Oshawa Court File No.: CR-17-14520 Date: 2019-01-14
Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Jacinda Rose Sheneen Hudson, Defendant
Counsel: Joshua Frost, for the Crown Sam Goldstein, for the Defendant
Heard: August 7-10, 13-17, 20-22, September 20, October 15, and November 6, 27, 2018
Reasons for Sentence
Charney J.:
Introduction
[1] On August 22, 2018, Jacinda Hudson was found guilty by a jury of importing fentanyl and possession of fentanyl for the purposes of trafficking.
[2] At the outset of the trial Ms. Hudson was also charged, along with her co-accused, Hazare Roman, with possession of cocaine for the purposes of trafficking. On August 21, 2018, Mr. Roman advised that he wanted to change his plea to guilty on the count of possession of cocaine for the purposes of trafficking. A plea inquiry was conducted and a conviction was registered.
[3] The Crown withdrew the charge of possession of cocaine for the purposes of trafficking against Ms. Hudson.
[4] On November 27, 2018, I heard submissions from the Crown and Ms. Hudson’s counsel on sentencing.
Circumstances of the Offence
[5] On or about October 18, 2016, the Canada Border Services Agency in Richmond, British Columbia intercepted four packages arriving from Guangdong, China via post from the same importer. These packages were addressed to three separate persons at three separate addresses in Ontario. One of the packages was addressed to Jacinda Hudson, at her residence in Ajax, Ontario.
[6] Canada Border Services was suspicious because this importer was known to send toxic substances through the mail. The package was seized, and the contents inside a foil pouch were weighed and sent for testing at a lab in Ontario. The contents in the foil pouch tested as fentanyl. Each of the packages contained 323 grams of fentanyl.
[7] On November 1, 2016, a General Warrant was issued allowing the RCMP to conduct a controlled delivery of the package to Jacinda Hudson or anyone acting on her behalf at her residence in Ajax. The fentanyl was removed and replaced with an inert substance of the same weight.
[8] The police staged a postal delivery of the package to Ms. Hudson’s residence on November 4, 2016. A police officer dressed as a Canada Post delivery person came to the door of 1 Pennefather Lane, Ajax, Ontario with the package. The first attempted delivery was at approximately 11:30 a.m. Ms. Hudson was not at home. Mr. Roman was at the house that morning, but he did not come downstairs before the postman had left.
[9] At this point there were a series of text messages between Mr. Roman and Ms. Hudson regarding the package. When Mr. Roman texted Ms. Hudson that someone was at her door, she replied “Who”, he replied “Canada Post”, and she replied “Answer and sign”. Mr. Roman texted: “Damn he drove off before I got downstairs” and Ms. Hudson texted: “Is there something he left”. Approximately 30 minutes later Ms. Hudson texted Mr. Roman: “Was it Canada Post or UPS that came” and “That was an important package fk man”.
[10] There were also text messages between Ms. Hudson and her friend, Louisa Munroe, regarding a delivery from Canada Post. One text message from Ms. Munroe at 11:55 a.m. on November 4, 2016, stated: “O said keep eyes ‘peeled’ lol”, and Ms. Hudson responded at 12:08 p.m.: “Canada Post was at my house is it coming that way?”
[11] Ms. Hudson returned home at approximately 12:15 p.m. to check to see if Canada Post had left anything for her to go pick up.
[12] The police made a second controlled delivery at approximately 1:00 p.m. Ms. Hudson was not at home, but the package was accepted by Mr. Roman, who left the package on the table in the front hallway. That is where the police found the package unopened when they made their forced entry about an hour later.
[13] Mr. Roman was arrested at Ms. Hudson’s house shortly after he accepted the controlled delivery.
[14] When Ms. Hudson returned to her residence she was also arrested by the police.
[15] The police conducted a search of the residence where they found the unopened package accepted by Mr. Roman on the front entrance table inside the residence. The police also found 10 grams of cocaine in 20 separate baggies with 0.5 grams in each bag in a sunglass case on the front entrance table.
[16] Both Mr. Roman and Ms. Hudson were charged with importing fentanyl, possession of fentanyl for the purposes of trafficking, and possession of cocaine for the purposes of trafficking.
[17] The charge of importing fentanyl was dismissed as against Mr. Roman (but not Ms. Hudson) at the preliminary inquiry.
[18] The text messages between Mr. Roman and Ms. Hudson strongly suggested that Mr. Roman knew nothing about the package delivered by the police. Indeed, when Ms. Hudson testified on her own behalf, the Crown asserted that Ms. Hudson had invited Mr. Roman to sleep over and then left him alone at her residence the following morning so that Mr. Roman would unwittingly accept delivery of the package while Ms. Hudson was out running errands. Following that assertion by the Crown, on August 20, 2018, counsel for Mr. Roman brought a motion for a directed verdict of not guilty on the charge of possession of fentanyl for the purposes of trafficking. The Crown consented to the directed verdict, and a verdict of not guilty was entered with respect to the possession of fentanyl charge against Mr. Roman.
[19] During her testimony, Ms. Hudson denied any knowledge of the package of fentanyl addressed to her. Ms. Hudson and Ms. Munroe testified that the texts they exchanged about an important package that was expected were in relation to a package they thought was being mailed by Ms. Munroe’s mother in Nova Scotia. The jury rejected this explanation.
[20] There was no evidence that Ms. Hudson had the tracking number on the package, and the defence argued that the person responsible for bringing the package into Canada would likely have that tracking number in order to follow the progress of the package and know when to expect its delivery. Apart from the cocaine found on the front entrance table, for which Mr. Roman pled guilty, the search of her residence provided no evidence that Ms. Hudson was otherwise involved in using, trafficking or importing drugs.
[21] While the jury rejected Ms. Hudson’s claim that she knew nothing of the package of fentanyl addressed to her at her residence, the evidence does suggest that Ms. Hudson was a small cog in the importation/distribution wheel, and was likely permitting her residence to be used as a drop box or delivery point by those higher up in the hierarchy of drug distribution. While perhaps a small cog, she still played a key role in the distribution scheme.
[22] There is no evidence Ms. Hudson acted under duress or that she was duped as to the contents of the package.
[23] As indicated above, on August 22, 2018, Ms. Hudson was convicted by the jury of the two remaining charges against her: importing fentanyl and possession of fentanyl for the purposes of trafficking.
Circumstances of the Offender
[24] Ms. Hudson is a 35 year old single mother of three children, ages 13, 11 and 7.
[25] She has no criminal record. She has been compliant with bail conditions for the entire duration while on remand.
[26] The pre-sentence report indicates that Ms. Hudson had a difficult childhood and left home when she was 17 years of age. She met her two eldest children’s father when she was 18, and they moved in together. She kicked him out after she became pregnant with her second child, and he has not been involved in her children’s lives.
[27] Ms. Hudson married her youngest daughter’s father in June, 2011. That relationship ended and he later died of lung cancer.
[28] Ms. Hudson graduated from high school. During the trial, Ms. Hudson graduated from a program at Centennial College called “Helping Youth Proceed Education” (HYPE), which was a preparatory program for the Special Event Planning Program she is currently enrolled in at Centennial College. Indeed, the trial was adjourned early one day so that Ms. Hudson could attend her graduation, which was clearly an important event to her.
[29] For the past ten years Ms. Hudson has been working part-time staging houses to prepare them for sale or to organize their living space.
[30] She has been primarily supported through Ontario Works for the majority of time since high school.
[31] Ms. Hudson does not appear to have any addiction issues. The pre-sentence report indicates that during the interview Ms. Hudson became emotional, stating that her father died of a drug overdose, and she wants nothing to do with drugs.
[32] The pre-sentence report indicates that Ms. Hudson appears to have the support of a close and loving network of family and friends and appears willing to accept their help. She appears to be amenable to community supervision.
[33] In my view, Ms. Hudson presents as an excellent candidate for rehabilitation. She is clearly concerned about her children, and appears to be trying to improve her education so that she can offer them the support and care they require. Her graduation from the HYPE program at Centennial College is a concrete step on this course, and bodes well for future rehabilitation efforts.
Position of Crown and Defence
[34] The maximum penalty for the offences in issue is life imprisonment: ss. 5(3)(a) and 6(3)(a.1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
[35] The Crown seeks a prison sentence of 10 - 12 years based primarily on the amount of fentanyl (323 grams) imported. In this regard the Crown relies on R. v. Sidhu, 2009 ONCA 81, where the Ontario Court of Appeal held that first offender couriers who import large amounts of high-grade heroin into Canada for personal gain should expect to receive jail sentences in the 12 to 17 year range. The importation of 1 kg. of heroin by a courier could attract a sentence of 9 to 11 years. See R. v. Kusi, 2015 ONCA 638, at para. 14.
[36] The Crown submits that Ms. Hudson’s role in the importation of fentanyl was equivalent to that of a courier, and the sentencing range for fentanyl is at least that for heroin.
[37] The defence has proposed a sentence of 6 - 8 years, focusing on Ms. Hudson’s potential for rehabilitation.
Gravity of the Offence
[38] The Crown relies on an expert opinion report by Detective Paul Mackintosh of the Drug Enforcement Unit of the Durham Regional Police Service who has provided evidence in relation to the community impact of fentanyl in the Durham Region. This evidence is introduced pursuant to the Supreme Court of Canada’s decision in Regina v. Lacasse, [2015] SCC 64, at para. 90, that sentencing judges may properly take into account the local situation as a factor in fashioning an appropriate sentence.
[39] Detective Mackintosh’s evidence states that fentanyl is a synthetic opioid and is approximately 80 to 100 times more potent than morphine and many times more potent than heroin. Fentanyl powder is used orally, smoked, snorted, or injected. Due to its potency, fentanyl powder is commonly diluted and mixed with substances with similar appearances before being distributed along the same lines as heroin trafficking. The heightened potency of fentanyl has resulted in fentanyl overdoses and deaths reported nation-wide. 0.25 grams to 1 gram of fentanyl per day is consistent with the usage of a heavy user/addict. Accordingly, the 300 grams imported could be enough for 1,200 doses for a heavy user/addict.
[40] The evidence at trial was that, given its potency, powdered fentanyl can be mixed with other drugs in quantities as low as 0.1 gram, which would make this quantity sufficient for 3,230 dosages. The evidence also indicated that the street value of fentanyl is $200 to $400 dollars a gram, and that this quantity of fentanyl would have a value of $64,000 - $129,000.
[41] There has been a dramatic increase in the use of opioids in Canada and Durham Region since the introduction of illicitly produced synthetic fentanyl into the street market. In Ontario the number of drug samples tested by Health Canada that contain fentanyl or its analogues were 106 in 2012 and increased to 2469 in 2017. Fentanyl powder is mixed with other drugs like heroin, or used as a substitute for heroin and opioids such as Oxycontin.
[42] Provincial data demonstrates that emergency department visits related to opioids have increased steadily since 2013, and there has been an increase in fentanyl present at death, as compared to other opioids. This increase coincides with the introduction of fentanyl into the illicit drug market in Canada.
[43] In Durham Region specifically, there were 32 drug overdose reports reviewed in 2015, 16 of which were fatal, and 10 of the fatal incidents were found positive for fentanyl. In 2016, the reports reviewed increased to 73, 38 of which were fatal, and 19 of the fatal reports found positive for fentanyl. In 2017, 175 reports were reviewed, 43 of which were fatal, and 25 of those were found positive for fentanyl. [1]
[44] The evidence contained in this report is consistent with the statistics and findings of other courts with respect to the dangers posed by fentanyl. As Conlan J. stated in Her Majesty the Queen v. Gagnon, 2017 ONSC 7470, at para. 37, “A very small amount of fentanyl can be fatal – that is now well-accepted in the jurisprudence.”
[45] In R. v. Smith, 2017 BCCA 112, at para. 48, the British Columbia Court of Appeal referred to: “the public health crisis caused by unintentional overdosing by people who use drugs, particularly since typically they do not know that the drugs they are consuming contain fentanyl”. The Court stated, at paras. 48 and 65:
[F]entanyl is a scourge. It poses intolerable risks of accidental overdosing because it is so much more powerful than morphine. Illegally manufactured fentanyl can be particularly and unpredictably potent, even tiny amounts of fentanyl mixed into other drugs such as cocaine or heroin may be fatal; often street drugs have fentanyl cut into them, and it is practically impossible for drug users to recognize whether the drugs they buy contain fentanyl.
In sum, the continuing escalation in the number of fentanyl-detected deaths, the enormity of the total numbers of accidental overdosing, the increasing percentage of fentanyl detected deaths as a proportion of the total, and the currently ubiquitous awareness of the risks posed by illicit fentanyl, in combination, justify a recognition of a very substantial increase in the sentencing range applicable to street-level dealing in fentanyl.
[46] In R. v. Loor, 2017 ONCA 696, the Ontario Court of Appeal noted, at para. 33: “[F]entanyl is a highly dangerous drug. Its widespread abuse, though recent, has quickly become entrenched in our country. Every day in our communities, fentanyl abuse claims the lives of Canadians.”
[47] Referencing expert evidence introduced at trial, the Court of Appeal stated, at paras. 37 and 38:
Because fentanyl is so potent it becomes a very dangerous drug when it is not used for therapeutic reasons under medical supervision. Those who have a prescription for it and yet abuse it, or those without a prescription who buy a patch on the street or borrow one from a friend are at risk of toxicity and death.
The effects of fentanyl are why people abuse it. Fentanyl gives people a high, a feeling of well-being, of euphoria. Those who use it for a long time may become addicted. But because fentanyl depresses the central nervous system, it can slow down the way one’s brain functions, decrease one’s heart rate, and slow down one’s breathing. A person who takes enough fentanyl may eventually stop breathing and die.
[48] In Loor the Court of Appeal found, at para. 36, that fentanyl is 100 times more powerful than morphine and 20 times more powerful than heroin.
[49] The evidence regarding the impact of fentanyl was also recently reviewed in great detail by Petersen J. in R. v. Olvedi, 2018 ONSC 6330 at paras. 12 – 48. After reviewing a number of decisions, she stated at paras. 14 – 15:
In recent years, daily news reports have covered the alarming opioid crisis in our country. Fentanyl, in particular, has assumed centre stage in the unfolding tragedy. A number of courts have found that, every day in cities across Canada, fentanyl use is resulting in overdoses and fatalities. It is ravaging communities and claiming lives …
Evidence of the devastating impact of fentanyl in other communities across Ontario has been documented in several recent sentencing cases…(Citations omitted).
Analysis
[50] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions: s. 718 of the Criminal Code. The following objectives must be considered in forming a just sanction:
(a) To denounce 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 and to the community.
[51] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Code.
[52] A sentence must also take into account any aggravating or mitigating circumstances relating to the offence or the offender, as well as the sentences imposed on similar offenders for similar offences committed in similar circumstances: ss. 718.2(a) and (b) of the Code.
[53] It is well established that the paramount principles of sentencing with respect to the commercial trafficking of illicit drugs are denunciation and general deterrence. At the same time, it is incumbent upon me to consider all of the principles of sentencing contained in s. 718 of the Criminal Code, including rehabilitation.
[54] Also relevant is s. 10 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, which adds the following:
- (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.
[55] The Court must impose a sentence that appropriately denounces Ms. Hudson’s conduct and deters others from following suit, but the sentence must not ignore nor lose sight of Ms. Hudson’s potential for rehabilitation.
[56] There is not a lot of appellate jurisprudence in Ontario involving fentanyl. In R. v. Loor, (dealing with 45 patches of fentanyl that had been pharmaceutically produced and therefore regulated and of lower risk) the Court of Appeal stated, at para. 50:
Few fentanyl trafficking cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a range. But I think it fair to say that generally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.
[57] Mr. Loor was sentenced to six years in the penitentiary, less credit for time already served. He was a low-level member of a fentanyl trafficking ring. Three times, he used a forged prescription to obtain a total of 45 fentanyl patches. He was 39 years old. He was not an addict. He had a previous criminal record including a conviction for trafficking. He had strong family support and young children and was a productive member of society in that he did volunteer work. The Court of Appeal upheld the sentence.
[58] In Gagnon, Conlan J. sentenced the offender to four years in prison for possessing, for the purpose of trafficking, 12.34 grams of powder fentanyl and 43.76 grams of methamphetamine.
[59] In R. v. Solano-Santana, 2018 ONSC 3345, Newton J. sentenced the offender to eight years in prison for the “exceptionally high quantity of pills at issue here (5,000 pills) …The street value of the pills is estimated at $30,000-$150,000”, which he described as a “significant aggravating factor”. There were other aggravating factors in that case, including a previous criminal record for drug related offences and breaches of recognizance.
[60] In Solano-Santana, Newton J. provided a very helpful sentencing table summarizing the sentences imposed in twenty-one fentanyl related cases. I have reviewed and considered the sentences set out in that table.
[61] In Olvedi, the accused was convicted of importing 499.5 grams of fentanyl powder, and possession for the purposes of trafficking. Petersen J. undertook a thorough review of a number of cases and stated, at para. 103:
Importing fentanyl must be treated at least as seriously as importing heroin because fentanyl is known to be twenty times stronger than heroin. As Sopinka, J. stated in Vezina (at p. 56), “[t]he dangers of fentanyl have become well known, which puts traffickers [and importers] on notice that their conduct will attract significant custodial penalties.” I therefore conclude that the range of sentence proposed by Defence counsel in this case, namely 8 to 12 years’ imprisonment, is too low for a first time courier who imports a large volume of high purity fentanyl for personal gain.
[62] Many of the facts in Olvedi are very similar to the facts in this case. The accused accepted a FedEx package at his residence in Brampton that originated in China and was addressed to him personally. It had been intercepted at customs and contained almost 500 grams of fentanyl powder. An undercover officer posed as a FedEx delivery person and completed a controlled delivery of the package.
[63] Unlike our case, the police also seized numerous other items including large quantities of cash and drug paraphernalia indicating that the accused was an active drug dealer with a long history of undetected drug-related criminal activity. There was evidence, accepted by the court, that the accused had been acting under pressure from an associate when he agreed to accept the package.
[64] The accused in Olvedi was sentenced to 15 years imprisonment for importing fentanyl and a concurrent 12 years imprisonment for possession of fentanyl for the purposes of trafficking.
[65] The cases reflect the strong need for denunciation and deterrence to try to protect the public from the enormous risks posed by those choosing to deal in fentanyl.
[66] The cases reflect a number of considerations with respect to sentencing:
(a) The amount of fentanyl seized, the motive for trafficking - whether profit, addiction, or both;
(b) The existence and nature of any prior criminal record and the presence of weapons;
(c) Whether the substance was fentanyl powder (which is more dangerous because it can be mixed with other substances) or patches;
(d) The offender’s position in the chain of sale or distribution - being higher up in the hierarchy is an aggravating factor;
(e) Wilful blindness is not a mitigating factor, although where an offender takes reasonable steps to ascertain the nature of the drug and is duped by her co-conspirators, this will serve as a mitigating factor (Sidhu at paras. 17 to 19);
(f) The presence of duress may be a mitigating factor (Olvedi, at para. 113).
See also: R. v. Vezina, 2017 ONCJ 775 at paras. 29, 31, 41; Gagnon, at para. 45; Olvedi, at paras. 105 – 107, 109.
Aggravating and Mitigating Circumstances
[67] The primary aggravating factor in this case is the large amount of powder fentanyl imported into Canada. 323 grams of fentanyl constitutes a significant amount of fentanyl and therefore attracts a significant penitentiary sentence.
[68] In this case the accused was lower down in the fentanyl distribution chain, and should receive a lower sentence than someone higher up in the hierarchy. There is no evidence that Ms. Hudson has had any previous or other involvement in the importation or distribution of illegal drugs.
[69] The mitigating factors include the fact that Ms. Hudson appears to be an excellent candidate for rehabilitation. She has no criminal record and has complied with bail conditions for the entire duration while on remand. If she continues with her educational program, she will be able to reintegrate into society once her custodial term has finished.
Disposition
[70] Taking these factors into consideration, I have concluded that a sentence of eight years imprisonment for importation of fentanyl and a concurrent eight years imprisonment for possession of fentanyl for the purposes of trafficking is proportionate to the gravity of the offence and Ms. Hudson’s degree of personal responsibility and moral blameworthiness.
[71] There will be an order requiring you to provide a DNA sample for the purposes of the DNA data bank pursuant to s. 487.051(3) of the Criminal Code, and a mandatory order under s. 109 of the Code prohibiting you from the possession of weapons for 10 years.
NOTE: As noted in court, on the record, this written decision is to be considered the official version and takes precedent over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written decision that is to be relied upon.
Justice R.E. Charney Released: January 14, 2019
[1] The report notes that the 2017 statistics are not complete due to delays with the toxicology reports.