ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
C. Agatiello and J. Ostapiw, for the Crown
- and -
JOSHUA ANSAH
R. Mwangi, for the Defence
Defendant
HEARD: September 14, 2021
REASONS FOR SENTENCE
Baltman J.
Overview
1Mr. Ansah is here today to be sentenced for possessing a loaded firearm and 85 grams of fentanyl for the purpose of trafficking. His sentence must reflect the seriousness of his offending behaviour and the degree of his moral culpability in committing it.
2It is undisputed that both of his offences are very serious. The Criminal Code requires me to impose a sentence that, above all, reflects the objectives of denunciation and deterrence. And our courts have repeatedly stated that the “toxic combination” of drug and gun offences require a significant jail term: R. v. Wong, 2012 ONCA 767, at paras. 11-12.
3However, there are additional factors in this case that require consideration. Mr. Ansah is young and has no prior criminal record. He has strong family support. And the pre-sentence materials filed demonstrate that the social and economic circumstances in which he was raised, including racial discrimination, have contributed somewhat to his instability.
4This sentencing was originally scheduled to take place on October 12, 2021. However, on October 8, 2021 the Ontario Court of Appeal released its decision in R. v. Morris, 2021 ONCA 680, which also involved possession of a loaded weapon, and addressed how trial judges should take evidence of anti-Black racism into account on sentencing. As a result, both counsel were given an opportunity to consider the decision and make further written submissions.
The Facts
(a) Circumstances of the Offence
5On the evening of November 4, 2018, members of Peel Regional Police executed a search warrant at a home in Brampton. Based on information received from two sources, police believed that Mr. Ansah resided at this address and was in possession of a firearm. Officers supported by the tactical unit began execution of the warrant by breaching the front door of the residence and calling on the occupants to exit. At that point, a second police unit at the rear of the house observed Mr. Ansah break the rear upper bedroom window and throw out a firearm, which was later determined to be loaded.
6Officers then observed Mr. Ansah at the broken window with a second firearm, but he retreated back inside the home with the firearm still in his hand. The residence was eventually cleared of all nine occupants, three of whom were committed to stand trial.
7A search of the interior of the residence resulted in the seizure of an unloaded firearm located inside the attic of the bedroom with the broken window. In addition, police found 85 grams of fentanyl in a knapsack in the shower of the ensuite bathroom to that bedroom.
8Mr. Ansah brought a pre-trial motion challenging the search warrant under s. 8 of the Charter of Rights and Freedoms (a Garofoli1 application), seeking to exclude all evidence obtained from the search warrant (i.e., the drugs and firearms). After a lengthy hearing, I denied the s. 8 application and admitted the evidence.2 In a subsequent hearing, Mr. Ansah did not contest the facts read into the record by the Crown, and was found guilty. It was admitted he possessed the fentanyl for the purpose of trafficking.
(b) Circumstances of the Offender
9In this case, the court benefitted from both a standard Pre-Sentence Report, prepared by a Probation and Parole Officer, and an Enhanced Pre-Sentence Report (EPSR), prepared by Mr. Sean Rousseau, a registered social worker. The latter was provided at the behest of defence counsel. Mr. Rousseau has a Master of Social Work and 21 years experience in the social work field. He prepared this report in the context of his work for the Sentencing and Parole Project (SPP), a non-profit organization that prepares EPSRs for Black people marginalized by poverty and racial inequality, as described by their website.
10In preparing the report, Mr. Rousseau conducted multiple interviews with Mr. Ansah. He also conducted interviews with Mr. Ansah’s mother, father, and siblings, and reviewed school transcripts and related documents. For the most part, the Crown does not take issue with Mr. Rousseau’s findings. However, as I elaborate below, it does dispute their relevance.
11Mr. Ansah was born in Toronto in 2000 and is now 21 years old. He has no criminal record. He is the sixth-born of seven children, whose ages range from 16 to 34. His parents came to Canada in 1988 as refugees from Ghana and have since spent much of their time working (his mother in a factory, his father as a delivery driver), leaving Mr. Ansah to be raised primarily by his older siblings and maternal grandmother.
12Based on the material filed, three themes emerge that are likely relevant to Mr. Ansah’s development and behaviour. First, although his parents were loving and law-abiding, the family changed residences 10 times during his childhood. The moves occurred for several reasons: the family needed more living space as they had more children; the parents changed jobs frequently and therefore moved closer to their workplaces; and some of the neighbourhoods proved to be unsafe because of gangs, drugs and shootings.
13As a result, Mr. Ansah repeatedly started over at new schools, negatively affecting both his academic development and his ability to develop and maintain friendships. Although he ultimately received his high school diploma, he was suspended at various times over the years for aggressive behaviour and struggled with language and communication skills.
14Second, his parents were largely absent from the daily life of their children. They worked long hours, sometimes at multiple jobs, to both support their immediate family and financially help extended family back in Ghana. As a result, Mr. Ansah became highly vulnerable to negative peer influences, both at school and within some of the troubled neighbourhoods where his family lived.
15Third, his environments have been affected by anti-Black racism. Mr. Ansah reports distrusting authorities due to his experience being surveilled and carded by police while in the community. He also reports witnessing and experiencing racist moments while in school and observing differential treatment towards black students as he grew up. Mr. Ansah is also aware of receiving different treatment in jail, including being subjected to racial slurs and racist behaviour from other inmates.
Positions of Crown and Defence
16The Crown seeks a global sentence of 12 years, comprised of five to six years for the firearm offence and six to seven years for the fentanyl, on a consecutive basis.
17The Defence proposes a sentence of six years, on either a consecutive basis (three years for the firearm and three to four years for the fentanyl, adjusted downward for totality) or concurrent basis (three years for the firearm and six years for the fentanyl).
18In either case, the sentence is subject to consideration for harsh pre-sentence jail conditions and a credit for earned remission, but the amount of both these factors is disputed.
Principles Guiding Range of Sentence
19Sentencing is a highly individualized process. The relevant principles and objectives of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code. The objectives of sentencing include denunciation of an unlawful act, specific and general deterrence, rehabilitation of offenders, and an acknowledgement of the harm done to victims or to the community. I must increase or reduce the sentence to account for aggravating and mitigating circumstances relating to the offender or the offence. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
20Especially relevant to this case are principles underlying sentencing for gun and drug offences. The paramount sentencing objective is to denounce the harm caused by trafficking fentanyl and to deter Mr. Ansah and others from trafficking in such dangerous substances while possessing a firearm. In particular, I note the following:
Sentences for possessing loaded firearms are primarily aimed at the goals of denunciation and public protection: R. v. Marshall, 2015 ONCA 692, at para. 49;
The possession and use of firearms in Brampton has reached crisis levels. Illegal firearms are not only usually linked to other serious criminal activity, but often end up injuring or killing innocent bystanders;
Mr. Ansah wielded a loaded gun during the police raid. This means he had it ready to use against another human being and to protect his drug trade – a deadly combination: R. v. Wong, 2012 ONCA 767, at paras. 11-13; and
Mr. Ansah was trading in fentanyl, a most vicious and destructive drug.
Range for the Firearm Offence
21In R. v. Nur, 2015 SCC 15, the Supreme Court of Canada emphasized the objectives of denunciation and deterrence in sentencing individuals found in possession of loaded firearms. The court stated these objectives are satisfied by the imposition of custodial sentences of three years or more for possession of a loaded handgun on the “true crime” side of the firearm continuum, namely where the firearm is being carried as “a tool of his or her criminal trade”: Nur, at paras. 25 and 82; Marshall (2015), at para. 47.
22Even for a first offender, where gun possession is connected to other criminal activity such as drug trafficking, this can attract a custodial range of three to five years: Marshall (2015), at paras. 47-49; R. v. Elvira, 2018 ONSC 7008, at para. 27; R. v. Graham, 2018 ONSC 6817, at para. 38. This range applies to Mr. Ansah, as the only reasonable inference is that he kept his gun as a tool of his trade, to protect himself and his valuable drug stash.
23As Mr. Ansah’s firearm possession was clearly connected to trafficking in an addictive and deadly drug, I find, as a starting point, that his firearm sentence should fall in the general three to five-year range.
Range for the Fentanyl Offence
24The range for possession of fentanyl for the purpose of trafficking is still in development. Nonetheless, in its most recent decision in this area, the Ontario Court of Appeal emphasized that offenders – even first offenders – who traffic in sizable amounts of fentanyl should expect to receive significant penitentiary sentences: R. v. Olvedi, 2021 ONCA 518, at para. 55. In so doing, the court affirmed its earlier reasoning in R. v. Loor, 2017 ONCA 696, at para. 50.
25Some other recent cases from the Court of Appeal are instructive. They appear to advocate an offender-specific approach in crafting a fit sentence for fentanyl trafficking. In several of those cases, the original sentence imposed was overturned on appeal. Two of the cases involved co-accuseds of Mr. Loor: Mr. Sinclair and Ms. Baks. These individuals were at the top of a sophisticated trafficking operation involving fake subscriptions for fentanyl patches that were then sold in the illicit drug market. The Court of Appeal reduced Ms. Baks’s sentence from nine years to six years imprisonment (five years for trafficking in fentanyl and oxycodone, plus one year for forgery): R. v. Baks, 2015 ONCA 560, at para. 6. Likewise, in R. v. Sinclair, 2016 ONCA 683, at para. 7, the Court of Appeal reduced Mr. Sinclair’s sentence from nine years to eight years. As for Mr. Loor, he was a low-level member of the trafficking ring but played a key role, as on several occasions he used forged prescriptions to obtain 45 high strength fentanyl patches worth $20,000. He also had a serious, related criminal record. The six-year sentence imposed upon him at trial was upheld on appeal: Loor, at para. 51.
26In R. v. Sidhu, 2019 ONCA 880, at para. 5, the Court of Appeal upheld a net sentence of eight years and two months for an offender who trafficked in fentanyl and other narcotics, had a prior, related record, and returned to trafficking shortly after being released. The quantity of fentanyl in Sidhu was 89 grams,3 similar to the amount possessed by Mr. Ansah.
27All these decisions were relied upon in R. v. Disher and Weaver, 2020 ONCA 710. The Court of Appeal, at para. 66, reduced Mr. Disher’s sentence from twelve years to eight years, and Ms. Weaver’s sentence from seven years to four years incarceration. The two offenders jointly possessed 42 grams of mixed powder substances, including heroin, fentanyl and derivatives of fentanyl. Disher pleaded guilty on the first day of trial. He had a serious, related criminal record, which included numerous trafficking convictions. In reducing the twelve year sentence to eight years, Gillese J.A. stated, at para. 30:
Caution in considering the caselaw is warranted not just because of its inchoate state but also because of the difficulties in comparing quantities of fentanyl given the differences between patches, pills and powder. Bearing in mind these notes of caution, the caselaw indicates that a sentence of eight years is consistent with that received by offenders similarly situated to Mr. Disher, a mid-level recidivist trafficker of heroin adulterated with fentanyl.
28Similarly, Ms. Weaver’s seven-year sentence was reduced to four years on appeal: at para. 66. She was 22 years old at the time of the offence and had no criminal convictions, but she had violated a bail condition that prohibited her from contacting Disher and did not have the mitigation of a guilty plea. She was indigenous and had a troubled background, but showed strong prospects for rehabilitation. Significantly for this case, Gillese J.A. stated, at para. 60:
[Although] general deterrence and denunciation are important factors to be considered in a case such as this, it is an error to fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender: Batisse, at para. 34; R. v. Thurairajah, 2008 ONCA 91, at para. 41, and R. v. Mohenu, 2019 ONCA 291, [2019] O.J. No. 2003 (C.A.), at paras. 12-13. [Emphasis added.]
29At para. 27, Gillese J.A. made a similar comment referring to the twelve years originally imposed upon Mr. Disher:
As this court said in R. v. Johnson, 2012 ONCA 339, 291 OAC 350, at para. 18, albeit in the context of consecutive sentences and the totality principle, “where the ultimate effect of the combined sentences is to deprive the offender of any hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns”. [Emphasis added.]
30Based on a review of those cases, and recognizing that the jurisprudence is still in development, I find that the range for a first offender trafficking in a significant amount of fentanyl begins at four years, subject to other key mitigating factors such as a guilty plea.
Aggravating and Mitigating Factors
- Aggravating Factors
a) The nature and quantum of drug possessed
31First and foremost, the pernicious nature of fentanyl has eclipsed any other hard drugs available on the streets. Fentanyl is a wickedly powerful opioid. The Crown filed an expert report from Det. Brady McEachern of the Peel Regional Police regarding the composition, use, distribution, consumption, and pricing of fentanyl. His conclusions were not challenged by the defence. In particular, the following is undisputed:
Fentanyl is roughly 100 times more toxic than morphine;
Fentanyl is seen in numerous forms. In licit forms, it is typically seen as a patch worn over the skin to provide an ongoing, consistent dose of the drug;
In illicit forms, fentanyl in the Peel Region is most often seen in powder form, or mixed with other drugs, typically heroin; and
Due to its high strength, fentanyl must be mixed (“cut”) with other substances (e.g., caffeine) to create a product suitable for sale on the street, typically at a ratio of 100:1. Because the cut rate is so high, it is extremely difficult for dealers to fully mix an even powder consistency, resulting in “hot spots” of particularly high concentrations of fentanyl that are impossible to detect by eye and can lead to overdose and death of the user.
32Due to its potency, the risk of overdose is extremely high. Fentanyl in powder form, as found in this case, is particularly potent compared to pill or patch form. A mere 2 milligrams, the size of a small grain of salt, is considered a lethal dose. As noted above, because of how it is mixed with other substances, users often do not realize what they are taking and how deadly the effects can be.
b) The motivation for the crime
33This crime was motivated by greed and the potential for profit. Mr. Ansah is not a drug user himself and therefore became involved with fentanyl purely for financial gain.
c) The location and handling of the weapons
34The manner in which Mr. Ansah handled the two firearms posed extreme danger to others. Mr. Ansah stored the weapons in his family home, situated within a residential neighbourhood. The police raid occurred on a Sunday evening, when there were nine people within the residence, most of them members of Mr. Ansah’s family.
35When the police breached the front door and ordered everyone to vacate, instead of surrendering, Mr. Ansah broke a rear bedroom window. Presumably, this was an effort to escape from officers entering at the front door and to dispose of evidence of his criminal activity. When confronted by officers containing the rear of the residence, he pointed a loaded firearm in their direction. After they yelled at him to drop the gun, he tossed it into the flower bed of his parents’ backyard. However, instead of surrendering at that point, he returned to the same broken window with a second firearm. After several seconds, he retreated back inside the home with the firearm still in hand.
36These actions not only endangered the lives of the police officers executing the raid, but also exposed civilians in the vicinity to danger, including several members of Mr. Ansah’s family.
- Mitigating Factors
a) Youthful first offender
37Mr. Ansah is 21 years old. He was only eight months past his eighteenth birthday when the offence was committed. Moreover, this is Mr. Ansah’s first criminal conviction. He has no prior criminal record. As the Ontario Court of Appeal noted in R. v. Borde, 2003 CanLII 4187 (ON CA), [2003] 168 O.A.C. 317, at para. 36, the length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. The court should instead impose “the shortest possible sentence” that will achieve the relevant objectives.
b) Supportive Family
38Mr. Ansah has a strong support system within his family, including an older brother and aunt who are ready and willing to help Mr. Ansah with his rehabilitation when he is released.
c) Systemic Racism and Personal Background
39Both the EPSR prepared by Mr. Rousseau and the affidavit evidence from Mr. Ansah demonstrate that he has faced anti-black racism and socio-economic challenges related to his family’s racial origins.
40Even before the recent Morris decision, it was clear from the case law that those factors deserve consideration. As Doherty J.A. stated in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1, at para. 140, “the circumstances which led [the offender] to commit these crimes entitle [him] to some mitigation.” That may include racial bias suffered by the offender. At the same time, he added, these circumstances are “only part of the overall assessment that must be made in determining personal culpability” when imposing a sentence that complies with the proportionality principle. The social and economic circumstances may make the offender’s actions “more understandable,” but it is only part of the “causal soup” that leads individuals to commit crimes: at paras. 135 and 140.
41Since then, other courts have found that an offender need not demonstrate a direct causal connection, and have instead focussed on whether there is some evidence that the racial disadvantage experienced by the offender is linked to the actions that brought him before the court: R. v. Elvira, 2018 ONSC 7008, at paras. 22-25; R. v. Williams, 2018 ONSC 5409, at paras. 45-47.
42Similarly, in R. v. Kandhai, 2020 ONSC 3580, at paras. 53-54, Harris J. posited that the relevant question raised by the case law is not causation but rather context:
In the final analysis, while Section 724(3)(b) of the Code requires that mitigating circumstances be proved by a defendant on a balance of probabilities, it is not causation which must be shown. Causation in the substantive criminal law is a very specific concept. In a murder case for example, causation asks whether the defendant’s acts caused the victim’s death. The criminal law causation standard requires that the act be a “significant contributing cause” of the consequence, the death [citations omitted]. There must exist a close proximity between the two.
The idea that a person’s background of discrimination and disadvantage and its relationship to the offence can be evaluated on the same causal standard is a fallacy. The relationship between an act and a consequence is analytically distinct from the relationship between a person’s background and the act they commit. In the context of the latter, the influences on an individual are too remote, diverse and multifarious to expect a cause and effect relationship to be provable in evidence. Rather, the sum total of influences upon an individual, including poverty and racial bias, has helped “form the person who committed the crime”: see R. v. Gabriel, 2017 NSSC 90 (N.S.S.C.) at paras. 52-54. [Emphasis added.]
43The Morris decision has expanded upon and clarified how trial judges should factor in evidence of anti-Black racism on sentencing. Its principal conclusions are:
Evidence of anti-Black racism (“social context evidence”) and its impact on the specific offender may be used to mitigate the offender’s degree of responsibility for the offence, as part of arriving at a just sentence: at paras. 87-95;
While it is not necessary to establish a direct causal link between the offence and the negative effects of anti-Black racism on the offender, there must be some connection between the racism being averted to and the circumstances that led to the criminal conduct in issue: at paras. 96-101;
An offender’s experience with anti-Black racism does not diminish the seriousness of the offence: at paras. 72-77;
Social context evidence can provide valuable insight into the need for deterrence vs. the rehabilitative prospects of the offender: at paras. 102-106;
The Gladue methodology used for Indigenous offenders does not apply to Black offenders; however, similar considerations may inform the sentencing of Black offenders: at paras. 111-123.
44The Crown accepts that racial discrimination may be a relevant factor, but asserts it should not result in an “automatic reduction” in sentence. It maintains there is modest evidence here as to how the offender’s experiences with racism and socio-economic disadvantage in his community may have “affected” his conduct. It further argues that the EPSR filed in this case specifically relates to the experience of Black Canadians within Toronto, and therefore has little relevance to Mr. Ansah’s experience as a resident of Brampton.
45I note first that it is apparent from the unchallenged history documented in the EPSR that throughout his childhood Mr. Ansah’s family moved back and forth, on a frequent basis, between Brampton and Toronto. Further, while living in Toronto the family was often housed in communities such as Jane and Finch, where they experienced heightened discrimination.
46Second, as both Morris and the caselaw that preceded it have made clear, the question of the impact of past discrimination experienced by Mr. Ansah should be viewed as a matter of context, not one requiring proof of direct causation.
47In that vein, I accept that to some extent Mr. Ansah’s prospects were limited by anti-black racism, along with his family’s difficult economic circumstances. I set out some of those details above. He experienced 10 moves during his childhood and attended 10 different schools. His parents struggled financially, worked long hours, and were often absent. Some of the neighbourhoods where he lived were plagued by violence and, at times, he felt targeted by authorities because of his skin colour.
48At the same time, Mr. Ansah was not compelled to make the poor choices that he did. He has acknowledged that he had several positive black role models in school over the years who encouraged him. For the most part, his siblings have not been in trouble with the law.
49I would summarize the situation this way: Mr. Ansah could have made better choices, but to some extent his alternatives were limited by his environment. His personal background therefore has some, but not an overwhelming, mitigating effect.
d) “Duncan” credit for harsh custody conditions
50There is affidavit evidence from Mr. Ansah referring to unusually harsh prison conditions, primarily as a result of the current pandemic. In addition, the “willsay” of Deputy Superintendent Whalen from Maplehurst Correctional Complex, where Mr. Ansah is currently detained, confirms that they “frequently lock down due to staffing issues and COVID precautions.” It is undisputed that, at a minimum, Mr. Ansah’s incarceration included 343 days of full lockdown and 30 days of partial lockdown, during which prisoners were often confined to their cells, had limited access to showers or phone calls, and saw programs and visits cancelled.
51I accept that these bleaker conditions have made prison life significantly more punitive than normal. And there is no dispute that these factors can be considered when determining sentence. The issue is how.
52Defence counsel urged me to apply a “Duncan” credit of 1.5 days for every day of lockdown, in addition to the usual enhanced credit of 1.5:1 for each day of custody that the Supreme Court of Canada approved in R. v. Summers, 2014 SCC 26, at para. 88. In R. v. Duncan, 2016 ONCA 754, the Court of Appeal agreed that particularly harsh pre-sentence conditions can provide mitigation beyond the 1.5:1 credit referred to in s. 719(3.1) of the Criminal Code. Counsel relied on R. v. Persad, 2020 ONSC 188, at para. 40, where Schreck J. gave Mr. Persad 1.5:1 enhanced credit for days on lockdown, above and beyond the usual Summers credit.
53However, in the recent decision of R. v. Marshall, 2021 ONCA 344, the Court of Appeal stipulated that the Duncan credit is not deducted from the base sentence. Although the court noted, at para. 49, that the very restrictive conditions in jails and the health risks of COVID-19 are the kinds of circumstances that may give rise to a Duncan credit, these circumstances are a mitigating feature that is factored in when determining the base sentence and cannot dominate the analysis so as to result in an inappropriate sentence. The court states at paras. 52-53:
The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.
Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 2004 CanLII 39056 (ON CA), 187 O.A.C. 307 (C.A.). Arguably, that is what happened in this case, where on the trial judge’s calculations, the “Duncan” credit devoured three-quarters of what the trial judge had deemed to be the appropriate sentence but for pretrial custody. [Emphasis added.]
54Even more recently, the Court of Appeal restated that the Duncan credit is not a deduction but rather a factor to consider in sentencing: R. v. Bristol, 2021 ONCA 599, at para 12. Consequently, while I accept that the lockdown conditions during the pandemic have resulted in harsher than usual conditions for Mr. Ansah, I decline to assign this factor a specific mathematical deduction and will instead consider it as one of the mitigating features to be factored into the determination of a proper sentence for these offences.
e) Guilty Plea??
55Defence counsel submitted that because Mr. Ansah “did not contest the facts in this trial,” that is “akin to a plea.” This, he argues, saved the court time and resources. I emphatically disagree. Any concessions arrived only after a hard fought and unsuccessful Garofoli application. That application – and associated motions - occupied 23 days of court time and resulted in a 64-page decision. At all turns, it was a highly contested process, with extensive oral and written submissions. While this process cannot in any way be an aggravating feature, in the circumstances of this case, it has no “mitigating” aspect.
56In any case, admissions made at trial are not “akin” to a guilty plea. The procedure agreed to by defence counsel was founded on the premise that admissibility of the evidence in the Garofoli motion was dispositive of guilt, and not pleading guilty would preserve Mr. Ansah’s right of appeal with respect to the Garofoli ruling: R. v. Faulkner, 2018 ONCA 174, at para. 92.
Concurrent/Consecutive Sentences
57Defence counsel argued any sentences imposed should be concurrent, while the Crown submitted sentences should be consecutive. In cases involving combined drug and gun offences, the decision to impose consecutive as opposed to concurrent sentences is a matter of discretion for the sentencing judge.
58I am satisfied that the conviction for possession of fentanyl for the purpose of trafficking requires a separate consecutive sentence. Although it is associated with the gun because the weapon was, presumably, being used to protect the offender and his product, it is a separate legally protected interest and requires separate punishment. Society has an interest in both ensuring people do not traffic in dangerous substances and in censuring the possession of illegal firearms: R. v. Sadikov, 2018 ONCA 609, at paras. 12-17; R. v. Crevier, 2015 ONCA 619, at paras. 128-129; Graham, at para. 43; R. v. Mark, 2018 ONSC 447, at para. 27.
59As all those cases note, the end result of the global sentence is always subject to the totality principle.
Sentence Imposed
60After factoring in the aggravating and mitigating features I have identified above, I would arrive at a sentence of 3 years for Count 1 (possession of a loaded firearm), and 5 years for Count 2 (possession of fentanyl for the purpose of trafficking), consecutive to the firearm count. This leads to a total sentence of 8 years. I would reduce that sentence by 2 years, to reflect the totality principle, resulting in a sentence of 2 years for Count 1, and 4 years for Count 2, consecutive. Mr. Ansah has been in custody for 36 months and 3 days, resulting in a Summers credit of 54 months and 5 days, which I would round off at 55 months, leaving him with 17 months left to serve.
61There will be a s. 109 order for life, an order that Mr. Ansah provide a sample of his DNA for inclusion in the national databank, and an order that all of the items seized be forfeited.
Concluding Comments
62Mr. Ansah, you are still quite young and you will be released from custody in the not too distant future. When that happens, you will be fortunate to have a supportive family waiting for you. But you will also have to then decide whether to turn your life around and be a productive person that your family can be proud of, or whether you return to being a dangerous drug dealer. Whether you appreciate it or not, the sentence I’ve imposed today is fairly lenient. If you end up before the courts again on similar charges in the future, you can expect a much longer penitentiary sentence. I hope you make the right choice.
Baltman J.
Released: November 5, 2021
Footnotes
- As described in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421.
- R. v. Ansah, 2021 ONSC 225.
- The Ontario Court of Appeal’s reasons in Sidhu do not refer to the quantity of fentanyl which Mr. Sidhu was found to have in his possession. The sentencing judge at first instance, in unreported reasons, refers to both 89 and 89.5 grams of fentanyl: R. v. Disher and Weaver, 2020 ONCA 710, at para. 35, fn. 1.
