COURT FILE NO.: CR-21-10000320-0000
DATE: 20221101
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
KENNY DANG
Julie Battersby, for the Crown
Alex Trica for Mr. Dang
HEARD: October 28, 2022
REASONS FOR SENTENCE
Corrick J.
Introduction
[1] This case is yet another illustration of the tragic consequences of the illicit drug trade. Melanie Fraser, a mother, daughter, sister, niece and cousin lost her life, and Kenny Dang, a young man with no criminal record, is going to the penitentiary.
[2] On September 22, 2022, Mr. Dang pleaded guilty to two counts of trafficking in carfentanil. I heard sentencing submissions on October 28. Mr. Dang appears before me today for sentencing.
Facts
[3] On June 19, 2019, Ms. Fraser called Mr. Dang to arrange a purchase of "purple" heroin. Ms. Fraser had purchased "purple" heroin from Mr. Dang on several prior occasions. At approximately 9:00 p.m., Ms. Fraser and her friend, Romeo Brennan, met with Mr. Dang and purchased a quantity of "purple" heroin.
[4] Ms. Fraser and Mr. Brennan ingested the heroin later that night. Mr. Brennan passed out soon after doing so. He woke up the following morning and saw Ms. Fraser on the floor. He tried to wake her but was unable to do so. She had died as a result of acute carfentanil toxicity.
[5] Mr. Brennan provided the police with the details of the purchase of the heroin from Mr. Dang. He gave the police Ms. Fraser's cell phone, which she had used to contact Mr. Dang.
[6] On June 20, 2019, D.C. Jennifer Guy contacted Mr. Dang by phone and pretended to be Ms. Fraser's friend. Mr. Dang agreed to sell the officer a quantity of heroin. He met the officer the next day and sold her a quantity of "heroin" for $60.00.
[7] Mr. Dang was arrested. His cell phone was seized as was the $60.00 of police buy money. The police located a further $330.00 in Mr. Dang's car. The total weight of the drugs sold to the officer was 0.3 grams. The police searched Mr. Dang and his car. They seized three cell phones. No further drugs were found.
[8] Remnants of the drugs Mr. Dang sold to Ms. Fraser and the drugs sold to the undercover officer tested as carfentanil.
Positions of the Parties
[9] The parties jointly submit that a prison sentence of four years is the appropriate disposition in this case. Ms. Battersby submits that the four years should be imposed in addition to any credit the court gives Mr. Dang for pre-sentence custody and restrictive bail conditions. Mr. Trica argues that five months and eighteen days should be deducted from the four years as credit for time Mr. Dang was subject to a curfew while on bail. He also argues that Mr. Dang should receive 12 days credit for the eight days he spent in pre-sentence custody.
[10] Ms. Battersby also seeks a weapons prohibition order for ten years and a DNA order. Mr. Trica does not contest those orders.
Governing Sentencing Principles
[11] In determining the fit sentence for Mr. Dang, I am governed by the sentencing principles set out in the Criminal Code.
[12] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing sentences with objectives that include denunciation, deterrence, rehabilitation, the promotion of responsibility and the acknowledgement of the harm that criminal activity does to victims and to our community. The sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[13] Furthermore, the sentence should be increased or reduced to account for any aggravating or mitigating circumstances related to the offence or the offender. It should also be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[14] Finally, I agree with Ms. Battersby that the principle of restraint is important in this case as Mr. Dang is a first offender. The sentence that I impose must be the least intrusive one that is proportionate to the seriousness of the crime and Mr. Dang's level of responsibility.
Mr. Dang's Personal Circumstances
[15] Mr. Dang is 29 years old. He was 26 years old when he committed these offences. He was born in Canada. He is one of three children raised by a single mother who emigrated from Vietnam. He has strong family support. His mother and other family members have attended in court to support him.
[16] He got married in 2019, prior to his arrest. He and his wife have known each other since 2016. They are still together, residing with Mr. Dang's mother as required by the conditions of his judicial interim release order.
[17] Mr. Dang has limited education, having left school in grade 10. He has not had steady employment, working at odd jobs as a telemarketer and in the construction industry. He has not been employed since his arrest. He indicated in a letter to the court that at the time of these offences, he was in a dark place having failed to find gainful employment and generally not succeeding in life. He began using and selling drugs.
[18] When Mr. Dang was invited to address the court, he expressed his remorse and accepted responsibility for his crimes. I accept that his remorse is genuine. Ms. Fraser was not a stranger to him. She was someone he knew and had interacted with several times. He was obviously emotional listening to Ms. Fraser's family members read their victim impact statements to the court.
The Range of Sentence
[19] 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 CanLII 230 (SCC), [1996] 1 SCR 500, at para. 92.
[20] 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.
[21] This part of my task is made more difficult because the appropriate range of sentence for trafficking in small amounts of carfentanil has not yet been firmly established. A brief review of the sentencing cases dealing with carfentanil reveals that those who distribute carfentanil on the street will face very stiff penitentiary sentences.
[22] In R. v. Hoang, 2022 ONSC 2534, the offender, a first offender, was found guilty of possessing a variety of dangerous drugs for the purpose of trafficking together with a firearm and ammunition. The trial judge found that the offender was running a large-scale wholesale narcotics operation. He was sentenced to a total of 18 years.
[23] Justice Low of this court sentenced the offender in R. v. Rhoden, [2021] O.J. No. 4357 to nine years in prison for possession of one ounce of carfentanil for the purpose of trafficking. MDMA was found along with the carfentanil, as was a loaded firearm. Mr. Rhoden had a significant criminal record for crimes of violence.
[24] The Court of Appeal reduced a twelve-year sentence to eight years in R. v. Disher, 2020 ONCA 710. The offender had a serious criminal record that included drug trafficking offences, was on probation at the time of the offences and had been released on bail only two weeks prior for other drug offences. He was found in possession of 42.6 grams of mixed powder, some of which contained carfentanil.
[25] The offender in R. v. Kochanska, 2020 ONCJ 385 was sentenced to 11.5 years in prison for possession of 13 ounces of a mixture of carfentanil, fentanyl and heroin for the purpose of trafficking. He was found with other drugs as well. He had a related criminal record.
[26] In R. v. Smyth, 2019 ONCJ 81 the offender was sentenced to seven years for possession of 41 grams of a mixture of heroin, fentanyl and carfentanil for the purpose of trafficking. The offender had a criminal record.
[27] In R. v. Imeson, 2019 ONCJ 245, two offenders with substantial criminal records received a total of 12 years in prison for possession of carfentanil for the purpose of trafficking. They possessed numerous other drugs as well.
[28] In R. v. Fabry, 2018 CarswellOnt 23066 (Ont. C.J.), a first offender pleaded guilty to several drug charges including possession of carfentanil for the purpose of trafficking. He was found in possession of 348 carfentanil pills. He was sentenced to eight years.
[29] I recognize that the cases to which I have referred involve larger quantities of carfentanil, a variety of different drugs, and in many cases the presence of firearms. In addition, most of the offenders had serious criminal records. These differences set them apart from Mr. Dang's case.
[30] The limited jurisprudence that is available makes it clear that offences involving the distribution of carfentanil will attract significant penitentiary sentences to give effect to the principles of deterrence, both general and specific, and denunciation.
Mitigating Circumstances
[31] Mr. Dang is a first offender. He is relatively young. He enjoys significant support from his family and friends. The letters filed in support of him speak to his good character and kind and giving nature. It appears that in 2019, the criminal behaviour he was engaged in was out of character for him.
[32] I accept that Mr. Dang is genuinely remorseful for the crimes he has committed and the tragic loss of Ms. Fraser's life. He accepts responsibility for the part he played in the death of Ms. Fraser and the pain and suffering he has caused her family. He is deeply ashamed of his actions and their consequences.
[33] Mr. Dang pleaded guilty to these charges. His plea is further evidence that he has accepted responsibility for his crimes and is remorseful. Although his plea was not entered early in the proceedings, it has saved the time and resources that would have been necessary to conduct a trial. This is significant given that the court is dealing each week with criminal trials that are not reached because of the backlog that has developed over the course of the pandemic. Mr. Dang's guilty plea, acceptance of responsibility, and remorse are mitigating circumstances deserving of credit.
Aggravating Circumstances
[34] The nature of the drug involved is aggravating. Mr. Dang trafficked in a lethal substance. Although no evidence was called about the nature of carfentanil, I am aware of other cases where courts have heard such evidence and considered it in their judgments. In R. v. Imeson and R. v. Kochanska, the court considered the evidence of Dr. Karen Woodall, a forensic scientist in the field of toxicology. Mr. Justice McKay quoted a report from Dr. Woodall at para. 9 of Imeson as follows:
Carfentanil is a synthetic opiate that is used as a tranquilizing agent for large animals and has never been approved for therapeutic use in humans. It is an extremely potent opiate that has been reported to be up to 10,000 times stronger than morphine and 100 times stronger than fentanyl.
[35] The lethal nature of carfentanil was also recognized by the Supreme Court of Canada in R. v. Parranto, 2021 SCC 46, where Justice Moldaver noted at para. 95, "that it has no safe or beneficial human use, even within the medical community in highly controlled environments."
[36] I accept that Mr. Dang was a low-level trafficker selling the product that he had purchased without adulterating it. However, people who produce and sell drugs are driven by a single motive – profit. Mixing cheaper synthetic poisons like fentanyl and carfentanil with heroin dramatically increases their bottom line. This surreptitious addition of lethal substances to other street drugs makes every sale a game of Russian roulette with the end user like Ms. Fraser, who had no way of knowing what she was consuming. Penalties meted out to people who traffic in these poisons must reflect the fact that the end users are vulnerable people who are unable to assess the safety of the product they purchase. This is equally applicable to street-level traffickers and mid and high-level traffickers.
[37] The fact that Mr. Dang's criminality was not limited to a single event is an aggravating feature of this case. In addition to the two occasions that gave rise to the charges before the court, Mr. Dang admitted to having sold drugs to Ms. Fraser on prior occasions.
[38] Greed motivated these offences. Mr. Dang was not motivated by his own addiction. This is an aggravating factor.
[39] I have also considered the devastating consequences of Mr. Dang's crime. Ms. Fraser lost her life. Her death has shattered her family. The grief and misery Ms. Fraser's family is suffering was evident during their reading of their victim impact statements.
Pre-trial Custody and Restrictive Bail Conditions
[40] Mr. Dang spent eight days in jail before being released on bail. The parties agree that he should be credited with twelve days of pre-trial custody.
[41] He was released on bail on June 28, 2019. The conditions of his bail required him to live with his mother and remain in his residence between the hours of 9:00 p.m. and 6:00 a.m. unless he was in the direct and continuous presence of his mother. He was also permitted to possess a single cell phone but only under the supervision of his mother.
[42] An affidavit sworn by Mr. Dang set out the impact the conditions of his release have had on his relationships and his daily life. He and his wife have not been able to live on their own. Their social life has been curtailed by Mr. Dang's curfew, and they have had very little privacy as a couple. Mr. Dang has become socially isolated from friends and members of his father's family, who reside in Hamilton.
[43] 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.
[44] I am satisfied that his bail conditions interfered with his ability to maintain normal relationships with his family and to carry on normal social activities for a young person. I am mindful that Mr. Dang did not apply to have the conditions varied and that while on bail, Mr. Dang would have been subject to certain public health lockdowns related to the COVID-19 pandemic. Nevertheless, the conditions restricted his liberty at a time when he was presumed innocent. This is a mitigating factor that must be considered: R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555, at para. 37. (C.A.).
[45] Mitigation for restrictive bail conditions is discretionary. There is no mathematical formula to apply. Rather than treated as a deduction, restrictive bail conditions may be considered as a mitigating factor in determining the appropriate sentence.
[46] In my view, the sentence of four years proposed by counsel adequately takes into account mitigation for restrictive bail conditions, and I decline to reduce it for this purpose.
[47] Mr. Dang is however entitled to have the sentence reduced by the twelve days he spent in pre-sentence custody.
Determination of a Fit Sentence
[48] Sentencing is one of the most difficult things a trial judge does. It is especially difficult in a case such as this. The offences are very serious and have had tragic consequences for Melanie Fraser and her family. On the other hand, Mr. Dang is a first offender with strong family support and good rehabilitative potential.
[49] When I consider all of the applicable sentencing principles, I am satisfied that the proposed sentence of four years is the fit disposition in this case. As I indicated, Mr. Dang will be credited twelve days for the eight days he spent in pre-sentence custody.
[50] The sentence of four years less twelve days is imposed on both counts to run concurrently.
Ancillary Orders
[51] I also make the following ancillary orders: a weapons prohibition order for ten years and a DNA order.
Corrick J.
Released: November 1, 2022
COURT FILE NO.: CR-21-10000320-0000
DATE: 20221101
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
KENNY DANG
REASONS FOR SENTENCE
Corrick J.
Released: November 1, 2022