COURT FILE NO. : CR-18-00004305-000 DATE : 20230516 DELIVERED ORALLY AND MADE AN EXHIBIT
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – MARK JOHN RYN
Counsel: Richard L. Pollock, for the Crown Kenneth S. Marley, for the Offender
HEARD: January 27, 2023
REASONS FOR SENTENCE
Howard J.
Overview
1In a two-count indictment, Mr. Mark John Ryn was charged with conspiracy to import fentanyl and possession of fentanyl for the purpose of trafficking.
2On June 16, 2022, following a seven-day trial before a jury, the jury returned a verdict of “guilty” on both counts in the indictment.
3In specific terms, Mr. Ryn was found guilty of:
a. Committing the offence, contrary to s. 465(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46, of conspiracy to commit the indictable offence of importing a Schedule I substance, being fentanyl, from the People’s Republic of China between August 30, 2016, and February 27, 2017, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as charged in count 1 of the indictment, and
b. Committing the offence of possession of fentanyl, a Schedule I substance, on or about February 27, 2017, for the purpose of trafficking, contrary to s. 5(2) of the CDSA, as charged in count 2 of the indictment.
4Mr. Ryn is now before me for pronouncement of sentence, the sentencing hearing having been held on January 27, 2023, and Mr. Ryn having been unable to attend, by reason of illness, on March 9, 2023, the date originally scheduled for the pronouncement of sentence.
Factual Background
Circumstances of the Offence
5Many of the essential background facts were the subject of an agreed statement of facts between the parties, which was entered as Exhibit No. 23 at trial.
6On August 30, 2016, an officer with the Canada Border Services Agency examined a parcel that had entered Canada by mail/courier from the People’s Republic of China. The officer examined this parcel, which was addressed to Ms. Beth Ann Vandelinder at 4265 Mitchell Crescent, Windsor, Ontario.
7Inside the parcel was a metallic baggie. Inside the baggie was a powdery substance. The parcel and its contents were removed from the mail stream and secured for laboratory analysis.
8The contents of the metallic baggie were analyzed and found to be fentanyl citrate, a controlled substance listed in Schedule I of the CDSA. The total weight of the fentanyl including its packaging was 9.6 grams.
9On February 22, 2017, a letter-package was selected for secondary inspection by a CBSA officer at the Vancouver International Mail Centre in Richmond, British Columbia. The package was sent from the People’s Republic of China.
10The CBSA officer examined the letter-package and its contents. Found within the package was six (6) grams of fentanyl.
11The package was addressed to Ms. Beth Ann Vandelinder at her family’s residence at 4265 Mitchell Crescent, Windsor, Ontario (the “4265 Mitchell Residence”).
12After the contents of the package were confirmed to be fentanyl, the package was securely delivered to the Royal Canadian Mounted Police, and both the package and the fentanyl remained within the care and custody of the RCMP.
13The seized fentanyl was substituted with an inert substance for the purpose of a controlled delivery by the RCMP to its indicated recipient, Beth Ann Vandelinder at the 4265 Mitchell Residence, in Windsor.
14Acting as a courier service person, an undercover officer of the RCMP was tasked with delivering the package to the 4265 Mitchell Residence.
15The package was received by Ms. Vandelinder and signed for at the 4265 Mitchell Residence on February 27, 2017.
16Minutes later, the same package was found and seized from the basement area of the 4265 Mitchell Residence by the police.
17Mr. Ryn was arrested in the same basement area of the 4265 Mitchell Residence on February 27, 2017, standing behind a partially closed door at the entrance to Ms. Vandelinder’s bedroom, only steps away from where the package was found hidden under a small cat bed and hoodie on the basement floor.
18A Sony model cell phone, belonging to Mr. Ryn, was seized from him incident to his arrest and was subsequently lawfully examined by the RCMP.
19Extracted from Mr. Ryn’s cell phone were a series of written digital communications between Mr. Ryn and Ms. Vandelinder, including numerous messages sent through “Facebook Messenger” from September 12, 2016, through and including February 27, 2017.
20At trial, the parties also admitted that Mr. Douglas Culver, a retired RCMP officer, was qualified to provide an expert opinion in connection with the controlled drug fentanyl; its legitimate uses; its illicit uses, production, and distribution; how and where fentanyl is produced; the method of its importation into Canada; how fentanyl is used and the amounts to be used; how fentanyl is distributed and used by traffickers; the street-level pricing of fentanyl; the paraphernalia associated with its use and distribution; and the question of the purpose of a person who possesses six grams of fentanyl.
21Mr. Culver testified about, inter alia, the use and distribution of fentanyl, including the differences between legally manufactured fentanyl and the illicitly produced substance; the relative ease with which it can be ordered online and obtained; the variety of ways in which fentanyl can be consumed illicitly; and the dangers of its illicit consumption. He testified that, in his opinion, the average illicit user would, on average, consume one milligram of fentanyl. He offered the opinion that, in 2017, six grams of fentanyl would have a street value ranging from about $250,000 up to $1 Million. In particular, he testified that, in 2017, an illicit consumer would pay between $30-$40 for a one milligram dose of fentanyl.
22The position of the Crown at trial before the jury was that:
a. Mr. Ryn and Ms. Vandelinder partnered in the shipment and importing of fentanyl packages from China for the purpose of trafficking, in that, Mr. Ryn sourced and purchased the fentanyl, and Ms. Vandelinder received it and enabled delivery to Mr. Ryn;
b. Further to their unlawful agreement, the last of these fentanyl packages from China was received by Ms. Vandelinder at her family’s residence at 4265 Mitchell Crescent on February 27, 2017;
c. On that day, Ms. Vandelinder received the package in question and delivered it to Mr. Ryn in her basement bedroom, and he then received the package containing what he believed to be fentanyl and proceeded to open it;
d. The arrival of the police at the front door of the 4265 Mitchell Residence prompted Mr. Ryn to hide the package in the basement area, again only steps away from the spot where he was arrested minutes later, standing in the entrance to Ms. Vandelinder’s bedroom;
e. It was Mr. Ryn who introduced Ms. Vandelinder to fentanyl and proceeded to feed her addiction;
f. Mr. Ryn used Ms. Vandelinder as a tool for the shipping of fentanyl from China by mail to her residence and in her name, intending to receive and traffic the drug to both Ms. Vandelinder and others;
g. Further, the Crown’s position before the jury was that Mr. Ryn’s testimony at trial that he knew nothing of Ms. Vandelinder’s fentanyl addiction and knew nothing of any fentanyl shipments from China addressed to and shipped to her at her family’s residence were deliberately designed to distance himself from the truth, and that the jury should reject Mr. Ryn’s evidence.
23The jury deliberated for less than one hour and delivered a verdict of guilty against Mr. Ryn on both counts.
Circumstances of the Offender
24A pre-sentence report was prepared on September 2, 2022, and was marked as Exhibit No. 1 on the sentencing hearing. There was no objection to the facts asserted.
25Mr. Ryn was born on May 17, 1991, and, as such, was 25 years of age at the time of the offences in question and 31 years of age at the time of trial.
26Mr. Ryn has no criminal record.
27Mr. Ryn currently resides with his father and his stepmother. He reported that his birth parents divorced around the time he was four years of age. He reported that he experienced physical and emotional abuse during his upbringing at the hands of his mother and his sister.
28Mr. Ryn has never been married. He reported that his only significant dating relationship was with Ms. Vandelinder, which began in 2012. He reported that their relationship was “chaotic,” [3] and he accused Ms. Vandelinder also of being physically abusive towards him. Mr. Ryn reported that he did not feel he was able to terminate the relationship and felt he had “no way out,” [4] he also reported that he terminated the relationship prior to the offences in the matter before the court. He reported that his dating relationship with Ms. Vandelinder ended in 2016 but they continued to share contact with each other thereafter.
29Mr. Ryn has no children or other dependents.
30In terms of academic history, Mr. Ryn reported having completed secondary school. He reported that towards the end of his secondary schooling, he was diagnosed with Attention Deficit Disorder, Anxiety, and Depression, [5] and was prescribed medication, which he found beneficial, and which he continues to consume presently. He attended a local community college and graduated from a three-year business administration and accounting program in 2017.
31In terms of employment history, Mr. Ryn reported that he completed co-op placements during his post-secondary education at a local office supply store and tennis club. His employment experience since then has been varied. It appears that his longest stretch of steady employment was for three years with the office supply store, where he occupied various positions, primarily in relation to technology sales; however, he reported that he left this employment when he commenced his post-secondary education. His most recent employment reportedly ended in his layoff in May 2022. Mr. Ryn reported that his criminal case has been “weighing on his work performance and he does not wish to secure future employment until he is aware of the outcome” of his case. [6]
32In terms of substance use issues, Mr. Ryn reportedly denied any current consumption of alcohol. He reported he was previously prescribed morphine to address the pain from neck spasms that he suffered as a result of a head injury he reportedly suffered in 2012 but that he “at times used more than prescribed.” [7] Mr. Ryn reported that he “had challenges ceasing his morphine use” [8] but weaned himself off morphine and began using cannabis edibles. Mr. Ryn reported that the only substances that he currently consumes are his prescribed medications to treat his mental health issues. He reported that he has ongoing contact with his general physician but has not met with his psychiatrist since 2020. The Probation/Parole Officer who authored the pre-sentence report asked Mr. Ryn if he would be willing to sign a release of information to verify his medical treatment, Mr. Ryn ultimately decided not to sign the release, and therefore this information could not be verified. [9]
33As reflected in the pre-sentence report, it is the assessment of the Probation/Parole Officer who authored the report that Mr. Ryn “denies culpability or guilt in the matters before the Courts and therefore does not appear to take responsibility for his reported actions.” [10] He reported that he believed he was “in the wrong place at the wrong time.” [11] Mr. Ryn reported that he believed he was found guilty primarily because of the text messages exchanged with Ms. Vandelinder, and he maintained that he was referring to cannabis edibles in their messages, which edibles he said he was assisting Ms. Vandelinder to obtain in order to assist with her addiction. [12]
34Mr. Ryn’s denial of responsibility for the events in question would appear to be echoed in the beliefs and statements of his own father, who was interviewed by the Probation/Parole Officer in the course of preparation of the pre-sentence report. Mr. Chester Ryn, the Offender’s father, reportedly placed blame for his son’s current circumstances on Ms. Vandelinder. The father suggested that there had never been any notable concerns with his son until he began his relationship with Ms. Vandelinder. [13] Apparently, the father expressed his belief that his son was unable to articulate his side of the story properly to the court, and the court “only sided with the testimony of [Ms. Vandelinder]” [14]; although the father reportedly admitted that he did not attend the trial proceedings himself to hear the evidence directly. As reflected in the pre-sentence report, it is the assessment of the Probation/Parole Officer who authored the report that the father “does not perceive [his son] to have done any wrongdoing and blames this circumstance on [Ms. Vandelinder].” [15]
35As reflected in the pre-sentence report, the assessment of the Probation/Parole Officer who authored the report made note of the following concerns:
Concerns are noted with [Mr. Ryn’s] lack of accountability for his actions, while weighing the severity of his behaviour may have had on the community. He appears to deny any wrongdoing and place blame on his co-accused. The Writer questions his available support system as his father also appears to believe this version of events. [Mr. Ryn] was not fully cooperative with the preparation of this Report based on his decision to decline signing a release of information to verify his medical information. At the time of the offence, [Mr. Ryn] was able to secure employment and was in the process of obtaining a post-secondary level of education; he did not provide articulation as to the primary motivation or reasons behind his behaviour. The Writer has concerns with the possibility of recidivism based on these underlying possible pro-criminal thinking patterns and lack of accountability. [16]
Legal Parameters
36In the instant case, where the underlying offence is importing a Schedule I substance, contrary to s. 6(1) of the CDSA, s. 6(3)(a)(i) provides that where the Schedule I substance is not more than one kilogram, as here, the offender is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment for a term of one year if the offence is committed for the purposes of trafficking. [17]
37At the time of the offences, the provisions of s. 5(2) of the CDSA relevant to count 2 in the indictment provide that everyone who commits the offence of possession of a Schedule I substance for the purpose of trafficking is guilty of an indictable offence and liable to imprisonment for life.
Positions of Crown and Defence
38Mr. Pollock submitted on behalf of the Crown that an appropriate global sentence for Mr. Ryn in the circumstances of the instant case would be imprisonment for a term of six years in respect of the two offences.
39Mr. Marley submitted on behalf of Mr. Ryn that, given the sentence imposed on Mr. Ryn’s partner, Ms. Vandelinder, this court should consider a similar conditional sentence for Mr. Ryn and impose a conditional sentence of two years less a day.
40I have carefully considered the submissions of counsel for both parties.
Analysis
Principles of Sentencing
41The Supreme Court of Canada has said that the sentencing of an offender is “one of the most delicate stages of the criminal justice process in Canada.” [18] It requires “the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.” [19]
42The notion of proportionality is the fundamental principle in sentencing, and that important principle is enshrined in s. 718.1 of the Criminal Code, which provides that:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
43In its seminal decision in R. v. Lacasse, 2015 SCC 64, the Supreme Court of Canada described proportionality as “the cardinal principle” that must guide sentencing courts in considering the fitness of a sentence imposed on an offender. As the Supreme Court explained, “[t]he more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender.” [20]
44In Lacasse, the Supreme Court observed that determining “a proportionate sentence is a delicate task.” [21] Indeed, the Court described how an unfit sentence can undermine public confidence in the administration of justice:
The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders. A sentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system in light of its objectives. [22]
45Section 718 of the Code sets out certain objectives of sentencing and provides that:
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.
46Subsection 10(1) of the CDSA speaks to the fundamental purpose of any sentence for an offence under that Act as follows:
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.
47Section 718.2 of the Code sets out other sentencing considerations, including the following:
A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, …
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
48The Supreme Court has also repeatedly recognized that sentencing is an “inherently individualized process.” [23] In R. v. Nasogaluak, 2010 SCC 6, the Supreme Court described this individualized process in the following terms:
The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case.… No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law. [24]
49My task is to impose a sentence that is appropriate for Mr. Ryn “based on the particular facts of the offence and of the offender within the applicable principles of law.” [25]
Mitigating Factors
50I consider the following mitigating factors.
Youthful first offender
51As I have said, Mr. Ryn was just 25 years of age at the time he committed the offences. Further, he has no criminal record. That is a primary consideration. These considerations are deserving of significant weight.
Personal circumstances
52As I have reviewed above, the pre-sentence report indicates that Mr. Ryn experienced a fairly traumatic and challenging upbringing. Among other things, he was reportedly the subject of physical and emotional abuse during his upbringing at the hands of his mother and sister.
Considerations of remorse
53As I have noted, the author of the pre-sentence report spoke of Mr. Ryn’s lack of accountability for his actions. He appeared to deny any wrongdoing on his part and placed the blame on Ms. Vandelinder, as did his father.
54In my view, based on the pre-sentence report, I would conclude that Mr. Ryn’s level of insight into his behaviour and how it impacted others, including Ms. Vandelinder, is essentially nonexistent.
55In the circumstances, Mr. Ryn has not truly expressed responsibility for his actions or demonstrated insight into the gravity of his conduct and its impact on the Ms. Vandelinder. Indeed, he has engaged in victim-blaming to a degree. On balance, I find that Mr. Ryn has not exhibited any real remorse for his conduct and the impact it has had on Ms. Vandelinder.
56That said, while an offender’s expression of remorse is a mitigating factor, [26] the failure to express remorse is not an aggravating factor, [27] and it will not be used as an aggravating factor. The failure of Mr. Ryn to express any real remorse is simply a neutral factor.
Aggravating Factors
57There are certain aggravating factors present in the instant case, and I have considered the following.
Nature of the substance
58As I will review below, the courts have repeatedly commented on the inherently dangerous nature of fentanyl, particularly when in powder form, as opposed to patches or pills.
Duration of the importing and trafficking
59This was not a one-off transaction. Mr. Ryn was engaged in an ongoing conspiracy and importing/trafficking enterprise that went on, at least to the extent that we are aware, for several months.
Purpose of the importing and trafficking
60This is not a case where the illicit substance was being used by the offender to feed his own personal addiction. Indeed, Mr. Ryn himself denied any addiction to fentanyl at all.
61As I address more specifically below, on the record of evidence before the court, I am satisfied beyond a reasonable doubt that the purpose of Mr. Ryn’s importing and trafficking enterprise, which continued for several months at least, was essentially for his personal gain and profit, including to control the behaviour of Ms. Vandelinder by feeding her addiction.
Appropriate Sentence
62The caselaw on sentences for trafficking in fentanyl is still developing at the appellate level. [28] Our Court of Appeal has not yet established a sentencing range for trafficking in fentanyl. The same is true about importation of fentanyl cases. [29]
63That said, the Ontario Court of Appeal has held that sentences for trafficking in fentanyl should be as long or longer than a corresponding sentence for trafficking in cocaine. [30]
64In the same vein, in its recent decision in R. v. Olvedi, 2021 ONCA 518, our Court of Appeal dismissed the sentence appeal of an offender convicted for importing fentanyl and approved of the approach taken by the sentencing judge below, who held that importing fentanyl must be treated at least as seriously as importing heroin, as follows:
After discussing this court's holding in Sidhu, the trial judge concluded, at para. 103:
Importing fentanyl must be treated at least as seriously as importing heroin because fentanyl is known to be twenty times stronger than heroin. As Sopinka J. stated in R. v. Vezina, 2017 ONCJ 775 (at para. 56)"[t]he dangers of fentanyl have become well known, which puts traffickers [and importers]3 on notice that their conduct will attract significant custodial penalties." I therefore conclude that the range of sentence proposed by Defence counsel in this case, namely 8 to 12 years' imprisonment, is too low for a first time courier who imports a large volume of high purity fentanyl for personal gain.
I agree with this approach. The record supported the trial judge's findings that fentanyl is at least as serious as heroin and that it has a devastating impact on our communities. The appellant does not dispute the validity of the heroin analogue, but submits that his sentence should have been shorter. [31]
65Further, if, according to the Court of Appeal in Olvedi, cases involving importing fentanyl are to be treated as seriously as cases involving importing heroin, then presumably cases involving trafficking fentanyl should be treated as seriously as cases involving trafficking heroin.
66And in the latter regard, I note the observations of Hill J. in R. v. P.(F.), 2005 CarswellOnt 10685, which I regard as instructive, where Hill J. said:
Given the serious nature of heroin-related criminality, the courts in Ontario have consistently approached the need for deterrent messaging with a presumption in favour of penitentiary sentences:
We agree with the trial judge’s statement that unless there are exceptional circumstances, a penitentiary term should be imposed for the sale of heroin. (R v. Bahari, [1994] O.J. No. 2625 (C.A.) at para. 6)
On sentencing the Crown asked for a sentence of three to four years in totality. In our opinion, such a sentence would have been consistent with sentences imposed on first offenders who are "addicts” involved in sales of relatively small amounts of heroin.”
We stress the fact that the sale of heroin even in small amounts by first offenders who are addicts will call for a penitentiary sentence unless exceptional circumstances exist and the present case does not fall within the exception. (R v. Farizeh, [1994] O.J. No. 2624 (C.A.) at paras. 4, 5)
This Court and other courts in Canada have repeatedly indicated that in dealing with offences, such as trafficking in heroin, that a penitentiary term should be imposed unless there are exceptional circumstances. (R. v. Hogan, [1976] O.J. No. 1087 (C.A.) at para. 3)
Trafficking in heroin, even small amounts, will attract penitentiary time. (R. v. Turner, [2003] O.J. No. 685 (C.A.) at para. 3)
No doubt, the offence [trafficking in heroin] almost always attracts a significant jail term and usually calls for a penitentiary term. (R. v. Zamini, [1999] O.J. No. 3780 (C.A.) at para. 4)
Also see R. v. Bell, supra at para. 4; R. v. McCarthy, [1990] O.J. No. 2163 (C.A.) at para. 1. [32]
67Moreover, fentanyl in its powdered form – as was in issue in this case – has been recognized to be more dangerous than a fentanyl patch or pill. [33]
68The nature of fentanyl and the danger it poses to the public must inform the court’s consideration of the gravity of the offences here. Our courts have repeatedly recognized and described the dangerous nature of fentanyl. Fentanyl has been recognized to be “one of the most highly addictive and dangerous drugs.” [34] “Fentanyl is 100 times stronger than morphine and 20 times stronger than heroin. It is also highly addictive.” [35] “Its widespread abuse … has quickly become entrenched in our country. Every day in our communities, fentanyl abuse claims the lives of Canadians.” [36]
69And while the Supreme Court of Canada in its decision in R. v. Parranto, 2021 SCC 46 was addressing the context of “largescale” trafficking in fentanyl – which, I emphasize, is not the situation before me – nevertheless, I note the concluding observations of Moldaver J. in his concurring judgment in that case, as follows:
Ultimately, largescale trafficking in fentanyl is a crime that preys disproportionally on the misery of others — the marginalized and those whose lives are marked by hopelessness and despair. It is a crime motivated by greed and by a callous disregard for the untold grief and suffering it leaves in its wake. Above all, it is a crime that kills — often and indiscriminately. It follows, in my view, that what matters most is that those individuals who choose to prey on the vulnerable and profit from the misery of the Canadian public for personal gain are sentenced in accordance with the severity of the harms they have caused. Fentanyl trafficking, and largescale trafficking in particular, are a source of unspeakable harm. [37] [Emphasis supplied.]
70Given the dangerous nature of fentanyl and the gravity of the offence involved in fentanyl trafficking cases, the courts have repeatedly held that the principles of general deterrence and denunciation must be prominent, if not paramount, factors in fentanyl trafficking cases. [38]
71It has also been said that the dangers of fentanyl have become well known in Canadian society, “which puts traffickers on notice that their conduct will attract significant custodial penalties.” [39]
72And of course, this case involves not just trafficking, but conspiracy to import fentanyl. Importation is a more serious offence than trafficking. Mr. Ryn was engaged in an enterprise that brought this dangerous substance into Canada.
73That said, there is certainly merit in Mr. Marley’s point that while the principles of deterrence and denunciation are undoubtedly important in the instant case, in short, they should not be permitted to overwhelm the analysis. Our courts have recognized that the length of a first custodial sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence; the court must consider what the shortest possible sentence is that will achieve the relevant objectives. [40]
74More specifically, even where deterrence and denunciation are the primary sentencing objectives, it is an error of law to fail to consider the rehabilitative potential of the offender and to fail to apply the principle of restraint. [41] “The principle of restraint, as reflected in ss. 718.2(d) and (e) of the Criminal Code, directs that a first period of incarceration imposed on a young first offender should be as short as possible, while giving adequate weight to the principles of general deterrence and denunciation.” [42]
75In the instant case, Mr. Ryn was 25 years of age at the time of the offences in question, and 31 years at the time of trial and sentencing hearing. He has no criminal record and has never served a custodial sentence, much less a penitentiary sentence. That said, I have found it somewhat difficult to evaluate his prospects for rehabilitation and what effect his sentence would have on his prospects for rehabilitation, given that, inter alia, as I have reviewed above, Mr. Ryn has failed to accept responsibility for his actions.
76In this regard, I am mindful of the assessment of the Probation/Parole Officer who authored the pre-sentence report that Mr. Ryn “denies culpability or guilt in the matters before the Courts and therefore does not appear to take responsibility for his reported actions.” [43]
77I appreciate Mr. Marley’s able submissions on behalf of the offender that, to paraphrase, Mr. Ryn is not a threat to the safety of the community, and he does not need to be imprisoned in order to serve the governing sentencing principles here.
78However, I do not share Mr. Marley’s views on this point. I am troubled by the conclusion of the Probation/Parole Officer who authored the pre-sentence report, who concluded that he had “concerns with the possibility of recidivism [by Mr. Ryn] based on [his] underlying possible pro-criminal thinking patterns and lack of accountability.” [44]
79Mr. Marley submits that application of the parity principle set out in s. 718.2(b) of the Code to Mr. Ryn’s circumstances should result in him receiving the same sentence that was imposed on Ms. Vandelinder. Ms. Vandelinder was sentenced by Pomerance J. to a conditional sentence of two years less one day. That involved one year of house arrest. The Crown had asked for a three-year custodial sentence.
80I cannot accept Mr. Marley’s submission. I do not regard Ms. Vandelinder and Mr. Ryn to be similar offenders in similar circumstances. Ms. Vandelinder’s circumstances were exceptionally mitigating. The same cannot be said for Mr. Ryn. In particular:
a. Ms. Vandelinder entered a guilty plea. That is a powerful mitigating factor. It obviously has no application to Mr. Ryn.
b. Ms. Vandelinder provided meaningful cooperation with the police authorities. She provided significant information and testimony that led to the conviction of Mr. Ryn for very serious offences. The caselaw has recognized that such cooperation is a mitigating factor in sentencing. [45] Moreover, Ms. Vandelinder received no consideration from the Crown for her cooperation, as the Crown (unsuccessfully) argued for a three-year jail term for her.
c. In pleading guilty to the offences, Ms. Vandelinder took responsibility for her actions. As highlighted in the pre-sentence report here, Mr. Ryn’s failure to take responsibility for his actions remains a concern with him.
d. In sum, in sentencing Ms. Vandelinder to the conditional sentence, Pomerance J. was presented with various mitigating circumstances, including Ms. Vandelinder’s substance addiction, absence of commercial motivation, lack of a criminal record, cooperation with police authorities, and her guilty plea.
81Further, in considering the moral blameworthiness of the two offenders, there are significant and telling differences between Ms. Vandelinder and Mr. Ryn.
82At trial, the court heard direct evidence as to the misery and harm that the actions of Mr. Ryn caused his one-time girlfriend, Ms. Vandelinder, to suffer. Ms. Vandelinder gave testimony about her dealings with Mr. Ryn over fentanyl, which they called “snacks,” much of which testimony was corroborated by their exchange of messages through Facebook Messenger. [46] It is clear that the jury accepted Ms. Vandelinder’s evidence. Based on the testimony of Ms. Vandelinder, as corroborated by the Facebook messages, I am satisfied beyond a reasonable doubt that:
a. It was Mr. Ryn who introduced Ms. Vandelinder to fentanyl in the first place.
b. Mr. Ryn was instrumental in Ms. Vandelinder’s subsequent fentanyl addiction.
c. Mr. Ryn fed Ms. Vandelinder’s fentanyl addiction to the point where she was compelled to beg for the drug. As reflected in the various Facebook messages, Ms. Vandelinder offered to give Mr. Ryn her computer laptop in exchange for fentanyl. She offered to give Mr. Ryn her income from social assistance benefits in exchange for fentanyl. On repeated instances, she literally begged him to give her fentanyl. At times, I found the Facebook messages were difficult to read.
d. Mr. Ryn took advantage of the vulnerable state of the fentanyl-addicted Ms. Vandelinder. In my view, his behaviour was controlling, manipulative, and abusive of Ms. Vandelinder in her vulnerable state. Put simply, Ms. Vandelinder was victimized by Mr. Ryn.
83As such, in my view, there is a striking difference in the moral blameworthiness of the two offenders. Ms. Vandelinder was victimized at the hands of Mr. Ryn. While a sentencing judge must respect the parity principle embodied in s. 718.2(b) of the Code and acknowledge that similar cases involving similar offenders decided by other courts are useful for certain purposes, one must also recognize that because of the inherently individualized process of sentencing, the decisions in other cases often turn on their own particular circumstances. In my view, the circumstances surrounding Ms. Vandelinder and Mr. Ryn are so starkly different that the parity principle has no meaningful application here.
84In sum, while Mr. Marley acknowledges the importance of the objectives of denunciation and deterrence here, respectfully, I am of the view that his proposal of a conditional sentence for Mr. Ryn would give insufficient weight to the applicable sentencing principles in this case and is simply inappropriate.
85Of course, one must bear in mind that the case at bar involves the importing and trafficking of a quantity of fentanyl that amounts to less than 10 grams. To be sure, this is not a case like Parranto, where the offender was trafficking in 512.92 grams of fentanyl powder, [47] or a case like Olvedi, where the offender was trafficking in 499.5 grams of fentanyl citrate. [48] In this case, while the Crown’s sentencing submissions speak of a quantity of 6.65 grams of fentanyl (and, in fairness, there was some evidence of that at trial), nonetheless, the agreed statement of facts states that the package in question contained six grams of fentanyl. [49] Accordingly, my analysis has proceeded on the basis that the amount of fentanyl in question is only six grams.
86At the same time, I bear in mind the evidence of the Crown’s expert, Mr. Culver, who testified at trial that, in his opinion, the average illicit user would, on average, consume one (1) milligram of fentanyl, [50] and that a two (2) milligram dose of fentanyl could very well prove fatal to some users. Accordingly, on the basis of Mr. Culver’s expert opinion, even the seemingly small quantify of six grams of fentanyl would have the potential to yield an average of 6,000 average doses of the drug or 3,000 potentially lethal doses.
87Thus, it is perhaps not surprising that possession of even a seemingly small amount of fentanyl for the purpose of trafficking has attracted penitentiary sentences. As Davies J. said in her decision in R. v. Oskem, 2019 ONSC 6283:
Because of the dangers associated with fentanyl, convictions for possessing even small amounts of fentanyl for the purpose of trafficking can attract very long sentences in the range of 5 to 7 years: for example, R. v. Cinelli, 2018 ONSC 4983 (Ont. S.C.J.), R. v. Prestula, 2018 ONSC 4214 (Ont. S.C.J.). There have also been cases where courts have imposed sentences in the range of 12 months to 2 years less a day: R. v. Derycke, 2016 BCPC 291 (B.C. Prov. Ct.) and R. v. Hillier, 2018 ONCJ 397 (Ont. C.J.). In very exceptional cases involving small amounts of fentanyl, suspended sentences have been granted; R. v. Dixon, [2017] O.J. No. 3477 (Ont. C.J.), R. v. Hillier, [2018] O.J. No. 3126 (Ont. C.J.). [51]
88And certainly, there have been several Ontario cases involving less than 10 grams of fentanyl where our courts have imposed penitentiary sentences for possession of fentanyl for the purpose of trafficking. [52]
89Consequently, having considered all of the parties’ submissions and the relevant authorities, and despite the able submissions of Mr. Marley on behalf of the offender, Mr. Ryn, I have come to the conclusion that, in all of the circumstances of the instant case, a just, fit, and proportionate sentence for Mr. Ryn is a term of imprisonment for four years.
Concurrent versus Consecutive Sentences
90It is well established that where there are multiple offences, a sentencing judge should impose sentence on a concurrent basis where “the acts constituting the offences were part of a linked series of acts within a single endeavour.” [53] This is a factual assessment.
91That said, consecutive sentences may be imposed where the offences are temporally linked but constitute invasions of different legally protected interests. [54]
92In the case at bar, I am satisfied that the sentences on the counts of conspiracy to import fentanyl should be served concurrently with the sentence on the count of possession of fentanyl for the purpose of trafficking. In my view, in the circumstances of the instant case, it is clear that “the acts constituting the offences were part of a linked series of acts within a single endeavour.” There is an undeniable close and inextricable nexus between the offences on the facts of the instant case.
93I am satisfied that, having regard for the factual circumstances here, the wrongful acts of Mr. Ryn constituted, to use the phrase from Friesen, “a single criminal adventure.” [55] For all of these reasons, I would impose the sentence on possession for the purpose of trafficking concurrently with the sentence on conspiracy to import fentanyl.
Final Disposition
94Mr. Ryn, I impose the following sentence on you.
95With respect to your conviction on count 1 for committing the offence of conspiracy to commit the indictable offence of importing fentanyl into Canada, contrary to s. 465(1)(c) of the Code, I sentence you to a term of imprisonment for four years.
96With respect to your conviction on count 2 for committing the offence of possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the CDSA, I sentence you to a term of imprisonment for four years, to be served concurrently with the sentence on count 1.
97I would address with counsel any requests for ancillary orders.
Original Signed by “Justice J.P.R. Howard”
J. Paul R. Howard Justice
Delivered Orally: May 16, 2023