COURT FILE NO.: CR-21-90000-173
DATE: 20221025
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Bari Crackower and Amanda Webb for the Crown
- and -
CHRISTOPHER JANISSE
Gregory Lafontaine and Julia Kushnir for Mr. Janisse
HEARD: June 30, 2022
REASONS FOR SENTENCE
CORRICK J.
Introduction
[1] On April 26, 2022, I found Christopher Janisse guilty of the following offences:
▪ two counts of possession of cocaine for the purpose of trafficking,
▪ possession of fentanyl for the purpose of trafficking,
▪ possession of crystal methamphetamine for the purpose of trafficking,
▪ trafficking in cocaine, and
▪ possession of the proceeds of crime.
[2] After hearing submissions on sentence on June 30, the matter was adjourned to August 3 for the imposition of sentence. On that date, the matter was further adjourned to allow Mr. Janisse to apply to reopen his defence. That application was dismissed on October 4. Mr. Janisse appears before me today for sentencing.
Circumstances of the Offences
[3] Mr. Janisse was arrested on June 27, 2019, following a police investigation into his suspected drug trafficking activities.
[4] The circumstances surrounding the offences are set out in detail in my Reasons for Judgment: R. v. Janisse 2022 ONSC 2566. Briefly, Mr. Janisse stored large quantities of drugs in two safes in a stash house. Throughout the month of June 2019, police accessed the stash house pursuant to a general warrant and monitored the quantity of drugs being removed from the safes. On June 19, safe #1 contained 9.732 kilograms of cocaine packaged in separate kilogram bricks. Safe #2 contained 1.949 kilograms of fentanyl packaged in two separate bricks, and 36 grams of crystal methamphetamine.
[5] On June 27, Mr. Janisse trafficked two kilograms of cocaine to a person he met in a parking lot.
[6] Later that same day, police executed a search warrant on the stash house and found Mr. Janisse in the bedroom together with twelve kilograms of cocaine. He appeared to be in the process of packaging the drugs. The door to safe #1 was open. It contained three kilograms of cocaine remaining from the original nine kilograms, 28 grams of fentanyl in vacuum wrap, five grams of additional fentanyl, and 17 grams of cocaine in a baggie. Police seized safe #2, which was locked. It contained two kilograms of fake fentanyl and 36 grams of crystal methamphetamine. The police had earlier surreptitiously replaced the two kilograms of fentanyl in safe #2 with an innocuous substance.
[7] The next day, police discovered $96,920.00 in a hidden compartment in Mr. Janisse’s car.
Circumstances of the Offender
[8] Mr. Janisse is 34 years of age. He was born in Windsor and has lived in Toronto for a number of years. He has family in both Windsor and Toronto. His mother, who is quite ill, lives in Windsor, and Mr. Janisse has not been able to see her very often because of the house arrest conditions of his release.
[9] Mr. Janisse has a dated criminal record. In 2009, he was fined $300 for possession of a Schedule I substance. In 2011, he was sentenced to 36 months in the penitentiary for break, enter and commit assault with a weapon and disguise with intent.
[10] The time he spent in the penitentiary in 2011 at a young age affected Mr. Janisse’s personality and ability to cope with life. After being released from prison, he successfully completed his parole and worked in a plastics factory. Mr. Janisse developed a severe addiction to Percocet and Oxycodone, an addiction that he was financing through the commission of these offences. Throughout the police investigation in May and June 2019, Mr. Janisse was attending a methadone clinic to overcome his addiction.
Positions of the Parties
[11] The Crown seeks a total sentence in the range of 17 to 20 years in prison, a DNA order, a weapons prohibition order, and orders forfeiting Mr. Janisse’s car, the $96,920.00 found in Mr. Janisse’s car, and $2,330.00, which was found in Mr. Janisse’s apartment.
[12] Ms. Kushnir, on behalf of Mr. Janisse, submits that a sentence of eight years is the appropriate disposition. This submission is based on Ms. Kushnir’s argument that the Crown has failed to prove beyond a reasonable doubt that Mr. Janisse knew that the substances in safe #2 were fentanyl and crystal methamphetamine. Ms. Kushnir argues that Mr. Janisse ought to be sentenced on the basis that he believed the substances to be cocaine.
[13] Mr. Janisse does not contest the ancillary orders sought by the Crown. Some of the funds seized were previously released for the payment of legal fees. The Crown sought the forfeiture of any remaining funds.
[14] The parties agree that Mr. Janisse is entitled to be credited with 441 days for the 294 days he spent in pre-trial custody between June 27, 2019 and April 15, 2020. Ms. Kushnir seeks further credit of 138 days for the time Mr. Janisse spent in custody from March 1 to April 15, 2020, during which time the correctional institution took no precautions to protect inmates from COVID-19.
[15] Ms. Kushnir also seeks additional credit of nine months for the two years that Mr. Janisse has spent on release under house arrest conditions.
Governing Sentencing Principles
[16] In determining the fit sentence for Mr. Janisse, I am governed by the sentencing principles set out in the Criminal Code.
[17] The first is the fundamental purpose of sentencing set out in s. 718 of the Criminal Code, which is to “contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society” by imposing sentences that have one or more of the following objectives:
denouncing unlawful conduct,
deterring the offender and others from committing crimes,
separating offenders from society where necessary,
assisting in the rehabilitation of the offender,
providing reparations for harm done to the victim or to the community,
promoting a sense of responsibility in the offender, and
acknowledging the harm done to victims and the community.
[18] The second is the principle of proportionality set out in s. 718.1. Any sentence I impose must reflect the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or reduced to account for any aggravating or mitigating circumstances related to the offence or the offender. It also provides that the sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances. Finally, s. 718.2 requires that in cases where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.
[19] The fundamental purpose of sentencing in drug cases is set out in the Controlled Drugs and Substances Act. Section 10(1) provides that the fundamental purpose of sentencing in drug cases is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society while encouraging rehabilitation and treatment of offenders in appropriate circumstances, and acknowledging the harm done to victims and the community.
Mr. Janisse’s Degree of Responsibility
[20] Ms. Kushnir submits that Mr. Janisse ought to be sentenced on the basis that he did not know that he was in possession of fentanyl but believed it to be cocaine. This, in Ms. Kushnir’s submission, substantially reduces his moral blameworthiness, entitling him to a lesser sentence in accordance with the principle of proportionality.
[21] It is well established that in a prosecution for possession of fentanyl for the purpose of trafficking the Crown need only prove beyond a reasonable doubt that Mr. Janisse knew he was in possession of a controlled substance for the purpose of trafficking, and need not prove that he knew that the substance was fentanyl: see R. v. Kundeus, 1975 161 (SCC), [1976] 2 SCR 272; R. v. Aiello (1978), 1978 2374 (ON CA), 38 CCC (2d) 485; R. v. H. (C.N.) (2002), 2002 7751 (ON CA), 170 CCC (3d) 253.
[22] Ms. Webb, on behalf of the Crown, submits that the Crown has proven beyond a reasonable doubt that Mr. Janisse knew the substance was fentanyl. She argues that there is no evidence to support the submission that Mr. Janisse believed otherwise even on a balance of probabilities standard.
[23] In my view, the fact that Mr. Janisse did not access safe #2, which contained the bricks of fentanyl, between June 19 and 27, is not evidence that he did not know it contained fentanyl. Mr. Janisse possessed other smaller quantities of fentanyl. When police executed the search warrant on the stash house on June 27 at 4:15 p.m., they found two separate smaller quantities of fentanyl (28 and 5 grams) in safe #1, which had not been there when they had observed the contents of that safe at 12:39 p.m. the same day. The fentanyl was wrapped separately from a smaller bag of cocaine also found in safe #1.
[24] Mr. Janisse was engaged in trafficking drugs at a commercial level. He was found in possession of drugs worth more than a million dollars and all the equipment necessary to package it for distribution. It defies common sense that a high-level commercial trafficker would not know the nature of his product.
[25] The cocaine and fentanyl were packaged the same way in vacuum-sealed kilogram bricks wrapped with duct tape and marked with black marker. They were stored separately in two safes located on opposite sides of a door frame, indicating an intention to keep the two drugs segregated. There would be no need to do this if Mr. Janisse believed that all of the drugs were cocaine.
[26] I am satisfied beyond a reasonable doubt that Mr. Janisse knew the drugs in safe #2 were fentanyl and crystal methamphetamine.
Sentences Imposed in Other Cases
[27] To determine the appropriate sentence, I must consider sentences imposed on similar offenders for similar offences committed in similar circumstances. I am mindful, however, of Chief Justice Lamer’s caution that, “… the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction:” R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 SCR 500, at para. 92.
[28] The circumstances of any case, including this one, can be readily distinguished from any other case. Sentencing is not a precise science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. Despite this, prior decisions assist in determining the governing principles that must guide my decision.
[29] No matter what the aggravating or mitigating factors are in any one case, the jurisprudence is clear that offences involving the distribution of highly addictive drugs, such as cocaine and fentanyl, merit sentences that emphasize deterrence, both general and specific, and denunciation.
[30] Cocaine, fentanyl, and crystal methamphetamine are all dangerous, highly addictive drugs. Fentanyl has been recognized as particularly heinous, responsible for a substance abuse crisis, the likes of which have never before been seen in our country: see R. v. Parranto, 2021 SCC 46 at paras. 93-97.
[31] After reviewing the sentencing jurisprudence across Canada in cases involving trafficking in large quantities of fentanyl, the Supreme Court of Canada in Parranto held that the appropriate range of sentence in such cases was between eight and 15 years. The Court upheld a sentence of 14 years imposed on Mr. Parranto, who had pleaded guilty to two counts of possession of fentanyl for the purpose of trafficking, possession of a handgun, and breach of recognizance. He was found in possession of a little more than ½ kilogram of fentanyl worth approximately $103,000.00 on the street. He was also found in possession of large quantities of other drugs, body armour and guns. He had a lengthy and related criminal record.
[32] In R. v. Fuller, 2019 ONCJ 643, the offender pleaded guilty to conspiring to traffic in fentanyl and methamphetamine. The trial judge found that during the currency of the conspiracy, the offender possessed approximately three kilograms of fentanyl, and was involved in the purchase and sale of considerable amounts of cocaine and methamphetamine. He was 35 years old and had been previously convicted of possession of cocaine and possession of cocaine and methamphetamine for the purpose of trafficking. He was sentenced to 15 years in prison.
[33] In a decision released after Parranto, Justice Dunphy sentenced a 38-year-old first offender to 18 years in prison for possession of 2.4 kilograms of heroin and fentanyl for the purpose of trafficking, and possession of approximately one kilogram of heroin, fentanyl and carfentanil for the purpose of trafficking: R. v. Hoang, 2022 ONSC 2534. The drugs were located in Mr. Hoang’s car along with a semi-automatic shotgun and loaded magazine.
[34] The presence of firearms with the drugs in the Parranto and Hoang cases was a significant aggravating factor that is not present in Mr. Janisse’s case. A guilty plea, acceptance of responsibility and the expression of remorse are mitigating factors in the Fuller case that are absent in this case.
[35] I have also considered the jurisprudence setting out the range of sentence for trafficking and possession for the purpose of trafficking in large amounts of cocaine. Ms. Kushnir submits that the case of R. v. Bryan 2011 ONCA 273 established a range of five to eight years in prison for trafficking in cocaine at kilogram levels. However, the court in the Bryan case was dealing with an offender who possessed for the purpose of trafficking slightly more than a pound of cocaine, a fraction of the amount Mr. Janisse possessed.
[36] Similarly, other cases in which sentences in the range of five to eight years were imposed involved significantly less cocaine than that possessed by Mr. Janisse. In R. v. Brown, 2021 ONCA 35, the court upheld a sentence of 6 years, 5 months for trafficking in four kilograms of cocaine. In R. v. McIntyre, 2016 ONCA 843, the court reduced an eight-year sentence to five years for trafficking in one kilogram of cocaine. Finally, in R. v. Maone, 2020 ONCA 461, the court upheld an eight-year sentence imposed on an offender who had trafficked a total of 3.5 kilograms of cocaine.
[37] The 21 kilograms of cocaine possessed by Mr. Janisse make his case more serious and take it beyond the range of five to eight years. A better comparator is the case of R. v. Brissett, 2019 ONCA 11, in which the court upheld a sentence of ten years imposed on an offender for possession of 15.6 kilograms of cocaine for the purpose of trafficking. The offender had a dated related criminal record.
Aggravating and Mitigating Circumstances
[38] I turn now to consider the aggravating and mitigating circumstances of this case.
[39] The following are the aggravating circumstances in this case.
Mr. Janisse was in possession of several different dangerous drugs for the purpose of trafficking. I have already indicated the danger posed by fentanyl. Cocaine and crystal methamphetamine are also highly addictive dangerous drugs. These poisons wreak havoc on the lives of addicts, their families, and the community at large. The immeasurable harm cocaine causes to the fabric of our society has been recognized by our courts on numerous occasions: See R. v. Cunningham (1996), 1996 1311 (ON CA), 104 C.C.C. 542 (Ont. C.A.); R. v. Hamilton (2004), 2004 5549 (ON CA), 186 C.C.C. (3d) 129 (Ont. C. A.); R. v. Woolcock, [2002] O.J. No. 4927 (C.A.). The trail of misery and despair fentanyl leaves in its wake is unprecedented in Canada.
The quantity of drugs involved was substantial, a total of 21 kilograms of cocaine and two kilograms of fentanyl. Obviously, the potential harm exacted by this quantity would be enormous.
This was a commercial enterprise involving significant quantities of drugs and large sums of money. The drugs were worth more than one million dollars on the street. Police seized nearly $100,000.00 from hidden compartments in Mr. Janisse’s car and household furniture. Mr. Janisse used a location away from his residence that was dedicated to the packaging and storage of his merchandise. Police found Mr. Janisse in the process of packaging his drugs when they executed the warrant on the stash house. He was wearing latex gloves and had all the necessary paraphernalia at hand: digital scale, duct tape, plastic vacuum wrap and vacuum sealer machines.
The geographic scope of Mr. Janisse’s distribution is aggravating. The man to whom Mr. Janisse trafficked two kilograms of cocaine on June 27 was followed and stopped near Windsor, Ontario. The two kilograms of cocaine were secreted in the ceiling of his car.
Mr. Janisse is not a first offender. Although dated, his criminal record includes a 2009 conviction for possession of a Schedule I substance. In January 2011, he was sentenced to three years. That sentence expired in January 2014, only 5½ years before he was arrested on the present offences. That sentence did not appear to have a deterrent effect on Mr. Janisse.
Mr. Janisse was engaged in the illicit drug trade for profit. Ms. Kushnir submits that Mr. Janisse was trafficking in drugs to support a $6,000-a-month opioid addiction, an addiction that he was attempting to deal with by attending a methadone clinic. She argues that the court ought to consider these facts in mitigation of sentence. A pharmacy record filed as Exhibit 2 shows that Mr. Janisse was receiving medication for opioid addiction twice daily between January 2019 and June 20, 2019. As an addict he, more than most, knows the grim consequences of his business. Despite this, Mr. Janisse continued his drug operation, trafficking in kilograms of cocaine and restocking when his supply was low. The scale of this drug trafficking operation is a far cry from the case of an addict traffickers selling drugs on the street to buy their next hit.
[40] I have also considered the following circumstances in mitigation of sentence.
Mr. Janisse’s counsel conducted this trial in a very efficient manner. An agreed statement of facts was filed, and no viva voce evidence was called. This saved significant court resources, particularly at a time when the court is dealing with a backlog of cases caused by the COVID-19 pandemic.
Mr. Janisse has fully complied with stringent “house arrest” bail conditions for the past 30 months.
He has shown some insight by undertaking treatment for his opioid addiction, which bodes well for his rehabilitation potential.
Mr. Janisse was released from custody on April 15, 2020 on restrictive “house arrest” bail conditions. He was not permitted to leave his house except for medical emergencies or when in the presence of his surety or an adult approved in writing by his surety. On September 20, 2021, the conditions were amended to permit Mr. Janisse to attend his court appearances. Stringent bail conditions are properly viewed as mitigating factors to be considered in determining the appropriate sentence: R. v. Joseph, 2021 ONCA 600. The mitigating effect of bail conditions depends on the stringency of the conditions, their impact on the offender’s liberty, and the ability of the offender to carry on normal relationships, employment, and activity: R. v. Place, 2020 ONCA 546, at para. 20. Mr. Janisse’s family lives in Windsor. His bail conditions made it difficult for him to visit his mother, who has a serious illness. I am satisfied that his bail conditions interfered with his ability to maintain normal relationships with his family. The conditions significantly restricted his liberty at a time when he was presumed innocent. This is a mitigating factor that must be considered: R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555, at para. 37. (C.A.).
Mr. Janisse was in pre-trial custody for 294 days from June 27, 2019 to April 15, 2020. In addition to credit for his pre-trial custody in accordance with R. v. Summers, 2014 SCC 26, Ms. Kushnir submits that Mr. Janisse should receive credit pursuant to R. v. Duncan, 2016 ONCA 754 for the time he spent in pre-trial custody during the COVID-19 pandemic. She argues that Mr. Janisse should receive enhanced credit of three days for each day between March 1 and April 15, 2020, when correctional institutions were not taking any precautions to protect inmates from COVID. “Duncan” credit, as it has become known, addresses especially punitive conditions in pre-trial custody. Like “Downes” credit for restrictive bail conditions, it is not deducted from an otherwise appropriate sentence, but must be considered in determining the fit disposition: R. v. Marshall, 2021 ONCA 344, at para. 52. The World Health Organization declared the COVID-19 pandemic on March 11, 2020. I have considered the increased risk to Mr. Janisse’s health, and the increased stress that being confined in a congregate setting would have caused him while he was in custody between March 11 and April 15, 2020.
Determination of a Fit Sentence
[41] Mr. Janisse’s crimes require the imposition of a sentence that gives primary effect to the principles of denunciation and deterrence. They involve the commercial distribution of large quantities of more than one dangerous drug. However, his rehabilitation cannot be overlooked. I have considered the fact that the longest sentence he has ever served is three years, and this sentence will be substantially longer.
[42] Taking into account the mitigating circumstances, the gravity of the offences, the moral responsibility of Mr. Janisse, the harm caused to individuals and the community at large, and the principles of sentencing, I have concluded that a global sentence of 16 years is the appropriate sentence.
[43] As I indicated, Mr. Janisse served 294 days in pre-sentence detention. Counsel agree that he is entitled to 1½ days of credit for each day he has been in pre-sentence detention in accordance with R. v. Summers. His sentence will therefore be reduced by 441 days or 14½ months, leaving a sentence of 14 years, 9½ months to be served from today’s date.
[44] The sentence will be apportioned as follows:
Count 1 – Possession of cocaine for the purpose of trafficking
7 years concurrent;
Count 2 – Possession of fentanyl for the purpose of trafficking
16 years. Credit of 14½ months for the 294 days in pre-sentence custody, leaving 14 years, 9½ months left to be served;
Count 3 – Possession of crystal methamphetamine for the purpose of trafficking
6 months concurrent;
Count 6 – Trafficking cocaine
3 years concurrent;
Count 7 – Possession of cocaine for the purpose of trafficking
10 years concurrent;
Count 8 – Possession of proceeds of crime with value exceeding $5,000.00
2 years concurrent.
Ancillary Orders
[45] I also make the following ancillary orders:
an order pursuant to s. 487.05 of the Criminal Code that Mr. Janisse provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database;
a weapons prohibition order pursuant to s. 109 of the Criminal Code for life; and
a forfeiture order in the terms agreed upon by counsel.
Corrick J.
Released: October 25, 2022
COURT FILE NO.: CR-21-90000-173
DATE: 20221025
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER JANISSE
REASONS FOR SENTENCE
Corrick J.
Released: October 25, 2022