R. v. Schramek, 2021 ONSC 436

Delivered: Orally January 14, 2021 CITATION: R. v. Schramek, 2021 ONSC 436

COURT FILE NO.: Sarnia 2059/19

DATE: 20210114

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Adam Timothy Schramek

Accused

Michael A. Robb, and Brian Higgins for the Federal Crown and Melanie B. E. Nancekievill for the Provincial Crown

Nick Cake, for the Offender

HEARD: December 10, 2020

SENTENCE AND REASONS FOR SENTENCE

C.M. bondy

A. BACKGROUND

1) The Offences

[1] This is a decision as to sentence and reasons for that sentence.

[2] On January 22, 2020, Adam Timothy Schramek (“Mr. Schramek” or “the offender”) was convicted of the following offences pursuant to a guilty plea:

a. Count one - Possession of fentanyl for purposes of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”);

b. Count two - Possession of property obtained in the commission of an offence contrary to section 354(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46 (the “Criminal Code”);

c. Count three - Possession of methamphetamine contrary to section 4(1) of the CDSA;

d. Counts four and five - Two counts of possession of a prohibited weapon contrary to section 91(2) of the Criminal Code; and

e. Count seven - Possession of cocaine contrary to section 4(1) of the CDSA.

[3] The quantity and nature of the drugs seized includes:

a. 1.2 grams of cocaine;

b. Variously described as 5.6 ounces or 156.7 grams of fentanyl which, as further considered below, had been mixed with other drugs; and

c. 3.4 grams of methamphetamine.

2) The Facts

[4] Mr. Schramek is about 37 years of age. He resided at 871 Ross Avenue, Unit #5, Sarnia, Ontario. During the relevant timeframe, he had sole custody of his twin four years old sons, Jackson and Kaiden Denomy. The Children’s Aid Society (“CAS”) had removed the twins from their mother’s care shortly after their birth.

[5] Mr. Schramek is addicted to opiates. The genesis of the addiction was opiates prescribed for an employment related knee injury.

[6] In December of 2018, members of the OPP Lambton Street Crimes Unit entered an investigation regarding Mr. Schramek trafficking controlled Schedule I substances.

[7] On February 6, 2019, investigators sought and were granted a Section 11 CDSA warrant to search his residence as well as his motor vehicle.

[8] On February 7, 2019, police observed Adam Schramek leaving his residence at 1:05 p.m. in a 2000 Ford Windstar vehicle, white in colour, bearing Ontario markers. A traffic stop was conducted at the intersection of Lansdowne Avenue and Lorne Crescent in the City of Sarnia. Mr. Schramek was placed under arrest for an offence under Section 5(2) of the CDSA, was handcuffed, and underwent frisk search incident to arrest. Located on his person was $698 in Canadian currency and a black cell phone. He was read his rights to counsel and cautioned. He requested to speak to a lawyer.

[9] At the time of the traffic stop, Mr. Schramek was an “unlicensed” driver due to an expiry of his driving privileges in March 19, 2017. He was also a suspended driver for unpaid fines as of January 15, 2019.

[10] At 1:33 p.m., a member of the OPP executed the search warrant at Adam Schramek’s residence.

[11] Inside the residence, police located a clear plastic baggie beside the couch area in the living room containing large chunks of a dark blue substance suspected to be blue fentanyl powder. This suspected blue fentanyl powder weighed 139 grams. Analysis confirmed that this was fentanyl.

[12] Located in a silver lockbox on top of the couch, under a blanket, was Canadian currency wrapped in elastic bands with a total amount of $9,170.

[13] A digital weigh scale was located on top of the coffee table in the living room with suspected fentanyl powder residue. The lid of this weigh scale was analyzed and found to have a residue of heroin, fentanyl, carfentanil, methamphetamine, and tetrahydrocannabinol- THC. The scale itself was analyzed and found to have heroin and fentanyl residue. There was also a bundle of small Ziploc “dime” bags on the coffee table.

[14] There was a black leather wallet on the coffee table that contained an Ontario Photo Driver’s Licence confirming Adam Schramek’s identity. Also, documents were located from the County of Lambton indicating the residency of Adam Schramek and his sons at 871 Ross Avenue, Unit #5.

[15] A search of a camouflage backpack placed near the couch located a shard of suspected methamphetamine in a yellow dime bag, which weighed 2 grams. There were also two conductive energy weapons known as tasers found within the backpack.

[16] A Coca Cola can with a fake lid was located in the kitchen area. Inside of this concealment device were two separate Ziploc baggies containing a purple powdery substance suspected to be purple fentanyl powder, weighing 6 grams and 8 grams, respectively. The 6-gram bag contents were analyzed to be fentanyl. The 8-gram bag contents were analyzed to be a mixture of fentanyl and carfentanil.

[17] A metal spoon was observed on the kitchen counter containing a purple type substance, with an uncapped syringe resting on it, and the spoon was analyzed to have fentanyl on it.

[18] Scattered throughout the residence were multiple used needles within reach of the children, as well as, what was suspected to be, loose powder fentanyl in various places. However, no testing or analysis of these were done.

[19] Police also located a high end black and orange Trek bicycle on which the serial numbers had been destroyed, but a serial number sticker remained. The value of this bicycle was determined to be $4,633. It has since been returned to its owner by the police.

[20] Police also located an electronic money counter on the coffee table in the living room along with multiple cell phones and a Samsung Tablet.

[21] A more detailed search of the silver lockbox or briefcase located the following:

• 5 grams of psilocybin in a plastic ziplock baggie;

• 1.2 grams of cocaine in a folded piece of paper with a razor blade inside;

• A dime bag of powder weighed at 1.2 grams which analyzed as heroin and fentanyl;

• A dime bag of powder weighed at 2 grams, which analyzed as heroin, fentanyl, and carfentanil;

• A dime bag of powder weighed at 0.5 grams which analyzed as fentanyl and methamphetamine;

• A second digital scale on the coffee table was found to have residue of cocaine and fentanyl on it;

• $10 in Canadian currency was found on the floor under the coffee table; and

• A spoon in the camouflage backpack was found to have the residue of heroin and fentanyl on it.

B. THE POSITIONS AS TO SENTENCE

1) The Statutory Provisions as to Sentence

[22] The statutory provisions as to sentence are as follows:

a. As to count one, section 5(3) of the CDSA provides that anyone who possesses a fentanyl for purposes of trafficking is guilty of an indictable offence and liable to imprisonment for life.

b. As to count two, section 355 of the Criminal Code provides that anyone who possesses property with a value not exceeding $5,000 knowing that the property was obtained by the commission in Canada of an offence punishable by indictment and is liable to imprisonment for two years;

c. As to counts three and seven, section 4(3) of the CDSA provides that anyone who possesses methamphetamine or cocaine is guilty of an indictable offence and liable to imprisonment for a term of imprisonment not exceeding seven years; and

d. As to counts four and five, section 91(3) of the Criminal Code provides that anyone who possesses a prohibited weapon is guilty of an indictable offence and is liable to imprisonment for five years.

2) The position of the Provincial Crown as to counts two, four, and five

[23] The Provincial Crown seeks a one-year custodial sentence for counts four and five, concurrent to each other, but consecutive to the federal charges below.

3) The Position of the Federal Crown as to counts one, three, and seven

[24] The position of the Federal Crown as to counts one, three, and seven is that the appropriate global sentence is eight years. The Federal Crown shares the Provincial Crown’s position that the sentence for the provincial offences ought to be consecutive to the federal offences.

4) The Position of the Defence

[25] The position of the defence as to counts one, three, and seven is that the appropriate global sentencing is six years with a reduction of one year for personal circumstances, with particular emphasis on his experience of 109 days in lockdown. This issue is more fully considered below.

[26] The defence did not strenuously argue the one-year sentence sought by the Provincial Crown as to counts four, and five, however maintains that sentence for the provincial offences and federal offences ought to be served concurrently and not consecutively.

C. THE OFFENDER’S RIGHT OF ALLOCUTION

[27] Mr. Schramek exercised his right of allocution. Unlike many offenders, the focus of Mr. Schramek’s remarks was on the harm he had done to others rather than on himself.

[28] He stated that he had taken his relationship with his father and children for granted. Although he had done his best to be a good father, Mr. Schramek recognized that his addiction came between him and doing a better job for his children. He also recognized the negative impact that his incarceration will have on his father’s retirement plans because his father will be raising Mr. Schramek’s children while he is incarcerated. Finally, Mr. Schramek also acknowledged that he had hurt other people and their families. I took that to mean the individuals to whom he had sold drugs and their families. I found Mr. Schramek’s comments insightful.

[29] Mr. Schramek elected to be drug-free during his incarceration rather than enroll in programs which would allow him access to drugs such as methadone. He also expressed an awareness that he will need the tools to continue to fight his addiction on release. Accordingly, he has begun arrangements to enrol in the Stonehenge Long-Term Residential Rehabilitation Facility on his release.

D. THE PRE-SENTENCE REPORT

[30] The pre-sentence report describes the offender as a then 36-year-old individual with personal problems including a problem of compliance with court orders. That conclusion finds support in three convictions for failing to comply with recognizance in 2019.

[31] The report states that the offender has two children who were apprehended by the CAS at approximately eight months old, due to the lifestyle choices and addiction issues of both parents. The CAS has been involved on and off ever since. Most recently, the offender was granted “kinship custody” of the children. He is hoping that will morph into full custody.

[32] Underlying social and health concerns include financial problems and depression. The report concludes that the offender lacks motivation and engages in minimization. Those conclusions find support in the fact that the offender apparently lied to the author of the presentence report about having taken substance abuse programs while at the Elgin Middlesex Detention Centre (“EMDC”).

[33] On the other hand, the report also observes that the offender has a secondary school diploma, postsecondary studies, and supportive family relationships.

[34] The offender is addicted to drugs. His drugs of choice are opioids including dilaudid, hydromorphone, and fentanyl. He also engages occasionally in the use of crystal methamphetamine.

[35] The report concludes that until the offender participates in substance abuse relapse prevention counselling, he will remain at a high risk to reoffend again in the future to maintain his addiction.

[36] The offender has attempted addressing his addiction in the past. In February 2014, he completed a withdrawal management program. That was to be followed by a 21-day treatment program in North Bay. Though, after 11 days, the offender was asked to leave that program due to a breach in confidentiality. He, however, completed a five-week program at an addiction services agency in Bluewater as well as attending Narcotics Anonymous meetings for approximately six months. He also participated in a methadone program through a clinic located in Bluewater for one and a half years. That program included a once-a-month appointment with a psychiatrist.

[37] Importantly, the collateral contacts communicated with by the author of the pre-sentence report described the offender as being “very strong-willed.” They expressed an opinion that if he puts his mind to overcome his addiction, the offender will succeed.

E. THE VICTIM IMPACT STATEMENT

[38] There were no known victims of these offences.

F. ANALYSIS

1) Sentencing principles

[39] Section 10(1) of the CDSA states that, without restricting the generality of the Criminal Code, the purpose of any sentence for an offence under part one of that act 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.”

[40] Section 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.” Proportionality in sentencing was considered by the Supreme Court in its decision in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. The court states, at para. 12, “The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender.” The blameworthiness of the offender is more fully considered below. The court also observed that “[B]oth sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.”

[41] Section 718 of the Criminal Code provides that the fundamental purposes of sentencing are served by imposing just sanctions that have one or more of several of the enumerated 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 the offender from society where necessary;

d) To assist in rehabilitating the offender;

e) To provide reparations for harm done to victims and or to the community; and

f) To promote a sense of responsibility in offenders, and acknowledging the harm done to victims or to the community.

[42] Section 718.2 of the Criminal Code provides further sentencing principles. They include:

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

2) Denunciation and Deterrence

[43] In cases involving large quantities of drugs, the objectives of denunciation and general deterrence generally dominate the other objectives identified in section 718.

[44] That is because of the immense direct and indirect social and economic harm imposed upon the Canadian community at large, as well as its individual members. The use and sale of fentanyl, methamphetamine, and cocaine kills directly and indirectly and is closely and strongly associated with violent crime.

[45] In R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at p. 694, the Supreme Court references the characteristics of drug crimes noted by Groupe de travail sur la lutte contre la drogue, Rapport du groupe de travail sur la lutte contre la drogue (1990). At page 24, that report observes that narcotics offences increase the general level of criminality and explains that drugs are responsible for 70 to 80 percent of prison terms. That includes crimes resulting from the application of narcotics legislation, such as possession and trafficking; crimes committed under the influence of alcohol or drugs, such as rape, violence, and homicide; and crimes committed to obtain drugs, such as theft and prostitution.

3) Mitigating Factors

[46] The following are mitigating factors:

• The offender did not have a criminal record at the time of this offence.

• The offender’s guilty plea early in the process.

• According to the pre-sentence report, the offender has a supportive family. That observation finds support in the fact that Mr. Schramek’s father was present in court throughout these proceedings.

• I concluded Mr. Schramek was likely remorseful for his crimes. I say that for several reasons. The first is that Mr. Schramek told the police where to find the drugs. The second is that he almost immediately agreed to a guilty plea with respect to the drug charges. Mr. Schramek only took issue with the charges related to his care of his children. Those charges were ultimately withdrawn. The third is that, as said above, the focus of Mr. Schramek’s address to the court was not on himself as is often the case but rather the harm that he had done to others. He acknowledged the injury to his children, the injury to his father, and the injury to others and their families. I took that to mean the individuals to whom he had sold drugs.

• I also concluded that Mr. Schramek may be a candidate for rehabilitation. While on bail, he completed a five-week treatment program offered through Bluewater health. Although there were very few courses available during his pre-sentence incarceration, Mr. Schramek did manage to complete three certificate courses each of a 60-minute duration. Mr. Schramek has begun the process of obtaining admission to the Stonehenge Long-Term Residential Rehabilitation Facility on his release. As said above, he has strong family support. Notwithstanding the strength of that plan, I did approach Mr. Schramek’s representations with some caution given the conclusion of the author of the pre-sentence report that Mr. Schramek had lied about having taken substance abuse programs while at the EMDC.

4) Aggravating Factors

[47] The following are aggravating factors:

• The quantity of the fentanyl and nature of all three of the drugs seized. They include:

1. 1.2 grams of cocaine;

2. 156.7 grams of fentanyl; and

3. 3.4 grams of methamphetamine.

• The fentanyl had been mixed with other drugs including carfentanil and heroin.

• The fentanyl was in powdered form.

• The impact of drugs on society. I refer to my comments above in that regard.

• The drugs were found in a residential neighbourhood.

• There is a trend of increasing fentanyl use in the Sarnia area.

• The combination of the presence of a significant volume of drugs, two scales containing residue of multiple drugs, a money counting machine, and $9,868 in cash suggests a reasonably significant trafficking operation.

• The fact the drugs were located in the living room where the children no doubt play. The case law recognizes that jeopardizing children by using the family residence to either traffic or store drugs is an aggravating factor: see, for example, R. v. Hornby, 2003 BCCA 635, [2003] B.C.J. No. 2669.

• The toxic combination of the two conductive energy weapons found in close proximity to the drugs. I take judicial notice of the fact that there is a very real possibility of the use of a weapon in conjunction with the drug trade and, as a result, of a very real possibility of personal injury or possibly even death.

• Mr. Schramek has sole custody of his two young children. The two conductive energy weapons were found in close proximity to the children’s toys and, accordingly, could have potentially caused personal injury to one or both of the children, if discovered and fired by them or their friends.

5) The offender’s personal circumstances and collateral consequences

a) Introduction

[48] “A sentencing court is obliged to consider the actual effect of the punishment imposed on the offender”: see R. v. Simmons, 2010 ONSC 5894, at para. 53; citing, R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paras. 28, 41. It follows that the offender’s personal circumstances may impact the appropriate length of sentence notwithstanding they are not a true mitigating factor in that they do not relate to the seriousness of the offence or the moral blameworthiness of the particular offender.

b) Mr. Schramek’s Health and Addiction

[49] I begin with the observation that Mr. Schramek is a reasonably young man at about 37 years of age. There was no suggestion that Mr. Schramek suffers from any health conditions that would render incarceration subjectively any more difficult on him then on others.

[50] Mr. Schramek is addicted to drugs. Sadly, I repeat that the genesis of Mr. Schramek’s addiction was opiates prescribed for a work-related injury to his ACL and meniscus. When the prescription ended, Mr. Schramek began buying drugs on the street. Defence counsel maintains that Mr. Schramek was a victim of a system that rewards large pharmaceutical companies for selling drugs which generate addicts.

c) Mr. Schramek’s Time in Presentence Lockdown and the Impact of COVID-19

[51] The offender was originally detained at the Sarnia Jail. He was, however, shortly moved because he knew many of the guards from his time in high school. He was ultimately detained at EMDC. The offender was in lockdown for 109 days during his time at that facility.

[52] Although I did not hear evidence as to the conditions at EMDC, at the time I was referred to the decision of Thomas J. in R. v. Chol, 2020 ONSC 6644. Thomas J. concluded that although EMDC had done a good job of managing the pandemic, due to staff shortages, the offender in that case had been locked down for 109 days. That was approximately 10% of his presentence detention. The offender in that case stated that the cumulative effect of the scheduled lockdowns had added stress and anxiety as well as having limited his access to the services he desired.

[53] In R. v. Duncan, 2016 ONCA 754, at para. 6, the Ontario Court of Appeal seems to suggest that enhanced credit beyond that referred to in section 719(3.1) may be available where there is evidence as to the subjective adverse on a particular offender of a particularly harsh presentence incarceration, including lockdowns. However, as was observed by Thomas J., that statement must be approached with some caution given the observation of Millar J. A. (concurring) to the effect that further guidance is needed from the Ontario Court of Appeal as to what circumstances may justify enhanced credit: see R. v. Gregoire, 2018 ONCA 880, at paras. 14, 15.

[54] I reiterate, Thomas J. observes that the lockdowns were due to staff shortages. He also observed that staff shortages were not limited to EMDC and that the province has a responsibility to adequately supervise those imprisoned. He further observed that the sentence yet to be served by the offender in that case will be more difficult in a Covid climate. As a result of both the retrospective and prospective concerns related to the lockdowns and Covid, Thomas J. exercised his discretion to reduce a sentence that would otherwise have been eight years to seven years.

[55] Applying those principles to this case, I make the following observations.

[56] Although there was no evidence as to the total time Mr. Schramek was in lockdown, both Crowns conceded that the calculation contained in the defence sentencing submissions was likely correct. That was because of the detail in the record and the fact that it totalled 109 days which was the same length of time the offender in Chol had been in lockdown during the same timeframe.

[57] The Federal Crown, however, suggested that between 24 and 36 days should be subtracted from that 109 days in this case due to defence delay. That is because sentencing did not take place as scheduled because the defence withdrew from a previous joint submission.

[58] While I agree that the defence should not benefit from its own delay, I disagree with the Crown’s calculation. I say that because the matter was in assignment court on July 7, 2020. That was prior to the withdrawal from the joint submission. At that time, the matter was scheduled for sentencing on October 16, 2020. Only nine of the days of lockdown recorded by the offender occurred after that date. Further, even if the sentencing hearing had taken place on October 16 as scheduled, the decision would not have likely been handed down for some time after that. In other words, the offender would have been locked down for a minimum of 100 days prior to a decision being made in any event, and likely more than that. To be blunt, I do not find a significant difference between 100 plus days and 109 days.

[59] As a result, I found it appropriate to consider the retrospective and prospective concerns related to the conditions of incarceration at EMDC similar to that given by Thomas J.

d) The Offender’s Father and Dependent Children

[60] I reiterate that Mr. Schramek has sole custody of his twin four years old sons because the CAS had removed them from their mother’s care shortly after birth.

[61] The children have lived with Mr. Schramek’s father since Mr. Schramek’s incarceration.

[62] There is no doubt that the offender’s children will be significantly and negatively impacted by his imprisonment.

[63] This arrangement also no doubt has a significant negative impact on Mr. Schramek’s father.

[64] The effect of the court’s disposition on a third-party dependent is a factor deserving of some attention: see R. v. K.N., [1999] O.J. No. 4572 (S.C.), at para. 69.

[65] I find this factor weighs in favor of the lower end of the range.

6) Conclusions as to the Provincial Offences

[66] As said above, the Provincial Crown proposes a one-year custodial sentence on each charge to be served concurrently with one another. The Federal Crown agreed. Mr. Schramek did not make meaningful argument suggesting the position was inappropriate. On the record before me and for the reasons above and below, I find that sentence appropriate.

[67] As said above, both the provincial and federal Crown request those sentences be served consecutive to the sentences for the drug offences. This issue is more fully considered below.

7) The Appropriate Range for the Drug Offences

a. Introduction

[68] I reiterate that the quantity and nature of all three of the drugs seized includes:

1. 1.2 grams of cocaine;

2. 156.7 grams of fentanyl; and

3. 3.4 grams of methamphetamine.

[69] I begin with the observation that while previous judicial determinations of sentence are helpful in the sentencing process, they must be approached with caution. They should be considered more as a guide than a tariff. That is because the facts, circumstances, and other factors to be considered vary significantly from case to case. Sentencing is a subjective, case-centric and individualized process: see R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641, at para. 35; R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at para. 46; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 82; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43; and R. v. Jacko, 2010 ONCA 452, 101 O.R. (3d) 1, at paras. 48, 52. The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case: see Nasogaluak, at para. 43; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309; and R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.).

[70] As a result, cases regarding sentencing range 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. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender and to the needs of the community in which the offence occurred: see Nasogaluak, at para. 44.

b. The Particular Hazards of Fentanyl

[71] “Fentanyl is one of the most highly addictive and dangerous drugs…”: See R. v. Lu, 2016 ONCA 479, at para. 9. It is said to be 100 times more potent than morphine and 20 times more potent than heroin: see R. v. Leite, 2018 ONCJ 132, at para. 19; R. v. Olvedi, 2018 ONSC 6330, at paras. 20, 21. “Its widespread abuse, though recent, has quickly become entrenched in our country. Every day in our communities, fentanyl abuse claims the lives of Canadians.”: See R. v. Loor, 2017 ONCA 696, at para. 33, per John Laskin J. A.

[72] It is a “pernicious drug responsible for grievous loss of life, immense and unsustainable strain on our public health system, and devastating impacts on the safety and integrity of our communities.”: See R. v. Smith, 2017 BCCA 112, at para. 2. “[F]entanyl is a scourge. It poses intolerable risks of accidental overdosing because it is so much more powerful than morphine.”: see Smith, at para. 48. These effects are widely known in the community. It necessarily follows that the moral blameworthiness of traffickers can be extremely high.

[73] “Illegally manufactured fentanyl can be particularly and unpredictably potent, even tiny amounts of fentanyl mixed into other drugs such as cocaine or heroin may be fatal; often street drugs have fentanyl cut into them, and it is practically impossible for drug users to recognize whether the drugs they buy contain fentanyl.”: See Smith, at para. 48. I reiterate that a small portion of the fentanyl seized in this case was mixed with other drugs such as heroin and carfentanil. Carfentenil is extremely potent as compared to fentanyl.

[74] In conclusion, the case law is still developing as to an appropriate sentence range for fentanyl. That said, “generally, offenders -- even first offenders -- who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.”: see Loor, at para. 50; and Leite, at para. 15.

[75] Prior to reviewing the case law, I reminded myself that many of the sentencing decisions are in relation to patches and pills and, accordingly, must be approached with some caution. As said above, in this case, the fentanyl was in powdered form and some of it mixed with other drugs. Fentanyl in powdered form is even more dangerous than it is in a patch or pill because the user does not know how much drug is in the powder. That is because it may not be evenly distributed: see Leite, at para. 21; and Olvedi, at para. 43. When mixed with other drugs, a user may for example think he or she is taking heroin when they are actually taking heroin mixed with fentanyl.

[76] Several cases were produced to the court by both the Crown and the defence. Some were more helpful than others. For example, as said above, I found cases involving patches difficult to compare to those involving powdered fentanyl. In addition, I found more recent cases particularly more instructive than older cases in the circumstances. That is because, as was recently reiterated by the Ontario Court of Appeal in R. v. Disher, 2020 ONCA 710, the case law is still developing regarding sentencing and fentanyl cases. The following is a synopsis of the cases presented by the Crown and defence which I found most instructive. I also include some cases not found in counsel’s case briefs which I found of some assistance:

c. Appellate-Level Decisions

Ontario

[77] R. v. Sidhu, 2019 ONCA 880; and Disher are two recent cases of the Ontario Court of Appeal which suggest that the range requested by the Crown is within the range of reasonableness or perhaps even on the light side. They are.

• R. v. Sidhu, 2019 ONCA 880

[78] Mr. Sidhu appealed a net sentence of eight years and two months imposed on several convictions of trafficking and possession for the purpose of trafficking in heroin, fentanyl and methamphetamine. Mr. Sidhu was found with 89 grams of fentanyl. In dismissing the appeal, the Court of Appeal did indicate the sentence was within the appropriate range for mid-level trafficking in the substances involved. Unlike Mr. Schramek, Mr. Sidhu had prior related convictions and had resumed commercial trafficking within months of his release on parole while bound by probation orders in weapons prohibitions.

• R. v. Disher, 2020 ONCA 710

[79] The offender was found with 42.6 grams of mixed powder substances including heroin, fentanyl, and derivatives of fentanyl and carfentanil. In addition, 47.5 grams of marijuana, two spring-loaded knives, brass knuckles, and packaging material consistent with trafficking were seized. Mr. Disher had been released on recognizance two weeks prior on other drug charges. Mr. Disher was found to be the principal actor in the offences and that the heroine that he was trafficking had been mixed with fentanyl. Finally, unlike Mr. Schramek, Mr. Disher had a serious and related criminal record that had spanned 15 years.

[80] Mr. Disher entered a plea of guilty on the first day of trial. He was sentenced to 12 years incarceration by the trial judge. That sentence was reduced to eight years by the Court of Appeal primarily because the Court of Appeal found that the trial judge had not given proper consideration to the offender’s prospects for rehabilitation.

[81] In reaching that conclusion the Court of Appeal made several observations. As said above, one observation was that the case law for sentencing for trafficking in fentanyl is still developing: see Disher, at para. 30. Another observation was that eight years was consistent with the sentence in Sidhu and also consistent with a number of lower court decisions including R. v. Baldwin, [2018] O.J. No. 2447 (C.J.) (eight years; quantity of fentanyl was 115.09 grams); and R. v. Shevalier, [2017] O.J. No. 7247 (C.J.) (eight years; quantity of fentanyl was 28.13 grams).

• R. v. Leite, 2019 ONCA 121

[82] The offender was a mid to high level dealer whose sole motivation was greed. Like Mr. Schramek, the offender did not have a criminal record. The trial judge imposed sentences of six years and two years consecutive for a total of eight years for 147.9 grams or 5.2 ounces of fentanyl. The global sentence for all drugs was 11 years. The Court of Appeal held the sentences or fentanyl should have been concurrent.

• R. v. Sinclair, 2016 ONCA 683

[83] Mr. Sinclair was the co-accused of Ms. Baks. He appealed his nine-year sentence on the basis of the Court of Appeal’s reduction of Ms. Baks’ sentence. The Court of Appeal did not find the same number of mitigating factors present in Mr. Sinclair’s case, and accordingly only reduced the sentence to eight years imprisonment.

• R. v. Fisher, 2016 ONCA 938

[84] Mr. Fisher appealed his sentence of five years imprisonment for possession for the purpose of trafficking marijuana and fentanyl. His intent was to smuggle the drugs into prison where Fisher was incarcerated on prior trafficking convictions in relation to cocaine. The Court of Appeal found the sentence well within the appropriate range. Unfortunately, I found this case of limited assistance because I could not find an indication of the quantity of drugs in the Court of Appeal’s reasons, and the reasons for sentence are unreported.

• R. v. Loor, 2017 ONCA 696

[85] Mr. Loor appealed his conviction and sentence for three counts of using a forged document (a prescription) and three counts of trafficking in fentanyl. He was sentenced to six years in jail less 18 months credit for pre-sentence custody. The Court of Appeal dismissed the conviction and sentence appeals. Using a forged prescription, Mr. Loor obtained 45 transdermal fentanyl patches at the highest available strength, 100 micrograms per hour. The 45 patches were worth somewhere between $18,000 and $20,000 on the street in North Bay.

Alberta

• R. v. Felix, 2019 ABCA 458

[86] The Alberta Court of Appeal established a starting point of nine years for fentanyl trafficking at a wholesale level. The Court defined a wholesale operation, at para. 2, as one “that traffics large amounts of one or more drugs, or that distributes drugs on a large scale, possibly for resale.” Mr. Felix was the controlling mind of an operation that sold an unknown amount of fentanyl and cocaine at an estimated profit of $40,000 to $60,000 per month. He employed individuals to operate telephones and run drugs to street-level drug buyers. The sentencing judge accepted the sentencing range for this type of operation was between five and seven years. The Court of Appeal agreed with the Crown that this range was erroneously low for wholesale fentanyl trafficking. Mr. Felix’s sentence on the fentanyl trafficking was raised from seven to ten years.

Saskatchewan

• R. v. Smith, 2019 SKCA 100

[87] Mr. Smith appealed a global sentence of 18 years imprisonment imposed for nine offences involving cocaine, heroin and fentanyl, as well as weapons and criminal organization offences. Mr. Smith was convicted of trafficking in fentanyl for providing an undercover agent with a total of 1834 pills containing heroin and fentanyl. The pills were marked to imitate OxyContin. Mr. Smith received 15 years imprisonment for the fentanyl offence. The Saskatchewan Court of Appeal reduced the global sentence to 11 years and the trafficking in fentanyl sentence to eight years. According to the Court, there was no basis for a sentence of greater length.

British Columbia

• R. v. Lee, 2018 BCCA 428

[88] Mr. Lee entered guilty pleas for one count of possession of cocaine, methamphetamine, fentanyl, heroin, and GHB for the purpose of trafficking and one count of possession of a prohibited firearm with readily accessible ammunition. Mr. Lee appealed his four-year sentence on conviction for the drug offence and three-year sentence on conviction for the firearm offence, to be served consecutively. The fentanyl was combined with heroin and the mix totaled 65.7 grams, or approximately $12,000 worth. The Court of Appeal in dismissed the appeal, noting sentences of four to six years’ imprisonment have been imposed in cases involving trafficking in fentanyl alone.

• R. v. Lloyd, 2019 BCCA 128

[89] Mr. Lloyd was convicted of a number of offences including assaulting a police officer with a weapon, carrying a concealed weapon, obstruction of a police officer, possession of cocaine for the purposes of trafficking, possession of a weapon dangerous to the public, possession of heroin and fentanyl for the purposes of trafficking, and possession of methamphetamine for purposes of trafficking. Mr. Lloyd had a significant criminal record for drug offences. Mr. Lloyd appealed his six-year sentence for the conviction for possession of heroin and fentanyl for the purpose of trafficking on the ground that it was excessive and unfit. Mr. Lloyd was found with 51.29 grams of heroin and fentanyl mixed. This was in addition to various amounts of cocaine and heroin for a total quantity of approximately five ounces of drugs. The Court of Appeal found the sentence was within the range of sentences for similar offences and similar offenders and dismissed the appeal.

• R. v. Leach, 2019 BCCA 451

[90] Mr. Leach appealed a global sentence of 16 years’ imprisonment for drug and firearm offences to which he pleaded guilty. He was the leader of a “dial-a-dope” operation in which he and his underlings trafficked primarily in fake oxycodone pills containing fentanyl. A total of 11,727 fentanyl pills were seized from various locations under his control. The total street value of the pills was anywhere from $175,905 to $410,445. For the fentanyl related offences, the appellant received 12 years imprisonment for conspiracy to traffic in controlled substances and eight years imprisonment (concurrent) for possession of fentanyl for the purpose of trafficking.

d. Trial-Level Decisions

• R. v. Olvedi, 2018 ONSC 6330

[91] The offender was convicted of possession of marijuana, possession of fentanyl for the purposes of trafficking, and importing fentanyl. The offender was in possession of 499.5 grams of fentanyl. He received a sentence of 15 years imprisonment for importing the fentanyl and 12 years for possession of the fentanyl to be served concurrently.

• R. v. Solano-Santana, 2018 ONSC 3345

[92] The trial judge imposed an eight-year sentence for trafficking 5,000 fentanyl pills valued between $30,000 and $150,000.

• R. v. Vezina, 2017 ONCJ 775

[93] The offender pled guilty to a number of offences including possession for the purposes of trafficking of several substances including methamphetamine, heroin/fentanyl and marijuana, possessing a loaded prohibited firearm, two counts of possessing a firearm while prohibited, possessing ammunition while prohibited, possessing a firearm without being the holder of a license, and carrying a concealed weapon. There was 204.49 grams of mixed fentanyl/heroin with an estimated street value of $41,000. The offender received a sentence of nine years nine months in custody in addition to, or subject to reduction for pretrial custody and enhanced to 451 days in relation to the fentanyl/heroin mixture. It was not entirely clear from the judgment which.

• R. v. McCormick, 2017 BCPC 22

[94] Mr. McCormick received a sentence of eight years for 27,000 fentanyl pills.

• R. v. Aujla, 2016 ABPC 272

[95] The accused was in possession of 454 pills of fentanyl, 1867 grams of cocaine, 796 grams of heroine and 410 grams of methamphetamine. He was a youthful offender with no criminal record. He was sentenced to seven years globally.

• R. v. Fyfe, 2017 SKQB 5

[96] Mr. Fyfe sold one fentanyl pill to a user who was found dead shortly after. Text messages on the deceased’s phone led to Mr. Fyfe’s arrest for unlawfully trafficking in fentanyl. Mr. Fyfe was released pending trial for this offence and, contrary to his conditions for release, sold two fentanyl pills to a young man. He was again charged with trafficking and breaching release conditions. Mr. Fyfe was sentenced to two and one- half years, consecutive, for each trafficking offence, for a global sentence of five years. The sentencing judge endeavoured to provide guidance on sentencing for fentanyl generally. He concluded most sentences for street-level fentanyl offences will begin at two years, and sentences for commercial level trafficking will begin higher.

8) Conclusions as to the drug charges

[97] In the end, I substantially agreed with the position of the Federal Crown as to sentence related to the drug charges.

[98] I placed significant reliance upon the decisions in both Sidhu and Disher in coming to that conclusion.

[99] As said above, Mr. Sidhu received a sentence of eight years and two months. He was found with 89 grams of fentanyl which is significantly less than the 156.7 grams found in Mr. Schramek’s possession. Mr. Sidhu, however, had prior related drug convictions and had resumed commercial trafficking within in months of his release on parole while bound by probation orders and weapons prohibitions

[100] In Disher, the Ontario Court of Appeal found the case law consistent with a sentence of eight years consistent with the case law in the circumstances of that case. That case has many similar features to this. As indicated above, there are, however, several differences between that case in this.

[101] I gave particular emphasis to the following distinctions which tend to weigh in Mr. Schramek’s favour.

[102] The first is that Mr. Schramek’s moral blameworthiness is to a limited extent ameliorated because his addiction appears to have been the result of him having placed his faith in the medical system.

[103] The second is that I find Mr. Schramek is a remorseful first offender who, for the reasons more fully canvased above, may have prospects for rehabilitation.

[104] The third is that in Disher, the offender had a serious and related criminal record that spanned 15 years; while in this case Mr. Schramek did not have any convictions at the time the events underlying these offences took place.

[105] The fourth is the retrospective and prospective concerns related to the conditions of incarceration more fully considered above.

[106] On the other hand, Mr. Schramek had approximately three times the quantity of fentanyl that Mr. Disher was found with. In addition, scales, money counting machine, and $9,868 in cash were recovered from Mr. Schramek. Finally, the drugs were located a residential neighbourhood and in close physical proximity to where children would be expected to play within the house.

[107] Having reviewed the circumstances in this case in the context of all of the case law with particular attention on the decisions in Sidhu and Disher, and for all of the reasons above, I find a global sentence of eight years incarceration appropriate in relation to the drug charges.

[108] In the interests of clarity, that is in addition to the one year for the provincial offences.

[109] I, however, find the request that the one-year sentence be served consecutively to the drug charges would lead to an excess of punishment both on the facts of this case and in the context of the above analysis. I say that because the federal and provincial charges all relate to the same transaction. Importantly, in my analysis, I gave significant consideration to the possession of these weapons as an aggravating factor with respect to the drug charges. I found it appropriate to consider the weapons and the drugs in the context of one another. As said above, that is a toxic combination which has significant potential for use of the weapons and injury or possibly death.

[110] As a result, I find that that proportionality requires that the sentences on all charges ought to be served concurrently.

G. THE SENTENCE

1) Sentence

[111] For all of these reasons, I find that a fit and proper sentence is as follows:

a) As to Count one, Possession of fentanyl for purposes of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA), seven and one half years;

b) As to Count three, Possession of methamphetamine contrary to section 4(1) of the CDSA, six months concurrent;

c) As to Count seven, Possession of cocaine contrary to section 4(1) of the CDSA, two months concurrent;

d) As to Count two, Possession of property obtained in the commission of an offence contrary to section 354(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46 - two months concurrent

e) As to Counts four, and five, possession of a prohibited weapon contrary to section 91(2) of the Criminal Code - one year each concurrent.

2) Credit for Pre-Trial Custody

[112] There was consensus that as of December 10, 2020, Mr. Schramek had spent 498 days in pre-sentence custody, and that 40 days ought to be deducted from that for credit given on his October 30, 2019 convictions. That leaves a total of 458 real days. I calculate that an additional 35 days have passed between then and now for a total of 493 real days of presentence incarceration.

[113] Section 719 (3) of the Criminal Code limits credit for pretrial custody to a ratio of 1 to 1. Section 719(3.1) provides that, notwithstanding where circumstances justify, the maximum ratio is 1.5 to 1. I find the circumstances in this case justify the increased ratio. That equates to 740 days of enhanced presentence credit.

[114] Accordingly, the sentence yet to be served is five years and 172 days from today.

3) Other Ancillary Orders

[115] I make the following ancillary orders:

a) A 10-year weapons prohibition order pursuant to section 109 of the Criminal Code.

b) A concurrent 10-year weapons prohibition order pursuant to section 110 of the Criminal Code.

c) An order pursuant to section 487.051 of the Criminal Code authorizing the taking of the number of samples of blood that is reasonably required for the purposes of forensic DNA analysis.

d) An order pursuant to section 491 of the Criminal Code that the prohibited weapons seized, being two conductive energy weapons (tasers) are forfeited to the Crown.

e) A Victim fine surcharge of $200 on each count payable within 24 months of his release from custody.

Original signed by Justice Christopher M. Bondy

Christopher M. Bondy

Justice

Released: Orally on January 14, 2021

COURT FILE NO.: 2059/19

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Adam Timothy Schramek

Sentence and REASONS FOR Sentence

C.M. Bondy

Released: Orally on January 14, 2021