COURT FILE NO.: CR19-90000739
DATE: 20201203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JASON BRODERICK
Defendant
Amanda Webb and Eric Gilman, for the Crown
Jesse DiCecca, for the Defendant
HEARD: November 27, 2020
REASONS FOR SENTENCE
Introduction
[1] On October 22, 2020, the Defendant Jason Broderick was convicted of possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, (“CDSA”). He is now before me for sentencing.
The Facts
(a) Circumstances of the Offence
[2] The facts relevant to this offence are set out in my decision reported at R. v. Broderick, 2020 ONSC 6399. In summary, on January 29, 2019, at around 11:00 p.m., members of 51 Division Major Crime Unit executed a CDSA search warrant for 200 Wellesley Street East, Unit 2721, Mr. Broderick’s residence. Certain quantities of fentanyl, methamphetamine and a firearm were found during the search. Mr. Broderick was only convicted of the fentanyl found on his person when he was arrested – 6.79 grams of a purple mix of fentanyl and heroin in a clear plastic baggie. No issue was made about the fact that Mr. Broderick was charged with possession of fentanyl even though it was mixed with heroin.
(b) Circumstances of Mr. Broderick
[3] Mr. Broderick is 38 years old. He has a related criminal record. He was convicted of the following drug offences:
a) possession of a Schedule I substance and possession of a Schedule II substance for the purpose of trafficking on January 7, 2002;
b) possession of a Schedule I substance on March 10, 2004;
c) possession of a Schedule I substance for the purpose of trafficking on June 29, 2006; and
d) trafficking in a Schedule I substance on June 1, 2010.
[4] Mr. Broderick has also been convicted of eight non-drug related offences: sexual assault, various driving offences, mischief under, aggravated assault, obstruct peace officer, and five convictions for breach of court orders including possession of ammunition contrary to a probation order. The longest period of custody imposed on Mr. Broderick in the past was six months.
[5] Mr. DiCecca did not ask for a Pre-sentence Report, but he did file a report from Dr. Robert McMaster, a forensic psychiatrist, dated November 29, 2019. Dr. McMaster performed a general psychiatric assessment of Mr. Broderick comprised of a two-hour psychiatric interview and mental status examination. He also reviewed the disclosure information and Mr. Broderick’s health records. The Crown took no issue with the accuracy of the information Mr. Broderick provided to Dr. McMaster.
[6] The facts from this report, relevant to sentencing, are as follows:
• Mr. Broderick does not have any dependents although he has a 13-year-old son whom he has not seen for five years because of his substance abuse difficulties. He lived with the mother of his son for six or seven years and took care of his son for the first nine years of his life, but then voluntarily gave up custody due to substance abuse. Unfortunately, his son is now in foster care.
• Prior to his arrest Mr. Broderick was on the Ontario Disability Support Program as a result of a diagnosis of schizophrenia. He has been admitted to hospital on a number of occasions due to mental health issues. He is currently taking appropriate medication for his mental health condition.
• Mr. Broderick is an only child. His parents separated when he was about seven. He was raised primarily by his mother who died in 1998, but he did spend a period of time living with his father. Both of his parents have other children, but Mr. Broderick does not have contact with them.
• Mr. Broderick was physically abused by both his mother and father. He said that they lived in a “horrible setting, in Scarborough”. He had an impoverished childhood and his mother barely provided for him beyond necessities.
• Mr. Broderick reports that he was sexually abused by a cousin who touched him all the time.
• Mr. Broderick ran away from home at the age of 13 for a period of time. He managed to continue to attend school while he “couch surfed”.
• Despite learning difficulties and likely a learning disability, Mr. Broderick completed grade 12 at the age of 20.
• Mr. Broderick has worked at various jobs before supporting himself by disability payments. Dr. McMaster also spoke to Mr. Broderick’s father who told him that when Mr. Broderick had a job he did well and that the person whom he worked for said that there was a job waiting for him. I do not know who this person is or if this job is still available.
• Mr. Broderick was peer pressured into doing drugs at 14 when he first used alcohol and cannabis and tried cocaine which he then used a lot. He started using crystal methamphetamine around 2001. He then started to use Percocet and Oxycontin when he was suffering from pain while working in landscaping. This progressed to fentanyl. He has not been prescribed opioid replacement therapy in the past and told Dr. McMaster that he would not need this because he is “off drugs”.
• At the time of the offences Mr. Broderick was using crystal meth daily – it “controlled him” - and he was using fentanyl at night to help him sleep.
• Mr. Broderick had a period of sobriety motivated by obtaining custody of his son. He has attended two drug treatment programs which he told Dr. McMaster he completed and then abstained for seven years.
• Before his mother died, she told Mr. Broderick that he has an Aboriginal background.
• Mr. Broderick opined that the stress of his mother’s death led him to have a psychotic break and be hospitalized.
• Mr. Broderick told Dr. McMaster that with regard to his drug-related offences he has never had possession to traffic – just to use.
• As for his future plans, Mr. Broderick told Dr. McMaster that he plans to “go to hospital and be on medication”. He does not want to use drugs citing the negative consequences. He wants to seek treatment and believes he can “do good once treatment is over”.
• Dr. McMaster reports that Mr. Broderick appears to have “good insight into his major mental illness, substance use problems, and past difficulties.”
[7] In Dr. McMaster’s opinion Mr. Broderick suffers from schizophrenia and he has experienced psychotic symptoms for several years, even in the context of enforced abstinence from substance use. In his opinion it is likely that his symptoms are of a chronic nature. His substance use has likely worsened his psychotic symptoms.
[8] Dr. McMaster recommends that Mr. Broderick receive significant mental health supports in the future including assistance with ensuring medication compliance. He states that Mr. Broderick may benefit from trauma-informed psychotherapy and should continue with antipsychotic medication for the foreseeable future. He should avoid alcohol and illicit drugs in perpetuity, and he should participate in treatment programming to assist him in this regard. External monitoring of his substance use would likely motivate him to abstain. Dr. McMaster also states that Mr. Broderick should continue to receive housing supports upon his release and if possible, he should pursue prosocial structure activities such as employment and continue to engage with his case workers at Sound Times. In the past Mr. Broderick has received support from his case worker, Dee Hope from Sound Times and she provided two letters of support from 2017 and 2018. I do not have a copy of those letters and Mr. DiCecca did not know if Ms. Hope was still able to provide support to Mr. Broderick.
[9] Mr. DiCecca did not offer any information about Mr. Broderick’s plans upon his release. With his permission I asked Mr. Broderick a number of questions after the submissions of counsel were completed. All Mr. Broderick wanted to advise me was that he thanked me. In response to my questions, he advised me that before COVID-19, he had taken advantage of a drug counselling program in the Toronto South Detention Centre (“TSDC”), but after the pandemic it was discontinued. He also advised me that he intended to continue to take medication to treat his schizophrenia. Because I was considering a term of probation, I also asked and confirmed with Mr. Broderick that he was willing to consent to terms of a probation order requiring him to take drug treatment counselling and continue to take his medication for schizophrenia and allow for the probation officer to determine compliance.
[10] Immediately after the sentencing hearing Mr. DiCecca provided a letter he had just received from Irene Nkrumah, BSW, RSW, Case Manager/Court Support, with Across Boundaries dated November 27, 2020. That letter provides as follows:
This letter is to advise you that Mr. Jason Broderick is [a] service user at Across Boundaries and is enrolled in the Mental Health and Justice Initiative – Short-Term Bed Crisis Support Beds program. As part of this program, Mr. Broderick will be expected to participate in the drop-in workshops that are run Monday to Friday between 9:00 am – 4:00 pm.
Mr. Broderick will be expected to connect with me, Irene Nkrumah (Case Manager) on weekly basis to discuss his recovery process. He will receive a Mental Health Assessment by our Resident Psychiatrist Dr. Ted Lo and will also be required to meet with Dr. Lo monthly until completion of program. Mr. Broderick will be connected to our Addiction Counselor on site as well for addiction support.
Legal Parameters
[11] Fentanyl is a Schedule I drug. The maximum sentence for this offence is life pursuant to s. 5(3) of the CDSA. There is no minimum sentence in the circumstances of the commission of the offence in this case.
Positions of Crown and Defence
[12] Ms. Webb submitted that the appropriate range for possession of fentanyl for the purpose of trafficking in this quantity of 6.79 grams is three to five years. Mr. DiCecca did not disagree but submitted that the appropriate sentence for Mr. Broderick should be time served of three- and one-half years – a sentence at the low end of the range. Ms. Webb also requested two ancillary orders, which Mr. DiCecca had no difficulty with, namely a s. 109 weapons prohibition order for life and a DNA order.
[13] Possession of fentanyl/heroin is a secondary offence but since there is no opposition by the Defence to the Crown’s request that I make an order under s. 487.05(3) of the Criminal Code requiring Mr. Broderick to provide a sample of his DNA, I am satisfied that such an order in the circumstances is in the best interests of the administration of justice.
[14] Counsel advised that they had come to an agreement, which is very much appreciated by this Court, as to the credit Mr. Broderick should receive for pre-sentence custody. In particular, it is agreed that the credit should be a total of three- and one-half years calculated as follows: 42 months comprised of 669 days of actual custody to the date of the sentencing hearing which is about 22 months. The Summers[^1] credit of 1.5:1 brings this credit up to 33 months. Counsel agree there should be an additional credit of nine months given the number of lockdowns Mr. Broderick has experienced at the TSDC and the impact of COVID-19 on his incarceration. As such Mr. Broderick has already served a sentence equivalent to three- and one-half years. I have not factored in the six days since the sentencing hearing since it does not change this credit appreciably.
[15] The issue then between counsel is whether Mr. Broderick should serve an additional year as requested by the Crown.
[16] I pointed out to counsel that I have the jurisdiction to impose a period of probation regardless of the position I accept, and that probation could be a good idea given the need to provide support to Mr. Broderick upon his release. Both counsel were in agreement that a period of probation could be of assistance to him.
Principles of Sentencing
[17] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which the sentence I impose should attempt to achieve. These are denunciation, deterrence; both specific and general, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing sentence I must take into account the principle of proportionality and the applicable aggravating and mitigating circumstances relating to the offences as set out in s. 718.2.
[18] The only evidence that I have that Mr. Broderick has an Aboriginal background is the brief statement to that effect in the report from Dr. McMaster. This was not referred to by counsel and so I presume that s. 718.2(e) is not a consideration.
[19] Section 10(1) of the CDSA provides that without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for this offence is to “contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [Emphasis added] Section 10(2) goes on to set out the aggravating factors that I should consider but none apply in this case.
[20] As Rosenberg J. stated in R. v. C.N.H.,[^2] s. 10 of the CDSA “recognizes a view that had become increasingly prevalent that, especially for the addict trafficker, the public interest – including the protection of the public – is best served by the treatment and rehabilitation of the offender”.
Case Law
[21] Both counsel provided sentencing cases with respect to persons convicted of possession of heroin, fentanyl or a heroin/fentanyl mix for the purpose of trafficking. As far as I am aware, the range for sentencing for heroin is currently the same as fentanyl. Ms. Webb helpfully prepared a chart containing a summary of the cases involving heroin and fentanyl and mixtures of both that both the Crown and the Defence rely on, which is attached as Appendix “A” to these Reasons. I have reviewed all of these cases but will only refer to those that I found most helpful.
[22] The Court of Appeal has not set out any particular range of sentence for possession of heroin or fentanyl for the purpose of trafficking. The Crown submitted that the appropriate range of sentence in this case is three to five years, relying on the decision of Justice Schreck in R. v. Elvira[^3] where at para. 28, he held that the sentencing range for cases involving one gram to multiple grams of heroin appears to be three to five years. He relied on R. v. Banovac[^4] and R. v. Farizeh[^5] from the Court of Appeal and other decisions of this court.
[23] The Banovac decision involved a first-time offender found with almost 22 grams of heroin. The Court of Appeal affirmed the two-year sentence granted by the sentencing judge, despite certain errors, finding at para. 5 that it was “fit and well within the range for other offenders, even those with no previous record, unlike the appellant and with significantly smaller amount of heroin”, citing a number of cases including Farizeh.
[24] In Farizeh, the appellant had no previous criminal record and was a heroin addict. The court held as follows:
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 and the present case does not fall within the exception.
We are of the opinion, however, that no valid reason has been given for departing from the sentence of four years in totality requested by the Crown at the sentencing proceedings. The appellant, as stated, is a first offender addict pleaded guilty. The amounts involved in the charges to which he pleaded guilty are relatively small. His participation in the sale was at the lowest level. A post-sentence report indicates that he is successfully participating in courses at the prison to assist in his rehabilitation and in particular has participated in a drug treatment program.
[25] In R. v. Loor,[^6] the Crown invited our Court of Appeal to establish a sentencing range for the trafficking of fentanyl. Laskin J.A. for the court said it was too early in the jurisprudence to do so but added: “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”.
[26] In R. v. Oksem[^7], Davies J. stated at para. 19 that 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 five to seven years, citing two cases from this Court. However, neither of those cases involved what I would consider small amounts of heroin/fentanyl. She also referred to two provincial court decisions where the range was 12 months to two years less a day and stated that in exceptional circumstances suspended sentences have been imposed.
[27] It is always difficult to find a case squarely on point since sentencing is such an individualized exercise. In terms of the quantity of fentanyl/heroin in this case, the closest of the cases counsel referred to are R. v. Francis,[^8] R. v. Young[^9], R. v. Willis[^10] and Oksem, all from this Court. In each of these cases the offender pleaded guilty save for the case of Francis where the offender did not contest the charge after his Charter application was dismissed. In two cases; Francis and Oksem, they were first offenders. In Young and Willis, the criminal records were significant. The sentences in these cases range from a high of four years in Francis and Young, to a low of 18 months in Oksem and two and a half years in Willis.
[28] At first blush, the sentence in Oksem appears to be an outlier in the context of the other cases I have referred to. In Oksem Justice Davies was dealing with a young first offender and although she was not convinced that there were exceptional circumstances, she did find that because of mitigating factors, the case fell at what she considered to be the lower end of the range for possession of fentanyl for the purpose of trafficking, at para. 20. I note, however, that the Crown requested a sentence of two- and one-half years and Davies J. also imposed a period of probation for two years.
[29] All cases speak to the seriousness of fentanyl and the harm it causes to our society. In Loor our Court of Appeal stated, at para. 33, that fentanyl is a “highly dangerous drug. … Every day in our communities, fentanyl abuse claims the lives of Canadians.” In Francis, at p. 10, as set out in Appendix “A”, Justice O’Marra observed that fentanyl can cause more deaths and serious injury than a loaded gun.
Analysis
Mitigating Circumstances
[30] I turn now to the mitigating circumstances relevant to sentence:
a) Mr. Broderick has had a very difficult childhood particularly following the death of his mother. His difficulties included not only impoverishment but also physical abuse.
b) Mr. Broderick turned to drugs as a teenager and developed significant drug addiction issues.
c) Mr. Broderick suffers from schizophrenia although there is no evidence that this led to him turning to drugs.
d) Mr. Broderick appears to have good insight into his mental illness, substance use problems, and past difficulties.
e) Mr. Broderick has taken positive steps towards his rehabilitation, including the fact that he has enrolled in the Across Boundaries program I have referred to and he took advantage of the program while at the TSDC before it was discontinued.
f) Mr. Broderick has expressed a desire to continue to take the medication he needs to treat his schizophrenia and to participate in treatment programs to address his substance use problems.
g) Mr. Broderick will have support in the community from Across Boundaries and possibly Sound Times to help him address his substance use problems.
[31] Although Mr. Broderick admitted many of the facts relied upon by the Crown in this case including the details of the fentanyl/heroin found on his person, he did not plead guilty to the charge that he possessed the fentanyl for the purpose of trafficking. This, however, just means that he does not get the benefit of the mitigation in sentence that would result from a guilty plea. This is a neutral factor. Similarly, Mr. Broderick did not express any remorse for his actions when he addressed the Court – this is also a neutral factor.
Aggravating Factors
[32] As for aggravating factors, the most significant one is the amount of the fentanyl/heroin in Mr. Broderick’s possession and the deadly nature of this drug. In addition, the fact that Mr. Broderick has a related criminal record is a significant aggravating factor.
[33] Mr. DiCecca submitted that Mr. Broderick was an addict trafficker, and this was not disputed by the Crown. There is no evidence before me that Mr. Broderick was trafficking for profit. Although I have no evidence from Mr. Broderick, the strongest inference from the evidence is that he was an addict trafficker, trafficking only for the purpose of supporting his addiction. He was not found in possession of any money alleged to be proceeds of crime. This in my view is the absence of what otherwise would be an aggravating factor, should I have found he was trafficking for profit.
What is an Appropriate Sentence in this Case?
[34] There is no question that a strong message of denunciation, general and specific deterrence needs to be sent in all cases involving possession of fentanyl/heroin for the purpose of trafficking to help stop the trafficking of this insidious drug.
[35] The Crown argues that based on the decisions relied upon, Mr. Broderick should be sentenced at the high end of the range and given the absence of a guilty plea and given his long and related criminal record a fit sentence would be four- and one-half years. I agree with the Crown that the range of sentence in this case appears to be three to five years. I also agree that in this case a four -and one-half year sentence would be a fit. However, I am also of the view that I should consider the need to provide for a period of probation to give Mr. Broderick the best chance of not re-offending. That of course is in the public interest.
[36] Both counsel agreed with my suggestion that a period of probation makes sense. In my view, as recognized by Rosenberg J. in C.N.H., this is an important consideration, in a case like this, when sentencing an offender who has a serious drug addiction problem. Given Mr. Broderick’s mental illness and his drug addictions, this case cries out for a period of probation if that is possible in the context of a fit sentence. That is the only way I can ensure that the recommendations of Dr. McMaster can be implemented. These can largely be supported by Mr. Broderick’s ongoing participation in the Across Boundaries program and with making compliance a term of probation, this Court can have some assurance that Mr. Broderick will comply with what is needed to treat both his mental illness and his substance abuse problems.
[37] Having concluded that a period of probation should be imposed, I have decided that it is not necessary to obtain submissions from counsel as whether or not it would be appropriate to sentence Mr. Broderick to a four- and one-half year sentence as requested by the Crown and add on a period of probation. Since a period of probation will be part of the sentence imposed on Mr. Broderick, in my view, a fit sentence would be time served of three- and one-half years and a period of probation of two additional years. This sentence achieves both the goals of denunciation and specific and general deterrence in that it sends a strong message to both Mr. Broderick and others that this type of conduct will not be tolerated. It also considers the need for rehabilitation and provides support to Mr. Broderick in his stated wish to remain on the necessary medication for his mental illness and his desire to stay off drugs.
[38] The need for rehabilitation in this case is very important. If Mr. Broderick can successfully address his drug addiction problem, it is unlikely that he will re-offend. Based on the report of Dr. McMaster, it is not only essential that he avoid alcohol and illicit drugs in perpetuity, he should also participate in treatment programming because his substance use has likely worsened his psychotic symptoms and no doubt that would be a continuing problem without treatment. A drug treatment program is therefore also necessary for Mr. Broderick’s mental health. It is also probable that he may need assistance in avoiding alcohol. These rehabilitation and treatment programs can be best addressed in the community through the Across Boundaries program that Mr. Broderick is already enrolled in, as a term of his probation.
Final Disposition
[39] Mr. Broderick, for these reasons, with respect for your conviction on Count 1 – possession of fentanyl for the purpose of trafficking, I sentence you to a sentence of three- and one-half years which after considering pre-sentence custody credit of three- and one-half years leaves you with a sentence of time served plus one day.
[40] Once you have completed your sentence, I order that you be released upon the terms of your probation order of 24 months on the following conditions:
(1) The compulsory statutory conditions as set out in s. 732.1(2) of the Criminal Code;
(2) In addition to the compulsory conditions, it is ordered that you comply with the following optional terms and conditions as permitted by s. 732.1(3) of the Code:
a) Report to a probation officer within three working days of today and thereafter, when required by the probation officer and in the manner directed by the probation officer.
b) Remain within the jurisdiction of this Court unless written permission to go outside this jurisdiction is obtained from this Court or the probation officer.
c) Reside at a residence approved of in writing by your probation officer.
d) Within 24 hours of your release connect with Irene Nkrumah (Case Manager) from Across Boundaries at (irene@acrossboundaries.ca) or by phone at 437- 245-2392 or 416-787-2007 and thereafter connect with her weekly, or as she directs, to discuss your recovery process.
e) Attend and actively participate as required in the Mental Health and Justice Initiative - Short-Term Bed Crisis Support Beds program (“Program”) at Across Boundaries and as part of this program, attend and actively participate in the drop-in workshops that are run Monday to Friday between 9:00 a.m. - 4:00 p.m.
f) Attend and actively participate in appointments as required with the Resident Psychiatrist, Dr. Ted Lo, or his designate, from Across Boundaries for a Mental Health Assessment and meet with him monthly, or as he directs, until completion of the Program. At your first appointment, provide a copy of the report from Dr. McMaster dated November 29, 2019 and attend and actively participate in any trauma-informed psychotherapy that he may recommend.
g) Continue to take the medication(s) currently prescribed for you and any different medication(s) that may be recommended by Dr. Lo or another psychiatrist of your choosing, to treat your mental health issues, including schizophrenia.
h) Attend and actively participate in any counselling program(s) recommended by the on-site Addiction Counselor from Across Boundaries for addiction support with respect to drug and alcohol addictions.
i) Attend and actively participate in any other counselling or treatment program(s) recommended by your probation officer for drug and alcohol addiction.
j) Sign any consents/release documents required to release information so your probation officer can monitor your compliance with these conditions.
k) Do not purchase, possess or consume any drugs or other substances prohibited by law unless you have a personal prescription.
l) Do not purchase, possess or consume any cannabis.
m) Do not purchase, possess or consume any alcohol.
n) To the extent you have time available after attending all of the programs and appointments that you are required to, by this probation order, you must seek and maintain part-time employment and/or education so that the hours you spend per week on all of these activities totals 35 to 40 hours per week.
[41] There will also be a mandatory weapons prohibition order pursuant to s. 109(1) of the Criminal Code for life.
[42] In addition, I make an order under s. 487.05(3) of the Criminal Code requiring Mr. Broderick to provide a sample of his DNA. Mr. Broderick, since you are not at the Court House for your sentencing, I order that you appear at the Court House at 361 University Avenue, Toronto, by Friday, December 11, 2020 for the purpose of providing a sample of your DNA. When you arrive ask the person at the security desk on the main floor for the officer who is in charge of the cells.
[43] Finally, there will be an order directing the forfeiture of the fentanyl, and the other property seized by police when they arrested you, including the scales and the baggies, pursuant to s. 491(1) of the Criminal Code.
”Spies J.”
SPIES J.
Released: December 3, 2020
Edited Decision Released: December 10, 2020
CASE NAME
SENTENCE
AMOUNT
MITIGATING FACTORS
AGGRAVATING FACTORS
ADDITIONAL NOTES
HEROIN (alone)
- R. v. Elvira
(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)
- R. v. Young
(Kelly J)
4 years for heroin/fentanyl (concurrent to 60 months for meth)
7.57g heroin/fentanyl mix (2018 offence)
284g meth (2017 offence)
• Guilty plea
• Gladue
• Remorseful
• Difficult childhood
• Lifelong addiction
• Lethal combination of heroin/fentanyl
• Additional meth was found
• Imitation firearm
• Breach of bail, probation and prohibition order
• Significant CR (has been incarcerated before)
- R. v. Frey
Justice K. Katzsch
Jan. 18, 2018
OCJ - Brantford
3 years imposed on fentanyl count (concurrent on other counts) + 2 years’ probation
5.94g fentanyl powder
2.8g heroin
52g meth
• Guilty plea
• Addiction
• Remorseful
• Active parent
• Amenable to rehabilitation
• Only one entry on CR for Over 80 (fine imposed)
• Nature of the drugs
• Flagrant breach of bail terms
• Partial profit motive
[16] It has become almost repetitive to note that fentanyl has become a potent drug of abuse in our communities and has been linked to countless numbers of overdose deaths across the country It is also well known that fentanyl in a powdered form creates new and specific dangers to both users and first responders who come into contact with the drug. Court across the country have noted that the trafficking of this drug must be met with significant custodial sentences to adequately address the dangers presented by offenders who engage in this activity and hopefully deter others from engaging in similar crimes.
[19] I note in many of the cases dealing with fentanyl, factors which can serve to increase or decrease the applicable sentencing range include the amount of fentanyl seized, the motive for trafficking whether profit, addiction or both, whether the matter proceeded by way of guilty plea, the existence or absence of a prior record and the presence of weapons.
- R. v. Piri
(Kelly J)
6 years global
Concurrent
1 yr Traffic 1
2 yrs traffic 2
6 yrs traffic 3
3 years P4P
Traffic 1 fentanyl/heroin (0.96g)
Traffic 2 fentanyl (2.16g)
Traffic 3 fentanyl (27.22g)
P4P fentanyl (6.97g)
• Guilty plea
• 39 years old
• Addict trafficker
• Middle man not supplier
• Difficult childhood
• Maintained employment
• CR explained by addiction
• First significant period in custody
• Making progress in treatment
• Community support
• Collateral immigration consequences
• Significant amounts
• 6 different transactions
• Nature of the drug and dangers
[28] I accept that the Federal Crown's proposed sentence of 7.5 years is reasonable. However, in all of the circumstances, I find that the appropriate sentence is one of 6 years less credit for pre-sentence custody. Although the sentence of 6 years may be considered low by some, I find it meets the requirements of denunciation and deterrence. Six years is an extremely long time for a man like Mr. Piri to be incarcerated, thereby constituting specific deterrence for this offender.
- R. v. Willis
(Andre J)
2.5 years
6.2g heroin/fentanyl
• Guilty plea
• Employed
• Community support
• Very addictive and dangerous drug cocktail
• Long and related CR
- R. v. Oksem
(Davies J)
18 months for the fentanyl (30 days concurrent for cocaine) + 2 years’ probation
5.62g fentanyl/caffeine mix
7.64g cocaine
• Guilty plea
• 22 years old
• No CR
• Addict trafficker
• Very good rehabilitative prospects
• Completed numerous programs in custody
• Working towards GED (Supportive and close family
• Seriousness of fentanyl
• P4P fentanyl was committed while on bail for the cocaine offence
[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 cause by the sale of fentanyl or drugs containing fentanyl.
- R v M.H.
(West J)
2 years less a day + 3 years’ probation
3.3g fentanyl
• Guilty plea
• 34 years old
• Expressed remorse
• Only one CD on record (not related)
• Tragic background
• Addict
• Some rehabilitation before current offence
• Nature of the substance
• Children present in vehicle where drugs found
• Commercial component to trafficking
COURT FILE NO.: CR-19-90000739
DATE: 20201203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JASON BRODERICK
Defendant
REASONS FOR SENTENCE
SPIES J.
Released: December 3, 2020
[^1]: R. v. Summers, [2014] SCC 26
[^2]: 2002 7751 (ON CA), [2002] O.J. No. 4918 (C.A.) at para. 31
[^3]: 20018 ONSC 7008
[^4]: 2018 ONCA 787, aff’g 2016 ONSC 7166
[^5]: [1994] O.J. No. 2624
[^6]: 2017 ONCA 696
[^7]: 2019 ONSC 6283
[^8]: Unreported decision of B. O’Marra J., S.C.J., released January 7, 2020
[^9]: 2020 ONSC 1394
[^10]: 2019 ONSC 7324