Court File and Parties
COURT FILE NO.: CR-19-00003423 DATE: 20220414 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – YOUSSEF MESSOUDI Defendant
Counsel: Joseph Selvaratnam and Ian Bell, for the Crown Mitchell Worsoff, for the Defendant
HEARD: March 15, 2022
REASONS FOR SENTENCE
M.L. EDWARDS RSJ :
Overview
[1] Mr. Messoudi has been found guilty of importing fentanyl and occupying a vehicle with a restricted prohibited weapon (“the firearms offence”). While the firearms offence is a very serious offence in of itself, the sentence that this court imposes largely flows from the importing fentanyl offence. The Crown seeks a sentence in the range of 15 to 20 years. The defence suggests that the appropriate sentence is in the range of 8 years.
The Facts
[2] On June 21, 2018, two parcels were intercepted by Canadian Border Services Agency at the Vancouver Customs Mail Centre.
[3] A subsequent analysis determined that these parcels contained 754 grams of methoxyacetyl fentanyl, which is an analogue of fentanyl. For ease of reference, I will throughout these reasons refer to the seized substance as M-fentanyl. The shipments had been declared as “beauty products” and were addressed to an address in Richmond Hill, Ontario. The shipments originated in China.
[4] The packages were secured by the Royal Canadian Mounted Police (“ RCMP”) for a controlled delivery at the Richmond Hill address. The shipment, when delivered, contained a substitute for the M-fentanyl.
[5] On July 10, 2018, the controlled delivery took place at the subject address in Richmond Hill. A person who was ultimately determined not to be in the drug trafficking took possession of the shipment, which was shortly thereafter picked up by Mr. Messoudi. Having picked up the package, Mr. Messoudi then entered a vehicle which was placed under surveillance and followed by members of the Emergency Response Team of the RCMP.
[6] The vehicle occupied by Mr. Messoudi was followed to a parking lot in a local mall in Vaughan, Ontario. During the course of surveillance, as the vehicle approached this mall, one of the members of the surveillance team observed the front seat passenger reach out of the vehicle and throw a black object over the roof towards a forested area bordering the mall. Subsequently, as a result of a search, this object was located, and it was determined to be a loaded black handgun.
[7] When the vehicle occupied by Mr. Messoudi stopped in the parking lot, three occupants, including Mr. Messoudi, were observed to flee the scene. Mr. Messoudi was arrested. The inert substance used for the controlled delivery was located in a garbage bin near where Mr. Messoudi was arrested.
[8] On November 16 through 18, 2020, this court heard an application brought by Mr. Messoudi for an order staying the prosecution of the offences on the basis that his rights pursuant to s. 7 and s. 12 of the Charter of Rights and Freedoms (the Charter ) had been infringed as a result of alleged excessive use of force by the police. This aspect of Mr. Messoudi’s application was abandoned, and Mr. Messoudi then proceeded with an application to exclude evidence on the basis that his s. 10(a) and s. 10(b) Charter rights had been infringed.
[9] I ultimately determined that there had, in fact, been a violation of Mr. Messoudi’s s. 10(a) Charter right to be informed of the reason for his detention and arrest, but that there had not been a violation of his s. 10(b) Charter rights. Ultimately, the evidence as it relates to the packages containing M-fentanyl and the firearm was not excluded.
[10] Having determined that the M-fentanyl and the firearm would not be excluded, Crown and defence counsel were then able to formulate an agreed statement of fact. As well, expert evidence with respect to the fentanyl was admitted. Mr. Messoudi, having pleaded not guilty but not contesting the facts, was arraigned on the importing and firearms charge and found guilty by this court.
Mr. Messoudi’s Personal Circumstances
[11] Mr. Messoudi was born in 1998, and as such at the time of the offences would have been approximately 19 years of age. Mr. Messoudi does have a prior criminal record dating back to September 2020, when he was convicted of possession of a Schedule I substance and the unauthorized possession of a prohibited or restricted weapon. Mr. Messoudi received a six-month conditional sentence and 12 months probation in relation to those charges.
[12] Mr. Messoudi immigrated with his family from Morocco when he was a young boy. Mr. Messoudi’s mother and sister both testified at the sentencing hearing, and I am more than satisfied that he comes from a good and supportive family. Mr. Messoudi’s father was in the courtroom throughout these proceedings and would have testified at the sentencing hearing but for a heart condition.
[13] Prior to being arrested on the charges before this court, Mr. Messoudi had completed the equivalent of grade ten. In his grade eleven year, a close friend of Mr. Messoudi was shot and killed. As a result of this tragic event, Mr. Messoudi apparently lacked motivation to attend school and according to the Presentence Report, thereafter “everything went down hill”.
[14] It is worth observing that since Mr. Messoudi’s arrest and very much to his credit, he has completed his high school education. As for Mr. Messoudi’s involvement with drugs and alcohol, the Presentence Report speaks to the fact that beginning when he was in grade seven, he apparently began smoking “weed”. His involvement with drugs has escalated to the use of opioids. The most problematic drug that Mr. Messoudi has apparently been involved with is Xanax. Mr. Messoudi was involved in a six-week substance abuse program since early 2021. There is no evidence that Mr. Messoudi was importing the M-fentanyl for his personal use to feed an addiction.
[15] In summary, Mr. Messoudi presents before this court as a 23-year-old relatively young offender with a prior criminal record.
Position of the Crown and the Defence
[16] As previously indicated, the Crown seeks a substantial penitentiary sentence in the range of 15 to 20 years. The Crown relies heavily on recent jurisprudence from both the Supreme Court of Canada and the Ontario Court of Appeal, suggesting that even first offenders charged with trafficking/importing fentanyl will face a substantial penitentiary sentence.
[17] While acknowledging the gravity of the offences before the court, Mr. Worsoff argues that because Mr. Messoudi is a relatively young offender, this court must, nonetheless, consider the potential for his rehabilitation. As such, Mr. Worsoff suggests that this court has the discretion to impose a much lower sentence than that suggested by the Crown, one that Mr. Worsoff suggests should be in the range of eight years.
[18] In addition to the suggested range of sentence, Mr. Worsoff also asks this court to consider a reduction in Mr. Messoudi’s sentence to reflect the significant period of house arrest that he was subjected to while out on bail. As well, Mr. Worsoff argues that this court should consider a reduction in sentence to reflect this court’s determination that Mr. Messoudi’s s. 10(a) Charter rights were infringed when he was not informed promptly of the reason for his detention. Mr. Worsoff leaves it to this court to determine the appropriate deduction to be made, both respect to the house arrest and Charter infringement.
The Fentanyl at Issue
[19] The package that was seized by the RCMP contained 754 grams of M-fentanyl. Fentanyl is a synthetic opioid. There are at least 40 to 42 known analogues of fentanyl. Fentanyl is 80 to 100 times more potent than morphine.
[20] The expert evidence addresses a number of issues, including what a lethal dose of M-fentanyl might be. In that regard, the expert evidence indicates that no lethal dosage figure has yet been published.
[21] M-fentanyl citrate is composed by weight of M-fentanyl (free base) at 64.7% and the citrate portion at 35%. The expert evidence goes on to conclude that for the purposes of street level drug trafficking the M-fentanyl seized “can be recognized as being pure”.
[22] The expert evidence further establishes that the 754 grams of M-fentanyl at a high purity level of nearly 100% means that there are 754,000 milligrams of M-fentanyl, which would generate 754,000 one milligram doses. Assuming a dosage rate of $40.00, this would generate a street value of approximately $30,000,000. Ultimately, after further calculations the expert evidence provided a value for 754,000 100 milligram doses ranging between approximately $23,000,000 and approximately $38,000,000.
[23] Based on the expert evidence, which is uncontradicted, this court has no hesitation in arriving at the conclusion that the imported package that was seized had a very substantial street value. This court also has no hesitation in arriving at the conclusion that the package of fentanyl, having a street value in the multi-million-dollar range had one purpose and one purpose only, and that was for those involved to profit substantially from their actions without any care in the world for what the fentanyl might do to the unsuspecting user.
[24] As it relates to the user of fentanyl, the expert evidence establishes that fentanyl is 80 to 100 times more potent than morphine. There is no doubt from the expert evidence that fentanyl is a major health concern in North America that has resulted in thousands of deaths caused as a result of overdose. This court also takes judicial notice of what has been described in many sentencing cases and in the media of the crisis that our society presently faces as a result of the prevalence of fentanyl overdoses.
Sentencing Principles and Analysis
[25] The principles of sentencing are well known and are set out in s. 718 of the Criminal Code. It is well established that deterrence and denunciation are paramount in cases involving the trafficking/importing of fentanyl. That said, as Mr. Worsoff reminded this court, one of the objectives of sentencing is to assist in the rehabilitation of the offender. This should be an important consideration, particularly with a relatively young offender. Mr. Messoudi, however, has been convicted of importing an extremely dangerous drug where the sentencing authorities have evolved over time. The evolution has not resulted in lower sentences.
[26] The emphasis on deterrence and denunciation as it relates to the trafficking in controlled drugs is nothing new. In R. v. Farizeh, [1994] O.J. No. 2624, it is clear from the reasons of the Court of Appeal at para. 5, that the sale of even small amounts of heroine by first time offenders would attract a penitentiary sentence absent exceptional circumstances.
[27] The dangerous nature of crack cocaine came in for judicial commentary in R. v. Woolcock, [2002] O.J. No. 4927, where the Court of Appeal commented on the extremely dangerous nature of crack cocaine with its potential to cause great harm to members of society, and thus directed sentencing judges to emphasis the principles of deterrence and denunciation.
[28] The range of sentence for trafficking in fentanyl has evolved over the last 10 years. Between 2013 and 2016, there are a number of trial decisions where an accused convicted of trafficking in fentanyl received sentences ranging from twenty-two months to four and a half years: see R. v. Rak, 2015 ONCJ 543; R. v. Gatfield, [2015] O.J. No. 5019; R. v. Cloutier, [2014] O.J. No. 4783; R. v. Miller, [2014] O.J. No. 4786; R. v. Brooker, [2014] O.J. No. 2609; R. v. Rowley, [2014] O.J. No. 2610; and R. v. Medeiros-Sousa, [2014] O.J. No. 4515.
[29] As time has evolved and there has been a greater appreciation of the danger of fentanyl, the Court of Appeal in R. v. Loor, 2017 ONCA 696, [2017] O.J. No. 4628, made clear at para. 50: … that generally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.
[30] In Loor, the facts involved an accused who was described as a low level member of a small drug trafficking ring in fentanyl. Mr. Loor had obtained a forged prescription to obtain 45 patches of fentanyl from a pharmacy in Barrie. Mr. Loor was convicted of using a forged document, i.e., the prescription, and three counts of trafficking in fentanyl, and received a sentence of six years in jail.
[31] While acknowledging that Mr. Loor did not profit much from his trafficking, Laskin J.A. at para. 48, nonetheless, was of the view that a six-year sentence was not demonstrably unfit, nor was it out of line with sentences imposed on others involved in the same drug trafficking ring.
[32] The most recent decisions out of the Ontario Court of Appeal reinforce the gravity of a conviction where an accused is convicted of trafficking in fentanyl. In R. v. Olvedi, 2021 ONCA 518, the appellant had been convicted of importing fentanyl as well as possession of fentanyl for the purposes of trafficking. The appellant received a global sentence of 15 years imprisonment in relation to a package of fentanyl that contained approximately 500 grams of 100 percent fentanyl citrate, which had a value of approximately $19,000,000. It is worth observing that the package which Mr. Messoudi imported from China contained a greater volume of fentanyl with a higher street value.
[33] Mr. Olvedi at the time of his conviction and sentencing was 33 years of age and was being treated as a first offender. The trial judge acknowledged that Mr. Olvedi was remorseful and had excellent rehabilitative potential. Similar comments could be made with respect to Mr. Messoudi.
[34] In upholding the sentence of 15 years, Trotter J.A. agreed with the observations of Laskin J.A. in Loor, to the effect that it is “fair to say that generally, offenders - even first offenders - who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences”.
[35] Trotter J.A. further reviewed the jurisprudence with respect to those involved in trafficking in fentanyl and agreed with the suggestion that given the dangerous nature of fentanyl sentences should be longer than those involving cocaine or heroine.
[36] In upholding the decision of the trial judge, Trotter J.A. agreed that deterrence and denunciation had to be given prominence especially given the amount, purity and value of the fentanyl imported. The sentence imposed was substantial, but it was not unfit.
[37] As for the impact that fentanyl was having on the general community, Trotter J.A. agreed with the following comments of the trial judge at para. 58: The enormity of the fentanyl crisis and its impact in Peel Region cannot be ignored in this case. It underscores the need for a sentence of sufficient length to denounce Mr. Olvedi’s conduct in the strongest terms and to act as a general deterrent to those who would contemplate similar actions. As Trotter J.A. observed at para. 58 of his reasons, the enormity of the fentanyl crisis was “an important consideration”.
[38] The most recent decision from the Ontario Court of Appeal dealing with trafficking in fentanyl is a decision of Northeimer J.A. in R. v. Lynch, 2022 ONCA 109. Mr. Lynch had been convicted in relation to trafficking various amounts of cocaine, MDMA and 41.37 grams of fentanyl. The Crown had sought a sentence of 10 years, while the defence had sought a sentence of three years. The trial judge imposed a sentence of four years, resulting in the Crown appeal.
[39] Dealing with the danger associated with fentanyl, Nordheimer J.A. at para. 15 observed: It is a well-established principle that drugs vary in the degree of danger that they represent to those who consume them. Consequently, the more dangerous the drug being trafficked, the higher the penalty that will be imposed. Fentanyl is now known to be a much more dangerous drug than almost any other. That reality directs that a sentence imposed for trafficking in fentanyl should be as long or longer than a corresponding sentence for trafficking in cocaine: R. v. Olvedi, 2021 ONCA 518, at para. 56, leave to appeal to S.C.C. requested, 39854.
[40] As it relates to the danger posed to society as a result of the trafficking in dangerous drugs, the comments of Nordheimer J.A. at para. 17 are worth repeating: The problems that dangerous drugs pose for our society are well known. They involve drug addiction, adverse health consequences and, unfortunately all too often, death. Further, drugs are often sold to already vulnerable people thereby exacerbating their difficult circumstances. Still further, there are the indirect costs to society through increased health care expense, increased demands on the health care system, increases in robberies or other forms of criminal activity, and increases in violence. Simply put, the greater those risks are when a particular drug is being trafficked, the greater the offender’s culpability or moral blameworthiness for choosing to traffic in that drug.
[41] Given the expert evidence filed in this case and the quantity of fentanyl with a street value in the multiple millions of dollars, it is difficult to conceive of facts where the moral blameworthiness of the offender could be more paramount.
[42] Ultimately, in Lynch the Crown appeal was successful and the sentence was increased to six years. In imposing a six-year sentence, Nordheimer J.A. noted that the Crown had sought a reduction in the range of sentence from 10 years to 8 years, largely due to the recent decision of the Supreme Court of Canada in R. v. Parranto, 2021 SCC 46, which upheld a 10 year sentence for individuals who are higher level drug dealers than the respondent was. In imposing a sentence of six years, Nordheimer J.A. also took into account as a significant mitigating factor the fact that the respondent had pleaded guilty and that he had a criminal record consisting only of one single entity unrelated to drug activity, and was relatively young – 29 years of age, at the time of the offences. For these reasons the sentence imposed was six years.
[43] The most recent pronouncement from the Supreme Court of Canada as it relates to the sentencing of someone convicted of trafficking/importing fentanyl is R v. Parranto 2021 SCC 46. While this decision may be more often cited as it relates to sentencing ranges the comments of the court as it relates to the dangers of fentanyl provide important guidance to sentencing courts.
[44] In upholding a 10-year sentence imposed by the Alberta Court of Appeal Brown and Martin JJ. for the majority reviewed earlier jurisprudence as follows: “[68] A more accurate range based on a review of reported case law nationally would be in the region of 8 to 15 years. For example, eight‑year sentences were imposed in Smith (2019) (1834 pills, as part of an 11‑year sentence), as well as R. v. Leach, 2019 BCCA 451 (11,727 pills, as part of a 16‑year sentence); R. v. Sinclair, 2016 ONCA 683; R. v. Solano‑Santana, 2018 ONSC 3345 (5000 pills); R. v. White, 2020 NSCA 33, 387 C.C.C. (3d) 106 (2086 pills); and R. v. Borris, 2017 NBQB 253 (4200 pills). Other sentences imposed include: an 8‑year and two‑month sentence in R. v. Sidhu, C.J. Ontario, No. 17‑821, June 16, 2017, aff’d 2019 ONCA 880, in which the offender trafficked 89 g of fentanyl and other drugs soon after being released on parole; a 10‑year sentence in R. v. Petrowski, 2020 MBCA 78, 393 C.C.C. (3d) 102, for trafficking 51 g fentanyl where the offender used a co‑accused to insulate himself from detection; 11 years for trafficking 204.5 g of a fentanyl blend in R. v. Vezina, 2017 ONCJ 775; 13 years for trafficking 232 g fentanyl and large quantities of other drugs as part of a sophisticated drug trafficking operation in R. v. Mai, [2017] O.J. No. 7248 (QL) (Ont. S.C.J.); and 15 years for a profit‑motivated offender who was the directing mind of “a large‑scale drug trafficking operation involving an enormous amount of fentanyl” in R. v. Fuller, 2019 ONCJ 643 (the offender possessed about 3 kg of fentanyl in the course of the conspiracy)”.
[45] While the sentence of 10 years imposed by the Alberta Court of Appeal was upheld in the Supreme Court, the following comments of Brown and Martin JJ. are worth repeating as it relates to the future of sentencing when it comes to those who choose to traffic in fentanyl: “[73] Accordingly, the sentence of 10 years imposed by the Court of Appeal should be upheld, given the submissions at trial, a review of the case law and the aggravating and mitigating circumstances. In upholding the decision of the Court of Appeal, we emphasize that the commission of wholesale trafficking offences in fentanyl may very well be expected to attract more significant sentences as the harm to the end user and the devastating consequences to communities plagued by addiction is not contested”.
[46] The reasons of the Martin and Brown JJ. are important in of themselves as they relate to the appeals of the actual sentences imposed by the Alberta Court of Appeal and the concept of ranges of sentence. The reasons of Moldaver J., who agreed with the reasons of Martin and Brown JJ., are of particular guidance to trial judges dealing with the sentencing of fentanyl drug traffickers. At para 98 of his reasons, Moldaver J. had this to say in that regard: “[98] The time has thus come for our perception of the gravity of largescale trafficking in fentanyl to accord with the gravity of the crisis it has caused. Largescale trafficking in fentanyl is not a crime marked merely by the distribution and sale of an illicit substance; rather, it is a crime marked by greed and the pursuit of profit at the expense of violence, death, and the perpetuation of a public health crisis previously unseen in Canadian society. In many ways, “[t]rafficking in fentanyl is almost the equivalent of putting multiple bullets in the chambers of a revolver and playing Russian roulette. It is the most efficient killer of drug users on the market today” (R. v. Frazer, 2017 ABPC 116, 58 Alta. L.R. (6th) 185, at para. 11). Put simply, it is a crime that can be expected to not only destroy lives, but to undermine the very foundations of our society”.
[47] If there is any doubt about the severity of sentence to be imposed for someone convicted of what might be described as street level trafficking of fentanyl as distinct from someone trafficking to support their own addiction, the following from the reasons of Moldaver J. makes clear that the sentence will be significant: “ [100] In my view, heavy penitentiary sentences will be appropriate where offenders have trafficked in large quantities of fentanyl and assumed leadership roles in the trafficking operation. Indeed, in the context of largescale fentanyl trafficking operations, substantial sentences should be neither unusual nor reserved for exceptional circumstances. As this Court has previously explained, maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances”, but rather should be imposed whenever the circumstances warrant it (R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 22; see also R. v. Friesen, 2020 SCC 9, at para. 114).
[101] Ultimately, largescale trafficking in fentanyl is a crime that preys disproportionally on the misery of others — the marginalized and those whose lives are marked by hopelessness and despair. It is a crime motivated by greed and by a callous disregard for the untold grief and suffering it leaves in its wake. Above all, it is a crime that kills — often and indiscriminately. It follows, in my view, that what matters most is that those individuals who choose to prey on the vulnerable and profit from the misery of the Canadian public for personal gain are sentenced in accordance with the severity of the harms they have caused. Fentanyl trafficking, and largescale trafficking in particular, are a source of unspeakable harm. Accordingly, while the range of sentences currently imposed for the directing minds of largescale fentanyl operations straddles the upper single digits and lower double digits, sentencing judges should feel justified, where circumstances warrant, in applying a higher range, consisting of mid-level double digit sentences and, in particularly aggravating circumstances, potential sentences of life imprisonment.”
[48] Mr. Messoudi comes from a good family. Somewhere along the line, he swayed from his family upbringing and decided that there was quick and easy money to be made in the drug trade. Mr. Messoudi was, at the time of his arrest, a relatively young adult. He has a prior criminal record that involves drugs and a gun. I accept that for someone as young as Mr. Messoudi to impose a significant penitentiary sentence - even the one suggested by his own counsel of 8 years, will have a potentially crushing impact on him.
[49] As I have pointed out already the principles of general deterrence and denunciation are paramount in the sentencing of offenders convicted of importing and or trafficking in fentanyl. That said I do not discount the age of Mr. Messoudi and his rehabilitative potential. The fact that Mr. Messoudi has used his time productively while under house arrest as evidenced by the completion of his high school education demonstrates that his future may be one free of crime. As the Court of Appeal said in R v. Disher 2020 ONCA 710 sentencing judges must still consider the principle of rehabilitation even when the offender is dealing in fentanyl. Specifically, Gillese J.A. stated as follows: “……While I agree with the sentencing judge that deterrence and denunciation were the primary sentencing objectives, it was nonetheless an error to fail to consider Mr. Disher’s rehabilitative potential. In my view, it appears that the error had an impact on the length of sentence imposed. As this court said in R. v. Johnson, 2012 ONCA 339, 291 O.A.C. 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”. Mr. Disher was 34 years old at the time of sentencing and had not before spent time in the penitentiary. While his prospects for rehabilitation may not have been strong, it was important that the sentencing judge consider them and what effect the combined sentences would have on his prospects for rehabilitation. Accordingly, appellate intervention is justified and it falls to this court to determine a fit sentence in all the circumstances.”
[50] I accept that a lengthy penitentiary sentence could and likely will have a significant impact on Mr. Messoudi. If it was not for the fact that Mr. Messoudi was a relatively young offender who has demonstrated efforts at rehabilitation the sentence, this court might have considered would have been at the lower end of the range suggested by the Crown.
[51] In sentencing someone involved in the trafficking of a dangerous drug like fentanyl, cocaine or heroin, it is important for the Court to consider the role of the offender. Is the offender a low level street trafficker eking out a living to feed his own drug addiction? Is the offender a mid-level drug trafficker answering to someone higher up the “food chain” but nonetheless an offender clearly in the game to make money? Is the offender the operating mind of the drug trafficking/importation scheme? The answers to these questions will assist the court in the ultimate sentence to be imposed. The quantity of M-fentanyl seized in this case can leave no doubt that anyone involved was not involved to feed a drug addiction. Rather the sole purpose of everyone associated with the importation of the M-fentanyl was to make a massive profit. A profit that could and likely would have had a massive negative impact on the end user of the M-fentanyl.
[52] While Crown counsel argues that Mr. Messoudi was more than just a mid-level participant in the importing of the M-fentanyl, the evidence filed on sentencing falls short of what this court would require to allow me to conclude that Mr. Messoudi was the so called “king pin” of the drug transaction that ended up in his arrest. Whoever sits at the top of this drug trafficking operation stood to profit enormously. The Crown has the onus of proving beyond a reasonable doubt as an aggravating factor Mr. Messoudi’s role in the importing scheme. If I had evidence that Mr. Messoudi was the one who stood at the top of this drug trafficking operation, I would have little hesitation in endorsing the upper end of the range suggested by Crown counsel.
[53] Evidence was filed on sentencing that included text messages involving Mr. Messoudi. These text messages, it is argued by Crown counsel make clear that Mr. Messoudi was not a mid-level participant in the importation of the M-fentanyl. Rather, it is argued that Mr. Messoudi was a high-level player, and the text messages make this obvious.
[54] The text messages reflect in part a discussion involving Mr. Messoudi and another person where there is an apparent discussion about the risk involved in the importation plan and a reference to “15-20 years”. While it may not be obvious from this text message, it is not an unfair inference that Mr. Messoudi understood he faced the risk of a lengthy period of incarceration if he was caught. Further, in the text messages, there is also discussion involving Mr. Messoudi about the need for a gun.
[55] I can only impose a sentence based on the evidence before me on this sentencing. Mr. Messoudi has admitted to the importing of the fentanyl, and that he knew the handgun was present in the vehicle he was driving on July 10, 2018. There is no admission by Mr. Messoudi as to where he stood in the hierarchy of the drug trafficking of this fentanyl package. I have little doubt that Mr. Messoudi regardless of his role stood to make a handsome profit - a profit that would be realized on the backs of thousands of unsuspecting users. While Mr. Messoudi may not have been the so-called king pin, he was involved well beyond a simple street trafficker.
[56] In my view, taking into account all of the principles of sentencing, the direction given by the Ontario Court of Appeal in Lynch, Olvedi, and Loor, together with the guidance provided by the Supreme Court in Parranto, the appropriate sentence to be imposed is one of 12 years imprisonment.
[57] As for the appropriate sentence for the firearms offence, as I indicated at the beginning of these reasons, the firearms offence is serious in and of itself. Guns are unfortunately part of the everyday life of the elicit drug trade. Mr. Messoudi adverts to this in the very text messages that are part of the evidence in this sentencing hearing. It is purely fortuitous that the firearm was not actually used in the events of July 10, 2018. The fact remains this weapon was in the vehicle occupied by Mr. Messoudi, and there is no doubt he knew it was there. If events had not unfolded in the manner that they did, one can only speculate about what use might have been made of the firearm and what further damage might have occurred. Guns are designed for one purpose and one purpose only in the context of the illicit drug trade - that purpose is one of illegality and often involves serious injury or death. The principles of denunciation and deterrence are again paramount when they come to offences involving firearms. The sentence that reflects these facts and principles is one of 3 years in jail which sentence shall run concurrently to the sentence imposed for importing fentanyl.
[58] Mr. Worsoff has asked the court to consider a reduction from Mr. Messoudi’s sentence to reflect the s.10 Charter breach and the period of house arrest which Mr. Messoudi has been under since his release on bail. In R v. Thornton 2015 ONSC 5250, the accused had been under stringent bail conditions for 1335 days. Maranger J. allowed the accused credit of 2 years pre-trial custody. In doing so, Maranger J. referred to R v. Downes (2006) 79 O.R. (3d) 323 which sets out the approach the sentencing judge should take into account when determining the appropriate credit for stringent bail conditions. Those factors are as follows: the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.
[59] It is worth observing as did Maranger J. that where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the sentencing judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code. I was provided little information to assist me with respect to the impact on Mr. Messoudi of the impact of the house arrest conditions under which he lived over the last few years. That said, I do accept that life under house arrest is not the same as life without house arrest conditions.
[60] In arriving at the appropriate “credit” for restrictive house arrest bail conditions, I also have to consider the times under which we have all lived over the last 2 years given the COVID-19 pandemic. I can take not only judicial notice of the last 2 years but can also readily appreciate the fact that every member of society has been impacted by the restrictions placed on our lives including periods of time when we were all in so called “lockdowns”. Mr. Messoudi, like all of the members of society, would have been impacted in the same way. The following helpful comments of Di Luca J. in R v. Lu 2022 ONSC 1918 have assisted me in my ultimate decision of what credit to give Mr. Messoudi. At para 65-69 Di Luca J. stated: “As set out in the Crown’s chart, the COVID-19 pandemic commenced on March 17, 2020, when a state of emergency was declared and businesses, schools, bars and restaurants were closed. The Crown’s chart also sets out the various dates on which significant changes to the various federal, provincial and municipal lockdowns were announced. Based on this chart, the Crown notes that the general public was subject to lockdowns between March 17 and June 22, 2020 (3 months and 5 days), between October 9, 2020 and June 1, 2021 (7 months and 24 days) and between January 5 and January 21, 2022 (27 days). Lastly, the Crown notes that following conviction, the sentencing hearing and imposition of sentence were delayed at Mr. Lu’s request so that he could get his affairs in order prior to stepping into custody.
In considering whether a Downes credit is appropriate, I must consider the specific impact that the restrictive bail conditions had on Mr. Lu. On this issue, I accept that Mr. Lu was subject to a significant deprivation of liberty based on the restrictive bail conditions that have been in place for a very long period of time. I also accept that this restriction of liberty would have occurred during the global COVID-19 pandemic and that this results in some degree of moderation in terms of the impact of the bail conditions, given that during portions of the time under bail, Mr. Lu would have been subject to varying degrees of public health related lockdowns. However, I find the degree of moderation is slight. The restrictive bail conditions went well beyond the COVID-19 restrictions in place during various periods of time.
In accordance with R. v. K.M., 2017 ONSC 4769, the defence submits that credit at a ratio of 1:4 should be granted for the entire period of time during which Mr. Lu was subject to restrictive bail conditions. Applying this ratio would result in a credit of 253 days on account of restrictive bail conditions. The Crown argues that a credit of 2 months is appropriate in the circumstances.
The determination of an appropriate degree of mitigation for restrictive bail conditions is discretionary. There is no fixed mathematical formula and the “credit” to be applied may simply be reflected as a mitigating factor on sentence rather than a fixed credit, see R. v. Joseph, 2020 ONCA 733 at para. 108 and R. v. C.C., 2021 ONCA 600 at paras. 4-5.
In my view, considering the extent of the submissions on the impact of the bail conditions in this case and considering the fact that impact of the bail conditions must be considered in context with the extent of the public health lockdowns, I am satisfied that a credit of 200 days is appropriate. In arriving at this number, I decline to reduce the credit on the basis that Mr. Lu sought a lengthy adjournment of his sentencing hearing in order to get his affairs in order, and therefore essentially acquiesced to the restrictive conditions.”
[61] In arriving at what is a fair amount of credit for time spent under house arrest, I agree with Marranger J. that the court must arrive at a credit that is “fair and balanced”. Mr. Messoudi was arrested on July 10, 2018. He was released on house arrest bail after 2 months in jail. As such, Mr. Messoudi has been on house arrest for approximately 3 years and 7 months or by my calculation approximately 1309 days. In Lu the period of house arrest was 1011 days for which the offender received a credit of 200 days. Factoring in the credit that Mr. Messoudi would be entitled to for the time he was in jail as well as the time he was on house arrest in my view a fair and reasonable credit that should apply to Mr. Messoudi is one year which will be deducted from the total sentence imposed.
[62] As for the question of what if any credit Mr. Messoudi should receive for the infringement of Mr. Messoudi’s s.10 (a) Charter right to be informed of the reason for his detention, I was referred to R v. Nasogaluak 2010 SCC 6. After a review of some of the conflicting decisions across the country relating to credit being given against sentence for a Charter breach, Lebel J. at para 63 stated: [63] The judgments relying on s. 24(1) appear to have been concerned about instances of abuse of process or misconduct by state agents in the course of the events leading to an arrest, to charges or to other criminal procedures. But, inasmuch as they relate to the offender and the offence, those facts become relevant circumstances within the meaning of the sentencing provisions of the Criminal Code. As such, they become part of the factors that sentencing judges will take into consideration in order to determine the proper punishment of the offender, without a need to turn to s. 24(1). Factors unrelated to the offence and to the offender will remain irrelevant to the sentencing process and will have to be addressed elsewhere. In addition, the discretion of the sentencing judge will have to be exercised within the parameters of the Criminal Code. The judge must impose sentences respecting statutory minimums and other provisions which prohibit certain forms of sentence in the case of specific offences.
[63] While I did conclude that Mr. Messoudi’s s.10 (a) Charter rights had been infringed, I do not agree that the failure the detaining officers amounted to the kind of State misconduct that would warrant this court censuring such conduct with any credit against the sentence to be imposed by this court. In that regard, I reproduce that part of my earlier reasons which explain why the evidence was not excluded: [55] “While the conduct of the police in this case in failing to promptly inform Mr. Messoudi of the reasons for his detention was serious, that conduct was not motivated as a result of any deliberate practice as was the case in R v. Rover 2018 ONCA 745 where the police intentionally withheld informing the accused of his right to counsel while the police where executing a search warrant. Had I concluded that Officer Avery failed in his responsibility to inform Mr. Messoudi of the reasons for his detention because of some systemic failure in RCMP policy the Grant analysis may have been tilted in favour of exclusion”.
[64] In summary, the sentence this court imposes is as follows: a) 12 years for importing fentanyl; b) 3 years for the firearms charge to be served concurrently; c) A credit for the house arrest and time spent in jail awaiting trial of 1 year; and, d) The total sentence to be served by Mr. Messoudi shall be 11 years.
M.L. Edwards, RSJ
Released: April 14, 2022
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – YOUSSEF MESSOUDI Defendant REASONS FOR SENTENCE M.L. Edwards, RSJ
Released: April 14, 2022
