Court File and Parties

COURT FILE NO.: CR-17-0000122 DATE: 20180828 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – NICHOLAS JENKINS and TIANNA MORGAN Defendants

Counsel: Amber Meiners, for the Crown Justin Yuen, for the Defendant Mr. Jenkins Gary Pickard, for the Defendant Ms. Morgan.

HEARD: February 7-9, 12-16, 20-22, 2018

REASONS FOR DECISION

edwards J. :

Overview

[1] On February 21, 2018, a jury convicted Mr. Jenkins of three separate counts of trafficking in cocaine, fentanyl and heroin, and three separate counts of possession for the purpose of trafficking cocaine, fentanyl and heroin. The jury convicted Ms. Morgan of three separate counts of possession for the purposes of trafficking in heroin, fentanyl and cocaine, as well as one count of willfully obstructing a peace officer. The Crown seeks a period of incarceration as against Mr. Jenkins of eight years, while the defence on behalf of Mr. Jenkins suggests that an appropriate sentence is in the range four and a half to five years before credit for presentence custody. The defence also argues that the convictions as they relate to fentanyl should, in accordance with the Kienapple principle, be conditionally stayed.

[2] The Crown seeks a period of incarceration as against Ms. Morgan of three years, while counsel on behalf of Ms. Morgan submits that the appropriate sentence should be a sentence that reflects time served. Mr. Pickard, on behalf of Ms. Morgan, joins the submissions of Mr. Yuen as it relates to the conditional stay of the fentanyl charge as it relates to Ms. Morgan.

[3] In addition to the drug charges for which Ms. Morgan was found guilty, she was also charged under a separate indictment with breach of probation, to which she ultimately pleaded guilty. The probation order that she was in breach of required that she abstain from the purchase, possession or consumption of drugs, except in accordance with a medical prescription.

The Facts

Circumstances of the Offences

[4] As a result of information the Barrie Police Service (BPS) had received in 2016 that Mr. Jenkins was trafficking in cocaine and heroin, the BPS conducted surveillance on Mr. Jenkins’ home address (The Jenkins’ residence) as well as his vehicle. The purpose of the surveillance was to corroborate the information that had been received, as well as to provide the necessary grounds for a search warrant at the Jenkins’ residence.

[5] On at least six separate occasions in January 2017, Mr. Jenkins was observed conducting what the various police officers engaged in that surveillance believed was an illicit drug transaction. On January 20, 2017, Mr. Jenkins was observed getting into a vehicle and with the knowledge of the prior surveillance evidence, instructions were given to the officers conducting the surveillance to arrest Mr. Jenkins. As a result of the search of one of the occupants of the vehicle, two packages were seized that ultimately were the subject of a Health Canada analysis that revealed one packet containing .29 grams of heroin, fentanyl and caffeine, and the other package contained .48 grams of heroin, fentanyl and caffeine. At the time of his arrest, Mr. Jenkins had on his person two cell phones and approximately $1,300 in Canadian currency bundled in a rubber band.

[6] A search warrant was obtained for the Jenkins’ residence. While waiting for the search warrant to be processed officers of the BPS continued surveillance of the Jenkins’ residence, as a result of which Mr. Jenkins’ father, Barry Jenkins (Barry), was observed getting into his vehicle. Barry’s vehicle was subsequently stopped by the BPS and a canister containing 20.5 grams of cocaine and 22.7 grams of heroin, fentanyl and caffeine, was seized.

[7] When the search warrant was issued and a search was conducted of the Jenkins’ residence, various items associated with illicit drug trafficking were seized including a digital scale, two cell phones, several boxes of latex gloves, several boxes of Ziploc bags, a box of baking soda and a carbon mask. Also seized in a bedroom ultimately determined to be used by Mr. Jenkins and Ms. Morgan, was an envelope addressed to Tianna Morgan containing $3,780 in Canadian currency.

[8] Mr. Jenkins and Ms. Morgan both resided at the Jenkins’ residence. They lived in the lower level basement area of the house, which is the location where the various items of drug paraphernalia – excluding the quantity of cash, was located. On January 20, 2017 after Mr. Jenkins had not returned home, Ms. Morgan made various phone calls as a result of which she learned that Mr. Jenkins had been arrested. Barry testified for the Crown and indicated that he had been in the basement laundry room feeding a cat, when he overheard a conversation between Ms. Morgan and his wife to the effect that their son had been arrested. After he left the laundry room, Barry observed a black canister on the stairs that neither he nor his wife had ever observed in their home. Jenkins took the canister because he knew that his son had been arrested, and determined that whatever was contained in the canister would only get his son into more trouble.

[9] As the only occupants of the home were Barry, his wife Laurie Jenkins, their son and Ms. Morgan, the Crown argued, and ultimately the jury must have accepted, that the only person who could have placed the canister of drugs on the stairs was Ms. Morgan, and that the only reason why she placed the canister on the stairwell was her belief that Barry would remove it from the residence and away from the anticipated search that ultimately took place later the same day. As a result of her actions, Ms. Morgan obstructed a police officer and had possession of the drugs for the purposes of delivering them to Barry Jenkins. The canister that was placed on the stairs, was the same canister that was seized by the BPS after Barry Jenkins was observed leaving the residence.

[10] The certificates of analysis that were marked as Exhibit 2 at the trial confirmed, as it related to the various packages of heroin, that the heroin contained fentanyl. There was no evidence from the certificate of analysis that determined the amount of the fentanyl.

Circumstances of the Offenders

Mr. Jenkins

[11] Mr. Jenkins is one of three children born to Laurie and Barry Jenkins. He has had some prior employment experience dealing with automobile body work, and he is four credits short of his high school diploma. He has a relevant criminal record as a result of his conviction in January 2015, a conviction which included possession of a firearm and ammunition contrary to a prohibition order, careless storage of a firearm, possession for the purpose of trafficking – cocaine, and possession for the purpose of trafficking – heroin. He received a global sentence of 3.5 years for those offences. At the time of his arrest for the offences for which he was convicted in this matter, Mr. Jenkins was on parole. He completed his sentence in connection with those charges while awaiting for the trial in this matter. In 2010, Mr. Jenkins was convicted of possession for the purposes of trafficking crack cocaine as well as production of a Schedule II substance, for which he received four months and one year probation.

[12] While the Crown argues that Mr. Jenkins’ sole motive in connection with the charges before this court related to profit, Mr. Yuen in sentencing submissions submitted that in fact Mr. Jenkins has an addiction problem and that he has been using methadone to cope with his addiction. Mr. Yuen also noted during the course of his submissions that a former girlfriend of Mr. Jenkins had recently died as a result of a drug overdose, a tragedy that Mr. Jenkins has taken to heart - in his hope expressed through counsel, that he will be able to deal with his addiction such that when he is released from jail he will ultimately become a productive member of society.

Ms. Morgan

[13] Part of the delay in providing this court’s disposition as it relates to sentence, relates to the fact that after the jury verdict Ms. Morgan remained in custody as she had throughout the trial. Ultimately, Ms. Morgan was released from custody prior to the return date for sentencing submissions scheduled for March 29, 2018. When the matter came back before the court on March 29, 2018, Ms. Morgan did not attend and a bench warrant was issued. The matter returned on April 20, 2018, and the court was advised that the bench warrant had not been executed and the matter was again adjourned to April 23, 2018, by which time Ms. Morgan had been arrested and was in custody before the court. The matter was adjourned from April 23, 2018 to allow for the completion of the pre-sentence report which I had ordered on February 22, 2018. An aboriginal background report was also to be completed. The matter came back before me on June 18, 2018, at which time the pre-sentence report had not been received. Submissions were made by counsel with respect to the Kienapple issue. Ultimately, the pre-sentence report was received by the court in time for the July 25, 2018 appearance, when sentencing submissions were completed. Much of the additional time that Ms. Morgan has spent in custody, was caused solely as a result of her non-attendance in court when sentencing submissions were to have been conducted on April 10, 2018.

[14] Ms. Morgan is approximately 27 years of age and is a single mother of a seven year old son who is presently in the care of the child’s father. Her son has autism spectrum disorder, which according to the pre-sentence report consumed a lot of Ms. Morgan’s time as her son required a lot of attention and nurturing.

[15] The pre-sentence report reveals that Ms. Morgan had a difficult relationship with her family, particularly with her mother, which ultimately necessitated the involvement of the Children’s Aid Society. Ms. Morgan was in and out of youth detention centres, and that it is only now that Ms. Morgan – according to the Pre-sentence report, has begun to repair her relationship with her mother. It is worth noting that her mother was in the courtroom while sentencing submissions were being made to this court on July 25, 2018.

[16] The pre-sentence report reveals that Ms. Morgan did not have a positive high school experience, although she has completed her grade 12 equivalent at an adult learning centre. She has had mixed success as far as employment is concerned, and on occasion Ms. Morgan acknowledges that she resorted to criminal activity to financially support herself.

[17] Ms. Morgan began experimenting with drugs at a relatively early age, in grade seven or eight, when she began smoking marijuana and experimented with ecstasy in high school.

[18] Since she has been incarcerated, she has sought out the assistance of an addiction counsellor at the Central North Correctional Centre (CNCC). She has been accepted into the Street Haven Addiction Services Grant House for a six month residential treatment program aimed at addressing her substance abuse issues.

[19] While the pre-sentence report was not an overly positive report, it does make clear that Ms. Morgan now appears to have recognized the issues that she has with her substance abuse, and that on her own volition she sought out the assistance of an addiction counsellor at the CNCC, that has now resulted in her conditional acceptance into a six month residential treatment program at Street Haven Grant House in Toronto. There may be many motivating factors for this change in her direction, but certainly the largest source of motivation directed at her recovery appears to be her desire to become re-involved with her son, with whom she has been estranged largely as a result of issues in relation to these charges and her drug addiction.

Position of the Crown as it Relates to Ms. Morgan

[20] As it relates to Ms. Morgan, the Crown acknowledges that Ms. Morgan’s role with respect to the drugs at issue was quite different from that of Mr. Jenkins. The overall sentence sought by the Crown as against Ms. Morgan is one of three years less credit for time served. The aggravating features of Ms. Morgan’s role with respect to the charges for which she was convicted can be found - according to the submissions made by the Crown, in her role facilitating the removal of the drug canister from the Jenkins’ residence as well as the quality and nature of the drugs; specifically, the heroin that was found to contain fentanyl.

Position of the Crown as it Relates to Mr. Jenkins

[21] As it relates to Mr. Jenkins, the Crown seeks a global sentence of eight years less credit for time served. The most aggravating feature of the charges for which Mr. Jenkins was ultimately convicted relates to the nature of the drugs, specifically 25 grams of cocaine and 22.7 grams of heroin which was found to contain fentanyl. As well, the Crown points to the surveillance evidence that demonstrates that Mr. Jenkins was clearly involved as a street level dealer, given the number of occasions that he was observed during the police surveillance conducting a drug transaction. Also, the Crown points to a particularly aggravating factor that Mr. Jenkins was on parole for similar offences at the time that he was convicted by the jury in this case. I agree with this submission.

[22] The Crown argues that Mr. Jenkins’ sole motive in trafficking in drugs was profit, and that there is no evidence that the drugs were used to feed a personal drug habit. This submission was contradicted by Mr. Yuen during the course of his submissions.

[23] In support of the Crown’s position seeking a global sentence of eight years, I was referred to the Court of Appeal decision in R. v. Loor, 2017 ONCA 696, 2017 O.J. No. 4628. Mr. Loor’s conviction arose out of his role as a low level member of a small drug trafficking ring dealing in fentanyl. Loor had been convicted of three counts of using a forged prescription and three counts of trafficking in fentanyl, for which he received six years less eighteen months credit for presentence custody. His sentence was appealed to the Court of Appeal and was ultimately upheld. In upholding the sentence of six years, Laskin J.A. concluded his Reasons by noting that few fentanyl trafficking cases had reached the Court of Appeal, and that while it was too early in the jurisprudence to establish a range, Laskin J.A. went on to state:

…but I think it fair to say that generally, offenders – even first offenders – who traffick significant amounts of fentanyl should expect to receive significant penitentiary sentences. [Emphasis added]

[24] I was also referred by Crown counsel to various other cases, that I will refer to in the course of my analysis in support of the Crown’s position that an appropriate sentence for Mr. Jenkins is one of eight years.

Position of the Defence for Mr. Jenkins

[25] Mr. Yuen, on behalf of Mr. Jenkins, submits that while there is no dispute that fentanyl is a dangerous drug, there is no evidence before this court as to the amount of fentanyl that was contained in the 22.7 grams of heroin that was analyzed by Health Canada. Mr. Yuen acknowledges that the fact that fentanyl was contained in the heroin is an aggravating factor, but it in no way approaches the 45 patches of heroin for which Mr. Loor was convicted and received a six year sentence. Mr. Yuen also acknowledges that the fact that Mr. Jenkins was on parole is a further aggravating factor that this court can take into account in imposing sentence. The appropriate sentence for Mr. Jenkins, as submitted by Mr. Yuen, is a sentence of four and a half to five years less credit for time served.

Position of the Defence for Ms. Morgan

[26] Mr. Pickard properly submits that Ms. Morgan’s culpability is entirely different from that of Mr. Jenkins, and entirely different from that suggested by the Crown. Mr. Pickard suggests that Ms. Morgan’s role was one of obstructing justice, by allowing for the removal of the canister containing the drugs from the Jenkins’ house. Mr. Pickard also refers this court to Ms. Morgan’s handwritten submissions, which were marked as Exhibit 5 at the sentencing hearing. Ms. Morgan’s handwritten submissions demonstrate insight into her drug dependency, and her desire to seek the necessary help that she hopes will lead to a resumption of her role as a mother to her son.

[27] Mr. Pickard also argues that the pre-sentence report is a positive report that demonstrates Ms. Morgan’s motivation to seek out and obtain treatment from the Grant House. This motivation demonstrates that there is hope for Ms. Morgan’s rehabilitation, which can be ensured by her attendance at Grant House plus a period of probation. Fundamentally Mr. Pickard argues that a penitentiary sentence, as suggested by the Crown, is entirely inappropriate.

Principles of Sentencing

[28] The principles of sentencing are well known and set out in s. 718 of the Criminal Code. Where an accused is involved in the trafficking of drugs, the objectives of deterrence and denunciation are paramount.

[29] There is nothing new with respect to the emphasis on deterrence and denunciation as it relates to trafficking in controlled drugs. The Court of Appeal in R. v. Farizeh, [1994] O.J. No. 2624, made clear at para. 5 of its Reasons that the sale of even small amounts of heroin by first time offenders would attract a penitentiary sentence unless exceptional circumstances existed. Similarly, in R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), the Court of Appeal noted the extremely dangerous nature of crack cocaine, with its potential to cause great harm to individuals in society; thus warranting emphasis on the principles of deterrence and denunciation. Recently the Court of Appeal in R. v. Anang, [2016] O.J. No 5789, confirmed that a conviction for trafficking in heroin will almost always attract a significant jail term, usually in the form of a penitentiary sentence.

[30] The principles of denunciation and deterrence, particularly as they relate to the offences for which Mr. Jenkins was convicted, are the principles that guide me in imposing a sentence in this case.

Mitigating and Aggravating Factors

[31] I am required by s. 718.2 of the Criminal Code to take into consideration any relevant aggravating or mitigating circumstances as they relate to the offences, and as they relate to Ms. Morgan and Mr. Jenkins.

Mr. Jenkins

[32] As it relates to Mr. Jenkins, there are a number of significant aggravating factors which I must consider, which include the following:

a) that Mr. Jenkins has a prior criminal record dating back to January 2015, which included convictions for possession for the purposes of trafficking in cocaine and heroin, for which he received 3.5 years in jail - undoubtedly, part of the reasons why he received a penitentiary sentence in 2015 also included the convictions relating to possession of a firearm contrary to a prohibition order; b) that at the time when Mr. Jenkins was arrested in January 2016, he was on parole in connection with the sentence that he received in January 2015; c) that Mr. Jenkins was engaged in the sale and distribution of extremely dangerous drugs, which in the order of seriousness included fentanyl, heroin and cocaine; d) that even if the fentanyl charges are conditionally stayed, as argued by Mr. Jenkins’ counsel, that nonetheless the heroin was found to contain an undisclosed amount of fentanyl, which it is widely acknowledged is an extremely dangerous drug - even in minute quantities, which can and has caused numerous deaths across the country.

[33] As far as mitigating factors are concerned, there are really few mitigating factors that this court can consider. While the Crown suggests that Mr. Jenkins’ sole motivating force in participating in the illegal distribution of drugs was profit, I accept Mr. Yuen’s submission on Mr. Jenkins’ behalf that he may have a drug addiction for which he is now seeking out treatment.

Ms. Morgan

[34] As it relates to Ms. Morgan, the aggravating factors that this court takes into account relates to her implicit role, as found by the jury, that she participated in obstructing a police officer by placing the canister of drugs in a location where she knew that Mr. Jenkins’ father would find the canister, and ultimately remove it in anticipation of a likely search by the police subsequent to the arrest of Mr. Jenkins.

[35] As for her role that led to her convictions relating to possession for the purposes of trafficking of fentanyl, heroin and cocaine, implicit in the jury verdict is a finding on the part of the jury that she had possession of the various drugs at the time that she placed the canister on the stairwell. Other than this evidence, there was no evidence of any direct role in Mr. Jenkins’ enterprise, other than perhaps the fact that she occupied the basement apartment with Mr. Jenkins and, as such, must have known he was involved in the drug trade. While I am bound by the verdict of the jury and the findings of fact that are implicit in that verdict, the case against Ms. Morgan was entirely different from the case against Mr. Jenkins.

[36] In mitigation I have taken into account everything contained in the pre-sentence report, particularly as it relates to Ms. Morgan’s background, including the fact that she may be of a Métis heritage. I accept the submissions that have been made on her behalf that she has independently sought out assistance of an addiction counsellor while she has been incarcerated, and that she has further sought out the assistance that has led to her approval for admission to the Grant House for a six month period of rehabilitation. I have also considered Exhibit 5 - Ms. Morgan’s written submissions. I accept that those submissions demonstrate remorse for her actions and a real desire to improve herself in an effort to reconnect with her son and her larger family.

The Kienapple Issue

[37] There is no dispute that the law is clear that the Crown does not have to prove that an accused has knowledge of the exact drug named in the indictment, as long as it is established that the accused knew that the drug was a controlled substance, see R. v. Gill, [2017] O.J. No. 3258 at para. 21, per Fairburn J. (as she then was). Further, it is no defence that an accused’s honest belief that some other illegal drug was being trafficked and not the drug alleged and proven to be trafficked is no defence, see R. v. Johnson, [2017] O.J. No. 796 at para. 18, per Code J.

[38] In this case there were a number of packages analyzed by the Department of Health (Canada), as reflected in Exhibit 2 at trial. The package that was contained in the canister weighed 20 grams and was found to contain both heroin and fentanyl. It is from this evidence that the Crown laid charges of trafficking in heroin and fentanyl against Mr. Jenkins, and possession for the purposes of trafficking against both Ms. Morgan and Mr. Jenkins. As I have already indicated, there is no evidence as to the quantity of fentanyl contained in that package. While the Crown does not have to prove that either Mr. Jenkins or Ms. Morgan actually knew that the package contained both fentanyl and heroin, there is no evidence that either in fact did know that the package contained fentanyl.

[39] The Crown seeks separate convictions for trafficking in fentanyl and for trafficking in heroin as against Mr. Jenkins, and separate convictions for possession for the purposes of trafficking as against both Ms. Morgan and Mr. Jenkins in fentanyl and heroin. The defence argues that an accused should not be convicted of possession for the purposes or trafficking of both heroin and fentanyl, and that any conviction for either possession for the purposes or actual trafficking in fentanyl should be stayed. In that regard, Mr. Yuen argues that both drugs were found within the same package, and that the quantity of fentanyl mixed in with the heroin is unknown. As there was no evidence that either Mr. Jenkins or Ms. Morgan knew that the heroin contained fentanyl, it is argued that convictions should not be entered for both offences.

[40] Mr. Yuen pursues his argument on the basis of principles laid down in R. v. Kienapple, [1975] 1 SCR 729, that an accused cannot be convicted twice for the same delict. In order for the Kienapple principle to apply, there must be both a factual and legal nexis between the charges.

[41] In this case, while the Crown did not have to prove that either Mr. Jenkins or Ms. Morgan knew that the substance in the package was both fentanyl and heroin, there can be no dispute that the factual delicts are identical. The charges against both Mr. Jenkins and Ms. Morgan are based on the one package found in the container. The charges are based on the same act of trafficking or possession for the purposes of trafficking in a controlled substance, and has the same mental element of intending to traffick in a controlled substance.

[42] As noted by Green J. in R. v. Lemieux, 2017 O.J. No. 5465, at para. 52:

The factual delicts in this case are identical. The charges are based on the same act of trafficking in a controlled substance and the same mental element intending to traffick in a controlled substance. It was one single act with the same mental element and the Crown has not proven any additional mental element that Mr. Lemieux knowingly or was wilfully blind to trafficking in the more dangerous narcotic of fentanyl. Similarly, there are no additional or distinguishing elements such that the legal nexis is readily apparent. Each offence is designed to protect the same societal interest and the offences do not proscribe different consequences. Finally, there is no statutory provision in section 5 of the C.D.S.A. that specifically provides for multiple convictions arising out of the same delict.

[43] In the result, in Lemieux Green J. determined that where two substances were combined in a single package and found to contain both fentanyl and heroin, the appropriate disposition was to enter a single conviction. On the facts before the court, the single conviction that was entered was with respect to trafficking in heroin and not trafficking in fentanyl.

[44] The decision of Green J. has been cited with approval twice in Newfoundland: see R. v. MacIntyre, 2017 N.J. No. 377, and R. v. Hopkins, 2018 N.J. No. 136, as well as in R. v. Robinson, 2018 O.J. No. 2577 by Burstein J. I have been unable to find any decisions citing Lemieux in the Superior Court of Justice in Ontario, nor any other Superior Courts across the country.

[45] Ms. Meiners, for the Crown, argues that Lemieux was wrongly decided. There is no indication that Lemieux or any of the other decisions that have followed Lemieux have been appealed. It is worth noting in Robinson at para. 3, that the Crown handling the prosecution of Mr. Robinson acknowledged that the Kienapple rule against multiple convictions did apply, and that a conviction should only be registered in respect of one of the two counts for which the accused had been found guilty; specifically, possession for the purposes of trafficking of fentanyl and possession for the purposes of trafficking heroin. The only issue that Burstein J. really had to decide, was which of the two counts should be conditionally stayed. In that regard, the issue was which of the two convictions was the most serious.

[46] I am satisfied that a conviction could be entered for possession for the purposes of either narcotic as it relates to Mr. Jenkins and Ms. Morgan, and that a conviction could be entered for trafficking in either narcotic as against Mr. Jenkins alone. There is both a factual and legal nexis between both offences, and applying the Kienapple principle a conviction on one offence would preclude a conviction on the other.

[47] There simply is no evidence before this court with respect to the quantity of fentanyl in the package that was analyzed, as reflected in Exhibit 2. There is no evidence that either Mr. Jenkins or Ms. Morgan knew that the 20 grams of the controlled substance was a mixture of heroin and fentanyl. There can be no dispute that both heroin and fentanyl are dangerous drugs. Fentanyl of the two, based on my review of the jurisprudence is by far the most dangerous, as its consequences can be deadly even in miniscule amounts.

[48] In determining which of the two charges should be conditionally stayed, I adopt the reasoning of Green J. in Lemieux at para. 59, where he states:

The Crown did not call expert evidence or provide an expert’s report to address the obvious weaknesses with the Certificates of Analysis. It is equally plausible that the fentanyl found in the substance was a trace amount as it is that it was a more significant quantity. It is incumbent on the Crown to present fulsome evidence to address these deficiencies in the Certificates of Analysis…

[49] Justice Green, in his decision, goes on in paragraph 59 to state: “As such, the Crown will be significantly curtailed when relying on fentanyl being found in the heroin as an aggravating factor during the sentencing”.

[50] While I agree with the ultimate disposition of Green J. in Lemieux, I do disagree that the Crown should be significantly curtailed when relying on fentanyl being found in the heroin as an aggravating factor during sentencing. I say this because there can be no dispute that fentanyl is a highly potent drug, which regardless of its quantity when mixed with heroin will present a significant hazard to the unwary drug user on the street. The comments of Pearlman J. in R. v. Naccarato, 2017 BCSC 645 at para. 37, are apropos as it relates to the issue of the presence of fentanyl in the heroin as an aggravating factor:

Here, Ms. Naccarato knew she was transporting heroin, but was not aware that the heroin had been laced with fentanyl. However, in my view, her lack of specific knowledge that the heroin contained fentanyl is not a mitigating factor. The Crown and defence agree and I have found that at the time of the offence, Ms. Naccarato was aware that heroin could be laced with fentanyl. Ms. Naccarato was aware she was transporting an illegal drug that could be adulterated with fentanyl. Her ignorance about whether or not the heroin contained fentanyl did nothing to ameliorate the risk of overdose to anyone who purchased the drugs.

[51] While I have no evidence that either Mr. Jenkins or Ms. Morgan knew that the heroin contained fentanyl, whether in a trace amount or otherwise, their possible lack of knowledge is irrelevant. Both chose to participate in an enterprise that regardless of their specific knowledge of the fentanyl must be seen as highly dangerous to the end user. The end user is usually an addict. The end user is in need of the drug to deal with their addiction. The end user assumes that the drug that they are using is the drug that they had purchased. It is highly unlikely that the end user would be seeking to purchase a concoction that contained an unknown amount of fentanyl that could have deadly consequences. At best, Mr. Jenkins and Ms. Morgan could be said to be wilfully blind to the existence of the fentanyl found within the heroin. The fact that fentanyl was found within the heroin is, in my view, an aggravating factor that does not need to be proven by the Crown. I note as well, that Mr. Yuen conceded that the presence of fentanyl in the heroin should be viewed by the court as an aggravating factor on sentence.

[52] If I had evidence as to the quantity of fentanyl found in Exhibit 2, I would, if the quantity was anything other than a trace amount, have had no hesitation in entering a conviction for trafficking in fentanyl or possession of the purposes of trafficking in fentanyl. I would have stayed the convictions as they relate to the heroin counts. The Crown tendered no evidence as it relates to the quantity of fentanyl found in the drugs seized. In future, where charges are laid in relation to one package found to contain both heroin and fentanyl, I would expect the Crown to request evidence from Health Canada that delineates, if possible, the quantity of heroin and fentanyl found in the package. In this case, I am left to guess as to the amount of fentanyl and guessing counts for nothing in the criminal context. In the end result, because the quantity of the fentanyl is unknown - as reflected in Exhibit 2, I am staying the convictions as it relates to the charges concerning fentanyl.

Analysis - Mr. Jenkins

[53] While I did not receive any direct evidence with respect to the impact that fentanyl has had in the Barrie area, I was made aware of numerous decisions of this court and the Ontario Court of Justice, where sentencing courts have received evidence from a Dr. Karen Woodall. Dr. Woodall is a toxicologist from the Centre of Forensic Sciences who has testified with respect to the particular dangers of fentanyl, particularly in a powdered form where a user of the drug does not know how much of the drug is in the powder, and how even a small amount of fentanyl can have disastrous results on its users.

[54] While I did not have the benefit of hearing Dr. Woodall’s evidence directly, I have had the opportunity of reviewing the various authorities where her evidence was received, and which has been cited to back up the insidious nature of even small amounts of fentanyl. I also take judicial notice of the daily media reports from across the country, that draw attention to the deadly impact that fentanyl is having on those who participate in the illicit drug trade.

[55] I have considered the comments of Laskin J.A. in Loor at para. 50, where it is made clear to sentencing courts that anyone convicted of trafficking significant amounts of fentanyl should expect to receive a significant penitentiary sentence. In Loor, the accused had been convicted of using a forged prescription to obtain 45 patches of fentanyl from a pharmacy in Barrie, for which he received a sentence of six years that was ultimately upheld by the Court of Appeal. I take from the comments of Laskin J.A. that 45 patches of fentanyl must be taken as a significant amount.

[56] In the case before this court, at most I have the evidence from the certificate of analysis that the 22.7 grams of heroin that was analyzed was found to contain fentanyl. There is no evidence as to the actual amount of fentanyl that was found within the 22.7 grams of heroin. It is as much plausible that the quantity of fentanyl was a trace amount, as it is that the quantity was in a deadly amount.

[57] If the Crown is going to suggest that an appropriate disposition where an accused is convicted of trafficking in fentanyl or possession for the purposes of trafficking in fentanyl is a significant penitentiary sentence, it is incumbent upon the Crown to provide the court with the necessary tools that it needs to support such a disposition. In this case, at most the court has evidence that the heroin contained fentanyl in an undisclosed amount. The evidence does not support a finding that Mr. Jenkins was in possession of a “significant” amount of fentanyl, nor is there any evidence that Ms. Morgan was in possession of a “significant” amount of fentanyl.

[58] The fact that there is no evidence as to the exact amount of fentanyl does not, however, complete the court’s analysis as it relates to the existence of the fentanyl as an aggravating factor. There can be no dispute that any amount of fentanyl, even small trace amounts, can potentially have fatal results. Anyone purchasing heroin from a street level drug dealer like Mr. Jenkins would likely assume that the drug that he or she has purchased is heroin, and only heroin. A street level user of drugs has no ability to determine if the heroin has been tampered with and enhanced by the addition of fentanyl.

[59] Those who are addicted to heroin obtain that drug as their drug of choice to feed their habit. Drug addicts may recognize that there is always the risk of an overdose from the use of the heroin itself. A drug addict not knowing that heroin may contain fentanyl simply feeds his or her habit, never recognizing the risk posed by the unknown quantity of fentanyl. Even in this day and age of supervised drug facilities, there is no real ability to test the drugs purchased on the street to ensure that they do not contain fentanyl.

[60] While there is no evidence that Mr. Jenkins directly knew that the heroin that he was selling on the street contained fentanyl, the fact remains that he was the distributor of the drug that ultimately could have resulted in devastating consequences for the end user. While there is no evidence as to the amount of fentanyl contained in the heroin that Mr. Jenkins was trafficking to the unsuspecting user, the fact that the heroin contained fentanyl is, in my view, an aggravating factor that this court must take into account in imposing sentence.

[61] Regardless of what amount of fentanyl was in the heroin, there can be no doubt that heroin in and of itself is a very dangerous drug, and for many years now our Court of Appeal has made it clear that trafficking in heroin will attract a penitentiary sentence - see R. v. Farizeh, [1994] O.J. No 2624, at para. 5.

[62] Mr. Jenkins has also been convicted of trafficking in cocaine - a drug that may be seen at the lower end of the spectrum when compared to trafficking in heroin and fentanyl. Nonetheless, it is well known how an addiction to cocaine can have long lasting negative consequences for the user. As a result, the Court of Appeal in R. v. Bajada at para. 15, makes clear a sentence of 5 to 5½ years is not uncommon for a substantial amount of cocaine for the purposes of trafficking, where the accused has no prior record and enters a plea of guilty.

[63] A further aggravating factor in imposing sentence as it relates to Mr. Jenkins, relates to the fact that at the time he was involved in the trafficking of cocaine, heroin and fentanyl, he was on parole arising out of his conviction for a similar offence in 2015. While Mr. Jenkins cannot be punished in connection with the sentence he received in 2015 given that he has now completed his sentence arising out of that conviction, the court can and should take into account the fact that he was on parole at the time that he committed the offences for which he was convicted by the jury in this case: see R. v. Lavallee, [2006] A.J. No 1385 at para. 7 (Alt C.A.). It is, of course, equally aggravating that Mr. Jenkins does not seem to have learned the lesson that was imposed when he received the sentence of three and a half years that he received in 2015.

[64] I am taking into account everything that I reviewed above in sentencing Mr. Jenkins to a period of six years and six months as a global sentence. At the time of the submissions that I received on July 25, 2018, counsel agreed that Mr. Jenkins had served 134 days for which he would receive a credit of 201 days. With the additional time from the sentencing submissions received on July 25, 2018, Mr. Jenkins is now entitled to a further 51 days, for a total of 252, which shall be deducted from the six years and six month sentence that I have imposed. After credit for time served, Mr. Jenkins must therefore serve a total global sentence of five years and 295 days.

[65] The total sentence of six years and six months shall be broken down as follows: Count 1 possession for the purposes cocaine - 6 months concurrent to Count 2; Count 2 possession for the purposes of heroin - 1 year, 6 months; Count 3 possession for the purposes fentanyl - stayed; Count 4 trafficking cocaine - 1 year concurrent to Count 5; Count 5 trafficking heroin - 5 years; Count 6 trafficking fentanyl - stayed. Counts one and two are consecutive to the sentences in Counts 4 and 5, for a total global sentence of 6½ years. If my mathematical calculations are in error, counsel may make correcting submissions as to how the sentence shall be calculated.

Analysis – Ms. Morgan

[66] Ms. Morgan has a relevant criminal record, which includes a sentence for possession of a Schedule II substance for which she received a conditional discharge and 12 months’ probation. It was this probation order that resulted in the separate indictment laid against Ms. Morgan of breach of probation. Specifically, she was charged with a breach of the probation order that she abstain from the purchase/possession/consumption of drugs. Ultimately, she pleaded guilty to the charge of breach of probation.

[67] The Crown seeks a sentence against Ms. Morgan of three years, while Mr. Pickard argues the appropriate sentence is one of time served. In that regard, as of July 25, 2018 the Crown concedes that Ms. Morgan has already served 169 days, which with enhanced credit translates into a credit of 254 days. As of August 28, 2018, Ms. Morgan will be entitled to a credit of 305 days.

[68] Implicit in the Crown’s submissions is a clear and obvious recognition that the jury verdict reflects that Ms. Morgan’s role in the drug enterprise carried out of the Jenkins’ residence, was quite different from that of Mr. Jenkins. At its highest, counsel are in agreement that the factual basis for the jury verdict is found in an implicit finding that Ms. Morgan was the person who placed the canister containing the drugs on the basement stairs - placed for the sole purpose that Barry would then remove the canister from the house in anticipation of a police search. By placing the canister as she did, the jury had the factual basis to find that Ms. Morgan had possession of the drugs for the purposes of trafficking. The same facts form the basis for the guilty verdict as it relates to Count 7: obstruction of a peace officer.

[69] What Ms. Morgan did was wrong: it was illegal; and frankly it was stupid. But for her actions in having possession of the canister when she moved it to the stairs, there is no other evidence that she was involved in the drug trade that Mr. Jenkins clearly was involved in. The BPS carried out extensive surveillance, which revealed that Mr. Jenkins was the only one trafficking in drugs.

[70] Ms. Morgan lived in the same basement as Mr. Jenkins, where various pieces of drug paraphernalia associated with the drug trade were located during the police search of the Jenkins’ residence. The court received no fingerprint evidence that would have associated Ms. Morgan with that drug paraphernalia. An envelope bearing Ms. Morgan’s name and address was found in a purse in the basement bedroom occupied by Mr. Jenkins and Ms. Morgan. The envelope contained $3,750 in cash. Large quantities of cash are associated with those dealing in drugs. There is no evidence from the police surveillance that demonstrates any active involvement by Ms. Morgan in the trafficking of the drugs in question. The presence of a large sum of cash is suspicious, but it does not conclusively demonstrate Ms. Morgan was Mr. Jenkins’ partner in a drug trafficking enterprise.

[71] If the evidence against Ms. Morgan demonstrated a more active role in Mr. Jenkins’ drug enterprise, I would have no hesitation in accepting the range suggested by the Crown as an appropriate sentence, recognizing that deterrence and denunciation are paramount where it can be demonstrated that an accused is trafficking in dangerous drugs like cocaine, heroin and fentanyl. But the evidence in this case does not remotely come close to that level of participation on the part of Ms. Morgan. Ms. Morgan has, however, been found guilty by the jury of three counts of possession for the purposes of trafficking. In imposing a sentence on Ms. Morgan, it is incumbent upon me to consider all of the principles of sentencing contained in s. 718 of the Criminal Code, including rehabilitation: see R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 8. I must also consider s. 10 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA), which provides:

10. (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [Emphasis added.]

[72] While Ms. Morgan has been incarcerated, she has taken her first steps towards obtaining necessary counselling and rehabilitation that may lead to a life free and clear of drugs. Ms. Morgan has been accepted into a six month residential drug rehab program at the Street Haven Grant House in Toronto. Completion of that program is no guarantee Ms. Morgan will not see the inside of a criminal courtroom in connection with drug charges in the future. But completion of the drug rehabilitation program at Grant House will be a big first step towards leading a productive life, where she can reconnect with her family and become a mother to her son. Rehabilitation is, in my view, a significant factor in the sentence I intend to impose against Ms. Morgan.

[73] The global sentence that I impose against Ms. Morgan is one of time served, or the equivalent of 305 days. The sentence shall be allocated as follows:

Counts 1 and 2: Possession for the purposes of trafficking heroin and cocaine, 6 months or 180 days concurrent;

Count 3: Possession for the purposes of trafficking fentanyl, stayed;

Count 7: Obstruction of a peace officer, 120 days consecutive to Counts 1 and 2;

Breach of Probation: 5 days.

The total global sentence is 305 days, or time served.

[74] In addition to the aforesaid sentence, Ms. Morgan shall be on probation for a period of three years, the terms of which shall incorporate the statutory conditions mandated by s. 732.1 of the Criminal Code, as well as the conditions set forth in s. 732.1(3) (a), (b), (c), (c.2) and (d). You shall forthwith report to the Street Haven Grant House at 87 Pembroke Street, Toronto, where you will participate in a six month residential treatment program as set forth in a letter dated July 12, 2018, entered as Exhibit A at the sentencing submission. As counsel did not have an opportunity to make submissions with respect to the appropriate terms of probation, I am prepared to hear further submissions on this issue.

Ancillary Orders

[75] The Crown seeks the following ancillary orders: 1) a s. 109 prohibition order for 10 years; 2) a DNA order; and 3) a forfeiture order for the items seized by the police. None of these orders are opposed by either Mr. Jenkins or Ms. Morgan. The orders as requested by the Crown shall issue.

Justice M.L. Edwards

Released: August 28, 2018

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – NICHOLAS JENKINS and TIANNA MORGAN Defendants REASONS FOR DECISION Justice M.L. Edwards

Released: August 28, 2018