court file no.: CR/19/90000635/0000
DATE: 20200305
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
brodie young
Anna Martin, for the Crown
W. Jacksa, for Mr. Young
HEARD: October 7, 2019, January 17 and February 13, 2020
kelly j.
reasons for sENTENCE
[1] Mr. Brodie Young has pleaded guilty to the following offences, committed contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”):
Date
Offence
Amount
April 2, 2017
Possession of crystal methamphetamine for the purpose of trafficking.
284 grams (approximately 10 ounces)
February 17, 2018
Possession of a mixture of heroin and fentanyl for the purpose of trafficking.
7.57 grams
[2] Mr. Young now appears before me for sentencing.
[3] The Federal Crown submits that the appropriate sentence is a global one of 5 years’ imprisonment.[^1] Counsel for Mr. Young submits that Mr. Young should receive a global sentence of 3 years’ imprisonment.[^2]
[4] Both counsel agree that Mr. Young should be given credit for the time he has spent in pre-sentence custody, pursuant to s. 719(3.1) of the Criminal Code and R. v. Summers.[^3] Both counsel also agree that Mr. Young should receive credit for the time he has been subject to harsh conditions of incarceration, pursuant to R. v. Duncan.[^4] This credit is granted.
[5] Lastly, Counsel also agree that Mr. Young should be subject to a prohibition order banning him from possessing weapons for life and that he should be required to provide a sample of his DNA. These ancillary orders are granted.
[6] After having considered the facts giving rise to the pleas, the personal background of Mr. Young and the relevant legal principles, I find that the sentence imposed should be a global one of 5 years’ imprisonment (60 months) less 14 months, 6 days, for a remaining sentence to be served of: 45 months and 24 days.
[7] What follows are my reasons.
The Facts
[8] The facts giving rise to the pleas were set out in an Agreed Statement of Facts. The facts giving rise to the 2017 conviction may be summarized as follows:
a. At about 7:59 a.m., members of the Toronto Police Service Community Response Unit were in the area of Portland and King Streets in the City of Toronto. They were having coffee when one of the officers observed Mr. Young walking on the street.
b. The officer erroneously believed that Mr. Young was wanted on an outstanding warrant for breaching his probation. The officer also had concerns that Mr. Young was armed with a weapon.
c. Mr. Young was detained in handcuffs and patted down pursuant to the police powers of investigative detention. Found in his waistband was what appeared to be a real Beretta firearm. It was later determined to be a pellet gun.
d. Mr. Young was arrested, and his backpack was searched incident to his arrest. Found inside the backpack were the following:
i. a replica BB gun that resembled a Glock Gen 4;
ii. 4.81 grams of MDMA;
iii. 284.45 grams of methamphetamine that was in individual bags; and
iv. $1,140 in cash.
e. At the time of his arrest, Mr. Young was on bail. One of the conditions was that he possess no weapons, including pellet guns and imitation firearms.
[9] The facts giving rise to the offences in February 2018, are as follows:
a. There was a warrant for Mr. Young’s arrest on unrelated charges. Officers observed Mr. Young attend in the area of 15 Scadding Avenue in the City of Toronto.
b. Mr. Young and another woman were walking toward Sherbourne Street. The police arrested him pursuant to the outstanding warrant.
c. When searched incident to his arrest, a replica handgun was found in the waistband of his pants.
d. A search of Mr. Young’s backpack yielded the following:
i. 72 grams of methamphetamine;
ii. 7.57 grams of a mixture of heroin and fentanyl; and
iii. $530.
e. Mr. Young was on probation at the time under a condition not to possess any weapons, including pellet guns and imitation firearms.
[10] These are the facts upon which Mr. Young is being sentenced. I will now turn to a consideration of his background.
Mr. Young’s Background
[11] Mr. Young’s background was provided in two comprehensive Gladue reports. The first is dated May 27, 2015. The second is dated December 16, 2019. The content of the reports may be summarized as follows:
a. Mr. Young was born on December 31, 1977. He is now 41 years of age.
b. Mr. Young derives his Aboriginal heritage from his biological mother, Ms. Jacqueline Gladstone. She is a member of the Heiltsuk First Nation in British Columbia. Ms. Gladstone attended residential school in Port Alberny, B.C.[^5]
c. Ms. Gladstone drank alcohol when she was pregnant with Mr. Young. Despite this, he has never been assessed for Fetal Alcohol Syndrome.
d. Mr. Young has a younger biological brother by the name of Courtney Gladstone. He has a younger sister by the name of Samantha Wilson.
e. By the age of three, Mr. Young had been placed in 22 different foster homes. When he was three years of age, Mr. Young was adopted by a non-indigenous couple, Ms. Patricia and Mr. Jerry Young.
f. Ms. Young described the adoption process as follows:
We contacted the social services and they interviewed us. It all seemed bizarre they had a catalogue with all these children in it. We did not mind adopting an older child and we let them know. The social service worker said they had a three-year-old child who was available for adoption but they had lost track of him. Brodie had been in 22 foster homes. When they located him they arranged that Brodie would come for the day. He arrived in a little t-shirt and shorts and shoes that did not fit him. We had clothing because we were ready to adopt so we were able to put him in some better clothing. At the end of the day the social worker did not show up. We tried calling her, and the foster home, but we could not get a hold of anyone. We put Brodie to bed and tried contacting the worker the next day. After two days we decided to take him back to the foster home. When we got there, we were appalled at the conditions. There were a lot of kids living in the home, and a guy was sitting at the table with a bottle of alcohol in front of him that he was drinking. He told us just to take Brodie into his room when we went into the room there were four other cribs in the room. We turned around and left with Brodie. I finally got a hold of the worker and told her we were going to keep Brodie. I never saw a worker for five and a half months. Seems they were overloaded with cases. At the six months mark we adopted Brodie. The adoption went through on March 30th, 1980.
g. At the time he was adopted, the Young family lived in Vancouver. They have one biological son by the name of Robert (older than Mr. Young) and one biological daughter (younger than Mr. Young).
h. At age five, the Young family moved to Calgary. Mr. Young started school later because his adoptive mother did not believe that he was ready for kindergarten. His fine motor skills were not developed. He could not hold markers or pens. She says that, “Kindergarten was not a happy experience for him. The teacher became frustrated with Brodie and one day she became so frustrated that she upended his desk.”
i. At age 10, the Young family moved to New Westminster, B.C. Mr. Young continued to experience difficulties in school. He was bullied and was targeted because of his race.
j. Eventually, at around the age of 12, Mr. Young’s adoptive parents separated. He stayed with his father. They got into an argument and Mr. Young’s nose was broken. Thereafter, Mr. Young was placed in a group home. He eventually went to live with his biological mother.
k. Mr. Young provided a description of the introduction to living with his biological mother as follows:
I went to live with my mother and it was different as night and day. The novelty of meeting each other wore off quickly. I went from eating wholesome regular food to eating garbage, if at all. My mom drank a lot, if she wasn’t drunk she was hungover and she had mood swings. She would just haul off and hit me for no reason. I wanted her to like me. I felt like I was in the way, so I started hanging out with my cousins. They were all into crime. When I was 12 or 13 years old I committed my first robbery. They [cousins] wanted to rob a gas station, and I said I would do it. I wanted to fit in. Later we robbed a jewelry store and got a lot of money. They would give me a couple of thousand dollars here and there. I think I got about ten thousand. I got picked up about two months later for the robbery. I was sent to Willingdon [Youth Center].
l. When he was released from Willingdon, he went to a home in Chilliwack, B.C. It was run by an RCMP officer who was later arrested for sexual assault. When interviewed by police, Mr. Young told them that he was tickled up the back of his leg. He says that it did not “feel right” but that he never did anything about it.
m. By the age of 14, Mr. Young returned to live with his adoptive father who was living in an apartment that was “small and cockroach infested”. He got into a fight at school, was suspended and he never returned. He was using drugs and drinking alcohol. He started stealing cars and committing break and enter offences.
n. At age 16, Mr. Young began smoking crack cocaine. To support his habit, he started committing more break and enter offences and robberies. His drug use has continued since that time.
o. Between the ages of 16 and 26, Mr. Young believes that he was incarcerated for all but four months.
p. Eventually, Mr. Young moved to the east end of Vancouver. He had a relationship with Angela, also addicted to crack cocaine and heroin. Eventually, Mr. Young turned to methamphetamine saying, “I felt like the meth rewired my brain I could think clearer.”
q. Mr. Young has a 10-year-old son by the name of Dayton (born September 28, 2009). Angela is the mother. Angela abandoned Dayton at the hospital, and he is now being raised by Mr. Young’s adoptive parents. Mr. Young has no contact with him. He describes why:
I made a lot of money dealing drugs. I was able to buy whatever I wanted. I gave my mom [Patricia] money for Dayton, lots of money, and I helped my sister and her husband out. I would have Dayton on weekends. They never questioned where the money was coming from, they knew I wasn’t working. When I got arrested everyone abandoned me and they never once came to visit me. My adopted mother had me sign over my parental rights, she said it was so the children’s services couldn’t take him. When I tried to call to speak to Dayton she refused, and this has caused a big rift between us.
r. In 2012, Mr. Young was living in the east end of Vancouver in hotel. An altercation broke out between his friend, Chelsea, and another resident of the hotel. Mr. Young was stabbed several times as was Chelsea. Mr. Young survived, Chelsea did not.
s. In 2013, Mr. Young moved to Toronto. He got into legal troubles in Toronto, the last of which were drug trafficking offences.
t. Mr. Young commenced a relationship with a woman named Lindsay that was based upon their mutual addiction to illegal narcotics. Eventually, Mr. Young left Lindsay. He says that his addiction to crystal methamphetamine increased and that he was using it regularly. He said, “I was involved in crystal methamphetamine. I was a wreck, I hadn’t ever done it to the point I was this time. I was injecting it and using it every way I could.”
u. In 2017, Mr. Young moved to Lindsay, Ontario. He said that this was probably the best thing that had happened since he had last been in custody. He was not associating with significant drug users and he would use minimally. He said that his use “almost stopped”.
v. Thereafter, Mr. Young reconnected with a former girlfriend by the name of Carly. They moved to Mississauga. Together they ingested drugs together and things started to deteriorate. When they were not using drugs, the relationship was good. It is in the context of this relationship that Mr. Young’s second son, Theo, was born. When he was born, their relationship ended.
w. After he was released from his last prison sentence, it was recommended that Mr. Young apply to the Na Me Res (Native Men’s Residence), Sagatay Program. When released he did so, but he did not stay. He said that he was not comfortable and not in the proper mind set. He describes that he wanted to be elsewhere, but such thoughts were “unrealistic”.
x. Following his last release, Mr. Young returned to his old apartment. He learned that his former girlfriend had been evicted. They reconnected and as Mr. Young says, “I fell back into everything, drugs crystal meth and fentanyl.”
y. Mr. Young was eventually arrested, and he pleaded guilty to four counts of possession for the purpose of trafficking on March 6, 2015 in the Provincial Court. A Gladue Report was ordered and provided. In it, Mr. Young explains:
I’ve started over many times having lost everything. The fact that the people I know have not contacted me is probably a good thing. It’s going to make it easier to turn my life around. I realize the two things that get me into trouble are drugs and women. My mother is getting older and I need to be around for my son. I never had anyone to talk to until now and I didn’t know that there are programs I can take to help me.
Mr. Young, at that time, expressed a willingness to change. He said that he is getting to old to continue the life he has led.
z. The 2015 Gladue Report also recommended that Mr. Young apply to the Kiikeewanniikaan, Southwest Regional Healing Lodge & Learning Centre for addictions treatment. When explaining why he did not follow through with this recommendation, Mr. Young said the following:
Some people I met in jail contacted me and I started doing jobs for them delivering [drugs]. I fucked up right from the very beginning.
I thought that I could do everything and bypass all the bad by-products that come with living this lifestyle. I thought I could jump back in and skirt around addiction. I thought I could be something I'm not. I'm not a drug dealer, I'm not.
aa. Since being incarcerated in the Toronto South Detention Centre this time, Mr. Young has been living in the Native Living Unit. He chose it because there are “not a lot of Native drug suppliers on the unit, less chance to make connections”.
bb. Mr. Young describes living on the unit as follows:
I have opened my mind to the possibility of finding some acceptance or a sign that this was good. I haven’t felt good about anything in a long time. But I was in time for the Fall feast and each person stood in the centre and everyone said something positive about each other. Native guys just like me all had positive things to say about me.
I’ve learned to smudge and learned about the seven grandfather teachings. I never imagined myself excited over learning, especially about my culture.
cc. Mr. Young has applied to the Salvation Anchorage Addiction Program in Ottawa. He has also applied to the St. Michael’s Treatment Program. He explains, “My goal to be honest, I want to see if I can get some treatment. Before I would never [have] admitted any of that stuff, [his addiction] it was a source of shame. But now I need help.”
dd. Mr. Young has amassed a significant criminal record, commencing as a youth in 1991. He has approximately 18 convictions as a youth and approximately 46 as an adult. He has 13 convictions for drug related offences and six for weapons related offences. Two of the weapons related offences deal with his possession of firearms in 2008 and 2010. Mr. Young has been the recipient of a number of sentences of imprisonment, the longest being for 23 months.
[12] Mr. Young addressed the court during the sentencing hearing. He gave an explanation as to how he came to the state in which he committed these offences: a difficult upbringing, addiction and emotional issues arising from the death of Chelsea and others in his life. Mr. Young said that it was a miracle for him to be writing a letter (and addressing the court). After he held his newborn son, he said “I never realized how dead I was inside until I held my son and was reminded what it means to be alive”.
[13] Mr. Young described that meeting his mother was “definitely not the positive event” that he had hoped. On his 11th. birthday, she gave him a case of beer and a bottle of champagne which started him on a life of addiction. He was on the streets by age 12 and started a life of criminality by stealing food. By age 13, he had committed a jewelry robbery. On his 14th. birthday, he was introduced to crack cocaine. He lost eight friends who died of an overdose or were murdered. He said that after a while, he stopped caring about himself. He came to the Toronto area to start a new life but his addiction followed.
[14] Since being in the Toronto South Detention Centre, his eyes have been opened. He now understands what his mother had lived through as a resident of a residential school. Although he does not wish to see his mother again, he forgives her. The closest he has been to being comfortable in his “skin” is right now. Due to programming at the jail, he has been “pushed” in a “new direction” that feels “right”. He is a different person than the one who committed these offences. He is ashamed that he was continuing the cycle that his mother started. He wants to be a father to his son. He finally feels good about himself.
[15] Mr. Young ended his submission by saying:
I would like to offer my apologies for my actions. I would like to make up for them by becoming the man nobody wanted or thought I could be. I want to show the court I am capable of more than I’ve shown.
[16] I will now turn to the legal principles that must be considered on sentencing.
The Law
[17] In determining an appropriate sentence, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:
- The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions 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.
[18] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in ss. 718.2(a)(i) to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).[^6]
[19] Pursuant to s. 718.1 of the Criminal Code, "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender". Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.[^7]
[20] Lastly, the court is required to consider the principles set out by the Supreme Court of Canada in R. v. Gladue.[^8] Section 718.2(e) of the Criminal Code directs the court to explore alternatives to imprisonment, especially as it pertains to the unique circumstances of Aboriginal offenders.
[21] The Federal Crown provided cases and a summary of those cases in support of her position. I have attached the summary as Appendix “A” to these reasons. All cases show that the position she has submitted on sentencing in this case is reasonable and well within the range. I will deal with a few of the cases here, but I rely on all of the cases described in the summary at Appendix “A”.
a. Methamphetamine
[22] R. v. Nguyen[^9] is helpful in dealing with a person who possessed approximately the same amount of methamphetamine. Mr. Nguyen pleaded guilty to possessing a total of approximately 11 ounces of methamphetamine. He had a gambling addiction and difficult personal circumstances. He possessed the methamphetamine for the purpose of trafficking and was in business for a commercial purpose. He had a prior, related conviction. A sentence of 6 years was imposed.
b. Heroin/Fentanyl
[23] One case that I found helpful in dealing with the charge of possession of heroin for the purpose of trafficking is the case of R. v. Banovac.[^10] Mr. Banovac was charged with possession of heroin for the purpose of trafficking following a trial. The amount of heroin seized on Mr. Banovac consisted of 1,103 hits of heroin. Mr. Banovac was given a sentence of 3.5 years. He had a significant criminal record and he was on bail at the time he committed this offence. He had one previous drug conviction. As a consideration of the appropriate sentence, the judge referred to case authorities in a chart as follows:
Case
Offence
Weight
Sentence
R. v. Farizeh[^11]
Trafficking heroin (3 cts).
1.59 gr.
4 years
R. v. Hamid[^12]
Possession of heroin for the purpose of trafficking.
1.8 gr.
3 years
R. v. Bahari[^13]
Trafficking heroin (4 cts).
6.71 gr.
6 years
R. v. Pimental[^14]
Possession of heroin for the purpose of trafficking.
5.1 gr.
5 years
R. v. Dasilva[^15]
Possession of heroin for the purpose of trafficking.
2.08 gr.
3 years
R. v. Pham[^16]
Possession of heroin for the purpose of trafficking.
5.49 gr.
3 years
[24] Further, there are several cases that have commented on the perils of fentanyl in our community. In 2017, our Court of Appeal commented on the effect of fentanyl and the hazard it has created in the case of R. v. Loor.[^17]
[25] Mr. Loor was a low-level member of a small drug trafficking ring dealing in fentanyl. Using a forged prescription, Mr. Loor obtained 45 patches of fentanyl from a pharmacy in Barrie. He was given a sentence of six years. That sentence was upheld by the Court of Appeal. Commencing at para. 33, the Court of Appeal made the following observations about fentanyl:
33 Unless used for therapeutic purposes, under proper medical supervision, fentanyl 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.
35 Fentanyl, like heroin, is an opioid. Opioids are drugs that act on the central nervous system to relieve pain. Unlike heroin, which is illegal, fentanyl is a prescription drug, which can be obtained legally for therapeutic use.
37 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.
38 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.
[26] I will now consider the fit sentence in light of these principles.
Analysis
[27] In coming to my conclusion regarding the fit sentence, I consider the following to be the aggravating factors in relation to Mr. Young’s circumstances:
The 2017 Offences
a. The quantity of methamphetamine found in Mr. Young’s possession is significant. It is just over 10 ounces of methamphetamine.
b. The nature of the substance possessed is also significant: crystal methamphetamine.
c. Mr. Young was also found in possession of money, indicating that he was involved in the trafficking business for a commercial purpose (although I also acknowledge he is an addict).
d. Mr. Young was in possession of two imitation firearms, one was in his waistband, the other in his backpack. Although it is known that these are imitation firearms, a person at the other end of the barrel would not know that, which could cause them great anxiety.
e. The fact that Mr. Young carried two imitation firearms is a statutorily aggravating factor pursuant to s. 10 of the CDSA.
f. Mr. Young was on bail at the time he committed these offences and therefore in breach of his bail conditions.
g. Mr. Young was also in breach of a prohibition order at the time.
The 2018 Offences
h. Mr. Young possessed a mixture of heroin and fentanyl, a lethal combination for its users in particular.
i. A further quantity of crystal methamphetamine was also found (72 grams) which is significant.
j. Mr. Young, again, possessed an imitation firearm that appeared to be a real firearm.
k. Mr. Young breached the terms of his bail and probation by committing these offences.
l. Mr. Young breached a prohibition order by being in possession of the imitation firearm.
Generally
m. Mr. Young has a significant criminal record with numerous entries for similar offences. (That said, his criminal conduct has been contextualized by his upbringing and addiction as set out in the two Gladue Reports filed.)
n. Mr. Young has been incarcerated before.
o. The nature of the drug (methamphetamine, heroin and fentanyl) wreaks havoc on our society. There are obvious consequences for Mr. Young, but the serious consequences for the addicted user and our community are immense.
p. Fentanyl use is a crisis in our community. Most of the deaths are accidental and related to overdoses. The death rate due to fentanyl use is increasing.
q. Crystal methamphetamine and heroin also have devastating consequences for our community.
[28] I consider the following to be the mitigating factors:
a. Mr. Young had a difficult childhood life as set out in detail in the Gladue Reports and above.
b. At a young age, he was removed from his own home. He was in 22 foster homes before being adopted at the age of 3.
c. He had difficulties in school and did not graduate. He turned to a life of criminality and addiction.
d. When he turned age 11, his mother gave him a case of beer and some champagne. That kicked off a life of addiction.
e. When he stopped living with his adoptive parents and his own mother, he latched onto a group he called his brothers. They have died, either due to drug overdoses or they have been murdered.
f. His friend, Chelsea, was stabbed and died in his arms. He was stabbed but he survived.
g. To survive and support his addiction, Mr. Young turned to a life of criminality. Between the ages of 16 and 26, he spent more time in custody than he did released in our community.
h. Mr. Young’s relationships have been fueled by narcotics. A friend died, causing him to gain insight into his lifestyle, but he could not resist the temptation of illegal narcotics.
i. Mr. Young has expressed a desire to reform. He is now proud of his Aboriginal heritage rather than embarrassed.
j. Mr. Young’s plea is a sign of remorse. He pleaded guilty knowing that the Federal Crown was originally seeking a sentence of 8–9 years’ imprisonment.
k. In pleading guilty, Mr. Young abandoned a Charter application that “might” have met with some success. The plea saved valuable court resources in a post-Jordan era.
l. In addressing the Court, Mr. Young was thoughtful, articulate and well spoken. I accept the remorse that he expressed as sincere. He could be a great asset to our community if he were to share his experiences so that others could learn from them.
[29] I will now turn to a consideration of the fit sentence.
The Fit Sentence
[30] This is a very difficult case. I am cognizant of the horrific repercussions that fentanyl, heroin and methamphetamine have in our community. Deterrence and denunciation are significant considerations in sentencing a person like Mr. Young who has been found guilty of serious offences. However, I cannot ignore Mr. Young’s history and background.
[31] Mr. Young is committed to becoming drug free, although he recognizes the severity of the battle. His submission, particularly about his addiction, gave the Court great insight into the gravity of his addiction and the lengths he would go to satisfy it. He risks incarceration and worse, death due to his addiction. He has seen a friend die before his own eyes and has had other friends murdered. The theme that remains constant in all of those stories is addiction.
[32] Needless to say, the Gladue Reports painted a depressing picture of a good man who who is riddled with difficulties from his past and his addictions.
[33] Although Mr. Young, to date, has not succeeded in ridding himself of his addiction, he is committed to doing so. I accepted his evidence in that regard as sincere. He is very aware of the battle that he faces daily but he should be commended for his efforts. As Wood J.A. said in R. v. Preston[^18] regarding attempts at rehabilitation:
Indeed, to expect a perfect result would be unrealistic, for it seems unlikely that a pattern of conduct and a lifestyle that has persisted for over 20 years can be changed overnight. There are bound to be relapses on the long road to recovery from any substance addiction.
What is important is that Mr. Young has made, and continues to make, efforts to curtail his addiction.
[34] I am also mindful of the fact that this is Mr. Young’s first penetentiary sentence and of the direction of Rosenberg J.A. in R. v. Borde,[^19] that a “first penetentiary sentence should be as short as possible”.
[35] I accept that the Federal Crown’s proposed sentence of 5 years is reasonable. Since the initial plea inquiry and upon receipt of the Gladue Reports, she modified her position from one of 8–9 years to 5 years for the 2017 offence and 4 years concurrent for the 2018 offences. She recommends such a sentence despite that they should run consecutive to each other as they represent separate offences committed in separate years. Such a position is very reasonable in all the circumstances. I agree with her submission. But for Mr. Young’s compelling background, a global sentence of 9 years, originally proposed by the Federal Crown would have been warranted.
[36] It is my view that a sentence of 3 years as proposed by Counsel for Mr. Young is simply too low and does not address the principles of sentencing adequately. For the abovementioned reasons, Mr. Young is sentenced globally to five years imprisonment. Mr. Young is entitled to a reduction in sentence for a variety of reasons.
The Summers Credit
[37] Mr. Young will be given credit for time spent in pre-sentence custody in accordance with s. 719(3.1) of the Criminal Code and Summers. I am advised that Mr. Young was in custody for 276 days. Enhanced at 1.5 days for each day spent in presentence custody, Mr. Young will be given credit for 9 months, 6 days.
The Duncan Credit
[38] In certain circumstances, particularly when harsh conditions prevailed during pre-sentence incarceration, mitigation greater than the 1.5 days credit set out in s. 719(3.1) of the Criminal Code may be appropriate. In considering whether any enhanced credit should be given, the court will consider the conditions of the pre-sentence custody and the impact of those conditions on the defendant. If the court finds that there is an adverse effect on the defendant flowing from the pre-sentence conditions, the sentence can be reduced further to reflect the added mitigation for the conditions of the pre-sentence incarceration.[^20]
[39] During the time that Mr. Young was incarcerated, the records show a total of 92 days of full and partial lockdown. The lockdowns were the result of staff shortages.
[40] It is agreed that during this time, there was limited, if any, access to the shower program, telephones, etc. Counsel agree that Mr. Young suffered anxiety over and above the norm due to the conditions. I do find that Mr. Young was subject to harsh conditions and that the impact of such conditions was detrimental to Mr. Young’s well-being. Neither Mr. Young nor any other inmate was responsible for the majority of the lockdowns. They occurred purely as a result of staff shortages.
[41] There is no mathematical equation for the length of time to be credited as compensation for being incarcerated under harsh conditions. Based on the evidence before me, I am prepared to give Mr. Young a further credit of 5 months, given his harsh experience while in pre-sentence custody.
Conclusion
[42] In conclusion, Mr. Young is sentenced to a global sentence of 5 years less Summers credit of 9 months, 6 days; and Duncan credit of 5 months.
[43] When the credits (14 months, 6 days) are deducted from the sentence of 5 years (60 months), Mr. Young is required to serve another 45 months, 24 days.
[44] His record will reflect the following:
Offence
Sentence
Possession of crystal methamphetamine for the purpose of trafficking.
60 months less 14 months, 6 days for a further 45 months, 24 days to serve.
Possession of a mixture of heroin and fentanyl for the purpose of trafficking.
48 months, concurrent less 2 months, 6 days for a further 45 months, 24 days to serve.[^21]
[45] The following ancillary orders are imposed:
a. section 109 order for life; and
b. an order that Mr. Young provide a suitable sample of his DNA.
[46] I also make the following recommendation as set out in the Gladue report: that Mr. Young serve his sentence at Waseskun Healing Center 1 Rue Waseskun, P.O. Box 1159, Saint-Alphonse-Rodriguez, QC. Tel: 450-883-2034.[^22]
Kelly J.
Released: March 5, 2020
appendix “A”
(Attached)
CASE NAME
SENTENCE
AMOUNT
MITIGATING FACTORS
AGGRAVATING FACTORS
ADDITIONAL NOTES
METHAMPHETAMINE
- R. v. Nguyen Unreported – (5 June 2008), Kitchener, O.C.J. (Westman J)
6 years total less credit for 1 year of PSC
PFTP 9oz and second of 2oz
• Guilty plea • Gambling addiction • Difficult personal circumstances
• Commercial venture • Prior related conviction • Breached recog
“…would appear as though the scientific community now knows that methamphetamine presents every bit the kind of damage that was associated with heroin if, in fact, not more.”(p. 65)
- R. v. Wihnon Unreported – (Sept. 12, 2012), Kitchener, O.C.J (Hearn J) Upheld on appeal: 2a. 2013 ONCA 689
6 years for meth (9 years total less PSC)
PPT Meth (13.77 oz + 36.14 g) PPT cocaine (12.9 g) PPT Oxcodone (39 pills) Dangerous driving Resist Arrest Theft Over Breach of Recog
• Guilty plea • Genuine remorse • 30 years of age • Exposed to drugs at young age • Addiction (trafficking somewhat to support it, but primarily for profit)
• Rammed police car in flight • Significant amount of high purity meth; was able to re-up in a few days • Extensive record (48 convictions), 2 prior drug convictions, PPT and simple possession) • Above street level trafficking
Hearn J “With respect to crystal methamphetamine, this court has noted previously and other courts within this region have accepted that methamphetamine is a dangerous and insidious drug that causes significant harm to the user and to the community.” (p. 12)
- R. v. Ho [2011] O.J. No. 6672 (SCJ) (Molloy J)
4 years (less credit)
PPT meth (115.4 g) PPT ecstasy (8.2 g) PPT Ketamine (1.8 g)
• Guilty plea to other charges (but not meth)
• Nature and quantity of drugs • Extensive criminal record
“On the basis of the authorities I have reviewed, it is arguable that the range of sentence for possession for the purpose of this amount of methamphetamine exceeds the 3-4 year range suggested by the Crown.” (para 62)
- R. v. Ticzon 2016 ONSC 7299 (Myers J) Reduced on appeal: 4a. 2018 ONCA 198
4 years concurrent on less credit Reduced to 3 years on appeal
P4P – 64.1 g Weapons dangerous
• Did not challenge case after Charter argument failed • 28 years old • Addiction, likely selling to support use • Sought rehabilitation • May lose immigration status
• Prior record • Brandished knife at police
ONCA: “We accept the Crown’s submission on appeal that a sentence of three years on the trafficking offence and one year on the weapons offence concurrent less time served of 19.5 months is a fit sentence. We particularly note that the appellant was 28 years of age at the time of sentencing and had a criminal record consisting only of a suspended sentence for two counts of fraud under.” (para 12)
- R. v. Copeland 2007 CanLII 37232 (ON SC), [2007] O.J. No. 3390 (SCJ) (Spies J)
3 years (joint submission)
P4P 288.98 g
• 23 years old • Guilty plea
• Prior youth/adult record; no prior drugs • Commercial trafficking
“…in my view this sentence is probably at the lower end that a court could reasonably impose in this case…” (para 50)
HEROIN (alone)
- R. v. Farizeh [1994] O.J. No. 2624 (C.A)
6 years reduced to 4 years on appeal
3 counts of trafficking (+ 2 additional transactions read in as aggravating) 1.59 g total
• Guilty plea • No record • Heroin addict • Participated in rehab programs in jail • Trafficked in small amounts, participation at lowest level
• Nature of drug
“On sentencing the Crown asked for a sentence of three to four years in totality. In our opinion, such a sentence would have been consistent with sentences imposed on first offenders who are “addicts” involved in sales of relatively small amounts of heroin. We stress the fact that the sale of heroin, even in small amounts by first offenders who are addicts will call for a penitentiary sentence unless exceptional circumstances exist …” (paras 4-5)
- R. v. Bahari [1994] O.J. No. 2635 (C.A)
6 years total (reduced from 8 years)
Trafficking – 4 counts 6.71 g total
• Guilty plea • Acting as agent for third parties • Addiction • Rehabilitative steps taken prior to arrest, and post sentence
• Minor unrelated record
“We agree with the trial judge’s statement that unless there are exceptional circumstances, a penitentiary term should be imposed for the sale of heroin.” (para 6)
- R. v. Pimentel [2004] O.J. No. 5780 (SCJ) (Hill J)
5 years
PPT 5.1 g
• Mature offender with lengthy related record
“Possession of heroin for the purpose of trafficking and the related crime of possession of the proceeds of the trafficking represent profitable crimes of premeditation. Sentences proportionate to the gravity of the offence, designed to effect general deterrence, are warranted in these cases.”
- R. v. Hamid [1997] O.J. No. 3713 (C.A.)
3 years concurrent
Trafficking ($40 worth) P4P 1.8 g
• Unknown
• Unknown
- R. v. Banovac 2016 ONSC 7166 (Allen J) Affirmed on appeal: 10a. 2018 ONCA 737
3.5 years
21.71 g
• Addict (became addicted after serious car accident) • Difficult family background • Employment • Pleaded guilty to possession of heroin
• Substantial record, one prior drug conviction • Dangerous drug • Absence of prosocial life factors (error) • Outstanding charges with no nexus (error)
ONCA “…That said, despite these errors, the sentence imposed was fit and well within the range for other offenders, even those with no previous record, unlike the appellant and with significantly smaller amounts of heroin: see R.. v. Farizeh, [1994] O.J. No. 2624; R. v. Bahari, [1994] O.J. No. 2625 and R. v. Pimentel, [2004] O.J. No. 5780.” (para 5)
- R. v. Elvira 2018 ONSC 7008 (Schreck J)
2 years consecutive to gun sentence, plus additional deduction of 9 months to give effect to principle of totality and to allow for probation
PPT heroin (0.38 g) PPT Cocaine (10.0 g) Firearms offences
• Youthful first offender • Supportive family • Remorse • Systemic anti-black racism
• Nature of drug, most pernicious (although now eclipsed by fentanyl)
“The sentencing range for cases involving one gram to multiple grams of heroin appears to be three to five years … In all the circumstances I conclude that the appropriate range for possession of less than half a gram of heroin for the purpose of trafficking is two to three years.” (paras 28-29)
HEROIN/FENTANYL MIX
- R. v. Francis Unreported – (Jan 7, 2020) S.C.J B. O’Marra J
4 years consecutive for heroin/fentanyl (1 yr concurrent for cocaine + 3 years for gun) – 7 years total
5.35 g heroin/fentanyl mix 758.67 g cocaine
- loaded gun
• Not guilty plea, but didn’t contest case after Charter • 23 years old • No prior record • Relationship, child • Did well in school • Unresolved anxiety/depression • Positive prospects for rehabilitation
• Deadly drug • Cutting agent could proliferate drugs even further
“The quantity of fentanyl in this case, based on studies that are reflected in the cases cited particularly by the Crown Counsel, show that the fentanyl in this case could cause more deaths and serious injury than a loaded gun. And what does that say? That is how dangerous this drug is to everyone, to everyone who has even the smallest of contact with it.” (p. 10)
court file no.: CR/19/90000635/0000
DATE: 20200305
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
BRODIE Young
REASONS FOR SENTENCE
Kelly J.
Released: March 5, 2020
[^1]: Initially, the Federal Crown sought a sentence of 8-9 years’ imprisonment. She modified her position after having reviewed the Gladue Reports, suggesting that the sentences could run concurrently rather than consecutively in these circumstances.
[^2]: In his submission to the court, Mr. Young asked for a conditional sentence. Such a sentence is not available in these circumstances. Even if it were, a sentence of 2 years less 1 day would be inappropriate.
[^3]: 2013 ONCA 147 (Can LII), [2014] 1 S.C.R. 575
[^4]: 2016 ONCA 754
[^5]: As stated in the first Gladue Report: “Residential schools caused long term intergenerational harm to those who did not attend school but had a family or community member who did. The loss of parenting skills and traditional knowledge impaired former students and caused harm to their families and communities as evidenced in the high rates of child apprehensions and youth involvement in crime.”
[^6]: See: R. v. Nur, 2011 ONSC 4874, aff’d. 2013 ONCA 677, upheld 2015 SCC 15, [2015] 1 S.C.R. 773
[^7]: See: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 80
[^8]: [1999] 1 S.C.R. 668.
[^9]: Unreported (June 5, 2008) Kitchener O.C.J.
[^10]: [2016] O.J. No. 6751 (S.C.J.)
[^11]: [1994] O.J. No. 2624 (C.A.)
[^12]: [1997] O.J. No. 3713 (C.A.)
[^13]: [1994] O.J. No. 2625 (C.A.)
[^14]: [2004] O.J. No. 5780 (S.C.J.)
[^15]: [2004] O.J. No. 4808 (S.C.J.)
[^16]: [2004] O.J. No. 1858 (S.C.J.)
[^17]: 2017 ONCA 696
[^18]: 1990 CanLII 576 (BC CA), [1990] B.C.J. No. 2886 (B.C.C.A.)
[^19]: (1996), 1996 CanLII 1381 (ON CA), 110 C.C.C. (3d) 289
[^20]: R. v. Duncan, supra, at paras. 6 and 7
[^21]: I have reduced this sentence by 2 months, 6 days to give effect to my intent that Mr. Young serve a total further sentence of 45 months, 24 days.
[^22]: The Waseskun Healing Centre was described in the Gladue Report as follows: Waseskun Healing Center is a place for Aboriginal men to get the cultural teachings they need to heal themselves. Waseskun, the only Aboriginal Healing Center east of Manitoba, brings together men of many nations from the correctional systems and from communities. It attempts to get these men, and the staff who work with them, to form a community of people who are walking the healing path together. The goal of Waseskun Healing Center is to rehabilitate individuals in order to help them re-integrate into their own communities. Through the work of Elders and Helpers, Waseskun offers programs and one-on-one therapy for individuals to deal with the issues that resulted in their past criminal behavior. Waseskun combines those teachings with cultural and spiritual lessons and ceremonies to help individuals connect to the world around them