COURT FILE NO.: 262/18
DATE: November 20, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
D. Anger, for the Crown
- and -
Richard Quast
A. Burton, for Mr. Quast
SENTENCING HEARING: February 13, 2020
The Honourable Mr. Justice H. S. Arrell
REASONS FOR SENTENCE
INTRODUCTION:
[1] Richard Quast pleaded guilty on May 23, 2019 to one count of trafficking approximately 2.5 kilograms of cocaine, and one count of trafficking 517 grams of fentanyl. The agreed statement of facts indicated he also had in his possession 143 grams of heroin, and 103 grams of crystal methamphetamine.
[2] He is before me today for sentencing, which has been delayed, on consent, due to COVID.
FACTS:
[3] On October 6th, 2017 police searched, pursuant to a warrant, a public storage locker, and found the above quantity of drugs in a blue suitcase of checked luggage size. The offender had earlier contacted the locker employees, identifying himself as Richard Quast and wanted to make arrangements to pay for the unit and vacate it. The employees notified the police, who had previously been in touch with them regarding this locker.
[4] Later that day the police observed Mr. Quast near the locker. The police identified themselves and the offender attempted to flee. He was arrested after a short foot chase.
[5] The Crown concedes it was unable to prove that Mr. Quast knew the exact contents of the bag seized, which contained the drugs, or that he was the owner of that bag.
[6] Mr. Quast confirms he rented the locker and knew it was being used to store drugs. He also confirmed that his purpose in attending the locker on October 7th was to retrieve the drugs which he knew were in the bag in the locker. He also provided his access code to the police for the storage locker.
[7] Mr. Quast does not appear to have been the main target of this investigation which appears to have started in the summer of 2017. Initially he was jointly charged with three others regarding possession of numerous drugs for the purpose of trafficking as well as possession of counterfeit money in the summer of 2017. He was the last one to be arrested. Those charges were ultimately withdrawn by the Crown and the ones before the Court relating to the storage locker proceeded. Mr. Quast and two of the joint accused, who were also co-accused from the 2017 summer incident, were charged regarding the storage locker incident.
[8] Mr. Jessem, one of the co-accused, was given a 7-year sentence by Durno, J. on January 9, 2020, although this conviction does not appear to stem from this storage locker incident.
[9] While arresting the co-accused and searching their apartment, the police found the storage rental agreement in the name of Mr. Quast, which ultimately led to his arrest on October 7, 2017 and his plea of guilty before me.
PRE-SENTENCE REPORT:
[10] The offender was the only child of his parents 2-year marriage. He was raised by his mother and stepfather. He has a half-brother 5 years his junior from that union. He had a relationship with his natural father although it does not appear to have been terribly close. Upon turning 17 he went to live with his father for 2 years as he was not getting along with his mother. He has had no communication with his natural father in the last 5 years as they have become estranged.
[11] The offender has lived with his parents since May 2018. They and he claim he is doing well with them.
[12] He is currently 24 years of age.
[13] He has no criminal record.
[14] The offender’s employment history has generally been transient and spotty at best in relatively low-end jobs, except for a 2-year permanent position between 2014 and 2017. Initially the offender did not complete high school leaving in grade 12. He was diagnosed with ADHD at age 9 and placed on medication which he stopped taking in grade 10. After his arrest and release on bail he successfully completed his secondary school diploma in June 2019. He hopes to study architecture in the future.
[15] The offender reported to the author of the pre-sentence report that he abused hard drugs starting in 2014 at age 19. He reported that by the time of his arrest, his drug use was out of control which in hindsight he says he now realizes was a big problem and was seriously affecting his decisions in a very negative way.
[16] He was also associating with peers involved in the drug culture which negatively impacted his decision making as well. He commented to the author of the pre-sentence report that his arrest was the “smack in the face” he needed to change his ways. He denies any drug use since his release in December 2017. The addictions counsellor at St. Leonard’s and his parents confirm that the offender appears to be in remission from hard drug use.
[17] The offender expressed remorse to the probation officer for his actions in this matter. He is embarrassed by what he has done and now he claims to be much more educated on the harm his actions could cause society. He accepts responsibility for what he has done, and he had expressed his resolve to the author that he will never repeat his actions in the future due to further addiction education and his improved relationship with his family. He has, as well, eliminated all his former peers who clearly were a negative influence.
[18] The offender has been on relatively strict bail conditions since his release in December 2017 and there have been no breaches.
LETTERS OF SUPPORT:
[19] The offender had an impressive number of family and friends in court during the sentencing hearing. All of them have filed letters of support with the court. They all are well educated, experienced and productive members of society who are well aware of the devastation drugs cause our communities. All speak of how out character this incident was for this offender. All of these individuals acknowledge how serious these charges are. These individuals have seen a very positive change since the offender’s arrest and believe that will continue. They support him unconditionally and appear to have no doubt he will succeed in the future as a productive member of society. He has expressed his remorse to these supporters, and in their view, he has clearly accepted the responsibility and consequences for his actions. Many of them spoke of the offender as a follower while growing up with some mental health issues. It is clear from this support material that he has actively pursued help and treatment since his release and that it appears to be working.
[20] These letters of support indicate the maturity this offender has established since his release. A common theme in many of these letters is the low self-esteem and lack of connection to family that the offender had at the time of this offence. These supporters assure this court that that has changed dramatically since his release. He has sought forgiveness from these supporters for his actions and the grief he has caused them.
[21] I have also received two very positive reports from this offender’s Bail Counsellor at St. Leonard’s. He has been involved with them on a weekly basis since his release into their bail program in 2017 and up until now. He has followed all of their recommendations for self-improvement and has volunteered on their behalf at some fund raisers. They say he remains very active with his family. He has engaged the services of a consultant to assist him with incarceration as he prepares for that eventuality. He has been diagnosed by Dr. Clark a psychiatrist in 2018 with ADHD and has been prescribed medication to assist with this disorder. The counsellor who has followed him since his release into the St. Lenard’s program speaks very positively of his prospects for continued rehabilitation.
[22] I have also received a report from the Canadian Mental Health Association dated November 13, 2020. It confirms that the offender has been involved with them since February 2020 after 2 years on their wait list. Since then he has participated weekly in their programing. The author of this report opines that given this offender’s positive advancements surrounding his own mental health that a lengthy custodial sentence would impede his continued personal growth and improving mental state.
POSITION OF THE PARTIES:
[23] The Crown correctly is of the view that this is a very serious matter and recommends incarceration for 12 - 13 years as the appropriate penalty given the volume and type of drugs this offender has acknowledged were in his possession for the purpose of trafficking.
[24] The Criminal Code allows for a penalty of life for trafficking such harmful drugs that were in Mr. Quast’s possession.
[25] The Crown acknowledges that Mr. Quast is a first-time offender and has pleaded guilty to very serious charges without a joint submission on sentence. Clearly this plea is a genuine sign of remorse. However, according to the Crown, fentanyl is an extremely dangerous and deadly drug which has been so acknowledged by the Courts for some time.
[26] The Crown argues that even though Mr. Quast was not the directing mind of this sophisticated drug enterprise, he was clearly significantly involved in the storing and warehousing of substantial amounts of potentially deadly drugs, and his moral blameworthiness is high.
[27] The Crown further argues that the attempt to remove the drugs from storage after all of his co-accused had been arrested, indicates he wished to ensure these dangerous drugs remained on the street for sale and that adds to his moral blameworthiness.
[28] Mr. Burton on behalf of Mr. Quast argues that the appropriate sentence is 2 years in penitentiary or 2 years less a day in reformatory.
[29] The defence lists a number of mitigating factors starting with the guilty plea and acknowledgement of responsibility. It is also submitted that a very positive pre-sentence report has been filed. This offender has no criminal record, was only 21 at the time of his arrest. He has been on bail for 3 years with no breaches. He has completed his high school education and has completed successfully all counselling and treatment recommended by his bail supervisor at St. Leonard’s, who speaks highly of him as does his mental health worker. The defence also argues that there were numerous triable issues had a plea not been entered.
[30] This offender was clearly not the main player in this drug trafficking scheme and indeed counsel argues he was a peripheral player and should be sentenced as such. The Court should keep in mind that rehabilitation in this case is a significant issue with a substantial chance of success given the offender’s progress to date and the unqualified support he has from family, friends and counsellors.
COMMENTS OF THE OFFENDER:
[31] Mr. Quast addressed the Court directly indicating his sincere remorse. He made it clear he was fully accountable and did not try to shuffle blame to anyone else. He confirmed this was a lapse in judgment of significant proportions; and bravely told the Court he will accept whatever penalty is imposed.
ANALYSIS:
[32] Section 718 of the Criminal Code of Canada sets out the purpose and principles of sentencing; those include denouncing unlawful conduct, deterring the offender and others from committing offences, sometimes separating the offender from society, assisting the rehabilitation of the offender and promoting a sense of responsibility in the offender. The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, safe society by imposing just sanctions.
[33] It is trite law to indicate that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. See: S. 718.1 C.C.C.
[34] Counsel have referred me to numerous cases. None are completely on point as is usually the case. Sentencing an offender is a very fact specific exercise and unique for each individual because they are each unique, as is their background. As Lang, J.A. said in R v. Last 2008 ONCA 593, at para. 72, “it is difficult to compare sentences in the disparate circumstances of offences and offenders.”
[35] The cases the Crown refers to all indicate the seriousness of an offence such as this involving exceedingly large quantities of drugs that can potentially cause death. As was stated by the Court of Appeal in R v. Loor 2017 ONCA 696 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 is fair to say that generally, offenders-even first offenders -who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.”
[36] The Crown refers to cases of large quantities of fentanyl powder and cocaine to suggest the sentence of 12 - 13 years is appropriate. As was stated in R v. Cinelli, 2018 ONSC 4214 at para 16;
“The Crown has filed materials to prove what is quickly becoming a notorious fact: fentanyl is killing young people across the country and the rise in mortality is growing exponentially. It has created a public health crisis which is of a different dimension than anything that Canada has ever seen from the sale of illicit drugs.”
[37] The Crown concedes it has not proven the purity of the fentanyl in this case.
[38] The range of sentences for trafficking large amounts of pure fentanyl would appear to be 8 - 12 years.
[39] I have been referred to the decision of Durno, J. who sentenced Jessem on January 9, 2020 to 7 years on a joint submission. I have received submissions from defence counsel indicating Mr. Jessem was the ring leader in this drug enterprise. The charges before Justice Durno do not appear to involve the drugs in this storage locker with which Mr. Quast has been found guilty. The Jessem charges appear to be dealing with a Hamilton matter and a Brantford matter as well as a breach of recognize. They do not appear to be related to the case at bar. I find that case of little assistance to what is before me.
[40] I agree with the comments of Agro, J. in R v. Ribble, 2019 ONCJ 640 at para [50];
“Of all opioid sentencing, heroin trafficking traditionally attracted the highest sentence of drug related offences. More recently, fentanyl is beginning to overtake heroin in that category.”
[41] In the case at bar, Mr. Quast has been found guilty of trafficking two dangerous drugs in large amounts. It is abundantly clear to our courts that these drugs are primarily sold to the young and the most vulnerable in our society. The use of these drugs is rapidly increasing across this province and country. This drug abuse is identified regularly in our courts as underlying many of the crimes in our community and many of our social issues. These are matters that I can properly take into account in fashioning an appropriate sentence. See R v. LaCasse, [2015] SCC 64.
[42] The sentence I impose must reflect the circumstances of this particular offender. It must also be clear to this offender and all other like-minded traffickers that this activity will not be tolerated. As such, denunciation and deterrence, both general and specific, are major considerations for this court. This court must also protect society from individuals like Mr. Quast who preyed on the weak and the vulnerable with his toxic wares. That does not mean that this court has lost sight of the potential for rehabilitation of this 24-year-old first time offender.
CONCLUSION:
[43] In R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 733, McLachlin, C.J. said that “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”: para. 43.
[44] My review of the many cases submitted by counsel leads me to conclude that the range of sentences in these serious drug trafficking cases is between 8 - 12 years.
[45] I am mindful of the guidance in R v. Nasogaluak, 2010 SCC 6 at para 44;
“But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing.” See also LaCasse at para 57.
[46] I am also mindful of the consistent directive of our courts and S. 718.2(d) CCC that the lightest possible sanction should be imposed where incarceration is necessary, especially for first time offenders who are relatively young and have never been incarcerated. See R v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (OCA) at para.37; see also R v Forget, [2016] O.J. No. 3504 at para. 5.
[47] Our courts have recognized “exceptional circumstances” to justify sentences outside the usual range. In R v. Voong, 2015 BCCA 285 at para. 59 the court stated:
“Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught.”
[48] In Ontario, exceptional circumstances have been well recognized in cases such as R v. Sharma, 2018 ONSC 1141 at para. 85; R v. Mcgill, 2016 ONCJ 138 at paras. 33 and 65; R v. Sawh, 2016 ONSC 7797 at paras. 47-49. I conclude that Mr. Quast embodies the model of “exceptional circumstances” as articulated by our courts.
[49] I am mindful of the guidance in R v Rage, 2018 ONCA 211, at para 14 where the court of appeal stated;
“The trial judge noted that the sentencing range for possession of a substantial amount of cocaine for the purpose of trafficking was from five to eight years’ imprisonment. He then went on to craft a sentence that was well below the range he identified and in so doing, adequately took into account the appellant’s particular circumstances.”
[50] Mr. Quast is a first-time offender. He is only 24 now and 21 at the time of this offence. He was seriously addicted to the drugs he was involved with at the time of his arrest. It appears he has been drug-free since his arrest over 3 years ago. It does not appear that he was involved with this drug enterprise over a long period of time. He was certainly not the ringleader or master mind of this organization. He did not appear to have been living a lavish lifestyle and appears not to have been gaining financially from his illegal activity.
[51] He has pleaded guilty and shown real remorse. He has saved the community the expense of a trial. He has also shown to the court that he has accepted responsibility for his actions and acknowledgement of his moral blameworthiness.
[52] He has remarkable and impressive support from his family and friends. Finally, he has made very significant strides in his rehabilitation to date which leaves this court feeling positive about his future upon his release. This court has concluded from all the facts before it that it is unlikely that Mr. Quast will reoffend upon his release and specific deterrence to him is a secondary consideration.
[53] I agree with the comments of Pomerance J. in R v. Hearns, 2020 ONSC 2365 at para 14 where she states that based on numerous authorities cited by her:
“I take judicial notice of the fact that: we are experiencing a worldwide pandemic; that control of the pandemic requires that individuals practice social distancing; that social distancing is very difficult to maintain in custodial settings; that inmates are consequently at a greater risk of infection; and that the risk of COVID-19 in prison settings translates into an increased risk for the community at large.”
See also the learned judge’s comments at para. 16;
“COVID-19 also affects our conception of the fitness of sentence. Fitness is similar to proportionality, but not co-extensive with it. Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate. Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.”
[54] For all of the reasons listed, which I consider “exceptional circumstances” this court feels it is appropriate to sentence Mr. Quast below the range of what a conventional sentence would normally be given the volume and type of drugs involved.
[55] Mr. Quast is sentenced to 4-years’ incarceration on count 5 for trafficking in fentanyl. He is sentenced to 4 years on count 1 for trafficking in cocaine and such sentence will be served concurrently with count 5.
[56] There will be a weapons prohibition for life; the usual DNA order, as well as a forfeiture order.
Arrell, J.
Released: November 20, 2020
COURT FILE NO.: 262/18
DATE: November 20, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and -
Richard Quast
REASONS FOR SENTENCE
Released: November 20, 2020