COURT FILE NO.: CR-17-0023-00
DATE: 2018-05-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
G. Cipiriano, for the Crown
- and -
ABEL SOLANO-SANTANA
Accused
Ann H. Pollak
HEARD: April 24, 2018, at Thunder Bay, Ontario
NEWTON J.
REASONS FOR SENTENCE
Overview
[1] Abel Solano-Santana was convicted of possession of a Schedule I substance (fentanyl) for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA).
The Facts
A. Circumstances of the Offence
[2] Project Coast was a major drug investigation in various areas of north-eastern Ontario. It sought to dismantle trafficking in prescription medication including fentanyl in communities such as Timmins and Chapleau with ties stretching to Ottawa. It commenced in November 2015 and was a joint operation between the Ontario Provincial Police (“OPP”) and the Nishnawbe Aski Police Service (“NAPS”). Investigators of Project Coast identified Mr. Solano-Santana, who resides in Ottawa, as a fentanyl trafficker.
[3] On the night of April 29, 2016, Mr. Solano-Santana had outstanding warrants and was in breach of bail conditions by being in Thunder Bay and by being out after 10:00 p.m.
[4] Police arrested Mr. Solano-Santana during a traffic stop. In a s. 24(2) application brought previously by Mr. Solano-Santana, I held that he was arrestable on outstanding warrants and for breach of bail conditions, and that police conducted lawful searches incidental to arrest: R. v. Solano-Santana, 2018 ONSC 2609.
[5] During the search of Mr. Solano-Santana’s jacket, police discovered a zip lock baggie containing 495 pills which appeared to be Percocets but which were later identified as containing fentanyl.
[6] During the search of the hotel room in which Mr. Solano-Santana was staying, police discovered zip lock baggies, $1,560 in cash, and a pillow case full of 4,500 pills which appeared to be Percocets but which were later determined to contain fentanyl.
B. Circumstances of the Offender
[7] Abel Solano-Santana is a 39-year-old man. He was born in San Pedro, Dominican Republic. His family moved to Canada when he was approximately 12 years old. He reports being treated poorly by his mother. He attended high school in Canada intermittently and reports having completed grade eleven. He is the father of three children who reside with his ex-wife.
[8] He has convictions from 1999 onwards for, among other things, possession for the purpose of trafficking, assault, credit card fraud, break and enter, theft and uttering threats.
Presentence Report
Overview
[9] The probation officer interviewed Mr. Solano-Santana, his brother, his sister, his step-father, and his partner. His mother was not available for interview.
[10] Mr. Solano-Santana reports that he was raised from infancy to nine years in a stable, loving home by his biological father and his extended family in the Dominican Republic.
[11] After the death of his father, when Mr. Solano-Santana was nine, he reports his mother took custody of him and his brother. In 1991, Mr. Solano-Santana, his brother and two step-siblings immigrated to Canada with their mother.
[12] Mr. Solano-Santana reported that after moving to Canada, his life became difficult. He reported that his mother suffered from mental health issues and used corporal punishment. Mr. Solano-Santana and his sister confirmed their mother has been diagnosed with bipolar disorder.
[13] His mother sent him back to the Dominican Republic for disobedience issues on at least two occasions. After one of these occasions, Mr. Solano-Santana did not wish to return to his mother and made the decision to live on his own. He struggled financially and attended high school for a short period prior to his first involvement with the justice system in 1999.
[14] Mr. Solano-Santana is the father to three children, including a teenage daughter who he reports is struggling emotionally. He was involved in a business pursuit with his now ex-wife which was unsuccessful.
[15] Mr. Marian Bellgrau, the offender’s step-father, reports that Mr. Solano-Santana has been consistently motivated to make money illegally, as he struggles to find paid work due to poor educational attainment.
[16] Mr. Solano-Santana reports that he does not suffer from addiction issues.
Assessment and Recommendations
[17] Mr. Solano-Santana has had a poor response to both community supervision and incarceration. He has been found guilty of four misconducts during this current period of custody. Recommendations include the Integrated Correctional Program Model at Stoney Mountain Penitentiary, if a federal sentence is deemed appropriate, and the Ontario Correctional Institute, should a provincial custodial sentence be deemed appropriate.
[18] The recommendations for community supervision include residing only at a place approved of by his probation officer, seeking and maintaining meaningful employment and educational opportunities, not possessing or consuming any unlawful drugs or substances with the exception of a prescription in his name, and attending and actively participating in counselling, assessment and rehabilitation programs as directed by his probation officer and completing these to the satisfaction of his probation officer for family of origin issues.
Statement of Mr. Solano-Santana
[19] Mr. Solano-Santana expressed remorse and stated he was concerned about the impact of his absence on his teenage daughter.
C. Impact on the Victim and/or Community
[20] The offence relates to a Schedule 1 Substance. Schedule 1 drugs are recognized as causing tremendous harm to the public.
[21] Fentanyl is even more dangerous than other Schedule 1 drugs. It poses a huge and potentially lethal risk to its buyers and users, and also to other members of the community, such as police officers.
[22] The Crown filed as an exhibit the report of Dr. Karen Woodall, a toxicologist with the Centre for Forensic Sciences of the Ontario Ministry of Community Safety and Correctional Services. Dr. Woodall’s evidence confirmed that fentanyl is highly addictive and dangerous for users.
Legal Parameters
[23] The following Criminal Code provisions apply:
Purpose and Principles of Sentencing
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 acknowledgment of the harm done to victims or to the community. R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6; 2015, c. 13, s. 23.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. R.S., 1985, c. 27 (1st Supp.), s. 156; 1995, c. 22, s. 6.
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(d) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Positions of the Crown and Defence
[24] The Crown submitted that a global sentence of 10 years is appropriate in this case given the dangerous nature and the quantity of fentanyl pills in question. The Crown conceded that enhanced credit at 1.5 days per day in custody is appropriate.
[25] The Crown also requested a mandatory firearms prohibition in accordance with s. 109(1) of the Criminal Code for life, the provision of a DNA sample under s. 487.051, the forfeiture of the phones and cash seized during the search, and the destruction of the drugs.
[26] Counsel for Mr. Solano-Santana submitted that a global sentence of 4 years before credit for pretrial custody was appropriate given that Mr. Solano-Santana was treated poorly by his mother growing up, and that he now has a young family.
[27] Mr. Solano-Santana has been in pre-sentence custody for approximately 2 years and one month. Thus, by my calculations, Mr. Solano-Santana has to date been in custody the equivalent of 1,140 days or 3 years and 45 days.
Aggravating and Mitigating Circumstances
[28] The aggravating factors in this case are:
• the extreme risk posed by fentanyl;
• the significant amount of pills in this case (5,000 pills);
• the vulnerability of the Northern communities to which fentanyl was being trafficked;
• Mr. Solano-Santana’s previous convictions for possession of a Schedule 1 substance (fentanyl) for the purpose of trafficking in 2017 and possession of a Schedule 2 substance for the purpose of trafficking in 2009;
• his deliberate breaching of three conditions of his recognizance at the time of the offence (the curfew, the condition to reside with surety, and the condition not to possess a substance defined by the CDSA); and
• the fact that he was not an addict and was motivated by commercial gain.
[29] The exceptionally high quantity of pills at issue here (5,000 pills) is a significant aggravating factor. The street value of the pills is estimated at $30,000-$150,000.
[30] There was a lack of mitigating circumstances in this case.
Reasons and Sentence
[31] I have reviewed a number of fentanyl-related sentencing cases raised by counsel for the Crown and the Defence. These decisions are summarized in Appendix 1.
[32] It is clear that fentanyl is a highly dangerous drug. Generally speaking, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences: R. v. Loor, 2017 ONCA 696, at paras. 49, 50. This is particularly so when the offender is motivated primarily for profit. See for example: R. v. Godreau, 2016 ONSC 6318.
[33] In imposing sentence, I have taken into account that the principles of deterrence and denunciation are important when sentencing drug traffickers. I am also guided by the fundamental principle that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[34] After considering all the relevant factors, sentencing principles and the circumstances of this case, I conclude that the appropriate sentence is 8 years and that, therefore, with credit for presentence custody of 3 years and 45 days, the effective sentence shall be an additional 4 years and 320 days in custody in a federal institution.
[35] As a further consequence of the conviction, an ancillary order is mandated by the Criminal Code. Pursuant to s. 109(1)(c), Mr. Solano-Santana is prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life. Pursuant to s. 737(2)(b)(ii), there is a mandatory victim surcharge of $200. Further, pursuant to s. 487.051(3), I order Mr. Solano-Santana to submit a sample of his DNA to the DNA Data Bank. I also order the forfeiture of the two phones and $1,560 cash, and the destruction of the fentanyl pills.
[36] I recommend that Mr. Solano-Santana attend the Integrated Correctional Program Model at Stoney Mountain Penitentiary. There is specific programming available for drug-related offenders who are involved for financial gain. His ability to engage in alternatives to crime may be facilitated by such a referral.
“original signed by”
NEWTON J.
Released: May 31, 2018
Appendix 1: Sentencing Table on Fentanyl-Related Cases Raised in R. v. Solano-Santana
Case
Conviction
Quantity of Drugs/Street Value
Aggravating and Mitigating Factors
Sentence
Cases in Crown’s Book of Authorities
R. v. Loor, 2017 ONCA 696
3 counts of using forged document (a prescription)
3 counts of trafficking in fentanyl
45 patches of fentanyl/$18,00-$20,000 (on the street in North Bay)
Aggravating
offender's previous criminal record, including a conviction for trafficking
he trafficked 45 patches of the highest strength (100 mcg per hour)
fentanyl is a very dangerous drug
he deceived a pharmacy
Mitigating
lack of convictions for nearly five years
lack of large profit
strong family support
volunteer work
good behaviour in custody
6 years (less 18 months’ credit for pre-sentence custody)
R. v. Gignac, unreported January 22, 2018, Marion J. (O.C.J.)
possession of fentanyl for the purpose of trafficking
possession of cannabis marijuana
possession for the purpose of trafficking in oxycodone
breach of terms of her release from custody prohibiting her from possessing illicit drugs
Three 100 mcg fentanyl patches (total of $1,200); 109.4 g of fentanyl powder ($43,760); 66 fentanyl capsules ($4,620); one fentanyl pill ($80), 130 fentanyl capsules ($9,100); 14 oxycodone pills (total of $560); Overall total of drugs = $59,320
(there was also five 25 mcg of fentanyl patches, but this was not included in sentencing)
Aggravating
fentanyl poses a significant danger
the possession of fentanyl powder poses an additional risk to innocent members of the public, first responders, law enforcement agencies and health care providers
she reoffended 6 days after her initial arrest
prior to these offences, she was arrested and charged with possession for the purpose of trafficking in oxycodone and possession of marijuana
she breached bail conditions 5 days after being released on bail and was arrested for a third time
she was in possession of weapons in breach of a term of her release
she was in possession of fentanyl in breach of a term of her release
the quantity of fentanyl was significant
she was in possession of a significant amount of drugs other than fentanyl
her conduct was in part to provide for her addiction but also for profit
Mitigating
she does not have a criminal record
youthful offender
entered a guilty plea to the charges at an early opportunity and expressed remorse
suffers from drug addiction
is amenable to rehabilitation
has experienced difficulty in her adolescence, however this is largely due to her drug use
has completed grade 12 during her incarceration, and has participated in counselling and taken steps to deal with her drug addiction
For the 109.4 g of fentanyl powder
7 years (less 388 days credit for pre-sentence custody)
For the three 100 mcg fentanyl patches
3 years concurrent
For the 66 capsules of fentanyl
4 years concurrent
For the one fentanyl pill
10 months concurrent
For the 130 fentanyl capsules
5 years concurrent
For the breaches
30 days on each count concurrent to the 3 years for three 100 mcg of fentanyl pills
R. v. Joumaa, 2018 ONSC 317
1 count of possession of cocaine for the purpose of trafficking
1 count of possession of fentanyl for the purpose of trafficking
2.55 g of cocaine; 139 fentanyl pills
Aggravating
extreme risk posed by fentanyl
additional possession of cocaine
deliberate breaching of his curfew conditions
deliberate arranging to deal in illicit drugs while on bail
motivated primarily for profit
Mitigating
guilty plea
youthful offender
lack of an adult criminal record
supportive family
4 years (less credit for pre-sentence custody in the total amount of 23 months) BUT given his age, the judge slightly reduced the total sentence from 25 months to 2 years less one day so that he could serve custody in provincial jail
R. v. Baks, 2015 ONCA 560
- “convictions related to prescription drug operation”
“very large amount”
Aggravating
large amount of a very dangerous drug
appellant played a key role and betrayed the trust of her employer, a doctor
Mitigating
she is a young person who has no prior criminal record and no history of criminal involvement
her rehabilitative prospects are excellent
she acted at the instigation and under some pressure from one of the “higher ups” with whom she had a romantic relationship
she provided early and full cooperation to the police, as a result of which one of the two “higher ups” pled guilty
Sentence reduced from 9 years to 6 years
R. v. Boardman, [2016] O.J. No. 4379
1 count of possession for the purpose of trafficking of methamphetamine
1 count of possession for the purpose of trafficking of cocaine
1 count of possession for the purpose of trafficking of fentanyl
84.51 g of cocaine; 19.78 g of fentanyl ($2600-$4000); and 27.99 g of methamphetamine
Aggravating
fentanyl is a dangerous drug
he has 6 prior convictions with respect to possession for the purpose of trafficking schedule 1 substances
he does not think he is a “maniacal drug dealer” although he has for almost two decades been distributing lethal drugs
Mitigating
- no weapon
For possession of fentanyl for the purpose of trafficking
6 years over and above a 169 day credit
For possession of methamphetamine and cocaine for the purpose of trafficking
5 years concurrent one to the other and concurrent to the 6 years for the fentanyl count
For the breach of probation
90 days concurrent
R. v. Shevalier and Clark, 2017 WL6048355 (unavailable online)(OCJ)
possession of fentanyl for the purpose of trafficking
possession of methamphetamine for the purpose of trafficking
possession of heroine
possession of crack-cocaine
possession of marijuana
two counts of possession of prohibited weapons
.13 g of marijuana; 28.13 g of fentanyl ($11,500); .56 g of heroine; 22.22 g of methamphetamine ($2,000); .12 g of cocaine
Aggravating
fentanyl is an extremely dangerous drug
significant amount of fentanyl and methamphetamine seized
both methamphetamine and fentanyl were possessed for sale; both are highly addictive
presence of weapons
even though the offenders were addicts, the amount indicated that they were trafficking for profit
the toll fentanyl has taken on the community (Kitchener)
-in the case of Shevalier, a substantial criminal record
Mitigating factors in relation to Clark
lack of criminal record
she is still relatively young and has a chance to rehabilitate
she has taken considerable steps while in custody awaiting trial to improve herself (ie drug counselling)
there was likely a power imbalance between her and her co-offender
she has a relatively positive pre-sentence report and is sincere in attempting to alter the course of her life
Possible mitigating factors in relation to Shevalier
- he has become involved in Bible study while in custody, but no evidence that he has formulated a plan to change his life
For Shevalier
For the fentanyl charge
8 years less actual credit of 19 months for a net term of 6 years, 5 months
The sentences for the other counts run concurrent to the 8 years, as follows: possession of heroine (6 months); possession of methamphetamine for the purpose of trafficking (5 years); possession of crack-cocaine (6 months); possession of marijuana (30 days); 2 counts of possession of a prohibited weapon (1 year each)
For Clark
For the fentanyl charge
4 years with credit for pre-trial custody, resulting in an actual sentence of 2 years and 5 months BUT the judge reduced the sentence on the fentanyl charge to 2 years in penitentiary so that it could be followed by 3 years of probation. The sentences for the other counts run concurrent to the 2 years, as follows: possession of heroine (3 months); possession of methamphetamine for the purpose of trafficking (18 months); possession of crack-cocaine (2 months); possession of marijuana (1 day); 2 counts of possession of a prohibited weapon (2 months each)
R. v. McCormick, 2017 BCPC 22
Vancouver offences
one count of trafficking in fentanyl
three counts of possession for the purpose of trafficking of various drugs (fentanyl, cocaine, methamphetamine, MDMA, cannabis marihuana, cannabis resin, alprazolam)
Richmond offences
- possession of fentanyl, cannabis marijuana, cocaine and alprazolam for the purpose of trafficking
Vancouver offences (street value of $2,034,132)
- 30,000 fentanyl pills; over 4 kg of cocaine; 1 kg of methamphetamine; 374 g of MDMA; 25.5 kg of cannabis marihuana and cannabis resin; 92, 833 alprazolam pills
Richmond offences
1,049 fentanyl pills; 2 kg of cocaine; 18.1 kg of cannabis marijuana; 4,285 alprazolam pills
Aggravating
fentanyl is more dangerous than other Schedule 1 drugs
the large quantity of drugs (3,000 fentanyl pills were sold)
he was three levels removed from the level of a street trafficker
this was not an isolated occurrence
the trafficking occurred in the context of a much larger drug operation wherein the offender had possession of a variety of harmful drugs in three different locations
involving wholesale drugs
the police found firearms
the offender was also subject to a lifetime firearms prohibition
he was on bail for the Vancouver offences when he committed the Richmond offence
Mitigating
- guilty plea despite significant triable issues, which showed that he accepted responsibility
For the Vancouver offences
For the one count of trafficking in fentanyl
5 years
For the three Vancouver counts of possession for the purpose of trafficking
Global sentence of 8 years on all three counts (concurrent to the 5 years)
For the Richmond offences
8 years
HOWEVER, based on the totality principle, the aggregate sentence is reduced from 16 years to 14 years (minus credit for 221 days of pre-trial custody)
R. v. Godreau, 2016 ONSC 6318
5 counts of trafficking in fentanyl
5 counts of knowingly making a false document
5 counts of using or uttering a forged document
boxes containing fifteen 100 mg fentanyl patches
Aggravating factors
he exploited a circle of known drug uses, including a senior citizen and his very own mother
he trafficked in maximum strength fentanyl patches
he had a previous criminal record for drug trafficking
the scheme was commercially lucrative
No mitigating factors
- did not offer any cooperation to police; is not young or a first-time offender
10 years
(less credit for pre-trial custody, for an actual sentence of 6 years)
R. v. Sinclair, 2016 ONCA 683
- fentanyl trafficking
Not specified, but related to R. v. Baks, supra, which concerned a “very large amount” of fentanyl
Mitigating
rehabilitation is realistic
the appellant did co-operate, notably by testifying against the kingpin of the criminal enterprise
Sentence reduced from 9 years to 8 years
R. v. Lu, 2016 ONSC 292
one count of trafficking
6 counts of possession of controlled substances for the purpose of trafficking
2 counts of possession of proceeds of crime
one count of carrying a concealed weapon
3.1 kg of marihuana; 700 g of marijuana; 923 g of cocaine; 5.8 g of crack cocaine; 522 pills containing fentanyl; 55.7 g of cannabinol (THC), approx. 500 g of hash; 277 oxycodone pills
Mitigating
youthful offender
he has been on bail for 4 years without breaching his bail conditions
Aggravating
prior related criminal record
the current offences were committed only a year after his release from a prior drug-related sentence
he was not an addict, and trafficking solely for gain
nature and quantity of drugs involved
the quantity of drugs involved suggests that he was a distributor of drugs
fentanyl is a very dangerous drug
5 years after 7 months’ credit for restrictive bail conditions was deducted
R. v. Leite, 2018 ONCJ 132
2 counts of possession of cocaine for the purpose of trafficking
2 counts of possession of methamphetamine for the purpose of trafficking
2 counts of possession of fentanyl for the purpose of trafficking
possession of Canadian currency obtained by crime exceeding $5000
1.238 kg of cocaine; 371.1 g of methamphetamine; 147.9 g of fentanyl
Mitigating
- good behaviour while on bail
Aggravating
he was a mid to high level dealer of dangerous, highly addictive drugs
a considerable amount of cash was also located which was from the sale of drugs, yet he was on public assistance
he was not an addict and his sole motivation was greed
For fentanyl charges
6 years consecutive + 2 year consecutive for a total penitentiary sentence of 8 years
For cocaine charges
5 years concurrent + 1 year concurrent
For methamphetamine charges
3 years concurrent + 1 year concurrent
For possession of Canadian currency obtained by crime
18 months concurrent
R. v. Whalen, June 2, 2017 (not available online)
possession for the purpose of trafficking both fentanyl and crystal methamphetamine
possession of property obtained by crime under $5000
9.8 g of fentanyl; 3.4 g of MDMA; 9.75 g of methamphetamine; 2.76 g of marijuana
Aggravating
fentanyl is a very dangerous drug
significant prior record
he is a mid-level drug dealer
the amateur blending here creates both strong and weak pockets, so an individual using the substance would not know the strength of the dose
although he had an addiction, this enterprise was for profit
Mitigating
guilty plea
he did have an addiction
(-not a sophisticated operation here)
For possession of fentanyl for the purpose of trafficking
4 years less total pre-sentence custody credit of 8 months
For the crystal methamphetamine charge
1 year concurrent
For possession of property obtained by crime
3 months concurrent
R. v. Shaheen, 2018 ONCJ 150
trafficking in fentanyl
public mischief
fraud over
5198 100-mcg fentanyl patches
Aggravating
fentanyl is a deadly drug
the offender was a licensed pharmacist at the time of the offence
as owner of pharmacies, he was in the highest position of trust for his profession
he abused his position of trust by trafficking in fentanyl and by trying to cover up his crime
staging of a robbery
volume of drugs and length of time over which the crime occurred
he is not an addict
Mitigating
lack of a criminal record
he has provided material and emotional support to his family over the years
For trafficking in fentanyl
14 years
For public mischief and fraud over
5 years each, concurrent to the 14 years
R. v. Sidhu, June 16, 2017 (not available online)
four counts of trafficking in fentanyl
possession of fentanyl for the purpose of trafficking
trafficking in methamphetamine
possession of methamphetamine for the purpose of trafficking
possession of heroine for the purpose of trafficking
possession of a weapon contrary to order
breach of probation order
89.5 g of fentanyl ($21,430 to 42,860); 214.3 g of crystal-methamphetamine; 42.8 g of heroine ($10,272 to $21,400)
Aggravating
deaths due to fentanyl in the Waterloo region
he has a significant prior criminal record
although he was an addict, he was also making profit
he was released in February and back at trafficking in June
(also, there was a weapon in the residence and he was on a prohibition order for life)
Mitigating
guilty plea
youthful offender
both parents are good supports for him
For trafficking in fentanyl
9.5 years minus credit for pre-sentence custody, for an actual sentence of 8 years and 2 months
For trafficking in methamphetamine
7 years concurrent
For possession of methamphetamine for the purpose of trafficking
7 years concurrent
For possession of heroine for the purpose of trafficking
7 years concurrent
For breach of probation
90 days concurrent
For possession of a prohibited weapon
9 months concurrent
Cases in Defence’s Book of Authorities
R. v. Forget, [2016] O.J. No. 3504
- possession for the purpose of trafficking in fentanyl
159 fentanyl patches ($105,000)
Aggravating
nature, quantity and street value of the fentanyl
fentanyl is highly addictive and lethal
offender was not an addict and was motivated by profit
Mitigating
guilty plea
the offender was remorseful and apologized
no previous criminal record
offender was 60 years old
offender had chronic pain
limited knowledge that the offender had in 2014 about the devastating effects of fentanyl
3 years
R. v. Klammer, 2016 ONSC 4038
possession of fentanyl for the purpose of trafficking
trafficking fentanyl
possession of currency obtained by crime under $5000
Six 100 mcg patches of fentanyl
Aggravating
quantity and strength of the fentanyl sold
his continued use of drugs in contravention of his bail conditions
his sale of oxycodone and conviction for trafficking of that drug while his trial on these charges was pending
he was an addict but was also motivated by profit
Mitigating
no previous criminal record
offender is remorseful
offender has exhibited some intention, not yet successful, to battle his addiction
33 months
R. v. Klammer, 2017 ONCA 416
ibid
ibid
The trial judge erred in considering the offender’s sale of oxycodone and conviction for trafficking of that drug while his trial on these charges was pending, as an aggravating factor
Sentence of 33 months reduced to 20 months less time served
R. v. Brooker, [2014] O.J. No. 2609
3 counts of trafficking in fentanyl;
1 count of trafficking in hydromorphone
23 fentanyl patches; 22 hydromorphone pills
Aggravating
- fentanyl is a very dangerous drug
Mitigating
- guilty plea
4 years concurrent less pretrial custody, which leaves 39 months
Looseleaf cases
R. v. Hambly, 2016 BCPC 215
1 count of possession for the purpose of trafficking in heroin and fentanyl
1 count of possession for the purpose of trafficking in cocaine
1 count for possession for the purpose of trafficking in methamphetamine
3.18 g of heroin (which was subsequently found to be combined with fentanyl); a 4-pack of crystal meth; 5 packages of crack cocaine
Aggravating
- fentanyl is a very dangerous drug
Mitigating
Gladue factors
he did not have a related criminal record
6 months to be served concurrently on each count
R. v. Derycke, 2016 BCPC 291
possession of fentanyl, cocaine, heroin, and marihuana for the purpose of trafficking
escape from lawful custody
driving while prohibited
9.13 g of heroin (laced with fentanyl), 23 g of cocaine (laced with fentanyl), 6 bags of marijuana, mushrooms, prescription bottles with various pills and 3 morphine pills
Aggravating
fentanyl is a very dangerous drug
although the offender was an addict, he was also motivated by profit
Mitigating
guilty plea
young age
lack of prior record for drug offences
12 months less credit of 189 days for time served, for the offence of possession of fentanyl, cocaine, heroin, and marihuana for the purpose of trafficking
30 days concurrent for escape from lawful custody
fine of $500 and 1-year driving prohibition for driving while prohibited
R. v. Corbett, 2015 ABPC 212
possession for the purpose of trafficking of fentanyl and cocaine
possession of prohibited or restricted weapon or ammunition
carless use/storage of a firearm
two counts of breach of a recognizance
possession of property obtained by crime
crack and powdered cocaine; 328 fentanyl pills; two cell phones; $2,770 in cash
Aggravating
fentanyl is deadly
the aggregate street value of the drugs
the two sets of offences arising approximately 1 year apart show that he was “entrenched in the drug trafficking industry”
in respect of the later offences, he was on release and under conditions which he breached
he was found in possession of a prohibited weapon
Mitigating
guilty plea
he was feeding his addiction and not motivated by profit
no prior convictions
his rehabilitation was accomplished during the pre-sentence stage
this was an exceptional case
9 months already served plus 2 years’ probation
COURT FILE NO.: CR-17-0023-00
DATE: 2018-05-31
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
ABEL SOLANO-SANTANA
Accused
REASONS FOR SENTENCE
NEWTON J.
Released: May 31, 2018
/sab