Court File and Parties

COURT FILE NO.: CR-21-57-0000 DATE: 20220802 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Cadence Beauparlant

BEFORE: Justice D.A. Broad

COUNSEL: Tara Mimnagh, for the Crown Alison Craig, for the Defendant Cadence Beauparlant

HEARD: June 7, 2022

REASONS FOR SENTENCE

(Orally)

[1] Cadence Beauparlant was convicted on March 4, 2022 of three counts of possession for the purposes of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 in respect of substances included in Schedule 1 of that Act, namely fentanyl, hydromorphone and oxycodone.

[2] In addition, he was convicted on one count of possession of a prohibited weapon, namely, a folding “butterfly” knife, knowing that he was not the holder of a licence under which he may possess it, contrary to section 92(2) of the Criminal Code of Canada and one count of possessing proceeds of crime not exceeding $5000 contrary to section 355(a) of the Criminal Code of Canada.

[3] The defendant brought an application seeking the exclusion from his trial of all of the evidence seized during and following his arrest on November 25, 2020 under section 24(2) of the Charter of Rights and Freedoms, alleging that the evidence was obtained in a manner that violated his rights pursuant to sections 8, 9, and 10(b). Following a blended hearing such that the evidence on the voir dire would constitute evidence at trial, I dismissed the application. The defence acknowledged that, on the basis of the finding on the application, a conviction of all of the counts in the indictment was supported, and a conviction was entered accordingly.

[4] The sentencing hearing was held on June 7, 2022 and my decision was reserved until this day.

Facts

[5] The circumstances of the offences were detailed in my Reasons for Decision reported at 2022 ONSC 1565 and do not need to be repeated here in detail. For present purposes, the following summary will suffice.

[6] In the late afternoon on November 25, 2020 a two-vehicle collision occurred in a rural area in the County of Brant. A civilian 911 informant reported that a male driver of one of the vehicles had fled the scene of the accident.

[7] Following a dispatch, a police officer came upon the defendant walking some distance away from the scene of the collision. The officer believed that the defendant matched the description given by the 911 informant. The officer apprehended the defendant and placed him under arrest for failure to remain at the scene of the collision. The officer conducted a search of the defendant incident to arrest at the roadside during which he located a sock containing bags of what he believed to be fentanyl. He placed the defendant under arrest for possession for the purpose of trafficking.

[8] Shortly thereafter a second officer attended the scene and assisted in searching the defendant, including a satchel in his possession. Tobacco products, an OHIP card, a large sum of cash, a pocket-knife, prescription drugs and two cell phones were seized. A balled-up sock was located inside the defendant’s breast pocket containing what the second officer believed to fentanyl.

[9] The defendant was then transported to the police station.

[10] On the voir dire the Crown and Defence filed an Agreed Statement of Facts confirming that the defendant was searched incident to arrest, listing the specific items found on his person and in the vehicle he was travelling in, including most significantly 38.9 grams of fentanyl, and that he admitted to the following:

a. knowledge and control of the items seized;

b. substance and continuity of the items seized;

c. the amount of drugs seized was consistent with possession for the purpose of trafficking;

d. the cash seized were the proceeds of crime;

e. further, the applicant admitted the voluntariness of any utterances made to the police at the time of his arrest.

[11] After the defendant was apprehended, police confirmed that he had not been the driver of either vehicle involved in the collision.

[12] On the voir dire I found that, although the arresting officer had a subjective belief that he had grounds to arrest the defendant, his subjective belief in the ground for arrest was not objectively reasonable. I therefore found that the Crown had failed to discharge its onus of showing that the arresting officer’s grounds were justifiable and therefore lawful. The defendant’s arrest was therefore in breach of section 9 of the Charter.

[13] Given that the defendant’s arrest of unlawful, so too was the search conducted incident to his arrest. The search of the defendant’s person and his satchel constituted unreasonable searches in breach of section 8 of the Charter.

[14] The defendant’s rights under section 10(b) of the Charter were not found to have been breached.

[15] In conducting my analysis under section 24(2) of the Charter I found that the arresting officer acted in good faith as he was attuned to the defendant’s Charter rights and had made an error in judgment in failing to make sufficient enquiries of officers on the scene of the collision concerning whether the defendant had been driving one of the vehicles involved. I concluded that the admission of the evidence of the drugs and other evidence found in the possession of the defendant would not send a message that the justice system was somehow condoning serious state misconduct and that this factor weighed in favour of admission of the evidence.

[16] In balancing the factors set out in R v. Grant, 2009 SCC 32 I found that the defendant had not discharged his onus of showing on a balance of probabilities that the evidence obtained by the police as a result of the search should be excluded from the defendant’s trial pursuant to section 24(2) of the Charter.

Pre-sentence report

[17] In the Pre-Sentence Report (PSR) filed for the sentencing hearing the defendant and his mother were both reported to have described his upbringing in positive terms. He had supportive and loving parents and a positive relationship with his brother who is five years older. He continued residing within the family home until his current incarceration in January 2021.

[18] The defendant stated that the death of his maternal grandmother, with whom he was close, two years ago had been difficult for him.

[19] The defendant is currently single and has no children. He was involved in an intimate relationship with another individual for approximately two years. The breakup of this relationship was difficult for him.

[20] The defendant related that he was bored at school and not motivated to attend and made the decision to leave school with approximately 10 credits left to obtain his high school diploma. He denied ever being diagnosed with a learning disability.

[21] The defendant has had very minimal employment experience and, beyond doing some side work with his father during his upbringing, he never maintained an employment position elsewhere. He expressed to the author of the Report a desire to complete his high school diploma or equivalency and to further his employment skills by completing training or education courses.

[22] The defendant reported using alcohol when he was approximately 14 years of age and described his alcohol use as moderate and not problematic. He began experimenting with substances including “Molly,” “Ecstasy” and “Xanax” at a young age.

[23] The defendant began using prescription opiates including oxycodone, Percocets, hydromorphone and cocaine on a consistent basis. He described his drug use as “up and down” as sometimes he would use daily for a duration of weeks at a time. He also disclosed that he has used marijuana consistently from a young age.

[24] Although the defendant recalled a time in his life when his drug use impacted his mental health, reporting feeling symptoms of paranoia, delusions and lack of sleep, he never sought out support in the form of counselling or programming for his substance use.

[25] The author of the Report indicated that the defendant appeared to accept responsibility for his actions, and acknowledged that financial gain was the motivator behind his behaviours.

[26] The author of the Report commented that the defendant reported a positive upbringing with stable parental relationships and that he was provided with the necessaries in life, supportive relationships and additional opportunities such as extracurricular activities. He denied any exposure to abuse or violence during his childhood. He did acknowledge an addiction to various forms of opiates including Percocets, oxycodone and hydromorphone for several years and cited occasional use of cocaine and alcohol. The author expressed concern with the defendant’s recent choices through his association with others involved in the criminal justice system and the drug subculture.

Guiding principles on sentencing

[27] As set forth in s. 718 of the Criminal Code, the purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions on the offender. The stated objectives of any sentencing decision include denunciation, deterrence, rehabilitation, reparation for harm done, promotion of offender responsibility and acknowledgement of harm done.

[28] S. 718.1 of the Code explicitly states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[29] The principle of parity requires a sentence to be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances, however, sentencing remains an individualized process such that sentences imposed for similar offences may not be identical.

[30] Under the introductory portion of s. 718.2(a) a sentence is to be reduced to take into account mitigating circumstances relating to the offence or the offender or increased to account for any aggravating circumstances.

[31] S. 718.2(b) requires that a sentence be similar to those imposed on similar offenders in similar circumstances, and s. 718.2 (d) and (e) provide that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

[32] S. 10(1) of the Controlled Drug and Substances Act states as follows respecting the fundamental purpose of sentencing under that Act:

Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

Position of the Defence

[33] Ms. Craig for the defence submits that a fit sentence would provide for a period of incarceration of 3 to 4 years, less enhanced credit for time served since January 29, 2021. Applying a credit of 1.5:1 would result in a credit of 824 days (approximately 2 years and 3 months), while applying a credit of 2:1 would result in a total credit of 1098 days (approximately three years).

[34] In crafting an appropriate sentence, Ms. Craig submits that the court can take judicial notice that the defendant has been subjected to intolerable conditions during his pre-sentence incarceration, much or all of which took place during COVID-19 restrictions, involving almost constant lockdowns, a lack of access to phone contact or physical visits with family members and difficulty speaking to his legal counsel. There were no rehabilitative or other programs offered to the defendant. She submitted that, given the ongoing pandemic, it can be expected that the defendant’s sentence will be served under similar conditions.

[35] The PSR demonstrated that the defendant has what Ms. Craig described as “tremendous rehabilitative potential,” with an extremely supportive family. He enjoyed a positive upbringing with no evidence of having suffered any abuse and has no criminal record.

[36] Ms. Craig pointed out that the PSR disclosed that the defendant became involved in substance abuse at early age and has used drugs regularly. He acknowledged being addicted to opioids

[37] The author of the PSR commented that the defendant appeared to accept responsibility for his actions. Ms. Craig noted that he did not plead guilty as there were arguable trial issues relating to alleged Charter breaches by the police.

[38] On the authority of R. v. Nasogaluak, 2010 SCC 6 at para. 63 Ms. Craig argued that police misconduct in the course of the events leading to the defendant’s arrest is a factor which should be taken into consideration in determining the proper punishment for the offences. She says that the Charter breaches found by the court were significant.

[39] Finally, Ms. Craig submitted that the defendant can be characterized as an “addict trafficker” whose purpose for involvement in the drug trade was to support his own addiction rather than greed, which the court can take into consideration as a mitigating factor by reducing his moral culpability. In support for this proposition she cited the case of R. v. McCue 2022 ONCJ 118 at para. 49.

[40] In reference to the range of sentences which have been applied for comparable offences, Ms. Craig referred to the following cases:

(a) R. v. Persad, 2020 ONSC 188

• Multi-count indictment for firearms and drug-trafficking offences, including fentanyl (quantity not provided)

• 42-year-old with lengthy criminal record for firearms and drug offences

• Guilty plea and joint submission

• Sentence for drug trafficking offences - 4 ½ years concurrent

(b) R. v. Yodendran, 2021 ONCJ 125

• Multi-count indictment for firearms and drug-trafficking offences, including fentanyl

• Early guilty plea

• Youthful first-time offender

• Excellent rehabilitative potential

• Global sentence of 6 years

• Sentence imposed for the count concerning the greatest quantity of fentanyl of 16.48 grams — 3 years consecutive to the firearm count

(c) R. v. Nacinovich, 2020 ONSC 7604

• 8.6 grams of fentanyl

• guilty plea

• 41-year-old offender with lengthy criminal record, but significantly shorter periods of incarceration

• Crown sought four years incarceration

• Sentence imposed – reformatory term of two years less a day

(d) R. v. Lynch, 2022 ONCA 109

• 965.01 grams of cocaine, 149.28 grams of MDMA and 41.37 grams of fentanyl

• Guilty plea

• Mid-level trafficker

• 29-year-old offender with one previous criminal conviction, not drug related

• Sentence increased on appeal from four to six years

Position of the Crown

[41] Ms. Mimnagh for the Crown submits that a fit sentence would call for 7 years incarceration together with the following corollary orders:

(a) A forfeiture order in respect if $1,850 in cash, two cell phones and a “butterfly” knife seized from the defendant;

(b) For collection of a DNA sample from the defendant on the basis that counts 1 to 4 in the indictment are secondary designated offences; and

(c) Weapons prohibition under s. 109 of the Criminal Code for life.

[42] It is noted that the defence is not opposed to the corollary orders sought by the Crown.

[43] Based on the quantity of fentanyl and other substances as well as the amount of cash seized from him, Ms. Mimnagh submits that the defendant is properly characterized as a mid-level drug trafficker. She argues that there is no basis for characterizing him as an “addict trafficker” in light of the quantities involved.

[44] On the basis of the observations by the author of the Pre-Sentence Report, Ms. Mimnagh submits that there were no barriers to the defendant leading a pro-social lifestyle. He enjoyed a stable home life with supportive parents. There were likewise no barriers to the defendant achieving reasonable educational success and pursuing meaningful employment. Instead, as indicated in the PSR the defendant engaged in “hanging out, smoking marijuana and shopping.” The Report indicated that the defendant dabbled in opiates but was not crippled by addiction. The defendant himself described his drug use as “up-and-down.” Significantly, he acknowledged that his intent in engaging in drug trafficking was financial gain.

[45] Pointing to the case of R. v. Loor, 2017 ONCA 696 at para. 48 Ms. Mimnagh relies upon the clear direction from the Court of Appeal that generally, even first offenders who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.

[46] Ms. Mimnagh pointed to the case of R. v. Disher 2020 ONCA 710 which involved 42.6 grams of mixed powder substances comprising fentanyl, derivatives of fentanyl and carfentanil was found in one of the packets seized. The Court of Appeal characterized the offender as a mid-level recidivist trafficker. He had a lengthy and uninterrupted criminal record spanning 15 years. As mitigating factors the Court noted that the offender pleaded guilty and had significant rehabilitative potential, having taken virtually every program available to him while awaiting trial. The Court reduced the sentence from 12 years to 8 years on appeal.

[47] Ms. Mimnagh disputes the characterization of the defendant as an “addict trafficker” referencing the case of R. v. Cinelli, 2018 ONSC 4983 in which Bawden, J., citing the Court of Appeal’s decision in R. v. Barham, 2014 ONCA 797, observed that in order for mental health issues and addiction to be considered as mitigating factors, there must be some connection between those matters and the criminal conduct at issue. She submitted that the evidence in the case at bar does not support the existence of such a connection.

[48] On the question of the effect of the pandemic as a collateral consequence to be taken into account, Ms. Mimnagh referred to the Court of Appeal decision in R. v. Morgan, 2020 ONCA 279 which suggested at para. 11 that a variation on that account should not result in a sentence lower than the range of otherwise appropriate sentences, citing R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739 (S.C.C.) , at para. 18. The Court went on to observe that the Ontario Parole Board may be expected to take into account impacts of the pandemic in its decision-making respecting the granting of parole.

[49] Ms. Mimnagh observed that there was no evidence of specific impacts of the pandemic and the conditions in the institution on the defendant while he was awaiting trial

[50] Ms. Mimnagh concluded by suggesting that there are very few mitigating circumstances in reference to the defendant, restricted to his youth and lack of a criminal record, and little to suggest that he has a high rehabilitation potential.

Discussion

[51] The sentencing of an individual is one of the most difficult tasks for a judge. It is well- recognized that determining a fit sentence is an individualized process. Each case is unique, with a different factual context and different circumstances of the individual offender.

[52] The task of the court in this case is to craft a fit sentence which will adequately address the predominant principles of denunciation and deterrence while also promoting the objective of rehabilitation in Mr. Beauparlant’s individual circumstances. The Criminal Code directs sentencing judges to determine the least restrictive sentence that would meet the purpose and principles of sentencing.

[53] As indicated, the Crown and the defence are not in significant disagreement on the guiding principles, and in particular that the objectives of denunciation and deterrence are the primary sentencing objectives in a case of this nature.

[54] Justices Brown and Martin of the Supreme Court of Canada put the gravity of drug trafficking offences in context in the recent case of R. v. Parranto, 2021 SCC 46 at para. 70 when they wrote:

While not raised by the parties or the court below, this appeal provides an opportunity to emphasize that, when assessing the gravity of the offence, it is open to both the sentencing judge and the Court of Appeal to take into account the offender's willingness to exploit at-risk populations and communities. In this regard, choices which demonstrate a reckless disregard for human life increase not only the gravity of the offence but the moral culpability of the offender and may amount to an aggravating factor in sentencing.

[55] Dunphy, J. expanded on these observations, with particular reference to the extreme risk to individuals and communities posed by fentanyl and its derivatives, in the very recent case of R. v. Hoang, 2022 ONSC 2534 at paras. 68-69 as follows:

Significant numbers of those who fall prey to addiction to these substances [that is opioids including fentanyl] soon find themselves unable to control their addictions. In many cases, addiction leads to loss of work, family and all that previously bound them to their communities. Homelessness and desperation are common among addicts. The highly addictive nature of these controlled substances means the path to rehabilitation is that much more subject to failures requiring the painful struggle to begin anew.

There is another risk associated with fentanyl and carfentanil in particular. These substances are so highly toxic that even very small amounts can bring about accidental death by overdose. These risks are aggravated by the inability of users to know whether or how much of either of these compounds is actually present in a given dose due to "hot spots" brought about by uneven mixing and the prevalence of fentanyl or its derivatives in a variety of street drugs.

[56] As reflected in the legal authorities referred to above and numerous others, the offences with which Mr. Beauparlant has been convicted carry a high degree of moral culpability. In terms of aggravating circumstances, little else is known about the details of his involvement in the illicit drug trade beyond what may be inferred from the quantities of substances and amount of cash found by police in his possession as reflected in the agreed statement of facts. As indicated previously, he described his motivation for involvement in the drug trade as “financial gain.”

[57] I am unable to accept the defence submission that Mr. Beauparlant was an “addict trafficker” whose involvement in the drug trade was solely to support his own addiction, a factor which, if present, may be taken into account in mitigation. The significant amount of fentanyl and cash found in his possession would suggest otherwise. As observed by Bawden, J. in Cinelli at para. 32 “this is far from the classic addict-trafficker scenario where an addicted accused undertakes the hazards of drug trafficking in order that he might chip off a small amount of the product for his own use.” There is no evidence of a connection between addiction and the defendant’s criminal conduct.

[58] I am not satisfied that the Charter breaches by police found by the court were such that they are relevant factors to be taken into account in determining a fit sentence in the particular circumstances of this case. Lebel, J. articulated the applicable principles at paras. 55 and 63 of Nasogaluak as follows:

55 Thus, a sentencing judge may take into account police violence or other state misconduct while crafting a fit and proportionate sentence, without requiring the offender to prove that the incidents complained of amount to a Charter breach. Provided the interests at stake can properly be considered by the court while acting within the sentencing regime in the Criminal Code, there is simply no need to turn to the Charter for a remedy. However, if a Charter breach has already been alleged and established, a trial judge should not be prevented from reducing the sentence accordingly, so long as the incidents giving rise to the breach are relevant to the usual sentencing regime. Of course, as we shall see, as a general rule, a court cannot reduce a sentence below a mandatory minimum or order a reduced sentence that is not provided for by statute. That said, circumstances of a Charter breach or other instances of state misconduct, in exceptional circumstances, do allow a court to derogate from the usual rules to which its decisions are subject.

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.

[59] As noted above, although I found breaches of sections 8 and 9 of the Charter, I determined that the arresting officer nevertheless acted in good faith and was attuned to the defendant’s Charter rights. There was no evidence of police violence or abuse of the defendant. I find that the Charter breaches do not relate to the offender or the offences in such a way that they call for their consideration as mitigating factors in the sentencing determination.

[60] I find that the following mitigating circumstances are present and are to be weighed in the balance in the determination of a fit and proper sentence:

(a) Mr. Beauparlant is a youthful first-time offender; and

(b) He has a supportive family who may be available to assist him in his rehabilitative efforts.

[61] Mr. Beauparlant’s youth and supportive family count toward his rehabilitative potential. He expressed a desire to obtain his high school diploma followed by further vocational training. However, this observation is tempered by his lack of educational and vocational initiative in the past and his poor peer choices represented by his association with other persons involved in the criminal justice system and in the drug subculture. These choices, if repeated, could cause him to deviate from a rehabilitative path.

[62] Although not an aggravating factor, Mr. Beauparlant does not benefit from the mitigating effect that would result from an acceptance of responsibility by means of a guilty plea.

[63] In my view the frequency with which sentencing judges have commented on the often-harsh conditions of pre-trial custody in provincial institutions during the pandemic supplies the court with the necessary information to take judicial notice that the conditions of Mr. Beauparlant’s incarceration were particularly punitive. As such, they may be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence (i.e. a Duncan credit) from which the “Summers” credit will be deducted (see R. v. Marshall, 2021 ONCA 344, [2021] O.J. No. 2757 (C.A.), per Doherty, J.A. at para. 51). Doherty J.A. noted that a “Duncan” credit cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

Sentence Imposed

[64] Taking into account the high degree of Mr. Beauparlant’s moral culpability and the predominant sentencing objectives of denunciation and deterrence that must be satisfied, and the balance of the mitigating and aggravating factors, including the circumstances of his presentence incarceration and the fact that he is a youthful first offender, I find 5 years incarceration to be a fit and appropriate sentence, taking into account the Duncan factors prior to application of the Summers credit for presentence custody.

[65] The sentence for each count shall be allocated as follows:

(a) Count One: Possession for the purpose of trafficking – Fentanyl – 5 years;

(b) Count Three: Possession for the purpose of trafficking – Hydromorphone – 2 years concurrent;

(c) Count Four: Possession for the purpose of trafficking – Oxycodone – 1 year concurrent;

(d) Count Five: possession of a prohibited weapon – 6 months concurrent;

(e) Count Six: possessing proceeds of crime not exceeding $5,000 – 6 months concurrent.

[66] Mr. Beauparlant’s global sentence of 5 years shall be reduced by presentence custody served. He has been in custody since January 29 2021 comprising 550 days. Applying a Summers credit of 1.5:1 would result in a credit of 825 days leaving 2 years and 270 days left to serve.

[67] I make the following corollary orders:

(a) A forfeiture order in respect of $1,850 in cash, two cell phones and a “butterfly” knife seized from the defendant;

(b) For collection of a DNA sample from the defendant on the basis that counts 1, 3 and 4 in the indictment are secondary designated offences; and

(c) A weapons prohibition under s. 109 of the Criminal Code for life.

[68] The victim surcharge is waived.

D.A. Broad, J.

Date: August 2, 2022