Court File and Parties

Oshawa Court File No.: CR-18-14955 Date: 2020-06-26 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Christopher Park, Defendant

Counsel: Joshua Frost, for the Crown Zaire Puil, for the Defendant

Heard: January 20-24, 27-30, June 11, 2020

Reasons for Sentence

Edwards J.:

Overview

[1] Mr. Park was initially charged with two counts of Possession for the Purposes of Trafficking in Cocaine and Fentanyl and one count of Possession of Oxycodone. After a jury trial Mr. Park was acquitted of the more serious charge of Possession for the Purposes of Trafficking, but was convicted of the lesser but included offence of Possession of Cocaine and Fentanyl and the one count of Possession of Oxycodone pills.

[2] There is no dispute that Mr. Park was always intent on pleading guilty to possession of the lesser but included offence of fentanyl and cocaine. At the time of his arrest, Mr. Park was in possession of 2.4 grams of fentanyl, 12.6 grams of cocaine and 15 oxycodone pills.

[3] During the course of the trial the Crown called the expert opinion evidence of Sergeant Brad Cormer, who confirmed that it was possible that the quantity of drugs found in the possession of Mr. Park at the time of his arrest could fit within the definition of an amount that someone might have in their possession for personal use. It would appear that the jury accepted that evidence, as evidenced by their verdict.

Position of the Crown on Sentence

[4] It is argued by Mr. Frost that given the concerns that this court has expressed in the past about fentanyl, that the appropriate sentence in this case would be in the range of four to six months incarceration. In making this submission, Mr. Frost candidly accepted that the imposition of a conditional sentence was a possibility.

Position of the Defence

[5] Ms. Puil, on behalf of Mr. Park, emphasizes that Mr. Park was always prepared to plead guilty to the simple possession charge, and as such he should receive credit for his willingness to enter a plea of guilty at the earliest opportunity to the lesser but included charge of simple possession. I agree. Ms. Puil argues that the appropriate disposition is a conditional discharge.

[6] On behalf of Mr. Park, Ms. Puil describes him as a young black male who has been making significant efforts to rehabilitate himself. Ms. Puil stresses that as a young member of the black community, that any sentence that would leave Mr. Park with a criminal record would not be in the public interest.

[7] In imposing sentence Ms. Puil also argues that given the present circumstances arising out of the COVID-19 pandemic, that the court should consider this an exceptional circumstance that would allow the court to impose something other than a custodial sentence that would expose Mr. Park to a heightened risk if he was incarcerated.

Mr. Park’s Personal Circumstances

[8] Mr. Park is presently 29 years of age, and was 27 at the time of his arrest. He is a first offender with no prior criminal record. He is the father of two young children and was undergoing counselling for his drug addiction up until the onset of the COVID pandemic.

[9] A number of letters of recommendation were filed with the court which speak to Mr. Park’s good character and the efforts that he has been making to deal with his addiction, as well as to continue with post-secondary education leading to employment in the culinary industry.

The Aggravating and Mitigating Factors

[10] As I have already indicated, the fact that Mr. Park was prepared to plead guilty to the lesser but included offence of possession of cocaine and fentanyl should result in this court giving Mr. Park the benefit of an early plea of guilty, which this court should take into account in mitigation of sentence.

[11] I also take into account the fact that Mr. Park is a first offender and that he has taken such steps as were available to him to obtain counselling for his addiction, as well as to seek out and obtain employment.

[12] The nature of the drugs themselves, specifically cocaine and fentanyl – particularly fentanyl is an aggravating factor, as this court can take judicial notice of the fact that fentanyl has wreaked havoc amongst those involved in the use and trafficking of opioids. I do take into account Mr. Park’s evidence that he was unaware that he was in possession of fentanyl, as well as the evidence that the fentanyl appears to have been “cut” with caffeine. Had Mr. Park been convicted of possession for the purposes of trafficking fentanyl, the jurisprudence is such that Mr. Park likely would have faced a not insignificant period of incarceration. The fact remains, however, that Mr. Park was not convicted of a trafficking offence. The evidence establishes that Mr. Park was a user and addict who has sought out and obtained treatment.

Analysis

[13] The principles of sentencing are well known and are laid out in s. 718 of the Criminal Code of Canada (“the Code”). Amongst those principles that are most applicable to the facts of this case are the principles of denunciation, deterrence and rehabilitation. Amongst the decisions relied upon by Ms. Puil in support of a conditional sentence are the following cases: R. v. Bourke; R. v. Marchese, 2015 ONSC 1123; R. v. Narayan, 2017 ONSC 1333; and R. v. Lensen.

[14] In support of the custodial sentence sought by the Crown, Mr. Frost referenced the decision of RSJ Fuerst in R. v. Giannilos, 2016 ONSC 556. In Giannilos, the accused had obtained a prescription for 45 fentanyl patches which the local pharmacy had dispensed in multiples of 15, resulting in the accused ultimately obtaining a total of 30 fentanyl patches that resulted in his plea of guilty to two counts of possession of fentanyl and two counts of knowingly using a forged prescription as if it was genuine. Both the Crown and defence agreed that the offences required a custodial sentence, and ultimately RSJ Fuerst imposed a sentence of nine months followed by twelve months probation. In imposing that sentence, RSJ Fuerst stated at paras. 20 and 21 as follows:

On the record before me, I am unable to conclude that fentanyl is a more dangerous drug than heroin, given heroin’s well-recognized addictive and destructive properties. I accept, however, that fentanyl is an extremely dangerous drug when used illicitly, because of its potency and the risk of death to unschooled users. I also accept that its abuse is increasing, as access to Oxycontin diminishes.

For those reasons, I agree that courts should treat fentanyl offences with the same degree of gravity as they treat heroin offences. Deterrence both general and specific, as well as denunciation, must be the paramount objectives in fixing sentence for fentanyl offences. So too must they operate in respect of the offence of knowingly using a forged prescription to obtain fentanyl. While I do not ignore rehabilitation as a consideration in sentencing Mr. Giannilos as a first offender, it plays a much lesser role than does denunciation and deterrence.

[15] In imposing the sentence that she did, in my view the facts before the court in Giannilos are somewhat distinguishable from the facts involving Mr. Park. Mr. Giannilos had obtained the fentanyl illicitly by causing a pharmacist to act on a forged prescription, and did so not once but twice. In addition, the amount of fentanyl appears to be something more than minimal, and perhaps even more significant was the fact that Mr. Giannilos had continued to obtain other prescription drugs illegally while he was out on bail. None of those facts are similar to the circumstances involving Mr. Park.

[16] Ms. Puil, on behalf of Mr. Park, stresses that a conditional discharge is the appropriate disposition in this case. The authority to impose a conditional discharge is found in s. 730 of the Code. In R. v. Burke, H.E. Sacks J. summarized the principles upon which the court could consider a conditional discharge, and noted that the “first condition precedent requires the court to consider whether it is in the best interests of the accused that he or she be granted a discharge. In determining the question of best interests, there is a presupposition that an accused is a person of good character without previous convictions, and that it is not necessary to enter a conviction for the purpose of specific deterrence or rehabilitation”.

[17] As it relates to Mr. Park’s personal circumstances, it is important to consider that he is a young black male member of the community who appears now to be making great strides towards remedying his addiction to illicit drugs, while at the same time furthering his education and obtaining employment to support his young family. To impose on Mr. Park a sentence that would leave him with a criminal record in circumstances where he was an addict to very dangerous drugs would, in my view, fail to recognize the importance of rehabilitation in his personal circumstances.

[18] While I do not disagree with the comments quoted above from the decision of RSJ Fuerst regarding the importance of general deterrence and denunciation as it relates to the possession of such a dangerous drug as fentanyl, I see the facts in Giannilos as being distinguishable from the facts presently before this court.

[19] The principles of sentencing require the court to exercise restraint and to impose the least restrictive punishment, and only impose a period of incarceration where the principles of general deterrence and denunciation require the imposition of a jail sentence.

[20] Crown counsel, in my view, was entirely correct to emphasize the serious risk posed by anyone in possession of and/or using illicit fentanyl. Unfortunately, there are far too many regular media accounts of how fentanyl has had a devastating impact on those either knowingly or unsuspectingly using fentanyl. As D.S. Rose J. in R. v. Abbott, 2017 ONCJ 678, noted at para. 13:

…the risk posed by fentanyl is a public health one for all in the community, not just the addict. In other words, Mr. Abbott’s addiction is a public health issue first and foremost, albeit one rising in the context of a criminal prosecution. I therefore reject the submission that deterrence and denunciation play a significant role here. The principle objective of Mr. Abbott’s sentencing is a rehabilitative order which will do as much as possible to keep him within the care of a health professional for continual care and treatment regarding his addiction.

[21] At some point, a user of fentanyl who is an addict may move beyond just his or her addiction to trafficking in fentanyl. The addict, of course, is at the bottom of the chain in the illicit drug industry. Those who are at the top and profiting from the misery of those addicted to fentanyl should be properly denounced with a significant period of incarceration in a penitentiary, as suggested by the Court of Appeal in R. v. Loor, 2017 ONCA 696.

[22] As I weigh the principles of sentencing reviewed above together with the jurisprudence cited by counsel also referenced above, I am satisfied that the discharge provisions in the Code are an appropriate disposition in this case. As such, it is the sentence of this court that Mr. Park shall receive a conditional discharge subject to a period of probation for one year, the terms of which shall include the statutory conditions as well as conditions that require Mr. Park to continue to seek out and obtain medical counselling as determined by his family doctor, together with a term that Mr. Park shall continue to seek out and maintain employment. It shall also be a term of his probation that he not have in his possession any non-medicinal drugs unless otherwise prescribed by a medical practitioner.

Justice M.L. Edwards Released: June 26, 2020

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 there are any discrepancies between the oral and written versions, it is the official written decision that is to be relied upon.