COURT FILE NO.: CR-19-0159-00 DATE: 2023-04-25
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King D. Hayton, for the Federal Crown T. Fairchild, for the Provincial Crown
- and -
Adrian Myles Puentes-Reed and Kalid Yousuf R. Rusonik, for Puentes-Reed F. Thatcher, for Yousuf
Accused
HEARD: April 25, 2023, at Thunder Bay, Ontario Mr. Justice F.B. Fitzpatrick
Reasons on Sentence
[1]
Introduction
I am rendering my decision on sentence in writing. By the end of business tomorrow I will provide counsel with a copy of these written reasons for the sentencing decision as I have read them. This final version, which reflects what I am about to read out loud to all of you, will be entered as the next Exhibit at this trial.
2On February 24, 2023, I released a trial decision in respect of the six-day trial of Mr. Puentes-Reed and Mr. Yousuf that was held at Thunder Bay in September 2022. I found both men guilty of all eight firearms, drugs and proceeds of crime offences for which they had been charged. In my view the background facts for this trial are particularly outlined in the written decision. The Court benefited from the extensive agreed statement of fact prepared by the parties which served to focus the trial and most efficiently make use of judicial resources as well as create the circumstances for a fair trial for both the accused.
[3]
The Joint Submission
The parties made a joint submission as to the sentences for both men. They are slightly different for each.
4For Mr. Puentes Reed:
a) 5 years jail on the possession of cocaine for the purposes of trafficking as per the conviction on count 2. b) 2 years concurrent on the possession of marijuana for the purpose of trafficking as per the conviction on count 3. c) 2 years concurrent on the possession of proceeds of crime as per the conviction on count 1. d) 4 years consecutive for the possession of a restricted Glock 17 handgun with readily accessible ammunition capable of being discharged in said firearm as per the conviction on count 6. e) 4 years concurrent on the other three weapons offences as per the convictions on counts 12, 13, 14 and 17. f) Credit for time served of 121 days enhanced to 182 days at the rate of 1.5 to 1. A Downes credit of thirteen months. g) This is an overall sentence of nine years in the penitentiary less time served. h) Mr. Puentes-Reed will be prohibited for life from possessing a restricted firearm pursuant to section 109 of the Criminal Code. i) He will provide a DNA sample forthwith. j) On a total days basis, the sentence will be 3,285 days in jail, less 578 days credit for presentence custody, leaving Mr. Puentes-Reed with 2,707 days to serve in his sentence which will start today.
5For Mr. Yousuf:
a) 4.5 years jail on the possession of cocaine for the purposes of trafficking as per the conviction on count 2. b) 2 years concurrent on the possession of marijuana for the purpose of trafficking as per the conviction on count 3. c) 2 years concurrent on the possession of proceeds of crime as per the conviction on count 1. d) 3.5 years consecutive for the possession of a restricted Glock 17 handgun with readily accessible ammunition capable of being discharged in said firearm as per the conviction on count 6. e) 3.5 years concurrent on the other four weapons offences as per the convictions on counts 12, 13, 14 and 17. f) Credit for time served of 138 days enhanced to 207 at the rate of 1.5 to 1. A Downes credit of nine months. g) Mr. Yousuf will be prohibited from possessing a restricted firearm for a period of ten years pursuant to section 109 of the Criminal Code. h) He will provide a DNA sample forthwith. i) This is an overall sentence of eight years in the penitentiary less time served. j) On a total days basis, the sentence will be 2,920 days in jail, less 477 days credit for presentence custody, leaving Mr. Yousuf with 2,443 days to serve in his sentence which will start today.
6With respect to both men the Crown has provided a draft consent order for the disposition of property which was seized pursuant to this investigation.
[7]
Analysis and Sentencing Principles
After considering the joint submissions of counsel I am of the view that the sentences proposed for both men are fit, just and appropriate sentence in all the circumstances of this case. I say so for the following reasons.
8There is no question the crimes committed by these men call for a mid-level range period of incarceration in a Federal penitentiary. The joint submission for sentence proposed falls within that range. The defence submits the sentences are on the high side. The Crown submits it is mid level. Regardless, in my view the four experienced counsel who appeared before me on this trial have made thoughtful, professional and realistic submissions on the sentences that must be imposed in this matter. I see their submissions as appropriately taking into account the wide array of considerations I am duty bound to consider both from the directions and guidance I am given by the Parliament of Canada in the Criminal Code and the common law precedents interpreting these provisions when a judge like myself is tasked with the often difficult job of pronouncing sentence.
9I take particular note of the recent decision of the Supreme Court of Canada in R. v. Parranto 2021 SCC 46, [2021] S.C.J. No. 46 at paragraphs 87 though 89 where Moldaver J. writes:
87 The dangers posed by trafficking in hard drugs, such as heroin and cocaine, have long been recognized in Canada. Over the past few decades, however, society's awareness of the true gravity of trafficking in such drugs has grown to the point that we are reminded, on a daily basis, of the death, destruction, and havoc it causes in communities across Canada.
88 Trafficking in such substances causes both direct and indirect harms to society. Directly, the distribution and abuse of hard drugs leads to addiction, debilitating adverse health effects, and, all too frequently, death by overdose, As Lamer J. (as he then was) astutely observed, where addiction and death occur - as they so often do - - those who oversee the distribution of these drugs are personally "responsible for the gradual but inexorable degeneration of many of their fellow human beings" (R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1053).
89 Trafficking also leads indirectly to a host of other ills, including an increase in all manner of crime, committed by those seeking to finance their addiction, as well as by organized crime syndicates (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paras, 85-87, per Cory J., dissenting, but not on this point; R. v. Kang-Brown, [2008] 1 S.C.R. 456, 2008 SCC 18, at para. 184, per Deschamps J., dissenting, but not on this point). Given that much of this criminal activity is violent, trafficking has come to be understood as an offence of violence, even beyond the ruinous consequences it has for those who abuse drugs and in the process, destroy themselves and others. Indeed, as Doherty J.A. has explained, violence is such a predictable consequence of the illicit drug trade that it cannot be dissociated from it:
Cocaine sale and use is closely and strongly associated with violent crime, Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be disassociated from its inevitable consequences. [Emphasis added.] (R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at para. 104)
10I agree with the submissions of the Crown that the principles of denunciation and deterrence are very significant factors in this case. I agree with submissions of the defence that there is an excellent prospect of rehabilitation for both these two relatively young men once they have paid their debt to society.
[11]
Circumstances of the Offenders
For both these men these sentences will not be easy. Mr. Yousuf has no criminal record. Mr. Puentes-Reed has a dated one. Both men are relatively young. I agree with the Crown submission that the case authorities are to the effect that a criminal sentence must be careful not to crush an offender.
12I was given a glimpse of the quality of Mr. Puentes-Reed’s family from hearing the trial testimony of his father and the submissions of his counsel and in written material provided to the Court. Mr. Puentes-Reed started his life in privilege. That changed. He was a victim of what seemed to me to be a vicious political crime when he was a young age. Mr. Puentes testified about this kidnapping incident at trial. While it was long ago, I understand how it can have continuing impact.
13Mr. Puentes is to be commended for his dedication to his son. He presents to me as a “stand up guy”. His unwavering support for his son has been impactful to me in a positive way. Mr. Puentes-Reed’s performance while on strict bail conditions have been exemplary. He has taken steps to pursue a different career path. He has told the Court that he regrets the choices he has made. He has not taken drugs since he was arrested in 2018. He asks for mercy from the Court. I believe what he said here today.
14Mr. Yousuf is engaged to be married. He has a personal record of hard work. He wants to better himself through post secondary education. He is a man of faith. He deserves a chance to turn away from the effects of the bad decisions that have led him to this place.
15Sentencing must balance an obligation to reflect and protect the interests of society with the particular circumstances of the individual offenders. At times the way these principles must be applied by judges can be misunderstood by the public.
16In this case I am acutely aware of the scourge that the active, violent, lucrative and apparently unending drug trade is having on the community of Thunder Bay and the Northwest Region. Persons are attracted to the apparent fast and easy money of preying upon a desperate cycle of poverty and addiction. The effects of this are real. I agree with the Crown that the facts of this case as I have found them represent an occasion of high-level drug trafficking motivated by greed. The cash proceeds seized in this case are astonishing. I do not expressly highlight them out of concern for their potential to suggest an attraction which is directly contrary to the message which should be taken from these reasons.
17Participation in this vicious, opportunistic and deadly business leads to ruin. The offences Mr. Puentes-Reed and Mr. Yousuf were convicted of are not without victims. The drugs seized in this case, including cocaine, perpetuate a cycle of addiction and poverty in this community. Such offences must carry significant penitentiary sentences for these two men before the Court.
18Accordingly for the reasons stated I accept the joint submission of counsel.
[19]
Sentences Imposed
Mr. Puentes Reed stand up please.
20I sentence you as follows:
a) To 5 years in a Federal penitentiary on the possession of cocaine for the purposes of trafficking conviction on count 2. b) To 2 years concurrent on the possession of marijuana for the purpose of trafficking as per the conviction on count 3. c) To 2 years concurrent on the possession of proceeds of crime as per the conviction on count 1. d) To 4 years consecutive for the possession of a restricted Glock 17 handgun with readily accessible ammunition capable of being discharged in said firearm as per the conviction on count 6. e) To 4 years concurrent on the other three weapons offences as per the convictions on counts 12, 13, 14 and 17. f) You will be given credit on your sentence for time served of 121 days enhanced to 182 days at the rate of 1.5 to 1. You will be given a so called “Downes” credit of thirteen months as time served. g) Overall you are sentenced to nine years in the penitentiary less time served. h) You will be prohibited for life from possessing restricted firearms pursuant to section 109 of the Criminal Code. i) You will provide a DNA sample forthwith. j) On a total days basis Mr. Puentes-Reed your sentence will be 3,285 days in jail, less 578 days credit for presentence custody, leaving you with 2,707 days to serve in your sentence which will start today. k) I recommend that Mr. Puentes-Reed be permitted to serve his sentence in a Federal Penitentiary in the province of Alberta so as to assist his family with being involved in such rehabilitative processes as Correction Canada officials recommend and permit.
21For Mr. Yousuf, please stand up.
22I sentence you:
a) To 4.5 years to be served in a Federal penitentiary on the possession of cocaine for the purposes of trafficking conviction on count 2. b) To 2 years concurrent on the possession of marijuana for the purpose of trafficking as per the conviction on count 3. c) To 2 years concurrent on the possession of proceeds of crime as per the conviction on count 1. d) To 3.5 years consecutive for the possession of a restricted Glock 17 handgun with readily accessible ammunition capable of being discharged in said firearm as per the conviction on count 6. e) To 3.5 years concurrent on the other four weapons offences as per the convictions on counts 12, 13, 14 and 17. f) Mr. Yousuf you will be given credit for time served of 138 days enhanced to 207 at the rate of 1.5 to 1. In addition, you will receive a so-called “Downes credit” of an additional nine months for time served. g) Mr. Yousuf you will be prohibited from possessing restricted firearms for a period of ten years pursuant to section 109 of the Criminal Code. h) you will provide a DNA sample forthwith. i) Mr. Yousuf you are receiving an overall sentence of eight years in the penitentiary less time served. j) On a total days basis, the sentence will be 2980 days in jail, less 477 days credit for presentence custody, leaving Mr. Yousuf with 2443 days to serve in your sentence which will start today. k) I recommend that Mr. Yousuf be permitted to serve his sentence in a Federal Penitentiary in the province of Ontario, and specifically Southern Ontario so as to assist his family with being involved in such rehabilitative processes as Correction Canada officials recommend and permit.
23With respect to both men the Crown has provided a draft consent order for the disposition of property which was seized pursuant to this investigation. Order to go as per draft filed.
24Although counsel did not address this in submissions, I will not impose a victim impact surcharge in this matter.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: April 25, 2023