessness of cooking shatter in a residential area where there was other tenants in the same building. The danger was foreseeable, and he knew about it. Mr. Lalonde’s son who was also living at the apartment testified that they could not smoke when Mr. Ross was cooking shatter. In the preliminary inquiry he testified to the following:
“You’re playing with Parathane and shit, it’s highly flammable. You can’t smoke while you’re doing that.”
“You’re playing with lighter fluid stuff, like compressed gas. It wouldn’t be smart to have compressed going and a cigarette going at the same time.”
[25] He confirmed that Mr. Ross had told him they could not smoke when he was cooking shatter. As well, this was not a onetime occurrence. The evidence is that Mr. Ross had been living in the apartment for the last 5 months and had been cooking shatter for at least 3 months before this occurrence.
[26] Now addressing the important counts to which Mr. Ross has plead guilty:
a) Manslaughter
[27] There is no minimum sentence for manslaughter if no firearm is used in the commission of the offence. The maximum sentence is imprisonment for life. One of the paramount considerations in imposing a sentence is the moral blameworthiness of the accused. As in all manslaughter cases, Mr. Ross did not intend to kill Mr. Lalonde, had he intended to kill him then it would be murder. Manslaughter is by definition an unintentional crime.
[28] The Supreme Court of Canada in R. v. Creighton 1993 61 (SCC), [1993] 3 S.C.R. 3 paragraph 20 states that a sentencing judge must adopt a flexible approach guided by the moral blameworthiness of the offender.
“Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender. This court acknowledged this is Martineau, at p.647:
The more flexible sentencing scheme under a conviction for manslaughter is in accord with the principle that punishment be meted out with regard to the level of moral blameworthiness of the offender.”
[29] The Alberta Court of Appeal in R. v. Ferguson 2006 ABCA 261, [2006] A.J. No. 1150 at paragraph 60 and 61 has given us a guide to assist on how to assess moral blameworthiness.
“An assessment of moral culpability involves a consideration of the particular circumstances of the case including: the nature, quality and gravity of the act; the method and manner by which the act was committed; the offender’s awareness of the risk; and what should have been in the offender’s mind, had he or she acted reasonably. One begins the analysis by classifying culpability on the basis of subjective and objective intent. The lowest level of moral blameworthiness is simply the mens rea the crown must prove: that a reasonable person would know the unlawful act would subject Varley to the risk of, or cause, bodily injury. Thus, subjectively , the more Ferguson’s “intention” or “awareness” approached the point at which he knew or was wilfully blind or reckless to the fact the unlawful act would not only put Varley at risk of death, but would actually cause death, the higher the culpability. Similarly, the more Ferguson’s conduct approached the point that he ought to have known (objectively) that life-threatening injuries would result, the more culpable he is.
Mens rea is only the starting point. To complete the moral blameworthiness assessment, the court must consider other circumstances that would aggravate and mitigate culpability. There are many relevant factors and all must be blended and balanced.”
[30] Reflecting on the nature, quality and gravity of the Act and on the method and manner by which the act was committed and what should have been in Mr. Ross’s mind had he acted reasonably. I find that his level of blameworthiness is in the mid to high range. A reasonable person would know that cooking marihuana with butane, a very highly flammable substance, was dangerous. Continuing to cook in a small apartment, where residents and guests would smoke pot and cigarettes was reckless. I have no evidence however as to how Mr. Ross’ continued daily drug use would have potentially mired his judgement.
[31] Considering the particulars of this particular offender and the case law provided on ranges of sentences, I am satisfied that the range would be a penitentiary sentence of between 5 to 8 years (R. v. Issaky, 2012 ONSC 2420 (ONSC); R. v. Nguyen, 2011 ONSC 6229 (SCJ)).
b) Production of Shatter
[32] Production of shatter is a new occurrence in the criminal courts of our jurisdiction. In R. v. South 2017 MBPC 3 at paragraph 7 to 12 an expert testified to the following:
“Shatter is a cannabis resin where raw marihuana is processed with chemicals to produce a substance which contains 80-90 percent tetrahydrocannabinol, more commonly known as THC. THC is the active component in marihuana that gives users the effect of the drug. Marihuana typically has 20-30 percent THC. Normal marihuana resin contains about 40 percent THC and is a dark brown molasses substance and is different from shatter. Shatter is usually sold in gram units on parchment paper or wax paper in small baggies referred to as “dime bags”. The production of one gram of shatter, depending on the quality of the marihuana used in production, requires about 8-9 grams of raw or “bud” marihuana.
Shatter is produced using solvents such as butane or pentane, for example. Bud marihuana is placed into a dry tube with holes in it and then the solvent is released into the tube causing a chemical reaction resulting in “cooked shatter” dripping from the bottom of the container.
Shatter labs are notoriously dangerous because of the potential to explode. Butane is highly explosive because it can only be stored under compression. Butane is the solvent that is generally used to make shatter, but other similar pressurized solvents can be used as well. A butane explosion can cause walls to be blown out. It is very dangerous to dismantle a shatter lab.
The drug shatter is currently on the rise in Canada and is relatively new in Manitoba. The Winnipeg Police Service only started dealing with shatter in the past 6-12 months (at the time of the hearing).
Shatter is consumed in a number of ways including in a vape or vaporiser pen. It can be placed on hot knives and the fumes ingested. It can be smoked on rolling paper. Or, it is put on hot steel where it shatters, which is where it derives the name. Users inhale the smoke that is produced.
The cost of shatter is between $50.00-100.00 per gram. One ounce of bulk-shatter can be purchased between $1,500.00-2,000.00 versus the gram level where it would be purchased at approximately $2,500.00 for the same amount.”
[33] The extraction process needs planning and preparation. This is not a momentary lapse in judgement. The butane can itself advises the user that it is highly flammable, the can found on the scene indicates: “Extreme Danger, very flammable, container may explode if heated”.
[34] To do the extraction in a small non ventilated apartment, in a residential area, with other tenants in the same building is reckless. It is one thing to use drugs in the confine of your apartment, it is something quite different when your drug production endangers the lives of the other occupants, the visitors, the other tenants and everyone living in close proximity to the building. Such behavior must be denounced and the message must be clear for others of like minds that they will face serious legal repercussions if they too decide to produce shatter in complete disregard to the dangers associated therewith.
[35] It is also very alarming to note that from 2012 to the end of 2017, there has been 33 Canadian fire investigations related to extraction operations. In Cornwall alone, there has been 2 more fires in our community in what seems to be shatter production.
[36] In the Canadian Association of Fire Investigators Journal, Volume 3-2017, Investigator Jason M. Williams concludes:
“With the possible de-criminalization of marijuana in Canada, the likelihood of an increase in BHO laboratories and subsequent explosion incidents in Ontario can be expected as has occurred in many areas of the United States. The explosions which are occurring at these facilities are due to the improper use and handling of volatile fuels by manufactures of BHO, which puts the manufactures, members of the public and first responders at an inherent risk of an explosion and/or fire incident.”
[37] The de-criminalization of marihuana may incite many to mistakenly believe that any extraction from the marihuana plant and the production of a derivative would be fair game. The message must be clear that the production of shatter is a dangerous illegal act.
c) Arson
[38] Mr. Ross admits that he recklessly caused damage by explosion and fire to a home that was not owned by him, thereby causing significant damage. It is not trite to say that any explosion and fire in a residential area jeopardizes the lives of firefighters and first responders.
SENTENCE
[39] Mr. Ross please stand. Taking into consideration the cases provided to me at the sentencing hearing, balancing the aggravating and mitigating factors, considering your personal circumstances and the circumstances of the offence, I sentence you as follows:
a) On the manslaughter, you will be sentenced to 5 ½ years in the federal penitentiary less time served which everyone agrees amounts to an equivalent of 10 months.
b) On the possession of an explosive substance when you were prohibited to do so under a s.109 weapon prohibition order you will be sentenced to 90 days concurrent.
c) On being in possession of proceeds of crime, you will be sentenced to 90 days concurrent.
d) On the production of Cannabis resin (THC shatter) you will be sentenced to 18 months concurrent.
e) On possessing 700 pills of methamphetamines for the purpose of trafficking you will be sentenced to 6 months consecutive.
f) On recklessly causing damage by fire and explosion to the property at 203 Carleton Street you will be sentenced to 3 years concurrent.
There will be the following ancillary orders: a lifetime weapon prohibition, a DNA order, a forfeiture of the cash, of the drugs and all of the drug paraphernalia found on the scene of the crime.
So all in all Mr. Ross you are sentenced to 6 years in jail less time served.
We will need to address the restitution component at a later date once we have full particulars
Madam Justice Lafrance-Cardinal
Released: March 12th, 2018
COURT FILE NO.: 17-75
DATE: 20180312
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Andrew Ross
REASONS FOR sentencing
Madam Justice Lafrance-Cardinal
Released: March 12th, 2018