Court File and Parties

Court File No.: CR-16-90000547-0000 Date: 2018-11-08 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Kyle Megill, Defendant

Counsel: Eric Gilman, for the Crown Benjamin Goldman, for the Defendant

Heard: June 14, August 10 and September 24, 2018

Reasons for Sentence

Carole J. Brown, J.

[1] Kyle Megill was found guilty by a jury of six counts of possession for the purpose of trafficking and two counts of possessing property or proceeds of property obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment. He was found guilty of possession for the purpose of trafficking of cocaine (½ ounce), MDMA (2 kg), MDA (1/2 ounce), psilocybin (1 pound), GHB (3.5 kg), ketamine (177 g) and BZP (2 ounces). As regards proceeds, Mr. Megill was found in possession of $23,915 Canadian and $550 US, as well as significant amounts of drug packaging, vials, empty capsules, mortars and pestles, cell phone, digital scales, two safes, bath salts testing kit and false bottomed cans.

[2] Mr. Megill sold a panoply of drugs which fell into Schedules I, II and III. Mr. Megill sold all drugs from his penthouse unit in the Entertainment District of Toronto, and was thus not a street-level dealer. The drugs were kept mainly in a locker adjacent to his unit and the funds in safes in the locker. He dealt in larger quantities and offered a cornucopia of drugs. He was arrested after having sold drugs to an undercover agent and making arrangements to sell more to that agent.

Circumstances of the Offender

[3] Mr. Megill was a youthful offender and this was his first offence. Mr. Megill was 23 years old at the time of the arrest and is now 26 years old. He is a Canadian citizen with no previous criminal record.

[4] He completed high school and then went to Sheridan College in June 2016 to pursue business administration.

Positions of the Parties

Position of the Crown

[5] It is the position of the Crown that while Mr. Megill is a youthful offender, without a criminal record, based on the amounts of the drugs found and the scope and nature of those drugs, an appropriate sentence would be six years. He was a large-scale drug dealer, essentially running a “drug boutique”. The drugs were mainly Schedules I and III drugs, with five drugs, in large quantities, being Schedule I.

[6] The Crown noted that Mr. Megill grew up in a fairly affluent setting with support and education but, nevertheless, began dealing in significant quantities of serious drugs. He noted that while Mr. Megill was a user of drugs, the quantity of drugs he was trafficking was too large to simply have been funding his habit. He was dealing for profit in Schedules I, II and III drugs in large amounts, and had all of the paraphernalia necessary to deal in these drugs.

[7] The Crown relies on the cases of Villanueva [2007] O.J. No. 858 and Bajada, 2003 15687 (ON CA), 173 C.C.C. (3d) 255. He also referred to and distinguished Paper, 2011 ONCA 56, [2010] O.J. No. 1131, [2011] O.J. No. 261 (ONCA) which involved what was described by the court in that decision as a “drug boutique”. The Crown submitted that, in that case, the accused pled guilty at the provincial level and Paper involved smaller amounts of Ecstasy which was later moved to Schedule I.

[8] The Crown further distinguished the other cases relied upon by the defence, including Wong, on the ground that the offender in that case was dealing in smaller amounts of drugs, and Woolcock, [2002] O.J. No. 4927, again on the ground that the accused was dealing in smaller amounts of drugs.

[9] In addition to a sentence of six years, the Crown seeks a section 109 order for a period of 10 years; a DNA order, as this is a secondary designated offence, and a victim surcharge of $200 per count for a total of $1600, with one year to pay.

Position of the Defence

[10] It is the position of the defence that, as a young offender with no previous criminal record, a sentence of 23 months less a day would be most appropriate. He relies on the decision of R v Paper, supra.

[11] The defence emphasized the letter written by Mr. Megill to the court, in which he stated that he struggles with mental illness which led to his taking recreational drugs to manage his psychiatric symptoms; and letters of support from his mother and from friends.

[12] Counsel for the defence advised that Mr. Megill has now stopped using recreational drugs and is trying to deal with his symptoms. He states that Mr. Megill now feels that he was doing something destructive, viewed the drug trade as destructive and realizes that he hurt others. Counsel for the defence advises that Mr. Megill now has insight into the dangerous nature of drugs, and looks back with regret. He wishes to better himself and to make a positive contribution to the society.

General Sentencing Principles

[13] The fundamental purpose of sentencing, as set forth at section 718 of the Criminal Code of Canada, is to protect society and to contribute, along with crime intervention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sentences 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.

[14] The fundamental principle of sentencing pursuant to section 718.1 is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Further, in imposing a sentence, consideration must be had regarding the principles set forth in section 718.2.

[15] The principle of parity is a governing principle which must be considered. It requires a sentence to be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is, however, an individualized process which necessarily means that sentences imposed for similar offences may not be identical: R v Cox, 2011 ONCA 58 (Ont. C.A) and R v L.M., [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.).

[16] The totality principle must be considered for some sentences. Section 718.2(c) provides “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. The principle is engaged where there is a sentence for multiple offences and requires the court to craft a global sentence of all offences that is not excessive: M.(C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500 at para 42 (S.C.C.). If the cumulative sentence is too harsh, the court must adjust the total sentence so it is not out of proportion to the gravity of the offences.

[17] In this case, I am of the view that the principles of general and specific deterrence and denunciation are of significance.

Aggravating and Mitigating Factors

Aggravating Factors

[18] In this case, the offender was involved in the trafficking in large quantities of a cornucopia of drugs, mainly Schedule I drugs. He was not a street-level dealer, but sold from his penthouse unit in the Entertainment District of Toronto. He sold large quantities of drugs for profit. He ran what could be described as a drug boutique, and also had all of the paraphernalia necessary to mix, measure, prepare and package those drugs.

[19] The drugs which he sold included drugs which could have significant effects on purchasers and users.

Mitigating Factors

[20] In this case, the offender was from a fairly affluent, stable background. He appears to have the support of family and friends. He is a youthful, first-time offender. After he was arrested, he enrolled in a business administration course at Sheridan College, which he has not finished. He states that he hopes to positively contribute to society.

Analysis and Conclusions

[21] Each sentencing case differs and each offender must be sentenced based on the particular offences that he or she has committed. However, other cases, such as those cited by counsel for the Crown, are of assistance in determining an appropriate range of sentence for similar offences and offenders, in conjunction with consideration for the sentencing objectives as set forth above.

[22] I have taken into consideration all of the principles of sentencing as set forth above. I have taken into consideration the aggravating and mitigating factors as set forth above, Mr. Megill’s background and the evidence proffered by counsel for Mr. Megill in support.

[23] Mr. Megill wrote a letter to the court to, as he described, “give some insight into my life and background”. He stated that he moved from his parents’ home in Richmond Hill to Toronto at the age of 18. He was experiencing what he described as “a type of psychotic break” and then “derealization and depersonalization”. He stated that he pursued a business administration degree at Sheridan College, and provided a transcript. He has attempted to work, managing software, websites, servers and electronic resource planning software for organizations and has attempted to also set up an online business to assist seniors and retirement residences. Unfortunately, he has provided no sufficient or substantive evidence to support his medical self-diagnosis or his business endeavours.

[24] As regards his medical self-diagnosis, he did file a certificate for a Dr. Richard Thorner, whose specialty is not revealed, in which he authorized “disclosure of disability type”, which appears to have standard form boxes with three ticked off, namely “mental health disorder; “attention-deficit hyperactivity disorder/attention-deficit disorder; and anxiety disorder. The form is not signed by a doctor. There is also a second form, signed by Dr. Thorner indicating that Mr. Megill is diagnosed with anxiety disorder and shingles. There is also a referral to the Credit Valley Mental Health Outpatient Department for Mr. Megill to see a Dr. Rehman. None of this, however, establishes what Mr. Megill describes as a “psychotic break” or “derealization and depersonalization”.

[25] His mother also submitted a letter to the Court seeking leniency for her son, such that whatever punishment he may have, would not ruin his future or cause him to have a mental relapse. She requests that the Court consider house arrest.

[26] A number of friends and acquaintances all wrote letters of support, requesting leniency for him.

[27] As regards the drugs offered by Mr. Megill, they mainly fell into Schedule I, with some in Schedules II and III.

[28] As observed in other decisions referred to by the Crown, the drugs trafficked by Mr. Megill have the following effects.

[29] Ketamine is an anaesthetic used in medicine and, as an illicit drug, produces a dissociative state in higher doses. It has become popular as a “party” or “club” drug due to its dissociative effects, creating an “out of body experience”. It is also used as a “date rape” drug. As a powder, it can be added to a drink. Combining ketamine with alcohol or other sedatives can be fatal. It is a social drug. See Paper, supra, paras. 40-42.

[30] MDMA, MDA, BZP are all sold as “Molly” or Ecstasy. It has attained popularity because its use achieves central nervous system stimulation and mild hallucinatory effects. It has become popular with young people at “raves” or all-night dance parties. It is often referred to as a “party” or “club” drug. Its desired effects were described by Justice Hill in R v Hoang, [2002] O.J. No. 1355, including increased energy, sexual arousal and sociability. However, exaggeration of these effects leads to tension, flight of ideas, anxiety, paranoia, hallucinations and delirium. In severe cases, panic attacks and acute toxic psychosis can occur. And see: R v Paper, supra., paras. 44 - 50; R v Akers, [2001] O.J. No. 773.

[31] Psilocybin or magic mushrooms is a strong hallucinogen.

[32] GHB is a central nervous system depressant that makes a person sleepy, slows down breathing and heart rate. It is usually sold as a liquid in small vials and can be slipped into drinks. Its sedative effects can prevent victims from resisting sexual assault. It is commonly used as a “date rape drug”. It is a potent sedative which can cause users to fall into a deep coma-like sleep for several hours. Convulsions can occur during the sleep. Users may vomit while sleeping and choke: See R v Paper, supra, para 54.

[33] In R v Paper, supra, in discussing the dangers posed to society by drug crimes and the importance of deterrent sentences for drug traffickers, Brown J. quoted Lamer J in R v Smith (1987), 1987 64 (SCC), 34 C.C.C. 97 (S.C.C.), as follows:

Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts… such persons, with few exceptions… should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude.

[34] The Supreme Court of Canada further considered drug offences in Pushpanathan v Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982 (S.C.C.). Cory J wrote of the social and economic costs of illicit drug use in Canada and stated at paragraphs 1039-1040:

The costs to society of drug abuse and trafficking in illicit drugs are at least difficult if not staggering. They include direct costs such as healthcare and law enforcement, and indirect costs of lost productivity.

In Canada, the total cost to society of substance abuse has been estimated to be $18.45 billion annually (Canadian Centre on Substance Abuse, The Costs of Substance Abuse in Canada: Highlights (1996), at p. 2). Of this amount, the cost flowing from illicit drugs is $1.4 billion (McKenzie & Single). Mortality from illicit drugs is less than for alcohol and tobacco, but tends to involve younger victims (The Costs of Substance Abuse in Canada, supra, at p.6).

These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly a matter of grave concern in Canada, as it is throughout the world.

[35] In the case of R v Fraser, [2009] B. C. J. No. 925 (C. A.), the court considered the case of an offender with no prior criminal record who had set up a commercial operation, selling drugs for profit and not to support a habit. He entered a guilty plea. While the quantity of drugs in that case was in excess of what Mr. Megill was trafficking, the court considered the situation of a “drugstore” operation. In that case, the court cited the trial judge’s characterization of the applicant’s business, who had:

[42]… more than an occasional one time or small time trafficking effort. His operation had some sophistication to it, in that he set himself up to cater to a wide range of drug tastes. He could serve up cocaine, marijuana, hashish, or marijuana resin, steroids, ketamine, and hallucinogenic mushrooms. He clearly wished to sell to a wide variety of customers, and he had on hand a stock of drugs to service their demand. I find that he was a trafficker to anyone interested in a variety of illicit substances.

[36] Much the same can be said of the operation run by Mr. Megill in this case. He had situated himself in the Entertainment District. He offered a wide variety of illicit drugs, catering to a variety of tastes and had, indeed, a sophisticated operation.

[37] As regards the cases relied upon by the Crown and defence, none are, of course, completely on point. The Crown relies on Villanueva, supra, which involved a youthful first offender, similar but smaller amounts of drugs and a guilty plea at an early stage. In that case, a sentence of five years and four months was imposed. In the case of Bajada, supra, which involved a youthful offender and no previous record, a sentence of 6 years was imposed. The case of Paper, supra involved a large variety of drugs which were trafficked but in smaller amounts. The drugs included MDMA, but before it was moved from Schedule III to the more serious Schedule I drugs. The offender had entered a guilty plea, at an early stage.

[38] As regards the cases relied on by the defence (which include Paper, supra), in Wong, supra, the person was a first offender and the amounts of drugs were smaller. A sentence of three years was imposed. In the case of Woolcock, supra, the amounts of drugs trafficked were small and a sentence of 15 months was imposed. In the matter of R v Nyan, [2016] O.J. No. 3704, again the amounts were small, in contrast to what was referred to as a drug boutique in this matter, where the offender was running a large-scale drug business for profit with five different Schedule I drugs in large quantities.

[39] In the circumstances of this case, and in taking into account the quantities, scope and nature of the Schedule I-III drugs which Mr. Megill had for sale, the principles of sentencing, and the aggravating and mitigating factors, I am of the view that an appropriate sentence is five years. Mr. Megill was not a small street level dealer. Indeed, he had a sophisticated drug trafficking business in the Entertainment District of Toronto, operated out of his penthouse apartment, and had a significant complement of drug paraphernalia for preparation and sale of the drugs. He ran his operation or business for profit.

[40] I further order that the offender be subject to a section 109 order for 10 years, a DNA order and that he pay a victim surcharge of $200 per count for a total of $1600, to be paid within one year of this sentencing.

Carole J. Brown, J. Released: November 8, 2018