Overview

[1] On June 22, 2022, I dismissed the defendant’s application to exclude evidence made pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms. My Reasons can be found at R. v. Griffith, 2022 ONSC 3558. As the defendant did not contest the facts, I entered findings of guilt on two counts of possession of controlled substances for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), and one count of possessing the proceeds of crime, not exceeding $5,000, contrary to s. 355(b) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] On October 7, 2022, I heard submissions on sentencing. For the reasons set out below, I have concluded that Mr. Griffith should be sentenced to a total of 5 years in prison.

Relevant facts

[3] My Reasons on the Charter application describe the facts of the arrest and how Mr. Griffith was found to be in possession of drugs and the proceeds of crime.

[4] The substances included approximately 68 grams of powder cocaine and 3.25 grams of crack cocaine which were found on Mr. Griffith’s person when arrested. Approximately 58 grams of fentanyl was found in the defendant’s car. Mr. Griffith was also found in possession of over $3,000 in Canadian currency.

[5] According to the expert report regarding the substances, the street value of the cocaine and crack cocaine was between $5,709 and $7,850. The fentanyl had a street value in the range of $11,000.

[6] It was admitted that the substances were possessed for the purpose of trafficking and that the cash was the proceeds of crime.

Positions of the parties

[7] The Crown submitted that Mr. Griffith should receive a sentence of 6 years imprisonment, which, it was argued, was in the middle of the range for fentanyl trafficking offences which, according to the Crown, is between 5 and 7 years. The defence submitted that a sentence of 3 years is appropriate, acknowledging that this would be at the very low end of the range for offences of this type.

The circumstances of the defendant

[8] I was informed by counsel for Mr. Griffith that he is currently 38 years old. He is single but has a son who is 13 years old. Although separated from the son’s mother, they amicably share parental responsibilities. Mr. Griffith lives with his mother and two brothers. He is a member of the Carpenters Union and works on construction projects.

Applicable sentencing principles

[9] Section 718 of the Criminal Code states:

The fundamental purpose of sentencing is to protect society and 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 that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[10] Sentencing is highly case-specific and must be tailored to the individual circumstances of the accused and the offences. The sentence imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”, as set out in s.718.1 of the Criminal Code. It must also take into account aggravating and mitigating circumstances, including those set out in s. 718.2 of the Criminal Code. Section 718.2 also directs that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” Judges must exercise restraint in imposing imprisonment to ensure that sentences are not “unduly long or harsh.”

[11] Section 10(1) of the CDSA also provides guidance, stating:

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.

[12] The fact that Mr. Griffith was trafficking in fentanyl is significant. Just last year, in R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at paras. 87–92, Moldaver J. discussed in detail the harmful effects of hard drugs such as heroin and cocaine which, he noted are “far less deadly than fentanyl.” Moldaver J. listed effects such as the serious harm to health and, not infrequently, death, for users. Violence and other criminal activity go hand in hand with trafficking such drugs. Families, and particularly children, suffer harm from the effects of addiction in homes, and families can be torn apart by such drug use. Trafficking in these drugs, Moldaver J. observed, “tears at the very fabric of society” (at para. 92, quoting from Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 98), with huge costs to the community and the public, in health care, social supports and law enforcement. The emergence of fentanyl “has altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy number one”: Parranto, at para. 93.

[13] In light of these effects, in fentanyl trafficking cases the Court must give much weight to the need for denunciation and deterrence of such crimes.

Aggravating and mitigating circumstances

[14] Aggravating factors in this case include, of course, that Mr. Griffith was trafficking in cocaine and fentanyl. He was in possession of the drugs, either on his person or in his car, in the middle of the day, in a public shopping area, when he was with his young son, who was only ten years old at the time. It is well known that even passing contact with fentanyl can be very harmful.

[15] On the mitigating side, Mr. Griffith is, it appears, an otherwise productive member of society, a union member with construction skills. He has good prospects for rehabilitation. He is a father, and apparently a responsible parent. Although I have few details, he appears to have supports in the community from his family, as well as from the mother of his child who attended in court when sentencing submissions were made.

[16] The Crown did not tender a prior criminal record; however, following the completion of counsel’s submissions, Mr. Griffith instructed his counsel to disclose to the court that he did, in fact, have a criminal record. Between 2003 and 2006 Mr. Griffith was convicted of assault, obstructing a peace officer and two counts of possession of a Schedule I substance under the CDSA. For the final possession charge, in June 2006, he received a 90-day intermittent sentence and 12 months probation.

[17] In light of the length of time that has passed since those prior offences were committed, which did not involve the type of serious offences Mr. Griffith has now committed, I give his record little weight.

[18] There was also no evidence of actual trafficking or for how long Mr. Griffith had been engaged in trafficking.

[19] Although Mr. Griffith did not plead guilty, he did not contest the facts once the Charter issue had been litigated. Nor should Mr. Griffith be faulted for bringing the Charter application as I found that his rights had been violated, but held that the evidence should, nevertheless, not be excluded.

Analysis and appropriate sentence

[20] The Crown relies on three decisions to support its position that 6 years is an appropriate sentence: R. v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88; R. v. Beauparlant, 2020 ONSC 4686; and R. v. Piri, 2020 ONSC 920.

[21] I found Beauparlant to be most similar to this case. Mr. Beauparlant was found leaving the scene of an accident and following his arrest he was discovered to be in possession of 38.9 grams of fentanyl, $1,850 in cash and a folding knife. At trial the facts were admitted, and the only issue was whether his rights under s. 10(b) of the Charter had been violated. The trial judge held that there had been a Charter violation but, as in this case, he declined to exclude the evidence after considering the factors in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[22] Mr. Beauparlant was a youthful first offender. He had a supportive family and good prospects for rehabilitation. Little was known about Mr. Beauparlant’s trafficking activity other than it was being carried on for financial gain and not to feed an addiction. This is also the case with Mr. Griffith.

[23] In Beauparlant the sentencing judge, Broad J., also considered and rejected the submission that the Charter breach was a factor that should reduce the sentence, noting that the officers acted in good faith and there was “no evidence of police violence or abuse”: at para. 59. Again, this is similar to Mr. Griffith’s situation and the Charter breach is not a factor in determining his sentence.

[24] Following a review of sentences for comparable offences, and consideration of the Court of Appeal decision in Disher and the Supreme Court decision in Parranto, Broad J. observed that trafficking in fentanyl carries with it “a high degree of moral culpability” and imposed a sentence of 5 years.

[25] Piri was also a fentanyl trafficking case. The accused was 39 years old, had addiction issues and a modest criminal record including two recent convictions, one for possession of a Schedule I substance under the CDSA. Justice Kelly, following an extensive review of the sentencing cases, imposed a sentence of 6 years.

[26] In Disher, the Court of Appeal reduced a sentence of 12 years to 8 years for an accused described as a “mid-level recidivist trafficker.” In that case, Disher was also found in possession of carfentanil which is even more toxic than fentanyl.

[27] Cases relied on by the defence were: R. v. Durreger, 2018 ONSC 1749; R. v. Lu, 2016 ONSC 292; and R. v. Lloyd, 2019 BCCA 128.

[28] In Durreger, the accused had a lengthy and serious criminal record including 17 prior convictions for a wide range of offences including robbery, assault and aggravated assault, possession of weapons and drug possession. He also had addictions and was 33 years old. On the trafficking offences, which included cocaine and fentanyl, he received a sentence of 5 years.

[29] Lloyd was considered by the Ontario Court of Appeal in Disher. In Lloyd, the British Columbia Court of Appeal upheld a six-year sentence for possession of fentanyl for the purpose of trafficking. However, the offences included assaulting a police officer and carrying a concealed weapon, among others. Mr. Lloyd, who was 29 years old, also had a lengthy criminal record.

[30] Lu involved a 28-year-old man with a prior record for drug trafficking. Mr. Lu was also found in possession of considerable quantities of fentanyl and cocaine, including crack cocaine and was dealing for financial gain. He received a sentence of 5 years, after receiving credit for 7 months arising from the length of time he had spent on strict conditions of release prior to trial.

[31] Having considered these cases, the sentence sought by the defence of 3 years cannot be supported. I agree with the Crown that sentences in the range of 5 to 7 years are appropriate. Indeed, it seems to me that the length of sentences for these types of offences are increasing, especially those involving fentanyl. In my view, Durreger, which was decided in 2018, is on the low side today, given the facts and prior record of the offender.

[32] Sentencing is highly fact specific and I must take into account the circumstances of the individual offender and his circumstances. While the goals of denunciation and deterrence must be given weight in this case, the principle that judges must exercise restraint is not to be ignored.

[33] Mr. Griffith is, essentially, a first offender. He has good prospects for rehabilitation. His case did not involve violence or, as in Beauparlant, possession of weapons. On the other hand, he was trafficking a very dangerous drug for financial gain. In all the circumstances I have determined that a total sentence of 5 years is appropriate. I sentence Mr. Griffith to 5 years in prison on each of Counts 1 and 2, and 12 months on Count 3, all to be served concurrently.

[34] I am prepared to hear from counsel regarding ancillary orders.

Paul B. Schabas J.

Released: November 24, 2022

COURT FILE NO.: CR-21-90000374

DATE: 20221124

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

DAVID GRIFFITH

REASONS FOR SENTENCE

Schabas J.

Released: November 24, 2022

R. v. Griffith, 2022 ONSC 6406

Case Summary

Overview

Relevant facts

Positions of the parties

The circumstances of the defendant

Applicable sentencing principles

Aggravating and mitigating circumstances

Analysis and appropriate sentence

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 6

Legislation 8