COURT FILE NO.: CR-18-50000276-0000
DATE: 20191029
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RAMAZAN OKSEM
Ariel Elbaz, for the Crown
Catherine Szpulak, for the Defendant
HEARD: August 14 and October 7, 2019
Davies J.
REASONS FOR SENTENCE
A. Overview
[1] Ramazan Oksem pled guilty to one count of possession of cocaine and one count of possession of fentanyl for the purpose of trafficking.
[2] Mr. Oksem has admitted that he was in possession of 7.64 gm of cocaine on March 14, 2017. On that day, he was in a car that was stopped by the police. He was searched incident to arrest and the police found the drugs on him.
[3] He has also admitted that he was in possession of 5.62 gm of fentanyl mixed with caffeine for the purpose of trafficking it on June 24, 2018. Mr. Oksem was on bail for the first charge when he was arrested for possessing fentanyl. The police arrested Mr. Oksem because he was breaching his bail. Again, he was searched after his arrest and the police found the drugs on him. Mr. Oksem also had a digital scale with him when he was arrested.
[4] The Crown argued that a global sentence of two-and-a-half-years in custody is necessary to reflect the seriousness of the charges, particularly possessing fentanyl for the purpose of trafficking.
[5] The defence argued that Mr. Oksem should be given a sentence in the range of 9 to 12 months for the possession of fentanyl for the purpose of trafficking and a suspended sentence for the possession of cocaine plus a period of probation. Mr. Oksem has served more than 12 months in pre-sentence custody so the defence argues that he should only be required to serve a period of probation.
[6] There are two issues for me to determine in this case:
a. What is the appropriate sentence having regard to the mitigating and aggravating factors?
b. How much credit should Mr. Oksem get for the time he spent in pre-sentence custody and on restrictive house arrest bail?
[7] For the reasons that follow, I find that an 18-month sentence will satisfy the principles of denunciation and deterrence in this case. Mr. Oksem will be given credit for the time he spent in pre-sentence custody and will be sentenced to one day in custody plus probation for two years.
B. What is the appropriate sentence in this case?
[8] The determination of a just and appropriate sentence is a highly individualized exercise. It involves a consideration of the seriousness of the offence and Mr. Oksem’s level of responsibility for it. The sentence must also reflect the unique constellation of mitigating and aggravating factors in this case; R. v. Lacasse, 2015 SCC 64 at para. 58.
[9] The primary aggravating factor in this case is the seriousness of the charge. Possession of fentanyl for the purpose of trafficking is extremely serious. Fentanyl has created a public health crisis across Canada. The number of accidental deaths involving fentanyl has increased significantly over the last few years. Fentanyl is especially dangerous because, in powder form, it is indistinguishable from other drugs and a dose as small as 2 milligrams can be fatal. Whatever sentence is imposed in this case, it must send a clear message denouncing Mr. Oksem’s conduct in light of the human and societal devastation caused by the sale of fentanyl or drugs containing fentanyl.
[10] It is also an aggravating factor that Mr. Oksem has been found guilty of two drug related offences that took place at different times. He committed the much more serious offence of possessing fentanyl for the purpose of trafficking while he was on bail for possessing cocaine and other offences.
[11] There are also a number of important mitigating factors in this case.
[12] Mr. Oksem is 22 years old. He has no criminal record. These are very significant factors in my decision. Individual deterrence and rehabilitation take on greater significance in sentencing someone for the first time. Even if a jail sentence is required, as it is in this case, the court must impose the shortest term of imprisonment that is proportionate to the crime and the responsibility of the offender because Mr. Oksem is a youthful first offender: R. v. Priest (1990), 1996 1381 (ON CA), 30 O.R. (3d) 538 ( C.A.) at pp. 543-544, R. v. Thurairajah, 2008 ONCA 91 at paras. 41 and 42, R. v. Brown, 2015 ONCA 361 at para. 7 and R. v. Dirie, 2018 ONSC 5536.
[13] Second, Mr. Oksem pled guilty. In relation to the possession of cocaine charge, he had a preliminary inquiry but pled guilty in advance of his trial. In relation to the possession of fentanyl for the purpose of trafficking charge, Mr. Oksem waived his right to a preliminary inquiry and elected to be tried before me. I accept Mr. Oksem’s guilty pleas as a sincere expression of remorse on his part and a signal that he is taking responsibility for the serious mistakes he has made in the past.
[14] Third, Mr. Oksem’s rehabilitation prospects are very good. Unfortunately, Mr. Oksem has been struggling with drug addiction for a number of years. He started doing drugs when he was 17 years old and, as a result, he did not finish high school. He has worked at various jobs but has had difficulty keeping a job because of his addiction. I accept that Mr. Oksem was intending to sell the fentanyl he had in his possession to make money to support his own addiction.
[15] While in custody, Mr. Oksem completed a number of educational programs, including “Overdose Prevention & Response”, “Substance Use”, “Drug and Alcohol Awareness”, “Changing Habits”, “Managing Stress” and “Thoughts to Actions”. He also completed a 10-week creative writing program that focused on restorative themes including anger management, mental illness and accountability.
[16] Mr. Oksem was released on bail on September 10, 2019 pending his sentencing hearing to allow him to start treatment for his addiction in the community. On October 3, 2019, Mr. Oksem attended the Metro Addiction Assessment and Referral Service at the Centre for Addiction and Mental Health. He has an appointment to complete the assessment and referral on November 19, 2019.
[17] Mr. Oksem has also been working towards his high school equivalency while in pre‑trial detention. The Manager of the education program described Mr. Oksem as a determined, capable and engaged student.
[18] Finally, Mr. Oksem has a close, positive relationship with his family. They have supported him through this process, which will be important for his ongoing rehabilitation.
[19] Because of the dangers associated with fentanyl, convictions for possessing even small amounts of fentanyl for the purpose of trafficking can attract very long sentences in the range of 5 to 7 years: for example, R. v. Cinelli, 2018 ONSC 4983, R. v. Prestula, 2018 ONSC 4214. There have also been cases where courts have imposed sentences in the range of 12 months to 2 years less a day: R. v. Derycke, 2016 BCPC 291 and R. v. M.H., 2018 ONCJ 397. In very exceptional cases involving small amounts of fentanyl, suspended sentences have been granted; R. v. Dixon, [2017] O.J. No. 3477 (Ont. C.J.), R. v. M.H., [2018] O.J. No. 3126.
[20] I am not convinced that there are exceptional circumstances in this case. However, given the mitigating factors set out above, I am satisfied that this case falls at the low end of the range for possession of fentanyl for the purpose of trafficking cases.
[21] The Crown and defence do not agree on precisely how much credit Mr. Oksem should receive for the time he spent in pre-sentence detention and on restrictive bail but on either measure he has served more than 2 years in custody. The Crown argues that I should impose an additional 5 months in custody.
[22] As previously stated, Mr. Oksem was released on bail on September 10, 2019. The real question for me to decide is whether Mr. Oksem should be required to go back into custody for a few months in order to satisfy the principle of denunciation and deterrence. In my view that is not required. I am satisfied that imposing a sentence of 18 months in custody on a young, first-time offender sends a clear message to Mr. Oksem and to others that possessing fentanyl for the purpose of trafficking will be taken very, very seriously.
[23] I am confident that the time Mr. Oksem has spent in custody at the Toronto South Detention Centre has already had a deterrent effect on him. I am also confident that if Mr. Oksem can successfully address his drug addiction, he will not likely commit further offences. Rehabilitation is, therefore, a very important consideration in this case; in my view, focusing on Mr. Oksem’s rehabilitation is the best way to protect public safety in the long run. Mr. Oksem’s rehabilitation can be best addressed in the community. While this may be true in every case, it is particularly true here because Mr. Oksem has an appointment at the Centre for Addiction and Mental Health in a few weeks to continue treatment. Requiring Mr. Oksem to return to custody for a short period of time would interrupt and frustrate the progress he has made towards his own rehabilitation.
C. Credit for Pre-sentence Custody
[24] Mr. Oksem spent 449 days in pre-sentence detention. If he is given one and a half days of credit for each day he spent in pre-sentence detention, he has already served the equivalent of 674 days (or 22 months and 9 days).
[25] Mr. Oksem was detained at the Toronto South Detention Centre. Counsel for Mr. Oksem argues that he is entitled to enhanced because of the harsh conditions at the Toronto South Detention Centre. Particularly harsh pre‑sentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in the Criminal Code: R. v. Duncan, 2016 ONCA 754. Whether credit beyond the statutory maximum is appropriate depends on the conditions of detention and the impact of those conditions on Mr. Oksem.
[26] A number of decisions from this Court have granted additional credit to individuals held at the Toronto South Detention Centre, because of complete or partial lockdowns happening regularly at that institution. For example, in R. v. Ward-Jackson, 2018 ONSC 178, Kelly J. gave an additional 480 days of credit because Mr. Ward-Jackson had been subject to full or partial lockdowns on 488 days (or 40% of his time) in pre-sentence detention. Similarly, in R. v. Dibben, unreported, McMahon J. granted 420 days credit for 383 days of lockdowns at the TSDC. In R. v. Jama, 2018 ONSC 1252, 2018 ONCS 1252, Goldstein J. gave an additional 120 days credit for 175 days of lockdown at the TSDC. There is no formula for calculating the amount of enhanced credit to be given for unacceptably strict conditions in pre-sentence detention.
[27] The Toronto South Detention Centre provided a summary of the lockdowns Mr. Oksem experienced up to August 25, 2019. According to the TSDC records, Mr. Oksem experienced 133 full or partial lockdowns. In other words, 30% of the time he was in pre-sentence custody Mr. Oksem was subject to some form of lockdown and denied ordinary privileges. Mr. Oksem did not do anything to cause any of the lockdowns he experienced. It is particularly troubling that from August 1 to August 25, 2019, there were 18 lockdowns and there was a lockdown every single day between August 7 to August 15, 2019.
[28] The reasons given for the lockdowns is also very troubling. All but 10 of the 133 lockdowns experienced by Mr. Oksem were caused by staff shortages at the institution. Mr. Oksem also spent the 16 of his last 18 days in the Special Handling Unit because of staff shortage. This is completely unacceptable. The persistent problem of staff shortages at the TSDC reflects an astounding level of indifference on the part of the institution, or the government, to the rights of individuals detained in pre-trial custody. If we are going to continue to keep people in pre-trial detention, adequate resources must be allocated to ensure that inmates are not routinely locked-down. Occasional lockdowns are to be expected in large correctional facilities. However, the government and the institution must address the staffing issues that are causing a shocking number of lockdowns at the TSDC.
[29] Mr. Oksem swore an affidavit describing the impact the conditions have had on him. He was not cross-examined on his affidavit. In his affidavit, Mr. Oksem says that the frequent lockdowns have caused him a great deal of stress and anxiety. He says that during the lockdowns, when he had nothing to do, his mind would race about the possible negative outcomes in his case. He says this was very distressing and frequently caused him to break down. I accept his evidence.
[30] The Crown agreed that Mr. Oksem is entitled to some additional credit because of the conditions of his detention. The Crown suggested that he be given an additional 67 days of credit. The defence argues that Mr. Oksem should be given 4 months additional credit for the harsh conditions at the TSDC.
[31] I do not have to resolve this issue. On the basis of the statutory credit alone, Mr. Oksem has served the equivalent of more than 18 months. Nonetheless, in my view, 67 days does not adequately account for the unacceptably harsh conditions Mr. Oksem experienced at the TSDC. Mr. Oksem is a young, first-time offender. The lockdowns understandably caused him significant mental distress. If it would make a difference to Mr. Oksem’s sentence, I would grant him one day credit for each lockdown caused by a staff shortage.
D. Credit for Strict Bail Conditions
[32] Mr. Oksem was originally arrested on March 15, 2017. He was charged with possession of a loaded firearm and possession of cocaine. He was released on bail on March 20, 2017. He was bound by a curfew and was initially subject to electronic monitoring. There were exceptions to the curfew to allow Mr. Oksem to work. He was also allowed out during the curfew period with one of his sureties. On September 19, 2017, Mr. Oksem’s bail was varied so he could attend school. On November 17, 2017, the electronic monitoring was discontinued.
[33] Mr. Oksem remained on bail with a curfew until he was arrested on June 24, 2018 and charged with possessing fentanyl for the purpose of trafficking and failing to comply with his bail.
[34] Mr. Oksem was detained until September 10, 2019, when he was released on bail conditions pending his sentencing hearing. One of the conditions of his bail required him to be in his residence at all times unless attending a rehabilitation program or in the presence of one of his sureties. Mr. Oksem has, therefore, been subject to house arrest for 48 days.
[35] Again, there is no formula for calculating the appropriate credit to be given for the time Mr. Oksem spent under stringent bail conditions. The Crown acknowledges that Mr. Oksem is entitled to some credit for the 48 days he has been on house arrest bail. She suggested that he be given 1-day credit for every 5 days he spent on house arrest bail. She argues that no credit be given for the time he was on bail with GPS monitoring or a curfew. The defence argues that Mr. Oksem should be given 4 months credit for the time he was on restrictive bail conditions.
[36] Because Mr. Oksem has spent more than 18 months in custody based on the statutory credit alone, I do not need to resolve the dispute over credit for bail in this case.
[37] Nonetheless, I find that although the conditions imposed on Mr. Oksem’s first bail were restrictive, they were understandable in light of the very serious nature of his charges. A curfew is, of course, a significant restriction on Mr. Oksem’s liberty. However, he was permitted to work and the conditions were varied to allow him to attend school. The GPS monitoring was a restriction on his liberty. However, I do not have any evidence from Mr. Oksem about the impact of the conditions on him. As a result, I would not grant Mr. Oksem any credit for the time he was initially on bail.
[38] His current bail is very restrictive. He is not allowed out of his house for any reason other than to attend counselling or if he is with his surety. The impact of those types of conditions are obvious. If it would make a difference to the sentence imposed, I would grant Mr. Oksem some credit for the time he spent on house arrest.
C. Conclusion
[39] Mr. Oksem will be sentenced to 18 months in custody on the charge of possessing fentanyl for the purpose of trafficking. He will be sentenced to 30 days for possessing cocaine, which is to be served concurrently with his other sentence.
[40] Mr. Oksem has already served the equivalent of 674 days (or 22 months and 9 days) in custody. That number would be higher if I were to grant him extra credit for the unacceptable conditions he experienced at the Toronto South Detention Centre. Mr. Oksem has, therefore, served more than the sentence imposed. As a result, he will be given 1 day in custody to be followed by 2 years of probation.
[41] The intention of the probation order in this case is to ensure that Mr. Oksem focuses on his own rehabilitation over the next 2 years. With that in mind, in addition to the statutory terms, the conditions of his probation will be:
a. You will have no contact directly or indirectly with Sinan Hazan, Mehmet Hazan or Bilale Saleem;
b. You will not possess any drugs for which you do not personally have a prescription;
c. You will attend at the Metro Addiction Assessment and Referral Service on November 19, 2019 and take any counselling they recommend;
d. You will take any other counselling recommended by your probation officer for drug addiction;
e. You will seek and maintain employment, education and/or counselling on a full‑time basis, or the equivalent of a full-time basis if you are pursuing more than one of these activities at the same time on a part-time basis; and
f. You will sign any release required so your probation officer can monitor your compliance with these conditions.
[42] There will be an order under s. 109 of the Criminal Code that Mr. Oksem not possess any weapons for a period of 10 years.
[43] The Crown asked that I make an Order under s. 487.05(3) of the Criminal Code requiring Mr. Oksem to provide a sample of his DNA for forensic analysis. Possession of fentanyl for the purpose of trafficking is a secondary designated offence. I, therefore, have the discretion whether to make an Order in this case. Given that Mr. Oksem is 20 years old and has no criminal record, I am not satisfied that it is in the best interests of the administration of justice to make the Order in this case. The nature of the offence and the circumstances surrounding the commission of the offences do not convince me otherwise. I, therefore, decline to make an order under s. 48705(3).
Davies J.
Released: October 29, 2019
COURT FILE NO.: CR-18-50000276-0000
DATE: 20191029
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
RAMAZAN OKSEM
REASONS FOR SENTENCE
Davies J.
Released: October 29, 2019