R. v. Cinelli, 2018 ONSC 4983

Court File and Parties

COURT FILE NO.: 18/9-120

DATE: 20180831

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

FLAVIO CINELLI

Defendant

Counsel:

Christopher Walsh, for the Crown

Melina Maachia, for the Defendant

HEARD: June 15, 2018

Reasons for Sentence

bawden j.:

Introduction

1Mr. Cinelli has pleaded guilty to two counts of possession of heroin for the purpose of trafficking and one count of possession of fentanyl for the purpose of trafficking. The Crown submits that the appropriate starting point for sentencing is seven years imprisonment less appropriate credit for pre-trial custody and time spent on a restrictive bail.

2The defence submits that the appropriate starting point is six years but argues that the sentence should be reduced by half in recognition of the fact that Mr. Cinelli provided assistance to police by surrendering an illegal firearm. On that basis, the defence seeks a concurrent sentence of three years on all offences less the customary credits.

The Chronology

3Mr. Cinelli was convicted of two counts of criminal negligence causing bodily harm in 2004 when he was 25 years old. This was his first criminal conviction but it resulted in a six month jail sentence and began a series of criminal convictions which continues to this day. Mr. Cinelli was convicted of at least one criminal offence every year between 2004 and 2015 with the exception of 2011. His convictions include a 2005 conviction for possession of a schedule one substance for the purpose of trafficking (PPT) and two convictions in 2012 for trafficking in a schedule one substance.

4Mr. Cinelli has pleaded guilty before this court to two sets of offences which occurred in 2016. The facts regarding a third set of offences which occurred in 2017 were admitted pursuant to Garcia and Silva.

5The first set of offences occurred on March 28, 2016. Mr. Cinelli and his brother, Aristide, were intercepted by police as they were entering a vehicle. The police searched the car and found a pencil case which contained the following items:

a. 63 grams of heroin;

b. 20 grams of fentanyl;

c. $3,260 in cash;

d. A digital scale; and

e. 5 syringes.

6Mr. Cinelli has pleaded guilty to PPT Heroin and PPT Fentanyl arising from these facts. He has indicated through his counsel that he believed that all of the substances in his possession were heroin and that he was shocked to learn after his arrest that a significant portion of what he intended to sell as heroin was actually fentanyl.

7Mr. Cinelli did not initially seek bail on these charges. He retained counsel and made efforts to arrange treatment for his own heroin addiction while in custody. On July 7^th, 2016, Mr. Cinelli was released on a one day recognizance which permitted him to attend at the Centre for Addiction and Mental Health - Metro Addiction Assessment and Referral Service (CAMH - MAARS) in order that he could be assessed. Mr. Cinelli surrendered to the jail at the conclusion of that assessment in accordance with the terms of his release.

8On July 18^th, 2016, Mr. Cinelli was granted a second release for one day to attend a second intake session at MAARS. At the conclusion of that session, Mr. Cinelli decided to apply for private treatment at the Renascent Centre where he would receive 28 days of in-patient treatment to be followed by 15 weeks of aftercare. The Renascent Centre accepted his application and Mr. Cinelli’s family paid a $9,995 fee. Treatment was to begin on August 9^th.

9Mr. Cinelli attended Old City Hall on August 8^th, 2016 in custody. He anticipated at that time that he would be released with the consent of the Crown to attend the Renascent Centre. The Crown refused to consent to his release and Mr. Cinelli was remanded in custody to return to court on August 17^th. To the surprise of all parties, the South Detention Centre refused to receive him. As a result of an error in the preparation of the remand warrant, the jail concluded that it had no authority to hold Mr. Cinelli and released him. Mr. Cinelli called his counsel to seek guidance as to how he should proceed. It is not clear what happened as a result of those discussions but it appears that neither the Crown nor the defence did anything to return the matter to court to resolve the error in the paperwork.

10Given the uncertainty of his legal status, Mr. Cinelli did not attend the Renascent Centre on August 9^th for treatment. On August 15^th, (five months after the first offence and six days after the improper release), a 12 Division Neighbourhood Enforcement Team pulled over a vehicle which they suspected was involved in drug trafficking. Mr. Cinelli’s brother, Aristide, was driving the car. Mr. Cinelli’s father was sitting in the front passenger seat and Mr. Cinelli himself was in the back seat. The police searched everyone in the car. Aristide Cinelli was found in