BARRIE COURT FILE NO.: CR-19-00000007
DATE: 20201211
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JASON NACINOVICH
Defendant
Sonny Dudani, for the Crown
Stefan Dimitrijevic, for the Defendant
HEARD: January 20-22, 24, March 16, June 1, July 6, and November 6, 2020
REASONS FOR SENTENCE
LEIBOVICH, J.
1. Overview
[1] Jason Nacinovich and a co-accused were charged with a number of drug-related offences. Their trial started on January 20, 2020. After the first Crown witness, both accused re-elected to be tried by judge alone and changed their plea. The co-accused pleaded guilty to possessing fentanyl and received a sentence of nine months and one day, less nine months’ time served, and was placed on 12 months probation. Mr. Nacinovich pleaded guilty to possessing fentanyl for the purposes of trafficking. The sentencing hearing was to be held on March 16, 2020. The pandemic struck and the sentencing hearing was adjourned and finally held on November 6, 2020. The Crown is seeking a sentence of four years, while the defence is seeking a conditional sentence, which is now available given the Court of Appeal’s recent decision in R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209. All agree that there should be two forfeiture orders, a DNA order and a s. 109 order for ten years.
2. The Facts
Circumstances of the offence
[2] On August 18, 2018, at 3:45 p.m., Mr. Nacinovich was seen by the police near a car. There was, at that time, an outstanding warrant for his arrest for assault causing bodily harm. The police approached Mr. Nacinovich, who tossed a bag under the car. The police retrieved the bag and, subsequent analysis, determined that it contained fentanyl. The bag with the fentanyl weighed 9.6 grams. Counsel agree that the bag weighs a gram, leaving 8.6 grams of fentanyl. The fentanyl was mixed with caffeine. Mr. Nacinovich had on him a debt list, a black knife, and $945 in cash. Without admitting that the knife is a concealed weapon or that the money is proceeds of crime, Mr. Nacinovich is content that both be forfeited.
Circumstances of the offender
[3] Mr. Nacinovich is 41 years old and has a lengthy criminal record, which has been set out in the charts below:
Youth
June 6, 1994
- Possession of property obtained by crime
- causing a disturbance
1 year probation
May 16, 1996
Assault
60 days secure custody; 1 year probation
December 19, 1997
Theft under $5000
4 days open custody; 1 year probation
Adult
June 21, 1999
- break and enter (x3)
- possession of property obtained by crime
- theft
30 days pre-sentence custody; 15 days intermittent sentence; 18 months probation
September 22, 2000
Fail to comply
15 days intermittent; 1 year probation
October 9, 2001
Possession for the purpose of trafficking
15 days custody
August 9, 2005
Possession of a scheduled substance
$500 fine
July 11, 2006
fail to comply
possession for the purposes of trafficking
15 days custody
Suspended sentence and 1 year probation
July 27, 2006
- Fail to comply
- Possession of a scheduled substance
57 days pre-sentence custody; suspended sentence; 1 year probation
September 13, 2010
Assault (x2)
60 days intermittent sentence and 1 year probation
June 8, 2011
Unlawfully at large
30 days custody
December 13, 2016
Possession of weapon
Six months conditional sentence
[4] Mr. Nacinovich was detained originally in custody pending trial. He was detained from August 9, 2018 to December 10, 2018, and again from May 22, 2019 to August 16, 2019. He served 211 days. At 1.5 credit, that amounts to 317 days. Counsel both agree that he was subject to 17 days of lockdown time and, as a result, his sentence should be discounted by nine days. Counsel both submit that his sentence should also be discounted for five months, as he was on house arrest for 20 months.
Evidence called and filed at the sentencing hearing
[5] Mr. Nacinovich’s mother testified at the sentencing hearing. She testified that both she and Mr. Nacinovich’s father are deaf. They had three children: Jason and a younger brother and sister. Mr. Nacinovich had problems in school when he was young. He was bullied because his parents were deaf and as a result was involved in a lot of school fights and was suspended. The Children’s Aid Society (CAS) removed Mr. Nacinovich from the home when he was 14. Mr. Nacinovich was placed in a group home. There were issues with the home and Mr. Nacinovich ended up running away. He eventually returned to live with his mother.
[6] Mr. Nacinovich dropped out of school in grade 10 and worked in the flooring business for 10 years before he had to go on disability because he was beaten up by someone with a bat. Mr. Nacinovich has pain in his knees and back and gets severe headaches.
[7] Mr. Nacinovich has been addicted to heroin and fentanyl for a long time, at least 15 years. He has taken treatment twice. He finished one program but not the other. He is now doing much better and has not used drugs for 18 months. Mrs. Nacinovich testified that he is now clean. Mr. Nacinovich is wonderful to have around the house. He reads, goes for walks and does boating and kayaking. He plans to go back to school.
[8] The defence filed letters of support from Mr. Nacinovich’s sister, his ex-partner and her daughter.
[9] The defence filed a letter from Dr. Lorberg, a forensic psychiatrist who works principally at the Central North Correctional Centre. He stated that with respect to Mr. Nacinovich:
I am prescribing him 40mg/day of methadone (he has, always at his request, dropped in dose considerably over the past 6-9 months). To his credit, he attends all of his appointments and follows the rules of the clinic. He presents well, and his urine drug screens have all been clean for as long as I can remember. He is in the top 5%, if not the top 1 %, of my patients in terms of stability. He has demonstrated considerable progress, and has been provided with as many methadone carries as the program allows. He appears to be demonstrating more prosocial and insightful behaviors, and his prognosis is greatly improved. Given my experience working in the correctional system (principally fulltime @ CNCC), I suspect that reincarceration will negatively impact the significant progress he has made.
[10] Since November 2019, Mr. Nacinovich has attended five sessions at Mental Health and Addiction Services, which is a community-based, cost-free service that provides support to individuals and their families experiencing difficulties with their misuse of substances, problem gambling and/or mental health concerns. Mr. Nacinovich is still participating in the program. Raia Carey, a life coach who mentors Mr. Nacinovich, also provided a letter of support.
[11] Mr. Nacinovich’s sister provided a letter of support and stated:
…Jason is striving to process what our family has been through. While being raised by two deaf parents may not seem like a challenge to some, I would stand to argue that Jason endured some of the most neglectful environments during his formative years. I also witnessed the systems put in place to support such scenarios fail him time and time again. The attitude of those in community roles - such as teachers, group home counsellors, police officers, etc. - towards the deaf was ignorant, patronizing and isolating. Jason, was exposed to a world of intolerance directed toward his own family at the very hands of our community leaders. These events negatively affected him, fostering a distrust of others. As a society we have evolved over the years and thankfully for the deaf community, the ignorance is lessening. I see Jason actively trying to learn and understand himself and how he fits in this world in the most positive of ways. He is actively seeking therapy and reading plenty of books.
[12] Mr. Nacinovich’s ex-girlfriend of eight years wrote a letter of support stating how supportive he was and continues to be with her child. She said, “He came into my child’s life at the age of 3 years old and helped raise her to this day even though we separated 2 years ago. Our child is transgender and he is very supportive of her and still always makes sure that the both of us are well.” With respect to his substance abuse issues she said, “He has over the years tried very hard to overcome his addiction issues and has done rehab, detox and the methadone program and is finally clean as a result.” Her daughter also filed a letter in support referring to Mr. Nacinovich as her dad throughout and talking about how supportive a father he is and how good a person he is.
3. Aggravating and Mitigating Factors
[13] There is little dispute about the aggravating and mitigating factors in this case. The aggravating factors are:
a. The nature of the substance possessed – fentanyl. As I will expand upon later in these reasons, fentanyl is a potent and dangerous drug that has caused havoc to our communities; and
b. The accused has a lengthy criminal record, dating back 26 years, and has two prior convictions for possessing drugs for the purpose of trafficking.
[14] There are a number of mitigating factors:
a. The accused pleaded guilty and has accepted responsibility, albeit at a late date;
b. The accused has support in the community;
c. The accused had a difficult and disruptive childhood;
d. The accused appears to have been motivated by his addiction as opposed to greed in committing his recent offence; and
e. The accused has a lengthy battle with his addiction which, according to the evidence that has been filed, he is now winning. His treating physician states that he is clean and has been for awhile.
4. Positions of Counsel
[15] The Crown seeks a four-year sentence, in addition to a s. 109 and DNA order. The Crown states that given the nature of the drug possessed, fentanyl, and the accused’s criminal record, a penitentiary sentence is required to deter others and denounce this behaviour. Defence counsel seeks a conditional sentence given the real progress that Mr. Nacinovich has made in beating his addiction. Returning Mr. Nacinovich to jail would serve no purpose and would destroy the progress he has made. A conditional sentence can deter others and denounce his actions, also bearing in mind that he was in jail for seven months.
5. Principles of Sentencing
[16] The purpose of sentencing is set out in s. 718 of the Criminal Code:
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.
[17] Further, s. 718.1 of the Criminal Code provides that:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[18] Section 10 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 provides the following with respect to the purpose of sentencing:
Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part 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.
6. What is the appropriate range?
[19] As mentioned earlier, all agree that given the Court of Appeal’s recent decision in R. v. Sharma, a conditional sentence is an available sentencing option for Mr. Nacinovich. In R. v. H.S., 2014 ONCA 323, [2014] O.J. No. 1974, the Court of Appeal reiterated that the starting point for considering a conditional sentence is a determination of the appropriate range of available sentences. A conditional sentence can only be imposed if the appropriate sentence is a reformatory one, in other words, a sentence of two years less a day or less.
[20] The Crown states that given the Court of Appeal’s pronouncement in R. v. Loor, 2017 ONCA 696, Mr. Nacinovich must be sentenced to a penitentiary term. Mr. Loor was a low-level member of a fentanyl trafficking ring. On three occasions, he used a forged prescription to obtain a total of 45 fentanyl patches. The accused was convicted of three counts of passing a forged document and three counts of trafficking. He was sentenced to six years' imprisonment, less 18 months’ credit for time served. Laskin J.A., speaking on behalf of the court stated 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 fair to say that generally, offenders -- even first offenders -- who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.
[21] The Crown submits that Kelley J. in R. v. Piri, 2020 ONSC 920, in the course of that decision, noted that the quantity of fentanyl possessed for the purpose of trafficking was also significant: 6.97 grams, and found it to be an aggravating factor. Therefore, the Crown submits that Mr. Nacinovich’s possession of 8.6 grams of fentanyl is significant and therefore, based on R. v. Loor, he should receive a penitentiary sentence. The defence states that the street value of the drug is low while the Crown has countered that given how the drug is sold the amount found could be divided into 80 packages.
[22] The opioid addiction crisis in Canada was aptly summarised by Bawden J. in R. v. Cinelli, 2018 ONSC 4983, [2018] O.J. No. 4490 at paras. 16-18:
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.
Fentanyl is a synthetic opioid which falls into the same class of drugs as morphine and heroin. It is estimated to be 20 to 50 times more potent than heroin. Fentanyl is prescribed medically for the treatment of chronic pain and, when prescribed medically, it is commonly administered through slow release patches. There is a vast illicit market for medically prescribed fentanyl patches which can be smoked or chewed in order to accelerate the absorption of the drug.
Although there are significant dangers to the rapid consumption of fentanyl patches, those dangers pale in comparison to the dangers of consuming fentanyl powder. Fentanyl powder is typically synthesized in China. The drug can be snorted, injected, smoked or even absorbed through the skin. Fentanyl powder presents an enormous risk to first responders who must constantly guard against the possibility of toxic exposure to fentanyl.
[23] I agree that the amount possessed in this case is a significant amount of fentanyl although it is far from the higher amounts that have been seen in the cases. However, I do not view Laskin J.A.’s comments in R. v. Loor as automatically calling for the imposition of penitentiary sentences when significant amounts of fentanyl are found. Sentencing is an individualized process and sentencing ranges are not meant to handcuff the court. As stated by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para. 57:
Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case…
Also See: R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, at para. 9, R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at para. 33; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 45; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 44.
[24] I also note that Loor was convicted of trafficking while Mr. Nacinovich is convicted of possession for the purposes of trafficking, a less serious offence; R. v. King, 2013 ONCA 417, 309 O.A.C. 39 at para. 54. As noted by Davies J. in R. v. Oksem, 2019 ONSC 6283 at para. 19:
Because of the dangers associated with fentanyl, convictions for possessing even small amounts of fentanyl for the purpose of trafficking can attract very long sentences in the range of 5 to 7 years: for example, R. v. Cinelli, 2018 ONSC 4983, R. v. Prestula, 2018 ONSC 4214. There have also been cases where courts have imposed sentences in the range of 12 months to 2 years less a day: R. v. Derycke, 2016 BCPC 291 and R. v. M.H., 2018 ONCJ 397. In very exceptional cases involving small amounts of fentanyl, suspended sentences have been granted; R. v. Dixon, [2017] O.J. No. 3477 (Ont. C.J.), R. v. M.H., [2018] O.J. No. 3126
[25] In my view, a reformatory sentence of two years less a day is appropriate. The amount possessed is significant and the substance is, as set out above, incredibly deadly. Mr. Nacinovich also tossed the bag of powdered fentanyl under the car, creating a danger to the officers who had to retrieve it. However, it is also not disputed that Mr. Nacinovich is not involved in a criminal endeavour of any sophistication. He is an addict trafficker having been addicted to hard drugs for a very long time. As noted in R. v. C.N.H. (2002), 2002 CanLII 7751 (ON CA), 62 O.R. (3d) 564 (C.A.), at para. 31 by Rosenberg J.A.:
...the importance of s. 10 is to encourage courts to recognize the particular problem that in many cases persons convicted of drug offences are themselves victims of the drug culture and dependent upon drugs as addicts or users. I think s. 10 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. [Emphasis added.]
[26] Mr. Nacinovich has had a difficult upbringing having been removed from the family home at the age of 14. His criminal career started when he was young and has 18 entries. However, the longest time, prior to this offence, that Mr. Nacinovich was ever in jail was for 57 days of pre-sentence custody. He has two dated convictions for possession for the purposes of trafficking, making the current offence his third. However, for his first possession for the purposes of trafficking, Mr. Nacinovich received, in 2001, a 15-day sentence and for his second offence in 2006, he received a suspended sentence. It is now 16 years later and, in my view, the four-year sentence that the Crown seeks is too big a jump given the nature of Mr. Nacinovich’s criminal record, the fact that he is an addict, and given the current support and rehabilitative strides that he has made.
7. Is a conditional sentence appropriate?
[27] Mr. Nacinovich has already served 211 days in jail. Factoring in 1.5 credit for that time, he has approximately 13 more months to serve. The critical question at this junction is really whether the principles of sentencing require Mr. Nacinovich to be reincarcerated. In my view, they do not.
[28] The evidence filed at this hearing shows that Mr. Nacinovich has, perhaps for the first time, made incredible strides in conquering his drug addiction. The Court does not just have to rely on word of mouth. Dr. Lorberg said that Mr. Nacinovich’s urine tests have been negative for drugs for “as long as he can remember” and that Mr. Nacinovich is very stable, in the top 5-1% of Dr. Lorberg’s patients.
[29] Returning to jail at this stage carries with it the real possibility of undoing the progress that Mr. Nacinovich has made. A similar situation was faced by the Court of Appeal in R. v. Walsh, 2011 ONCA 325, O.J. No. 1835 (QL) where the Crown was seeking to appeal Mr. Walsh’s sentence. Mr. Walsh, at the time of the hearing, was out in the community. The court found that the trial judge had made errors at the sentencing hearing. The Court stated at paras. 13 and 14:
However, at the hearing of the appeal we had the benefit of fresh evidence, filed on consent, with respect to Walsh's rehabilitation and current status, that puts this case into a very rare category. The fresh evidence confirms his unusual and exceptional efforts at rehabilitation and the continued success of those efforts. In this sense, it may be said that in these particular circumstances his so-far successful rehabilitation is responsive as well to the sentencing principle of specific deterrence. It may also be said, as counsel for Walsh submits - again, in this particular context - that the principle of general deterrence is at least partially accommodated through Walsh's very public acknowledgement of his criminal career and his public attempts to educate those living similar lifestyles to understand that the consequences are "jail or death" (as he is reported to have put it) - all reinforced by his own transformation and reformation.
In the very particular circumstances of this case, therefore - given the rehabilitative progress Walsh has made and the fact that he is out in the community now and continuing not only to respond well but also to assist others facing drug-related problems - we are not inclined to interfere with the sentence imposed. As counsel submits, further incarceration of Walsh would serve little useful purpose, and might well be counterproductive from a societal point of view as it could undermine what he appears genuinely to have achieved, take away what he has to offer to the community, and lead to a further cycle of harmful conduct towards that community.
[30] Similarly, in R. v. Ghadban, 2015 ONCA 760, 342 O.A.C. 177 the Court of Appeal found at paras. 24 and 25 that to return the appellant to jail:
……would, as in R. v. Porter (1980), 26 Nfld. & P.E.I.R. 26 (Nfld. C.A.), at para. 11, "have the effect of sacrificing the principle of rehabilitation for the principles for punishment and deterrence". See also R. v. Sinclair, 2012 MBCA 24, 280 Man.R. (2d) 31, at para. 24: "I consider it to be counter-productive to sacrifice the gains that have been achieved in terms of rehabilitation to 'foster the principles of denunciation and general deterrence by means of incarceration'" (citing Gilles Renaud, The Sentencing Code of Canada: Principles and Objectives (Markham: LexisNexis Canada Inc., 2009) at para. 5.97).
In my view, this is a very unusual case. To ignore the efforts of the appellant and the consequent "human realities" (R. v. Hamilton) of the case would be contrary to sound sentencing policy and the interests of justice.
[31] I find that the comments set out in the two appellate cases above apply to Mr. Nacinovich’s case, his further incarceration would serve little useful purpose and could undermine what he has achieved. Furthermore, Mr. Nacinovich will be placed on a conditional sentence and conditional sentences can meet the goals of denunciation and deterrence, especially given that in this case Mr. Nacinovich has already served the equivalent of 317 days in jail. As stated by Feldman J.A. speaking for the majority in R. v. Sharma, at para. 171:
With respect, in making that argument, the Crown mischaracterizes the conditional sentence as a form of punishment that carries no deterrent or denunciatory effect. Even in cases where deterrence and denunciation are the paramount sentencing objectives, a conditional sentence may be appropriate, depending on "the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served": Proulx, at para. 114; see also Wells, at para. 35.
[32] The Crown has agreed that Mr. Nacinovich should receive five months of credit for the 20 months that the accused was on house arrest. The Crown’s submissions were made in the context of seeking a four-year sentence. Counsel for Mr. Nacinovich is content not to receive the five months’ credit in order to obtain the conditional sentence. Time spent on stringent bail conditions does not operate like time spent in pre-sentence custody. There is no set formula, but it is a mitigating factor that should be considered by the trial judge. In this case, I am not prepared to reduce Mr. Nacinovich’s sentence because of the time he spent on house arrest for four reasons:
a. The time spent on house arrest was lengthy, 20 months. However, it is because Mr. Nacinovich was able to follow the strict house arrest rules that he was able to demonstrate to the court that he can, contrary to what his criminal record would indicate, abide by any terms of a conditional sentence order;
b. Mr. Nacinovich was able to use the time spent on bail to make great strides in his rehabilitation;
c. A significant amount of the 20 months that Mr. Nacinovich spent on house arrest was during the COVID-19 pandemic when the entire world was having its movements restricted; and
d. Reducing the remnant of the sentence further would result in too short a conditional sentence that would not achieve the objectives of deterrence and denunciation. As stated by Feldman J.A. in R. v. Sharma at para. 185:
As a conditional sentence is served in the community, it is often appropriate that it be a somewhat longer sentence to achieve the objectives of deterrence and denunciation as well as rehabilitation. I would therefore set aside the sentence of 17 months in prison and substitute a conditional sentence of 24 months less a day, as suggested by the appellant.
8. Order
[33] Therefore, I impose the following sentence:
- Two years less a day sentence, less credit for 326 days pre-sentence custody, to be served in the community upon the mandatory terms set out in s. 742.3(1) of the Code, and the following conditions:
a) Remain in your residence at all times, subject to the following exceptions and the travel related to those exceptions:
scheduled meetings with your conditional sentence supervisor;
attendance at your place of worship, reported in advance to the supervisor;
medical appointments for yourself, reported in advance to the supervisor;
counselling appointments for yourself, reported in advance to the supervisor;
such further and other exceptions as may be approved in advance by your supervisor.
10-year weapons prohibition order
A DNA order; and
Forfeiture orders made with respect to the knife and money found on Mr. Nacinovich upon his arrest.
The Honourable Justice H. Leibovich
Released: December 11, 2020
BARRIE COURT FILE NO.: CR-19-00000007
DATE: 20201211
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JASON NACINOVICH
REASONS FOR SENTENCE
Justice H. Leibovich
Released: December 11, 2020