COURT FILE NO.: CR 21-1119 (Walkerton)

DATE: 2022-11-21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

-and-

JEREMY HALK and NICOLE VALAD

E. Barefoot, for the Crown

A. Loucks, for Mr. Halk

Hearing: November 21, 2022 in person in Owen Sound

Justice R. Chown

REASONS FOR Sentence

[1] Jeremy Halk has pled guilty to possession of methamphetamine for the purposes of trafficking.

[2] The Crown’s position is that six years is the appropriate sentence, and this reflects consideration of the “Duncan credit” but not the “Summers credit,” that is, not enhanced credit under s. 719(3.1). The Crown agrees that Summers credit at 1.5:1 is appropriate for pre-sentence custody.

[3] The defence position is that the appropriate sentence is time served.

[4] The Crown and the defence agree that after his arrest on the charge he is being sentenced for today, Mr. Halk received a 120-day sentence in another matter. It is agreed Mr. Halk should not receive additional credit for this time in the calculation of sentence in this matter.

Principles of Sentencing

[5] Under the Criminal Code, s. 718,

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;

(c) to separate offenders from society, where necessary;

(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.

[6] Under s. 718.1, it is a fundamental principle that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[7] Section s. 10(1) of the Controlled Drugs and Substances Act (S.C. 1996, c. 19) (CDSA) also deals with the purpose of sentencing. It states:

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.

Circumstances of the Offence

[8] On October 18, 2020, Mr. Halk had 991.7 grams of methamphetamine at his feet while a passenger in a Honda Civic being driven by the co-accused, Nicole Valad. The police had information that led them to his arrest. The police approached the vehicle on foot when it arrived in a parking lot where the police were present. Mr. Halk could be heard yelling at Ms. Valad to “Go,” and she accelerated, completing a turn in the lot, travelling towards an exit. The exit was blocked with police vehicles. The Civic came into contact at low speed with an unmarked police vehicle, with no damage to the police vehicle and no injuries. As indicated, the methamphetamine was located at Mr. Halk’s feet.

[9] At the sentencing hearing, the Crown called Det. Const. Sid Friederichsen, who was acknowledged by the defence to have expertise in the use, pricing, sale, and distribution of methamphetamine. Det. Const. Friederichsen testified that a typical single dose of methamphetamine for a low-end user would be 0.1 grams, called one “point.” A typical dose for a more experienced user would be 0.2 grams, and up to one gram per day.

[10] In other words, a kilogram of methamphetamine would contain 5,000 to 10,000 doses.

[11] Det. Const. Friederichsen’s evidence was that the pricing for methamphetamine is affected by quality and availability of the drug as well as the dealer-buyer relationship. Price can vary in different cities and rural areas, with rural and northern areas generally commanding higher prices. Pricing is also highly dependent on the quantity sold. His evidence is that in 2020, one point sold for $10 to $40, one gram sold for $70 to $150, one ounce sold for $450 to $2,000, and one kilogram sold for $8,500 to $35,000. If sold in one-gram quantities, the value of the seized methamphetamine would be $69,000 to $148,000.

[12] Mr. Halk testified and in cross examination said that he paid $10,000 for the methamphetamine, which he bought in “the GTA.” When asked if he intended to sell the methamphetamine at the gram level or the ounce level, Mr. Halk said he “hadn’t got that far.” He had no idea what he was going to sell it for in terms of quantities or prices. He then said, “I am more of a user and me and a couple friends like to have a clean supply that’s not tainted with fentanyl.” When asked if it was his evidence that he bought this for him and his friends, he answered, “It’s for personal use on a large scale.”

[13] Counsel agreed that this statement did not impact Mr. Halk’s acknowledgement of guilt because the definition of trafficking includes giving, transferring, and transporting.

Circumstances of the Offender

[14] Mr. Halk is 36 years old. He has a lengthy criminal record that includes offences going back to 2003. He has possession of narcotics convictions dating back to 2008 with additional convictions in April 2010 and October 2010. He was also convicted of possession of a schedule 1 substance and possession of a schedule 1 substance for the purpose of trafficking in November of 2011, and a further possession charge later that same month.

[15] Mr. Halk’s record since 2014 is as follows:

Date

Offence

2014-07-21

• dangerous operation of a motor vehicle

2015-01-13

• driving while disqualified

2015-03-09

• possession of a schedule 1 substance

2015-05-21

• disobeying order of court

2015-06-29

• assaulting a police officer

• escape lawful custody

2015-07-10

• possession of a schedule 1 substance

2016-08-08

• driving while disqualified

2016-12-01

• escape lawful custody

2017-10-10

• assault

2017-10-31

• obstruct peace officer

2017-11-28

• possession of property obtained by crime over $5000

• possession of a schedule 1 substance for the purpose of trafficking

• possession of property obtained by crime under $5000

• possession of a schedule 3 substance for the purpose of trafficking

2018-08-16

• uttering threats

• fail to comply with probation order

2019-03-13

• driving while disqualified

• possession of property obtained by crime under $5000

2019-03-13

• operation of a conveyance while prohibited

• flight while pursued by peace officer

• fail to comply with recognizance

[16] Mr. Halk was on probation at the time of the offence. He has been in custody since the current charges were laid.

[17] Mr. Halk was born and raised in Walkerton. A presentence report (“PSR”) indicates that Mr. Halk has one younger brother. He had a positive childhood. He started abusing drugs in his teenage years and his relationship with his parents began to deteriorate. He left home when he was 17. His parents have severed their relationship with him. He has not been in any long-term relationships but does have two children who do not reside with him. Mr. Halk completed grade 11 in high school. He has completed credits while in custody and now has a high school equivalency certificate.

[18] Mr. Halk started using methamphetamine and marijuana as a teen. The PSR states that Mr. Halk smokes marijuana regularly and that he used methamphetamine “sometimes every day, sometimes not for four or five days.” He told the parole officer who wrote the report, “I just like using meth because it keeps me focused” and “I don't have an issue with drugs.” He said that apart from his parents, no one has ever expressed their concern about his drug use. He also said he started taking medication for ADHD in July 2021 while in custody. He has not had the desire to use methamphetamine and does not believe that he will return to using after his release from custody. He has attended drug counseling previously while in custody but has not completed counseling in the community.

[19] These comments are astonishing in light of his testimony before in which he implied that he had bought a kilogram of methamphetamine primarily to share with friends so that he could have a safe and high-quality supply. I am left uncertain as to the extent of Mr. Halk’s substance abuse disorder. He either lacks insight into the extent of his addiction, or he is not addicted, which would mean he was selling drugs to make money and was not honest about his plans for the methamphetamine when he testified.

[20] I strongly suspect that Mr. Halk has a substance abuse disorder. This appears to be the opinion held by the parole officer who prepared the PSR:

The subject comes from a stable home and supportive parents, however, it is clear the subject’s addiction to drugs has consumed his adult life. He has been in and out of custody, and that coupled with his drug addiction, has resulted in his family removing themselves from the subject’s life. The subject has not been able to maintain employment and instead has had brief periods of employment and support from social assistance.

Based on the subject’s pattern of criminal activity, and his previous response to community supervision, this writer does not believe the subject would be suitable candidate [sic] for future community supervision.

[21] The PSR also indicates that Mr. Halk justified his actions by saying, “it was COVID, people needed to make money.” He also described the circumstances surrounding his arrest as “shady," and stated that “the drugs aren't worth the value they say they are.”

[22] It would appear from his comments that Mr. Halk lacks insight into his addiction and addiction behaviour in general. I am pessimistic about Mr. Halk’s ability to avoid illicit drug use once he is released.

Sentences Imposed in Similar Offences

[23] A principle that I must take into consideration is that an offender’s sentence should be similar to the sentences imposed on similar offenders for similar offences committed in similar circumstances: Criminal Code, s. 718.2(b).

[24] Ms. Barefoot and Mr. Loucks have each provided me with numerous sentencing decisions in cases involving possession of methamphetamine and other drugs for the purpose of trafficking. I have reviewed all the cases that were provided to me and many of the cases cited in them, as well as other decisions.

[25] A wide range of sentences is imposed in the cases, each turning on their own facts. The cases must be read bearing in mind that methamphetamine was moved onto schedule 1 in 2008, according to Det. Const. Friederichsen. (In R. v. Ho, [2011] O.J. No. 6672, at para. 33, Molloy J. said that it was moved to schedule 1 in 2005.) The dangerous nature of methamphetamine is reflected by the fact that it was added to schedule 1, which includes the most dangerous drugs including heroin, cocaine, opium, oxycodone, fentanyl, and morphine. The maximum penalty for possession of a schedule 1 drug for the purpose of trafficking is life in prison.

[26] An important objective factor in determining a sentence in these cases is the amount of the drug that the accused was caught with.

[27] Mr. Loucks relies on R. v. A.S., 2010 ONCA 441 where the accused was convicted of trafficking 7 kg of methamphetamine and 2.2 kg of marijuana. The Court of Appeal upheld a sentence of six years. Mr. Loucks relies on this to support his argument that the Crown’s request of six years in this case is disproportionate given Mr. Halk only possessed less than 1 kg. One distinguishing factor in A.S., however, is indicated at para. 3: “While the greater quantity of methamphetamine was trafficked after the change in the Schedule making the trafficking in methamphetamine a more serious offence, the chain of offences was initiated by the undercover officer before that change.”

[28] In R. v. Sadikov, 2015 ONSC 4447, the accused was found in possession of 3 kg methamphetamine, 1 kg ketamine, and small amounts of MDMA, marijuana, opium, and heroin. Thorburn J. (as she then was) said that “the range of sentence for possession of this quantity of drugs for the purpose of trafficking, is between four and nine years.” This was obviously a considerably higher amount than the accused had in his possession here. The decision includes a helpful and detailed review of numerous sentencing cases.

[29] Ms. Barefoot relies on R. v. Bryan, 2011 ONCA 273, where the Court of Appeal stated that sentences of five to eight years would reflect the proper range for someone, without a record, convicted of possession for the purpose of trafficking slightly more than a pound of cocaine. Trying to equate a pound of cocaine to an equivalent amount of methamphetamine would be a difficult task even if I had evidence on the point. Saunders J. made the point in R. v. Subramaniam, 2020 BCSC 1641, at para. 20, that comparing the harm caused by a dose of cocaine versus a dose of methamphetamine would require evidence. From Det. Const. Friederichsen’s evidence, I know that a dose of methamphetamine has a very small mass (0.1 g to 0.2 g, or 100 to 200 micrograms). Having read many of the sentencing cases, I am not able to deduce that there are an equivalent number of doses in a kilogram of methamphetamine compared to a pound of cocaine. For example, in R. v. Meech, 2011 ONSC 1815, at para. 7, it was said that 4 kg of highly pure cocaine would yield 15,996 doses or lines of cocaine, for a total value of $480,000. This equates to about 0.25 g per dose. However, clearly this is dependent on the purity of the cocaine and no doubt on other factors.

[30] Ms. Barefoot also relies on R. v. DiBenedetto, 2016 ONCA 116, where the Court of Appeal said that the case law establishes a range of sentence of 6 to 12 years for offences involving trafficking of between 0.5 to 1 kg of heroin. Again, without evidence it is difficult to assess how a kilo of heroin compares to a kilo of methamphetamine in terms of the number of doses or value or potential harm.

[31] A third Ontario Court of Appeal decision that Ms. Barefoot has directed me to is R. v. Lamacchia, 2021 ONCA 904. The trial judge sentenced the offender to a total of 8 years for two separate indictments involving possession of cocaine for the purpose of trafficking. The first offence involved 1.04 kg and the second offence, less than six months later, involved 44.8 g. The accused had a lengthy record. Donohue J. said (unreported, CR-18-4640 and CR-19-4726, October 26, 2020, at para. 57) that the sentencing range of 5 to 8 years for a pound of cocaine was low when compared to the circumstances of that case, and that it was inappropriate to consider a sentence of less than 8 years. The Court of Appeal dismissed the appeal.

[32] While no precision is possible when evaluating the harm caused by a kilo or a dose of cocaine or heroin and a kilo or a dose of methamphetamine, I accept that Bryan, DiBenedetto and Lamacchia are of value as guidance. Methamphetamine, cocaine, and heroin are on schedule 1. It appears that a kilo of any of these three drugs is a very significant amount for a mid-level dealer. A kilo certainly equates to many doses for these drugs. In R. v. Copeland, 2007 ONSC 37232, a joint submission of 3 years was upheld for possession for the purposes of trafficking involving less than 300 g of methamphetamine and about 13 g for cocaine in powder and crack forms. At para. 35 of Copeland, Spies J., referring to R. v. Grant 2007 MBQB 135, at paras. 36 to 37, said that “there is no longer a logical sentencing distinction between persons who traffic in heroin, who have historically received greater punishment, from those who traffic in cocaine or methamphetamine in that all are serious drugs subject to the same maximum penalty of life imprisonment.”

[33] Again, Bryan, DiBenedetto and Lamacchia all provide helpful guidance in this case.

[34] In the foregoing discussion, I have focussed on the quantity of drugs as an important factor in determining a fit sentence and have noted that quantity might be evaluated in terms of mass, doses, or harm. It is an important factor, but one does not simply use a comparative scale of the quantity involved to determine sentence. The quantity involved is important and it certainly helps benchmark, but it is not the only factor in determining an appropriate sentence.

Aggravating and Mitigation Circumstances

1. Aggravating Circumstances

[35] Another principle that I must take into consideration is that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence with the offender: CCC s. 718.2(a).

[36] Aggravating circumstances here include Mr. Halk’s record, which is significant. He has 47 prior convictions with 13 being CDSA offences and four being possession for the purpose of trafficking.

[37] Under s. 10(2)(b) of the CDSA, it is an aggravating factor that Mr. Halk was previously convicted of a “designated substance offence,” as defined in subsection 2(1) of the CDSA. However, in this case, that is no more than to say that his previous criminal record is an aggravating factor.

[38] What his record shows is that he is a repeated drug trafficker.

[39] The amount of methamphetamine is another significant aggravating factor. Mr. Halk brought thousands of doses to Hanover, a small community. The harm that this amount of methamphetamine would have caused is substantial.

2. Mitigating Circumstances

[40] Mitigating circumstances here include the fact that Mr. Halk pled guilty. In addition, he has used his time in custody to obtain his G.E.D., and he has impressed the program coordinator with his initiative. Ms. McErlean noted that many incarcerated individuals succumb to the negativity and marginalization that often accompany being jailed, but Mr. Halk has found a new sense of self-worth.

[41] A further mitigating factor is the harsh conditions that Mr. Halk has experienced while awaiting sentencing. These harsh conditions both to date and going forward could also be considered collateral consequences and therefore a mitigating factor.

[42] Mr. Halk testified that he has spent 315 days in 24-hour lockdown. He was allowed out of his cell generally once every other day to shower and that was it. On a non-lockdown day, he would normally get released from his cell at 12 noon for two hours (this is in addition to times to have a shower). During lockdown, Mr. Halk was not able to engage in the day room and he would not have any meaningful interaction with other inmates. He felt it was equivalent to solitary confinement. He once had 28 days straight of lockdown. To pass the time in his cell, all there is to do is to read, if he can get books.

[43] Mr. Loucks advises that the CNCC lockdown records are demonstrably inaccurate in that there are discrepancies between the lockdown records and the CNCC observation reports. He advises that when the CNCC records are correlated, they show that Mr. Halk experienced 268 days of lockdown (up to July 24, 2022 – that is, not including lockdown days since then).

[44] Ms. Barefoot demonstrated in her cross examination that Mr. Halk’s records are not fully accurate either.

[45] It is not possible to be fully precise with the lockdown days, but I accept that Mr. Halk has experienced roughly 300 days of lockdown during his time at CNCC. I further accept that this would be exceptionally difficult to endure.

[46] The Court of Appeal has explained in R. v. Marshall, 2021 ONCA 344 that Duncan credit is given on account of particularly difficult and punitive presentence custody conditions. The court held that the very restrictive conditions in the jails and the health risks brought on by COVID-19 are good examples of the kind of circumstance that may give rise to Duncan credit. The court also noted that the Summers credit is statutorily capped at 1.5 to 1, and it is wrong to think of the Summers credit as a mitigating factor. The Duncan credit, on the other hand, is a mitigating factor to be taken into account – but it cannot justify the imposition of a sentence that is inappropriate having regard to all the relevant mitigating or aggravating factors. The Court of Appeal discouraged giving a specific number of days or months as Duncan credit as there is a risk that this will improperly treat the Duncan credit as a deduction from the appropriate sentence in the same way as the Summers credit. Duncan credit should not be permitted to take on an unwarranted significance in fixing the ultimate sentence imposed.

Restraint

[47] A further important principle is the principle of restraint. A custodial sentence should be imposed only when necessary and should be the minimal time required for a fit and appropriate sentence. In this case, Court of Appeal guidance makes it clear that a significant penitentiary sentence is called for. However, the sentence should be no longer than is necessary to reflect the principles and objectives of sentencing.

Sentence

[48] Mr. Halk please stand.

[49] Denunciation and deterrence are the most important objectives of sentencing in this case. Your criminal record and the amount of methamphetamine that you had in your possession must result in a significant sentence.

[50] A fit and appropriate sentence in this case is five years. This reflects reduction for the mitigating circumstances of the lockdowns and other harsh conditions and COVID concerns that you have experienced in CNCC.

[51] Mr. Halk is also entitled to a Summers credit at 1.5:1 but not on the time spent serving his 120-day sentence and not on the period between September 29, 2022 and October 31, 2022 because that delay was caused by Mr. Halk’s refusal to get on the transport vehicle, which resulted in a delay of his sentencing.

[52] In addition, there shall be a s. 109 order for life, forfeiture for all items seized, and a secondary DNA order.

Addendum

[53] Upon review of the transcript and re-reading these written reasons, I have realized that these reasons are unclear on one point about credit for the 32 days between September 29 and October 31, 2022. It was my view that Mr. Halk should not receive 1.5:1 credit for these days but only credit at 1:1. The formal order I signed reflects that he did receive credit at 1:1.

Chown J.

Judgment given orally: November 21, 2022

Written version released: December 5, 2022

Addendum released: January 5, 2023