OSHAWA COURT FILE NO.: CR-20-1543
DATE: 20230908
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ZEHRA SEVIM
Andrew Choat, for the Crown
Soban Ponnampalam, for Zehra Sevim
HEARD: April 21 and August 31, 2023
REASONS ON REQUEST TO REOPEN / SENTENCING
Christie j.
Overview
[1] On August 26, 2022, following a fairly short and focused two-day judge alone trial, this court found Zehra Sevim guilty of trafficking in a controlled substance, namely fentanyl and heroin, contrary to section 5(1) of the Controlled Drugs and Substances Act, as charged. A sentencing hearing was to occur in early December, however, this was delayed a number of times.
[2] Prior to sentencing, Ms. Sevim brought an application to re-open the trial, requesting either a mistrial or reconsideration by this Court. This was opposed by the Crown. In addition to submissions on the application to re-open, and in the event that Ms. Sevim was unsuccessful on her request to re-open or on the remedy she seeks, submissions have now also been made regarding the appropriate sentence in this case.
[3] These reasons will address both issues.
Background History
[4] The trial took place on June 23 and 24, 2022, without a jury. The Crown alleged that on May 14, 2019, Ms. Sevim delivered a bag of fentanyl/heroin mix to Than-Hai Lu, who then delivered it to an undercover police officer in exchange for $39,500. Given the many agreed facts at trial, and further admissions made by Ms. Sevim during her testimony as to the events, the only issue to be decided was knowledge.
[5] In convicting Ms. Sevim, this court gave detailed reasons for its decision in a written judgment. (R. v. Sevim, 2022 ONSC 4891) Effectively, it was determined that Ms. Sevim was the one-time courier of a package containing 494 grams of blue fentanyl heroin mix. It is worth noting the following findings of this court:
a. There was no dispute that the substances that were transferred from Ms. Sevim to Mr. Lu were fentanyl and heroin. Certificates of Analyst demonstrated that the product was a mixture of fentanyl and heroin. This was also admitted as a fact in Agreed Statement of Fact #1.
b. There was no question that Ms. Sevim, in fact, transferred a package containing a fentanyl / heroin mixture to Mr. Lu in the parking lot of the MacDonald’s at Keele and St. Clair. This was an admitted fact.
c. Ms. Sevim appeared to be an articulate, hardworking woman who supported herself and her family. She held down multiple jobs, gave a detailed description of her savings, income, and expenses, and cared for her family.
d. Ms. Sevim’s testimony was found to be unclear and inconsistent about when Ms. Sevim first saw the package, the location of the package under shoes, clothes and work equipment in Ms. Sevim’s trunk, and the timing of when Ms. Sevim took the package out of the trunk.
e. Ms. Sevim was found to be purposefully forgetting facts, such as getting out of the driver’s seat carrying a black bag, which she placed in the trunk of the Honda before driving out of the Popeye’s parking lot.
f. Ms. Sevim had no explanation for how the package went from the white plastic Popeye’s Chicken bag to a brown paper bag, that Mr. Lu could be seen holding after reaching into Ms. Sevim’s vehicle and walking away, and which the drugs were found in a short time later.
g. Unbelievably, Ms. Sevim did not remember what the black package felt like, though she admitted handling the package at least once, or maybe more times.
h. Ms. Sevim, by her own admission, did not make inquiries about the contents of the package, which this court found was not reasonable given the relationship Ms. Sevim had to the individuals she suggested were involved, and what any person in Ms. Sevim’s position that day would have done.
i. This court questioned Ms. Sevim’s behavioral response to Mr. Lu reaching into the passenger side window of her car and removing the package, which this court found anyone would have asked questions about or been concerned about.
j. It was the view of this court that the only rational and reasonable inference was that Ms. Sevim knew that the package contained an illegal substance, or she was willfully blind to that fact.
k. It was the view of this court that it was reasonable to infer that it was unlikely that another person would have left this valuable item in the trunk of Ms. Sevim’s car without her knowledge. It was reasonable to infer that this value of drugs, $39,500, would not be entrusted to anyone that did not know of the item. It defied logic and common sense that Mr. Husaini would leave this drug in the car, not knowing when he would see it again, or if he would have access to the car ever again. If they had only met a couple of times and only knew each other as acquaintances, it was illogical that Mr. Husaini would leave this value of drugs in her vehicle without her knowledge.
l. This court found that the evidence demonstrated beyond all reasonable doubt that Ms. Sevim knew exactly what she was doing that day and why she was doing it.
[6] There were significant delays in getting to sentencing.
[7] The sentencing was originally scheduled for December 2, 2022. This court offered much earlier dates which were declined by the Defence. No pre-sentence report was ordered as it was declined by Defence counsel.
[8] Ms. Sevim discharged her trial counsel, Mitch Engel, and retained new counsel, Mustafa Sheikh of What The Law, on October 4, 2022. Victor O'Brien was the associate lawyer from that law firm appearing on this matter initially after the change in counsel.
[9] Mr. O’Brien ordered transcripts of the trial in this matter on October 24, 2022 and received the transcripts on October 28, 2022.
[10] On November 5, 2022, Defence counsel who represented Ms. Sevim at the trial brought an application to be removed as counsel of record. At that time, Victor O’Brien appeared as agent for proposed new counsel, Mustafa Sheikh. Given Ms. Sevim’s right to have counsel of her choosing, and the fact that she had already discharged Mr. Engel and retained Mr. Sheikh, the Application was granted. As for the sentencing hearing previously scheduled, Mr. O'Brien indicated that they were seeking to adjourn the scheduled date (December 2) to March and that an adjournment application had been filed. This court was unaware of any request to move the date and did not have the adjournment application. Mr. O'Brien was not in a position to waive 11(b) which required both counsel to put comments on the record. This court was not anticipating those issues, and given an ongoing jury trial commencing at 10:00 a.m., did not have time to deal with the adjournment application that day. The matter was adjourned to Friday, November 18, 2022 for the adjournment application. The sentencing date of December 2 remained in place until then.
[11] Mr. O'Brien's office received a copy of the disclosure from the Crown's office on November 16, 2022.
[12] On November 18, 2022, again Mr. O’Brien appeared as agent for counsel, Mustafa Sheikh. There was now a formal application by Ms. Sevim to adjourn the previously scheduled sentencing date of December 2, requesting that the matter be rescheduled in March 2023. There was no waiver of 11(b). For oral reasons given, this court granted the adjournment application, however, was not prepared to adjourn to March. Again, no pre-sentence report was requested by the Defence so none was ordered. Sentencing submissions were adjourned to January 10, 2023, in person, for a full day. If counsel wished to rely on material, they were asked to file through the court office and to provide an electronic copy to the court’s judicial assistant. The previously scheduled sentencing date of December 2, 2022 was vacated.
[13] Mr. O’Brien became ill with Covid-19 on the evening of December 8, 2022. He was ill from December 9-23, 2022, and was unable to make preparations for the sentencing hearing during this period.
[14] It was not until January 2, 2023 - 8 days before the scheduled sentencing hearing - that the Defence started to reach out to obtain a psychiatric report.
[15] On January 6, 2023, days before the sentencing hearing was to occur, Ms. Sevim again requested an adjournment of her sentencing hearing. By that time, Mr. O’Brien had engaged a forensic psychiatrist, Dr. Julian Gojer, to examine Ms. Sevim and provide a psychiatric report for the sentencing hearing. Mr. O’Brien had been advised by Dr. Gojer that he required until March of 2023 to provide counsel with a psychiatric report in this matter. At that appearance, Ms. Sevim was now prepared to waive 11(b) and requested an adjournment of the sentencing hearing until March 24, 2023 to allow time to obtain the psychiatric report. Reluctantly, this adjournment was granted. Sentencing submissions were adjourned to March 15, 2023, in person, for a full day. Again counsel were reminded that, if they wished to rely on material, they should file through the court office and provide an electronic copy to this court. The previously scheduled sentencing date of January 10 2023 was vacated. It was made very clear to counsel that, absent some extraordinary circumstances, the sentencing hearing would proceed on March 15, 2023.
[16] On March 14, 2023, the day before the re-scheduled sentencing hearing, Ms. Sevim again requested an adjournment of her sentencing hearing. For a variety of reasons, Dr. Gojer’s report was not going to be ready until the end of March. Ms. Sevim requested a further adjournment of approximately a month to six weeks to receive the report and finalize preparations for sentencing submissions. Ms. Sevim was prepared to waive 11(b). The Crown initially was strongly opposed to this request, however, changed its position upon hearing counsel's submissions. The Crown ultimately conceded that another short adjournment might be warranted - or at least was not so strongly opposed to one. For oral reasons given, reluctantly, this adjournment was granted. Sentencing submissions were adjourned to April 21, 2023, in person, for a full day.
[17] On April 21, 2023, the rescheduled date of the sentencing hearing, Ms. Sevim again requested an adjournment. Defence counsel had still not received the report from Dr. Gojer but expected to receive the report on Sunday the 23rd. Further, the psychological report was only provided to Defence counsel that morning. This court noted that no material was received from the Defence until that morning, which included 183 pages of materials relied upon by the Defence, a 26-page psychological report dated April 13, 2023, and a 13-tab book of authorities. Mr. O'Brien urged the court to further delay the sentencing hearing as he was not prepared to make sentencing submissions given the lateness of the psychological assessment and the absence of Dr. Gojer's report. Ms. Sevim was prepared to waive 11(b). The Crown initially was strongly opposed to this request, however, softened his position upon considering that Defence counsel would be unable to make sentencing submissions, effectively leaving Ms. Sevim unrepresented, and after hearing the court's suggestion that the Crown make initial submissions and the matter could be adjourned for only one week. The Crown then proceeded to make his sentencing submissions. The Defence did not take a position on sentence, did not wish to even get started with its submissions, and did not get started. Defence sentencing submissions and Crown reply submissions were adjourned to April 28, 2023, in person, for a half day.
[18] On April 28, 2023, things did not proceed as planned. Ms. Sevim's sentencing hearing was scheduled to continue that day. The day before, April 27, 2023, the court received the report of Dr. Gojer and expected this matter to proceed. However, on April 28, 2023, just before going into court, the Defence brought an application to re-open the trial and a request for a mistrial. At that point, the application was not properly filed but Mr. O'Brien undertook to do this as soon as possible. Given that the application was only just provided to the Crown, the Crown was in no position to argue the application that day. The Crown wished to cross-examine Ms. Sevim on her affidavit, cross-examine Dr. Gojer on his report, and attempt to obtain information from trial counsel given the suggestions that were being made. After much discussion, it was agreed that the application would proceed on May 31 and June 1, 2023. The Defence did not intend to file any further material, but rather intended to rely on their written materials already provided, and would make Ms. Sevim and Dr. Gojer available for cross-examination. The Crown was to serve and file their factum and book of authorities by the end of business day on May 22, 2023. The Defence was to serve and file any reply arguments by the end of business day on May 29, 2023. The matter was adjourned to May 31, 2023 for the application to be heard.
[19] Again, on May 31, 2023, things did not proceed as planned. On Monday, May 29, 2023, this court was advised that Victor O'Brien was no longer with the law firm, What the Law. It was understood that, as of May 25, 2023, Mr. Ponnampalam from the same firm would be taking carriage of the file. Mr. Ponnampalam was in the midst of a preliminary hearing and also needed time to get up to speed on the file and make decisions as to how to move forward. He had just received the file on Friday, May 26. He was unable to say what arguments would be proceeded with at that time. He asked for approximately three weeks. Mr. Ponnampalam made it clear that he was waiving 11(b) from that point until any new hearing date. This court expressed serious concerns about the delays in the matter - outlining some of the history to this point. This court also expressed serious concerns with how issues related to trial counsel had been raised. The Crown indicated that these circumstances were not unlike the circumstances on April 21, in that forcing Ms. Sevim to proceed that day would effectively force her to proceed unrepresented. The Crown was therefore unopposed to the adjournment given the 11(b) waiver. This court made it perfectly clear that this matter would need to proceed at some point with or without counsel. Mr. Ponnampalam assured this court that, if he had a few weeks, he would be ready to set new dates at any time convenient to the court. Ultimately the hearing dates of May 31, and June 1 were vacated.
[20] The matter was spoken to a couple of other times, specifically June 26 and 30, at which point the date for the hearing was confirmed for August 31, 2023.
[21] While this court has had serious concerns about the delays, adjournments were granted to allow the Defence to put all materials it wished to rely on before the court.
[22] At the hearing which has now finally occurred, counsel have argued all outstanding issues that need to be addressed by this court.
[23] Specifically, Ms. Sevim has brought an application to reopen the trial on the basis of the psychiatric report prepared by Dr. Gojer, in combination with the psychological report and affidavits of Ms. Sevim. It should be noted that any allegation of ineffective assistance of counsel raised by Ms. Sevim in her affidavit or in any of the materials for that matter has not been pursued by Ms. Sevim. If this court is willing to reopen the trial, Ms. Sevim argues that there are two possible remedies that are available. The preferred remedy Ms. Sevim requests is for this court to declare a mistrial. Alternatively, Ms. Sevim requests that this court reconsider its decision in light of the fresh evidence she presents, reverse its decision, and find her not guilty of the charge. The Crown argued that the request to re-open should be denied.
[24] As stated above, in the event that this Court were inclined to deny the request to re-open, counsel also made submissions on sentence. As for the appropriate sentence, the positions were as follows:
a. The Crown is seeking 8 years in custody, less the equivalent of 12 days of pre-sentence custody from August 5 to August 12, 2019 (8 days at 1.5 to 1). In addition, the Crown seeks a ten year section 109 order, a DNA order, and disposition of some property.
b. The Defence is seeking a conditional sentence of 2 years less a day, with appropriate terms as the Court sees fit, which can be followed by a term of probation. In the alternative, if the Court is of the view that a conditional sentence is inappropriate, the Defence suggested that a penitentiary sentence of 2-3 years would be sufficient to meet the objectives of sentencing in this case. In relation to such a penitentiary sentence, the Defence argued that with an application of appropriate Downes credit, Ms. Sevim would be in a position of time served or close to it. The ancillary orders are not contested.
The Report of Dr. Julian Gojer dated April 27, 2023
[25] The report of Dr. Julian Gojer is 93 pages in length. It consists of a summary of interviews with Ms. Sevim and members of her family, a review of her medical history, the results of testing conducted by two forensic psychologists, and Dr. Gojer’s opinion.
[26] In interviews with Dr. Gojer, Ms. Sevim repeated her testimony at trial about the events of May 14, 2019. She also added some details. At trial, she could not remember when she had last loaned her car to Mr. Husaini. In interviews with Dr. Gojer and his colleagues, Ms. Sevim suggested that she had last let him borrow the car a day or two before May 14, that he told her he needed the car for an errand, would be back shortly, and that she did not ask any questions.
[27] A psychologist, Dr. Justine Joseph, concluded that Ms. Sevim met the diagnostic criteria for posttraumatic stress disorder and persistent depressive disorder, with persistent major depressive episode, with anxious distress, moderate to severe. Dr. Susan Moraes performed a series of cognitive tests. She concluded that Ms. Sevim “may meet the criteria for Mild Intellectual Disability.”
[28] At page 89 and following of the report, Dr. Gojer provided his opinions and conclusions. He stated in part as follows:
Ms. Sevim has been suffering from a Persistent Depressive Disorder. Her depression as estimated by myself has ranged from moderate to severe since her mother died. This depressive disorder still persists.
Ms. Sevim’s Depressive Disorder is related to multiple stressors and a traumatic experience. She has experienced grief over the loss of two childhood friends and this loss seems to have had a significant impact on her functioning at that time and likely sensitized her to how she subsequently has reacted to loss…
Ms. Sevim’s has been depressed for several years and there are layers of stressful and traumatic events in her life contributing to her depression. Her mood following the birth of the second child should have been uplifting but her depression continued and she had crying spells and seemed very anxious and depressed. The concept of Post Partum Depression is no longer used in psychiatry, but she certainly was depressed in the post partum period and this depression persists...
Ms. Sevim also suffers from a trauma syndrome better described as Other Trauma and Stress Disorder Not Otherwise Specified. This trauma syndrome would essentially encompass the time period including and following the death of her child and continues to be present. Her trauma syndrome includes experiences of intrusive thoughts and memories of the death of her mother and her baby.
Her anxiety symptoms are likely related to post traumatic stress related to the loss of her child, dealing with a mentally ill brother and attempting to make ends meet by pushing herself to work. Dealing with her criminal matter further contributed to her stress and with the recent conviction, her stress has been compounded by the prospects of facing a prison sentence.
The history obtained, my observations and the psychological testing does not indicate the presence of a personality disorder...
Ms. Sevim’s history is one of struggling academically, and cognitive testing shows that she falls in the below average range of intellectual functioning. While she seems to have adapted to this limitation by persevering with her interests in cosmetology, her basic intellectual functioning is below average on psychological testing. This could explain her limited coping skills in managing stress and negotiating and coping with losses.
There is no evidence to indicate that Ms. Sevim was suffering from a psychotic illness at any time. There is no evidence of any seizures, head injuries or blackouts.
It is my opinion that Ms. Sevim was experiencing significant stressful events including facing a trial and these were following a traumatic event that was and continues to be associated with features of anxiety, depression of moderate to severe intensity and other traumatic symptoms like reexperincing her past. She has had ongoing problems with her sleep. Her emotional state was significantly impacted on by depression, anxiety, intrusive thoughts of the deceased child, death of her mother and significant anxiety over the welfare of her new born baby. She reports being less focused on the trial and its outcome and feels that she was disconnected from the legal situation she was facing. Both her sisters also confirm that she was unfocused on the trial and more preoccupied with her losses and was worrying excessively about her new born child.
Cognitive and Psychological testing produced valid responses. They are supportive of and validate the symptoms that she reports with no indication that she was exaggerating or minimizing her problems…
Ms. Sevim is not intellectually the same as the general population. She does not have the skills to work through her losses and seems to have been affected deeply by her losses to the extent that she was unfocused and unable to answer questions in a cogent manner. Her answers of I don’t remember or vagueness can be attributed to her difficulty in being focused on the issues being explored on the stand. She seems to have had difficulty organizing her thoughts. Other factors contributing to difficulty with memory and difficulty organizing her thoughts are her intellectual limitations.
It is difficult to disentangle the ongoing significant depression and anxiety from the background of intellectual limitations in their contribution to how she handled herself during the trial. They were both operative. Her anxiety and depression can be estimated to be moderate to severe. Psychological screening indicated that it was a Major Depression. There was further stress from being on the stand and testifying in the trial. One must also keep in mind that Ms. Sevim was also depressed and grieving over the loss of her mother, struggling to cope with a sick brother and trying to help with maintaining the family home at the time of the alleged offenses. Her limited intellectual ability coupled with depression are important factors that may have prevented her from paying attention to who was borrowing her car, the importance of someone leaving an item in the car and a different person picking it up. While it can be surmised that she was wilfully blind to these events, the presence of depression, family stresses and demands are equally important factors impacting on the mind of an intellectually compromised person who did not attend to what she possibly should have attended to at the time of the offense. These factors were operative at the time of the offense and can be explored further with respect to culpability, but from a trial perspective, her failure to recall details may be because of these factors that were present at the time of the offending. Lastly it is also a possibility that her style of answering when she said that she does not remember or does not know could be explained on the basis of not wanting to take responsibility for her actions at the time of the allegations.
While all the above are reasonable explanations, her depression and anxiety along with trauma symptoms and intellectual limitations stand out as significantly important psychiatric and psychological factors that can explain problems with attention, concentration, effort and poor recall of events.
[29] Dr. Gojer then made recommendations for Ms. Sevim, including medication and psychotherapy.
[30] During his testimony on this re-opening application, Dr. Gojer confirmed a number of things:
a. During her interviews with him and his colleagues, Ms. Sevim described the events that led to the charges before the court. Dr. Gojer agreed that he had no way to verify the events she described in relation to the charges. He stated, “That is for the court to decide, not me.” Dr. Gojer agreed that it was not for him to decide whether Ms. Sevim was telling the truth or not about those events.
b. Dr. Gojer agreed that any impact Ms. Sevim’s mental health conditions would have on her ability to recall details would have been present when he interviewed her. However, he agreed that in describing the events to him, Ms. Sevim described visiting a friend, the friend’s boyfriend’s brother asked to use her car, she recalled not asking why he wanted to borrow the car, she described when she discovered the package in the trunk the following day, she recalled instructions that she was given about someone who was going to pick up the package, she recalled how much she paid the mechanic that fixed the car, she recalled that she was instructed to get a plastic bag, she recalled who to meet and where to meet him, and she recalled the brief conversation with the male who took the package away.
c. Dr. Gojer acknowledged that he could not say whether Ms. Sevim’s responses at trial of “I don’t remember” were as a result of her trauma or simply as a result of evasiveness. Dr. Gojer stated that many of these issues are intertwined and there could even be other factors affecting why someone does not want to answer truthfully or accurately in court. He acknowledged that he must defer to the court on this issue.
d. Dr. Gojer agreed that Ms. Sevim’s responses at trial may be motivated by her lack of memory or just as a result of her not wanting to answer honestly, and that he had no way of telling the difference.
e. Dr. Gojer stated in his report at page 92: “Her limited intellectual ability coupled with depression are important factors that may have prevented her from paying attention to who was borrowing her car, the importance of someone leaving an item in the car and a different person picking it up.” Dr. Gojer emphasized in his testimony the word “may” in this statement and agreed that this opinion presupposes her recitation of the events being taken at face value. Dr. Gojer agreed that he did not know whether Ms. Sevim was paying attention to these things or not at the relevant time. He agreed that it was not his role to know whether she was attending to these things or being evasive and that the court may have other information that he did not have.
f. Dr. Gojer agreed that, despite the conclusion that Ms. Sevim may suffer from a disability, she none the less was capable of understanding that a package left in her car may be suspicious. Dr. Gojer explained that a person who is intellectually disabled may demonstrate concrete thinking which can impact on the person ignoring or accepting certain behaviour. He stated that the intellectual disability could be one factor, but it is only one factor, and it is the court who must decide.
g. Dr. Gojer agreed that, during the course of interviewing Ms. Sevim, she described her daily responsibilities, including, her job, childcare, and taking care of her brother who suffers with schizophrenia. She recalled her brother’s medications, dosages, and frequency. She explained that she was responsible for making sure her brother completed his tasks of daily living. She described her responsibilities as the primary caregiver of a one-year-old child.
h. Dr. Gojer agreed that, in describing the events of May 14, 2019, Ms. Sevim described that she planned out a day of activities and carried it out. He agreed that she could make a plan, understand a plan, and execute a plan.
i. Dr. Gojer agreed that Ms. Sevim was capable of taking care of things when her car broke down.
j. Dr. Gojer felt that, in the context of their interviews and testing, Ms. Sevim understood the questions asked of her and completed the tasks in order to be assessed.
k. Dr. Gojer agreed that he did not have any method, rule, or system he could use to help the court assess whether a statement from Ms. Sevim was true or false. He explained that, as psychiatrists and psychologists, they look at reasons why a statement was made, and in what circumstances. He explained that they do not use legal tests, rather psychological tests based on statistics and probability measures, and then compare this to the diagnosis made. He explained that in terms of culpability and legal issues, this is for the court to decide with the assistance of clinical information he could provide.
Affidavit of Zehra Sevim
[31] Ms. Sevim swore an affidavit on April 27, 2023. The majority of that affidavit relates to allegations of ineffective assistance of counsel involving trial counsel. This was not ultimately pursued at this application and, therefore, is not considered by this court. However, Ms. Sevim stated in that affidavit that she was still unwell at the time of the trial in June 2022, having had surgery on October 1, 2021 to deal with medical complications related to her high-risk pregnancy.
[32] On August 28, 2023, Ms. Sevim swore a further affidavit which explained that it was around December 2022 and January 2023 that she disclosed to her new counsel her mental health issues that she was experiencing over the previous couple of years. It was following those discussions that a psychiatric assessment was completed by Dr. Gojer.
Analysis
Reopening
[33] Fairly recently, in the case of R. v. R.G., 2023 ONCA 343, the Court of Appeal discussed a trial judge reopening at this stage in the proceedings. In R.G., the new evidence to be considered amounted to cell phone records that, at their highest, would suggest that the accused was not at the location of an alleged incident. The Court stated:
[1] A trial judge sitting without a jury has the jurisdiction to vacate an adjudication of guilt and reopen a trial prior to the imposition of sentence. For good reason, this is rarely done. In determining whether to invoke this jurisdiction, the trial judge will consider numerous factors, including whether the defence has exercised due diligence during the trial proper. In exceptional cases, the cogency of new evidence will be so strong that, despite a failure of due diligence, the interests of justice will demand that the finding of guilt be vacated and the trial reopened. This is one of those rare, exceptional cases.
[52] Trial judges sitting without a jury are not functus officio until after sentence is imposed or the case is otherwise disposed of. To be sure, a trial judge sitting without a jury can vacate an adjudication of guilt prior to sentence or other final disposition: R. v. Lessard (1976), 1976 CanLII 1417 (ON CA), 30 C.C.C. (2d) 70 (Ont. C.A.), at p. 73. But to be equally sure, this jurisdiction should be exercised only in “exceptional circumstances” where “its exercise is clearly called for”: Lessard, at p. 73. This is a rare power and no one should expect a do-over: R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at para. 23.
[53] Since the trial judge is operating within an area of discretion when deciding whether to reopen a case, the decision is entitled to significant deference on appeal unless of course the decision is infected by legal error, a material misapprehension of evidence or is unreasonable: R. v. M.G.T., 2017 ONCA 736, 357 C.C.C. (3d) 109, at para. 55; R. v. Kippax, 2011 ONCA 766, 24 M.V.R. (6th) 1, at para. 64, leave to appeal refused, [2012] S.C.C.A. No. 92; and Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 777. Here, the appellant maintains that the decision is infected by legal error. I will explain those errors shortly below.
[54] The Palmer test for the admission of fresh evidence on appeal guides the analytical approach on applications to reopen. The four-part Palmer test, at p. 775 of that decision, is well-established:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief.
(4) The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[55] Over time, this test has been distilled into three helpful broad considerations: (1) is the evidence admissible under the operative rules of evidence (the admissibility component); (2) is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict (the cogency component); and (3) does the party seeking its admission offer a satisfactory explanation for the failure to adduce it at trial (the due diligence component): R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92.
In R.G., there was no dispute that the cell phone records amounted to admissible evidence; rather, the question was “whether the cogency of those records outstripped the serious failure when it came to due diligence.” (para. 56) The Court made it clear that on the question of “cogency”, the court must decide whether the evidence “bore upon a decisive or potentially decisive issue at trial and whether, if believed, the records could reasonably, when taken with the rest of the evidence adduced at trial, be expected to have affected the result.” (para. 59) In R.G., the Court of Appeal found that the trial judge erroneously considered whether the records, on their own, were decisive or potentially decisive, rather than looking at what the records could establish in the context of the evidence as a whole.
[34] Where the test to re-open the evidence at trial is met, the trial judge must choose between two remedies: 1) quash the conviction, receive the additional defence evidence, and any Crown evidence in reply, hear the parties final submissions, and render judgment, or 2) declare a mistrial: R. v. Arabia, 2008 ONCA 565, para. 49. In Arabia, the court stated:
[52] While there may be some uncertainty about the precise standard a judge is to apply in determining whether to declare a mistrial before verdict or judgment, it is well-settled that the authority to declare a mistrial should only be exercised in the clearest of cases. R. v. R. (A.J.) (1994), 1994 CanLII 3447 (ON CA), 94 C.C.C. (3d) 168 (Ont. C.A.) (A.J.), at 174 ; R. v. Paterson (1998), 1998 CanLII 14969 (BC CA), 122 C.C.C. (3d) 254 (B.C. C.A.) at paras. 93-98. There seems no reason in principle to apply any less rigorous standard to applications for the same remedy made after verdict or judgment.
[35] The courts have suggested that a mistrial may be the more appropriate remedy where the proposed evidence bears on the correctness of credibility findings made by the trial judge in convicting the accused. See R. v. Drysdale (2011), 2011 ONSC 5451, paras 27-29, which was referred to with approval by the Court of Appeal in R. v. Griffith 2013 ONCA 510 at paras. 40-42. See also: R. v. Hung, 2019 ONSC 124 at para. 93; R. v. S. (X.X.), 2005 CarswellOnt 8259 (Ont. S.C.J.); R. v. A.G, 2018 ONSC 3043 at para. 85; R. v. Duro, 2018 ONSC 285 at para. 26, 30; R. v. Carter-Teixeira, 2019 ONCJ 838 at paras. 39-40; R. v. Ghanbarbidkorpe, [2016] O.J. No. 6991 para. 10.
[36] A further consideration as to the appropriate remedy is the length of time between the finding of guilt and the reconsideration of the verdict. In Griffith, at para. 26, the court held that “the longer the time that has elapsed between the finding of guilt and the reconsideration of the verdict, the greater the risk of an appearance of unfairness, an apprehension of bias, or the possibility of a tainted decision-making process.”
[37] The evidence presented on this re-opening application is the psychiatric report of Dr. Julian Gojer and the affidavits of Zehra Sevim. The evidence is related directly and solely to Ms. Sevim’s reliability and credibility at trial. Dr. Gojer offers an opinion that the depression, anxiety, and trauma which Ms. Sevim was suffering from at the time of her trial on June 23-24, 2023, overlaid on top of her intellectual limitations, were significant psychiatric and psychological factors that may have caused issues with Ms. Sevim’s memory, attention and focus at the trial, and resulted in her answers to questions such as “I don’t remember” or vagueness in her testimony. Furthermore, in Dr. Gojer’s opinion, Ms. Sevim’s intellectual limitations and depression at the time of the offence in May of 2019 are important factors that may have prevented her from paying attention to who was borrowing her car, the importance of someone leaving an item in the car, and a different person picking it up.
[38] Having carefully considered the entirety of the circumstances, this court is not satisfied that a re-opening should occur in this case.
[39] As stated in R.G., the first consideration is whether the evidence is admissible under the operative rules of evidence (the admissibility component). As also stated in Arabia at para. 78, “Evidence that is inadmissible…could not reasonably be expected to have affected the result at trial.”
[40] The admissibility of expert opinion evidence requires a two-step approach. In the first step, it must be established that the evidence is admissible by a consideration of four factors:
a. relevance;
b. necessity in assisting the trier of fact;
c. absence of any exclusionary rule; and
d. a properly qualified expert
In the second step, referred to as the “discretionary gatekeeping step”, the court must balance the risks and benefits of the evidence. See: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at para. 16; White Burgess Langille Inman v. Abbott & Haliburton Co., 2015 SCC 23 at para. 23-24.
[41] As for necessity, the evidence must deal with subject-matter about which ordinary people are unlikely to form a correct judgment without assistance or provide information likely outside the experience and knowledge of the trier of fact. Expert evidence is not necessary where normal experience enables the trier of fact to come to its own conclusions. See Mohan at para. 26; R. v. Abbey 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, at page 42; R. v. Sekhon, 2014 SCC 15, para. 45. Even if expert opinion evidence meets the Mohan criteria, the trial judge must exclude it if its potential prejudicial effect outweighs its probative value. An opinion “on an issue that the jury is fully equipped to decide without that opinion is unnecessary and should register a “zero” on the “benefit” side of the scale.” R. v. Abbey, 2009 ONCA 624, at para. 94.
[42] In R. v. Henderson, 2016 ONSC 2885, the Defence sought to call Dr. Gojer to provide opinion evidence as to whether past trauma the accused experienced explained why he carried a knife with him, and whether that trauma explained why he reacted so violently to the events that occurred. The Defence suggested that the evidence was necessary to assist the jury in understanding how the past events could have impacted the behaviour of the accused on the night in question. The Crown took the position that the evidence would amount to impermissible oath-helping and speak to the ultimate issue that the jury would need to decide. Justice Bird relied in part on Justice Corbett’s decision in R. v. Liard & Lasota, 2013 ONSC 5457, where the Defence sought to call “almost identical evidence”. Corbett J. concluded that Dr. Gojer’s opinion was essentially a restatement of the accused’s feelings, and that Dr. Gojer was performing the task assigned to the trier of fact, “…considering what Mr. Lasota has to say, considering the evidence from other witnesses, determining credibility, and then coming to a view of what happened, and why” and therefore, the opinion was found to be a repetition of the accused’s evidence “with a professional gloss” which threatened to usurp the role of the trier of fact, and an opinion on “matters of human nature and behaviour within the limits of normality.” (Liard, paras. 365-367. Justice Bird similarly concluded:
[46] Permitting Dr. Gojer to testify would place the accused’s version of events before the jury in the guise of a professional psychiatric opinion. This would create the very real risk of usurping the function of the jury. Mr. Henderson has not established that the opinion evidence of Dr. Gojer is necessary to assist the jury in forming a correct judgment about a subject that is outside their experience and knowledge. Consequently, the defence is not permitted to call Dr. Gojer to give the expert opinion evidence set out in his report.
[43] In the case at bar, Dr. Gojer’s evidence does not appear to go as far as it did in Liard & Lasota. However, in his report, Dr. Gojer sets out Ms. Sevim’s account of the events, accepts that version, and then uses the diagnosed disorders to provide a possible explanation for why she testified as she did at trial. Dr. Gojer refers to her “difficulty in being focused on the issues being explored on the stand” and “difficulty organizing her thoughts”, while, by his own admission, he was not at the trial. He does not know whether she was focused or not and cannot speak to her degree of focus. In order to come to these conclusions, he presumes that is what was happening, rather than speaking from knowledge.
[44] Further, Dr. Gojer discusses in his report that Ms. Sevim’s intellectual limitations, coupled with depression, may have prevented her from paying attention to who was borrowing her car, the importance of someone leaving an item in the car, and a different person picking it up. However, Dr. Gojer cannot say what Ms. Sevim was or was not paying attention to at the time. Again, he is making presumptions. As in Henderson and Liard & Lasota, admitting this evidence “would place the accused’s version of events before the jury in the guise of a professional psychiatric opinion”.
[45] Dr. Gojer’s report does not meet the test for admission of expert opinion evidence because it is not necessary to assist the trier of fact in determining the issues. Defence counsel conceded on this application that the only issue at trial that this evidence goes to is the reliability and credibility of Ms. Sevim – in other words, her truthfulness when she testified. Dr. Gojer summarizes Ms. Sevim’s version of events and then provides diagnoses which may or may not explain why she testified as she did or why she acted the way she did in May 2019. His opinion is squarely focused on the subject of her reliability and credibility. This is not something about which ordinary people are unlikely to form a correct judgment without assistance. This does not provide information likely outside the experience and knowledge of the trier of fact. This report, and/or his viva voce evidence, cannot help the court to understand whether any particular statement is true or false. Dr. Gojer is unable to provide any test or guidance for the trier of fact to utilize to determine truth or falsity.
[46] Ultimately, Dr. Gojer’s opinion is that Ms. Sevim suffers from anxiety, stress, depression, and a below average intellectual function, which, in his opinion, means that she may have been telling the truth when she said that she had forgotten certain details, or she may not have wanted to take responsibility for her actions. She may have or may not have been telling the truth when she said she did not know or have any questions about what was in the package, or she may have been willfully blind. Dr. Gojer does not offer any way of assessing whether what Ms. Sevim said was true or not true when she testified. According to Dr. Gojer, Ms. Sevim suffers from two significant disorders and her responses may or may not have been forgetfulness from the disorders and an inability to organize her thoughts on the stand, or it may have simply been evasiveness. Dr. Gojer has no way of knowing one way or the other and offers no tools to assist this court.
[47] Further, by providing any opinion on whether or not Ms. Sevim was telling the truth about her knowledge or lack of knowledge, Dr. Gojer’s evidence offends the exclusionary rule against oath-helping. Oath-helping refers to evidence adduced solely to bolster or increase a witness’ credibility. The Defence conceded on this application that this evidence is only related to one issue – the truthfulness of Ms. Sevim’s evidence. As explained in R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223:
[49] ….A judge or jury who simply accepts an expert's opinion on the credibility of a witness would be abandoning its duty to itself determine the credibility of the witness. Credibility must always be the product of the judge or jury's view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter: … Credibility is a matter within the competence of lay people. Ordinary people draw conclusions about whether someone is lying or telling the truth on a daily basis. The expert who testifies on credibility is not sworn to the heavy duty of a judge or juror. Moreover, the expert's opinion may be founded on factors which are not in the evidence upon which the judge and juror are duty-bound to render a true verdict. Finally, credibility is a notoriously difficult problem, and the expert's opinion may be all too readily accepted by a frustrated jury as a convenient basis upon which to resolve its difficulties. All these considerations have contributed to the wise policy of the law in rejecting expert evidence on the truthfulness of witnesses.
[50] On the other hand, there may be features of a witness's evidence which go beyond the ability of a lay person to understand, and hence which may justify expert evidence. This is particularly the case in the evidence of children. For example, the ordinary inference from failure to complain promptly about a sexual assault might be that the story is a fabricated afterthought, born of malice or some other calculated stratagem. Expert evidence has been properly led to explain the reasons why young victims of sexual abuse often do not complain immediately. Such evidence is helpful; indeed it may be essential to a just verdict.
[51] For this reason, there is a growing consensus that while expert evidence on the ultimate credibility of a witness is not admissible, expert evidence on human conduct and the psychological and physical factors which may lead to certain behaviour relevant to credibility, is admissible, provided the testimony goes beyond the ordinary experience of the trier of fact. Professor A. Mewett describes the permissible use of this sort of evidence as "putting the witness's testimony in its proper context." He states in the editorial "Credibility and Consistency" (1991), 33 Crim. L.Q. 385, at p. 386:
The relevance of his testimony is to assist ‑‑ no more ‑‑ the jury in determining whether there is an explanation for what might otherwise be regarded as conduct that is inconsistent with that of a truthful witness. It does, of course, bolster the credibility of that witness, but it is evidence of how certain people react to certain experiences. Its relevance lies not in testimony that the prior witness is telling the truth but in testimony as to human behaviour.
There are concerns. As the court stated in R. v. J. (F.E.), [(1990), 1990 CanLII 13294 (ON CA), 53 C.C.C. (3d) 94, 74 C.R. (3d) 269, 36 O.A.C. 348 (C.A.)], and R. v. C.(R.A.) (1990), 1990 CanLII 5412 (BC CA), 57 C.C.C. (3d) 522, 78 C.R. (3d) 390, the court must require that the witness be an expert in the particular area of human conduct in question; the evidence must be of the sort that the jury needs because the problem is beyond their ordinary experience; and the jury must be carefully instructed as to its function and duty in making the final decision without being unduly influenced by the expert nature of the evidence.
[48] This Court had the opportunity and ability to listen to and watch Ms. Sevim as she testified in person in the courtroom. Ms. Sevim was alert and focused as she gave her testimony. She provided information about her age, residence, family, child, college education, and employment, including that she ran her own business. Although Ms. Sevim did answer with “I don’t remember” on a number of occasions, she certainly did provide a lot of details about the day of May 14, 2019. This Court considered Ms. Sevim’s testimony in the context of the whole of the evidence, including the fact that Ms. Sevim admitted the factual narrative of the Crown’s case through an Agreed Statement of Fact, which included text messages and videos reviewed and played in court during the trial in the presence of Ms. Sevim.
[49] It is true that this court did not have the evidence of Dr. Gojer when initially assessing the testimony of Ms. Sevim at trial. However, Dr. Gojer’s evidence does not even attempt to explain why or how the conditions suffered by Ms. Sevim could be used by the trier of fact to assist with whether a person in her situation would have been suspicious about the content of the package, whether she ignored those suspicions, and whether she was honest about having no suspicions. Dr. Gojer’s evidence does not even attempt to explain why or how the conditions suffered by Ms. Sevim could be used by the trier of fact to assist with an assessment of her reliability or credibility. Dr. Gojer’s evidence does not explain aspects of human behaviour, which are important to an assessment of credibility, that may not be understood by lay persons, as discussed in Marquard. Dr. Gojer’s opinion does nothing more than suggest that Ms. Sevim may or may not have been telling the truth in the stressful setting of the courtroom. The notion that a witness may be under stress during their testimony is not technical or beyond the understanding of any trier of fact – it is common knowledge and does not require expert evidence to explain.
[50] Beyond being inadmissible, the evidence is not sufficiently cogent in that it could reasonably be expected to have affected the verdict (the cogency component). It should be noted that the Crown accepts that the evidence of Dr. Gojer is capable of belief, which this court accepts for this analysis. However, even when accepted at face value, this evidence could not reasonably be expected to have affected the verdict. This court notes that Defence counsel at trial referred to the fact that, in assessing her credibility, this court should consider her level of sophistication, her demonstrated sincerity, and the attempt to recount events that occurred three years previously. This court was alive to all of these issues when assessing the reliability and credibility of Ms. Sevim. While referring to the fact that Ms. Sevim’s evidence included answers of “I don’t remember” or similar responses, this court accepted that this event occurred three years previously. This Court also acknowledged that Ms. Sevim was initially unaware of any investigation, and she carried on her life, including travelling to Europe, as if nothing had happened. Even when she was told about Silman’s murder, there was nothing to tie that to the package that was located in her car. At some point, a search warrant was executed, and Ms. Sevim was made aware of this and the need to contact a detective. This court was not certain when this occurred. Therefore, this court found that it may only have been on August 5, when Ms. Sevim returned to Canada and was arrested, that she started to think back to these events. By this time, she claimed that she did not remember certain things. This court factored all of this into its analysis. However, Ms. Sevim’s expressed lack of memory was not the only problem with her evidence.
[51] This Court went on to express its concerns about Ms. Sevim’s evidence, in the context of the evidence as a whole, including:
a. Contrary to trial counsel’s submission about her low level of sophistication, not unlike the submission being made on this application, Ms. Sevim appeared to be an articulate, hardworking woman who supported herself and her family, and who provided quite a lot of detail in some parts of her testimony, while not in others.
b. Ms. Sevim was unclear, perhaps even inconsistent, about when she first saw the package. Ms. Sevim initially testified that she did not go look for the package when Silman first called, as she would not have a phone signal. However, a few moments later, she said that she did go to her car, looked in the trunk, and the package was under some stuff that she found after moving some things around. Then later when describing the events at Popeye’s, she said it was in the trunk under some stuff like some shoes and clothes and her work equipment and that she had not noticed it there before. It was not at all clear when Ms. Sevim first saw the package. Also, if Ms. Sevim had handled the package earlier, and had no concerns about its content, there would be no reason for it to be under shoes, clothes and work equipment at the Popeye’s.
c. Ms. Sevim was unclear about when she took the package out of the trunk. She initially testified that she retrieved the package from the trunk and put it in the Popeye’s bag in the Popeye’s parking lot. A short while later, when asked when she took the package out of the trunk, whether at home or at Popeye’s, she said that she did not remember.
d. According to the Agreed Statement of Fact #1, at 7:07 p.m., Ms. Sevim entered the Popeye's Chicken restaurant. One minute later, she returned to the Honda and got into the driver's seat. She was carrying an empty white plastic Popeye's bag. She then got out of the driver's seat carrying a black bag, which she placed in the trunk of the Honda before driving out of the parking lot. Ms. Sevim claimed to have no memory of doing this. Given that Ms. Sevim did recall events at the Popeye’s, this forgetfulness seemed purposeful.
e. There was no question that Mr. Lu reached into Ms. Sevim’s car and retrieved a package in a brown paper bag. Ms. Sevim stated that she placed the package in a white plastic Popeye’s bag and had no explanation for how or why the package was in a brown bag a short time later.
f. Ms. Sevim handled the black package at least once, maybe more, yet claimed to have no recollection of what it felt like.
g. Ms. Sevim, by her own admission, took no steps to ascertain what was in the package. Ms. Sevim, by her own admission, took no steps to understand what she was being asked to do or why she was doing it. Ms. Sevim, by her own admission, had only met Silman a couple of times before this event. Therefore, she really did not know Silman at all. This court found that anyone in Ms. Sevim’s position that day, as she described it, would have asked questions about this package, or at least had a serious curiosity. Yet, Ms. Sevim claimed that she did not ask one question and had no curiosity whatsoever. This suggested to this court that Ms. Sevim already knew full well what was in the package – perhaps, not the exact product, but at least knew that it was an illegal drug.
h. Ms. Sevim was asked to meet a stranger in a parking lot and to provide him with the package. Ms. Sevim sat idly by while a stranger reached into the passenger side window of her car to grab the package with barely any discussion whatsoever. It defies logic and common sense that Ms. Sevim, or anyone, would not ask any questions, or be concerned about these circumstances.
[52] The overall findings and conclusions in this case were not based solely on Ms. Sevim’s forgetfulness, but on the implausibility of her testimony, in light of the Crown’s case which was admitted by Agreed Statement of Fact. The evidence of Dr. Gojer could not reasonably, when taken with the rest of the evidence adduced at trial, be expected to affect the result in any way. Even if this Court were willing to accept that Ms. Sevim has intellectual limitations, and is below average in this respect, this does not change the uncontroverted evidence that she is a college educated entrepreneur and the primary caregiver to a young child and her brother. She testified about her household expenses, planned and carried out her afternoon errands, and arranged for the repair of her car when problems arose. This Court had ample evidence to assess Ms. Sevim’s degree of sophistication, certainly as it relates to the narrative in this case, which is not overly complex in any way.
[53] As for due diligence, this court is satisfied that this factor would certainly not be determinative against Ms. Sevim on this application. The courts have made it clear that this is only one factor to be considered. See R. v. Drysdale, 2011 ONSC 5451, para. 19. While certainly this is evidence that the Defence could have sought in the three years between arrest and trial, it is certainly not clear to this court that there was any tactical decision not to obtain it. According to Ms. Sevim’s affidavit sworn August 28, 2023, which is not challenged by the Crown, it was around December 2022 and January 2023 that she disclosed to her new counsel her mental health issues that she was experiencing over the previous couple of years. It was following those discussions that a psychiatric assessment was completed by Dr. Gojer. The report, which encapsulates Dr. Gojer’s opinions, was only received on April 27, 2023, and was therefore not available at trial. This court is willing to accept that the reopening application is not an attempt to disavow a tactical decision made at trial. This court is willing to accept that there was no deliberate choice or strategy employed in not obtaining this evidence for trial.
[54] In summary, this court does not deny this application on the basis of a lack of due diligence. Rather, it is the view of this court that this evidence is not admissible under the operative rules of evidence explained above and the evidence is not sufficiently cogent in that it could reasonably be expected to have affected the verdict. When taken with the other evidence at the time, Dr. Gojer’s evidence could not and would not have affected the result. While this court accepts that Dr. Gojer’s evidence bears on the issue of Ms. Sevim’s reliability and credibility, a relevant and decisive issue at trial, his evidence does not provide this court with any tools upon which to question its previous conclusions reached about Ms. Sevim’s reliability and credibility. When viewed in the context of the evidence as a whole, his evidence is not capable of raising a reasonable doubt upon which an acquittal would flow.
[55] Even if this court were to re-open the trial and accept the fresh evidence, there are two options as to remedy: 1) reopen the trial, consider the further evidence, make a fresh assessment of the evidence as a whole, and come to a conclusion as to whether the Crown’s case has been proven beyond a reasonable doubt; 2) declare a mistrial. In R. v. Ghanbarbidkorpe [2016] O.J. No. 6991 (S.C.), the court held that a mistrial would only be appropriate if the reassessment is, “as a practical matter, not available, or if the appearance of justice would require that the matter be sent back for a fresh assessment of what the verdict should be” (para. 10). In Ghanbarbidkorpe, the court found that much of the impression of a witness’ evidence “exists now only in my notes, and in the black and white of my judgment, not in my memory.” (para. 10) The Court found that it could not adequately reassess the case at that point. See also R. v. Griffith, 2013 ONCA 510, para .26 and R. v. Drysdale, 2011 ONSC 5451, para. 29
[56] In the case at bar, even if this court were to admit this fresh evidence, it would not grant a mistrial. While this court accepts that a mistrial is more likely to be granted where the proposed evidence bears on the correctness of credibility findings made by the trial judge in convicting the accused, it is the view of this court that this evidence does not do that. This evidence amounts to nothing more than Dr. Gojer stating that Ms. Sevim’s intellectual limitations and psychiatric / psychological conditions may or may not have been the cause of her forgetfulness at trial or lack of inquiry on the day in question. Dr. Gojer accepts that Ms. Sevim may very well have been avoiding answering these questions to protect her position at trial. Dr. Gojer accepts that Ms. Sevim may have been willfully blind. This is not a case like in Drysdale where fresh evidence supported something the accused reported as a fact at trial that had expressly not been accepted by the court. As for the passage of time, this delay was caused by Ms. Sevim. Further, this court is keenly aware of the decision reached and why it was reached. This court has a very clear memory of the evidence at trial, mostly agreed statement of fact, and Ms. Sevim’s testimony. There is no principled reason, in the circumstances of this case, to doubt the court’s ability to fairly and impartially assess the new evidence and its impact. A mistrial is a discretionary remedy of last resort. A mistrial is required only when the integrity and fairness of the decision-making process has been incurably damaged. This is not the case here.
[57] For the same reasons outlined above, even if this court were to reconsider its conviction on the whole of the evidence, with the addition of this fresh evidence, it would not result in an acquittal. The adverse credibility findings made about Ms. Sevim’s evidence were based on logic and common-sense in the context of the whole of the evidence as summarized above. Those adverse credibility findings would not be impacted by Dr. Gojer’s evidence that Ms. Sevim may or may not be demonstrating forgetfulness, but also may or may not be demonstrating dishonesty. Even if this court accepts that Ms. Sevim has intellectual limitations and psychiatric and psychological conditions, it does not change this court’s assessment of her evidence based on the whole of the evidence it saw and heard. Ms. Sevim’s evidence was found to be implausible and inconsistent on a number of points. The concerns of this court were not restricted to concerns regarding forgetfulness. There is nothing about Dr. Gojer’s evidence which makes this court’s credibility findings or the conviction unsound or unsafe.
[58] The jurisdiction to re-open between conviction and sentence should be exercised only in exceptional circumstances where its exercise is clearly called for. As the courts have explained, this is a rare power and no one should expect a do-over. For all of the reasons stated above, this is not a case where this court’s rare power should be utilized. There is no evidence to question findings made at trial. This is nothing more than a possible explanation for some of Ms. Sevim’s responses at trial without any explanation or guidance as to when, if, or how it applies. This evidence certainly does not justify this court using such an exceptional power.
[59] The application to re-open the trial is dismissed.
Sentencing
General Principles
[60] In sentencing an offender, the Court must take into account the circumstances of the offence and the offender, together with codified principles of sentencing. Section 718 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;
(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.
[61] Pursuant to section 718.1, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is a cardinal principle of sentencing, therefore, whatever weight a judge gives to the objectives listed above, the ultimate sentence imposed must respect the fundamental principle of proportionality. See R. v. Nasogaluak, 2010 SCC 6, paras. 41-43; R. v. Safarzadeh-Markhali, 2016 SCC 14; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Omoragbon, 2020 ONCA 336, para. 28
[62] In R. v. Parranto, 2021 SCC 46, the Supreme Court of Canada stated:
[9] This Court has repeatedly expressed that sentencing is "one of the most delicate stages of the criminal justice process in Canada" (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 1). More of an art than a science, sentencing requires judges to consider and balance a multiplicity of factors. While the sentencing process is governed by the clearly defined objectives and principles in Part XXIII of the Criminal Code, it remains a discretionary exercise for sentencing courts in balancing all relevant factors to meet the basic objectives of sentencing (Lacasse, at para. 1).
[10] The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code, proportionality stands alone following the heading "Fundamental principle" (s. 718.1). Accordingly, "[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender" (R. v. Friesen, 2020 SCC 9, at para. 30). The principles of parity and individualization, while important, are secondary principles.
[11] Despite what would appear to be an inherent tension among these sentencing principles, this Court explained in Friesen that parity and proportionality are not at odds with each other. To impose the same sentence on unlike cases furthers neither principle, while consistent application of proportionality will result in parity (para. 32). This is because parity, as an expression of proportionality, will assist courts in fixing on a proportionate sentence (para. 32). Courts cannot arrive at a proportionate sentence based solely on first principles, but rather must "calibrate the demands of proportionality by reference to the sentences imposed in other cases" (para. 33).
[12] As to the relationship of individualization to proportionality and parity, this Court in Lacasse aptly observed:
Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. [para. 53]
Individualization is central to the proportionality assessment. Whereas the gravity of a particular offence may be relatively constant, each offence is "committed in unique circumstances by an offender with a unique profile" (para. 58). This is why proportionality sometimes demands a sentence that has never been imposed in the past for a similar offence. The question is always whether the sentence reflects the gravity of the offence, the offender's degree of responsibility and the unique circumstances of each case (para. 58).
[63] While previous sentencing decisions are helpful to consider, each sentencing a court is tasked with must be conducted by considering the specific offence and specific offender in that particular case. Only in this manner will proportionality be respected. Every case is unique in some way.
[64] Section 718.2 of the Criminal Code directs the court to consider various relevant aggravating circumstances relating to the offence or the offender. In addition, as this case involves a controlled substance, the court is directed to consider s. 10 of the Controlled Drugs and Substances Act. This court must also consider all relevant mitigating circumstances that apply.
[65] Further, this court must consider the principles of parity, totality, and to not deprive the person of liberty if less restrictive sanctions are appropriate and consistent with the harm done to the victim and the community. (s. 718.2(b)-(e))
Seriousness of the Offence – Sentencing Range
[66] This is a most serious offence, involving a most serious substance – fentanyl. Ms. Sevim admitted the continuity of all items seized in relation to this investigation from the point of seizure by the police and thereafter, including that the package she provided to Mr. Lu contained approximately 494 grams of blue fentanyl heroin mix.
[67] According to the Crown, as a sentencing range is only concerned with the circumstances of the offence/seriousness of the offence, a consideration of the circumstances of the offender cannot possibly justify a sentence outside the range, but only serves to move the sentence up and down the range. This court does not accept this submission. This would ignore the individualized approach central to the proportionality assessment referred to in Parranto. Ranges are not binding. A sentence above or below a recognized range may be appropriate in certain circumstances. In Parranto, the court had this to say about ranges:
[4] Accordingly, there is no need to disavow the starting-point approach to sentencing. Sentencing ranges and starting points are simply different tools that assist sentencing judges in reaching a proportionate sentence. It is not for this Court to dictate which of these tools can or cannot be used by appellate courts across the country. Provincial appellate courts should be afforded the respect and latitude to provide their own forms of guidance to sentencing judges, as long as that guidance comports with the principles and objectives of sentencing under the Criminal Code, R.S.C. 1985, c. C-46, and with the proper appellate standard of review.
[16] Quantitative appellate guidance generally takes one of two forms: starting points, or sentencing ranges. These tools are best understood as "navigational buoys" that operate to ensure sentences reflect the sentencing principles prescribed in the Criminal Code. Busy sentencing judges face a challenging task; the Code often provides for a wide range of possible sentences and the factual circumstances of each case vary infinitely. Sentencing must begin somewhere, and both starting-point and range methodologies assist sentencing judges by providing a place to start in the form of either a single number or a range. As this Court has recognized, however, "there is no such thing as a uniform sentence for a particular crime" (M. (C.A.), at para. 92). Neither tool relieves the sentencing judge from conducting an individualized analysis taking into account all relevant factors and sentencing principles.
[17] Sentencing ranges generally represent a summary of the case law that reflects the minimum and maximum sentences imposed by trial judges in the past (Lacasse, at para. 57; Friesen, at para. 36). They "provide structure and guidance and can prevent disparity", while leaving judges space to "weigh mitigating and aggravating factors and arrive at proportional sentences" (R. v. Smith, 2019 SKCA 100, 382 C.C.C. (3d) 455, at para. 126). The range, therefore, "reflects individual cases, but does not govern them" (C. C. Ruby, Sentencing (10th ed. 2020), at s. 23.7, citing R. v. Brennan and Jensen (1975), 1975 CanLII 1304 (NS CA), 11 N.S.R. (2d) 84 (C.A.)).
[36] The key principles are as follows:
- Starting points and ranges are not and cannot be binding in theory or in practice (Friesen, at para. 36);
2.Ranges and starting points are "guidelines, not hard and fast rules", and a "departure from or failure to refer to a range of sentence or starting point" cannot be treated as an error in principle (Friesen, at para. 37);
3.Sentencing judges have discretion to "individualize sentencing both in method and outcome", and "[d]ifferent methods may even be required to account properly for relevant systemic and background factors" (Friesen, at para. 38, citing Ipeelee, at para. 59); and,
4.Appellate courts cannot "intervene simply because the sentence is different from the sentence that would have been reached had the range of sentence or starting point been applied" (Friesen, at para. 37). The focus should be on whether the sentence was fit and whether the judge properly applied the principles of sentencing, not whether the judge chose the right starting point or category (Friesen, at para. 162).
These principles settle the matter. Contrary to the Crown's submission, it is not an open question whether sentencing judges are free to reject the starting-point approach. Sentencing judges retain discretion to individualize their approach to sentencing "[f]or this offence, committed by this offender, harming this victim, in this community" (R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 80 (emphasis in original)). There is no longer space to interpret starting points (or ranges) as binding in any sense.
[37] Having made clear that starting points and ranges are tools and not straitjackets, we turn to the role that a sentencing range or starting point plays in appellate sentence review.
[38] As we have already stated, sentencing is an individualized process, and parity is secondary to proportionality. Therefore, departures from the starting point or sentences above or below the range are to be expected. Even significant departures are not to be treated as a prima facie indication of an error or demonstrable unfitness. Fitness is assessed with reference to the principles and objectives of sentencing in the Code, not with reference to how far the sentence departs from quantitative appellate guidance.
[40]… We emphasize, however, that it is inappropriate for appellate courts to "artificially constrain sentencing judges' ability to impose a proportionate sentence" by requiring "exceptional circumstances" when departing from a range (Friesen, at paras. 111-12; R. v. Burnett, 2017 MBCA 122, 358 C.C.C. (3d) 123, at para. 26). Departing from a range or starting point is appropriate where required to achieve proportionality.
[44] While not binding, however, sentencing ranges and starting points are useful tools because they convey to sentencing judges an appreciation of the gravity of the offence. And, as we have already observed, they offer judges a place to begin their thinking. When applying these tools, sentencing judges must individualize the sentence in a way that accounts for both aspects of proportionality: the gravity of the offence and the offender's individual circumstances and moral culpability. At the stage of individualizing the sentence, the sentencing judge must therefore consider "all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them" (Ipeelee, at para. 75). Those factors and circumstances may well justify a significant downward or upward adjustment in the sentence imposed.
[61] We reiterate that the nine-year starting point is just "one tool among others that [is] intended to aid trial judges in their work" (Lacasse, at para. 69). Sentencing judges are free to depart from the starting point and move up or down from this marker based on the specific characteristics of the offender in order to meet the primary sentencing principle of proportionality.
[68] Coincidentally, Parranto was in fact a case where Mr. Felix and Mr. Parranto pleaded guilty to various offences arising out of unrelated drug trafficking operations, including trafficking fentanyl at the wholesale commercial level. At first instance, Mr. Felix received a global sentence of 7 years and Mr. Parranto received a global sentence of 11 years. The Court of Appeal increased the sentences to 10 years and 14 years respectively. The appeal to the Supreme Court of Canada was dismissed. It should be noted that Mr. Parranto had just over 500 grams of fentanyl, which the court referred to as wholesale trafficking. While the amount of substance is similar to the case at bar, there are certainly distinguishing factors from this case, including Mr. Parranto had a record, was in possession of large quantities of other drugs, guns and body armour, and was held to be the directing mind. It should be noted that Mr. Felix was said to be the directing mind of a “dial-a-dope” drug trafficking operation, who participated in five completed transactions and one incomplete transaction. The Supreme Court accepted the starting point of nine years established by the Court of Appeal as being a “marker” (para. 61) and the national sentencing range of 8 to 15 years (para. 68 and 78). In discussing the national range of sentence for commercial level fentanyl trafficking applicable to Mr. Felix, the court cited various examples to support this position. It is worth noting that the examples cited by the Supreme Court of Canada at the low end of that range were:
a. R. v. Smith, 2019 SKCA 100 – The appellant was the member of a motorcycle gang, at the heart of organized crime. The drug dealing took place in that context. The appellant had been in the “business of being a criminal” since 2004. The fentanyl trafficking was three transactions, where the fentanyl / heroin mix was packaged to resemble oxycontin, and the pills totaled 1834.
b. R. v. Leach, 2019 BCCA 451 – This arose in the context of a “dial-a-dope” operation that Leach ran for a year. Leach and his subordinates trafficked primarily in fake oxycodone pills containing fentanyl. The trafficking was in relation to 11,727 pills.
c. R. v. Sinclair, 2016 ONCA 683 – The details of this case are not clear.
d. R. v. Solano-Santana, 2018 ONSC 3345 – During the search of his person, police discovered a zip lock baggie containing 495 pills, which appeared to be Percocet, but were later identified as containing fentanyl. During the search of the hotel room in which he was staying, police discovered a pillowcase containing 4,500 pills, which appeared to be Percocet, but were later determined to be fentanyl. The offender was working alone for financial gain.
e. R. v. White, 2020 NSCA 33 – There were 2,086 fentanyl pills stamped to look like OxyContin, in addition to other drugs.
f. R. v. Borris, 2017 NBQB 253 – This was a joint submission. The case involved the seizure of 4200 pills of fentanyl, worth approximately $84,000, in addition to methamphetamine, cocaine, psilocybin, and hashish.
[69] The Crown in the case at bar argued that the national range discussed in Parranto is applicable in the case at bar, and that, effectively, this court has no ability to impose a sentence below eight years, regardless of the mitigating circumstances that may apply to Ms. Sevim. The Crown argued that the mitigating circumstances merely move Ms. Sevim toward the lower end of this range rather than the higher end. With all due respect, this is not what Parranto established. While this court accepts and applies the guidance from Parranto, the Supreme Court did not suggest that this 8-to-15-year range was the absolute lower and upper sentences that a court could impose. Having said that, however, Parranto clearly conveys the gravity of this offence and that fentanyl trafficking, especially at commercial levels, will receive significant punishment.
[70] The gravity of this offence is undeniable. The Criminal Code itself conveys that message by imposing a maximum sentence for this offence as life.
[71] In Parranto, in the concurring judgment of Justice Moldaver, the court emphasized the seriousness of trafficking in hard drugs and, in particular, fentanyl. The court stated:
[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 CanLII 64 (SCC), [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 CanLII 778 (SCC), [1998] 1 S.C.R. 982, at paras. 85-87, per Cory J., dissenting, but not on this point; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, 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), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A), at para. 104)
See also, R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at pp. 694-95, where the Court relied on the Groupe de travail sur la lutte contre la drogue (1990), Rapport du groupe de travail sur la lutte contre la drogue, at pp. 18-19, which noted that it is a mistake to view drug trafficking under the control of organized crime as less serious than more openly violent crimes.
[72] Subsequent to the decision in Parranto, the Court of Appeal released the decision of R. v. Lynch, 2022 ONCA 109, where the offender sold various substances to an undercover officer on seven different occasions. In total, the case involved trafficking of approximately 1 kg of cocaine, 149 grams of MDMA, and 41 grams of fentanyl. The Court of Appeal offered the following guidance on the appropriate range of sentence:
[14] Returning then to the errors involved, the trial judge erred in concluding that the range of sentence for mid-level traffickers of cocaine is four to six years. Decisions of this court have established that the range for such offenders is five to eight years: see, for example, R. v. Maone, [2020] O.J. No. 3064, 2020 ONCA 461, at paras. 12-13. Further, fentanyl is a more dangerous drug than cocaine. To the degree that the trial judge used his comparison of these ranges to justify a lower sentence in this case, he erred.
[15] To be clear, the trial judge initially correctly identified the sentencing range in this case as between six and eight years. However, he then incorrectly lowered that range by his erroneous comparison to what he thought was the comparative range for cocaine. He appears to have adopted this approach because of his view that all dangerous drugs should be treated the same when it comes to sentencing. That view itself reflects error. It is a well-established principle that drugs vary in the degree of danger that they represent to those who consume them. Consequently, the more dangerous the drug being trafficked, the higher the penalty that will be imposed. Fentanyl is now known to be a much more dangerous drug than almost any other. That reality directs that a sentence imposed for trafficking in fentanyl should be as long or longer than a corresponding sentence for trafficking in cocaine: R. v. Olvedi (2021), 157 O.R. (3d) 583, [2021] O.J. No. 3915, 2021 ONCA 518, at para. 56, leave to appeal to S.C.C. to refused [2021] S.C.C.A. No. 340.
The Court of Appeal allowed the Crown’s appeal and imposed a sentence of 6 years, noting that the Crown’s request for an 8-year sentence was reasonable based on the guidance from Parranto.
[73] Even prior to the guidance from Parranto, in Ontario, significant penitentiary sentences were found to be appropriate in the context of fentanyl trafficking.
[74] In R. v. Loor, 2017 ONCA 696, the accused was a low-level member of a small drug trafficking ring dealing in fentanyl. Mr. Loor used a forged prescription to obtain 45 patches of fentanyl – 15 at a time – from a pharmacy in Barrie. The value was determined to be between $18000 and $20000. At para 50, the court stated:
[50] Few fentanyl trafficking cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a range. But I think it fair to say that generally, offenders -- even first offenders -- who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.
The court upheld a 6-year sentence.
[75] In R. v. Hudson, 2019 ONSC 290, there was a conviction after a trial for importing fentanyl and possession of fentanyl for the purposes of trafficking. This case involved a controlled delivery. The quantity was 323 grams of fentanyl. Ms. Hudson was a first offender. The court noted at para 21:
[21] While the jury rejected Ms. Hudson's claim that she knew nothing of the package of fentanyl addressed to her at her residence, the evidence does suggest that Ms. Hudson was a small cog in the importation/distribution wheel, and was likely permitting her residence to be used as a drop box or delivery point by those higher up in the hierarchy of drug distribution. While perhaps a small cog, she still played a key role in the distribution scheme.
Ms. Hudson received 8 years for importing and a concurrent 8 years for possession for the purpose of trafficking.
[76] In R. v. Disher, 2020 ONCA 710, Mr. Disher was found in possession of 42.6 grams of “mixed powder substances”, which included heroin, fentanyl, and derivatives of fentanyl. Carfentanil was found in one of the packets. The police also seized 47.5 grams of marijuana, two knives and packaging material. Mr. Disher had a related and “serious” record, which included drug trafficking convictions, and was on a recognizance at the time of arrest. The sentence upheld on appeal for this, relatively speaking, small amount of fentanyl mix was 8 years. It also must be noted that this matter involved a guilty plea, albeit on the first day of trial.
[77] In R. v. Olvedi, 2021 ONCA 518, the appellant had been convicted of importing fentanyl and possession of fentanyl for the purpose of trafficking. He received a global sentence of 15 years (15 years for the importing charge and 12 years concurrent on the possession for the purpose. He appealed his conviction and sentence. The appeal was dismissed. The facts of this case included that the appellant accepted delivery of a package that contained 499.5 grams of 100% fentanyl citrate, worth upwards of $19 million, depending on how it was cut and distributed. Mr. Olvedi was 33 years old at the time of sentencing. Although he had a conviction for failing to comply with a recognizance, it was determined that he was entitled to be treated as a first offender. The trial judge acknowledged that he was cooperative with the police, was genuinely remorseful, and had excellent rehabilitative potential. The trial judge also considered the appellant's moral blameworthiness to be diminished by virtue of threats he received. In this case, the Crown introduced evidence from witnesses who spoke to the hazards of fentanyl for drug users, and others, which included a forensic toxicologist. The Court was reluctant to express a range for fentanyl trafficking, given its “relatively recent introduction into Canada’s illicit drug subculture”. (para 52) In summary, the court imposed a 12 year sentence for possession for the purpose of trafficking on a person who was essentially a first offender. This case, however, involves pure fentanyl with an extremely high value, relatively speaking to this case.
[78] In R. v. Jaber, 2021 ONCJ 247, Mr. Jaber pleaded guilty to possession of fentanyl and heroin for the purpose of trafficking, possession of methamphetamine for the purpose of trafficking, possession of cannabis for the purpose of trafficking, possession of proceeds of crime, unlawful possession of a high-capacity magazine, unlawful possession of a loaded restricted firearm, and fail to comply with probation. After some investigation and surveillance, police executed a warrant at Mr. Jaber’s residence where they found several items, including 5,497.5 grams of cannabis in twelve vacuum sealed bags, two further bags of cannabis totaling 291.55 grams, nine bags of methamphetamine pills totaling 9,000 pills, two bags containing fentanyl/heroin mix totaling 223.4 grams and three torn pieces of plastic containing 1.6 grams of “fentanyl/fentanyl/ an analogue of fentanyl (cyclopropyl fentanyl)/U-47700 heroin & 1.85 grams of opium”, a Ziplock bag containing 5.4 grams of crack cocaine, 3.2 grams of powder cocaine, and 0.2 grams of fentanyl/heroin, and fourteen vacuum sealed bags of cannabis marijuana (totaling 4,390.4 grams). It was agreed that there was no evidence as to what Mr. Jaber believed the fentanyl/heroin mixture to be nor was there any evidence as to the percentage of fentanyl in it. Mr. Jaber was not the owner of the various items seized by the police but was holding them for another, possessing the items in question in a state of willful blindness as to their nature. It must be noted that the charges against the other person were withdrawn as there was no reasonable prospect of conviction. The Crown requested a global sentence of 11 years. The Defence requested the maximum conditional sentence followed by the maximum probation. The sentence imposed for possession for the purpose of trafficking of fentanyl and heroin was 4 years, with other various sentences being made concurrent.
[79] These cases speak to the seriousness of the offence.
[80] This court has also considered all of the cases provided by previous counsel on this matter, however, these cases all pre-date Parranto, Olvedi, and Disher and all involve significantly lesser amounts of fentanyl. The cases involving fentanyl can be summarized as follows:
a. R. v. Abbott, 2017 ONCJ 678 – Mr. Abbot was convicted after a trial of simple possession of fentanyl. When investigating another person, police arrested Mr. Abbott with 14.98 grams of fentanyl. It tested as 1% fentanyl. Mr. Abbott had a criminal record which began in 1982 and ended in 1999. He was described as an opiate addict taking methadone from a health professional. His addiction started 17 years before this sentencing. He had been in the methadone program since 2011. He was also described as having mental health challenges. The Crown asked for 90 days. The Defence asked for a non-custodial sentence. The Court found that the principal objective was a rehabilitative order to keep him within the care of a health professional for continual care and treatment regarding his addiction. The Court suspended the passing of sentence and placed him on 3 years of probation.
b. R. v. Rutter, 2017 BCCA 193 – Mr. Rutter pleaded guilty to one count of trafficking in fentanyl and one count of trafficking in cocaine. Mr. Rutter acknowledged that he had been a partner and active participant in a dial-a-dope operation for four to five months before his arrest. Customers would call the cell phone and order drugs, which Mr. Rutter and his partner would deliver. Mr. Rutter's share of the profits was about $1000 per week, significantly more than he needed to sustain his own drug addiction. Mr. Rutter was arrested in possession of 35.5 grams of cocaine, valued at $1900- $3500, and 12 grams of fentanyl, valued at $1400 - $2400. Mr. Rutter was 22 years of age. He began to use illicit drugs at age 17 and, by age 20, had become addicted to cocaine, heroin and fentanyl. He successfully completed a residential program for drug treatment and rehabilitation. Mr. Rutter had no criminal record. At sentencing, the Crown sought 8 months imprisonment. Mr.Rutter sought a suspended sentence with probation. The sentencing judge focused on rehabilitation and imposed a suspended sentence with a term of three years' probation. The Court of Appeal increased his sentence to 6 months imprisonment and 2 years’ probation. The co-accused, Mr. Ramstead, had also received a suspended sentence with probation, which was increased on appeal to six months' incarceration, followed by 12 months' probation.
c. R v. Gagnon, 2017 ONSC 7470 – Mr. Gagnon was found guilty of two counts of possession for the purpose of trafficking. The OPP searched a house where illegal drugs were found, including 43.76 grams of methamphetamine and 12.34 grams of powder fentanyl. Mr. Gagnon was 39 years old, single without dependents. He had a criminal record with 11 convictions starting in 2007, including in 2014 for possession of methamphetamine, and in 2015, for possession of cocaine. Mr. Gagnon had a lengthy history of drug use and a serious addiction to a variety of illicit substances. He struggled with depression and anxiety. The Crown requested 5 to 6 years in custody less time served (586 real days) leaving about 2.5 to 3.5 years. The defence requested time served. The sentence imposed was 4 years less pre-sentence custody, leaving approximately 1.5 years to serve.
d. R v. Prestula, 2018 ONSC 4214 – Joshua Prestula pleaded guilty to three counts on one indictment, including, possession of a number of illegal drugs for the purposes of trafficking, trafficking in those drugs, and possession of $2,000 of police buy-money, and on another indictment, he pleaded guilty to possession for the purposes of trafficking. The charges resulted from sales to undercover officers. On one occasion he supplied a quantity of cocaine in exchange for $6000 of police buy money. On another occasion, he handed over a half-kilo of cocaine to the undercover. At that time, he was found to be in possession of 13.7 grams of fentanyl with a value of $870. While released on a recognizance, another undercover arranged three purchases of small quantities of drugs from the offender. When police executed a warrant on Mr. Pestula’s residence, they found cash, 79.41 g of soft cocaine, 81.6 g of crack cocaine, 35.5 g of methamphetamine, 145 g of a cutting agent, and a bullet proof vest. Mr. Pestula had been in foster care for extended periods of time during which he suffered physical, emotional and sexual abuse. He had post-traumatic stress disorder and has been diagnosed with ADHD. The Crown sought a global sentence of 6 years. Defence sought a sentence of 18-24 months. The court imposed a global sentence of five years and three months imprisonment (63 months), as follows: five years and three months for possession of the 1 /2 kilo of cocaine, five years and three months concurrent for the possession of fentanyl, and two and a half years (30 months) concurrent for each of the October 20, 2015 and October 27, 2016 offences. He was granted 42.5 months of pre-sentence custody credit, leaving a remaining sentence of 20.5 months.
e. R. v. Moore, 2017 ONCJ 801 – Mr. Moore was co-accused with Mr. Abbott referred to above. He was convicted after a trial of trafficking in fentanyl. The court found that Mr. Moore sold Mr. Abbott the 15 grams of fentanyl. Mr. Moore had a lengthy and serious record for offences of violence, guns, and drugs from 2003 to and including 2013. He was a self-described opioid addict. The Court found that Mr. Moore was trafficking not just to feed his own habit but also for profit. The court also referenced, as aggravating, the fact that Mr. Moore used the hallways and stairwells of an apartment building to traffic. As for mitigation, the court referenced his addiction and the 3-year gap in his record. The Crown asked for 6 years. The Defence asked for 2-3 years. The Court imposed a sentence of 6 years less his pre-trial custody time of 120 days, leaving a remaining sentence of 5.5 years.
f. R. v. Duregger, 2018 ONSC 1749 - Michael Duregger entered guilty pleas to possession of fentanyl for the purpose of trafficking, possession of cocaine for the purpose of trafficking, possession of methamphetamine for the purpose of trafficking, and possession of a prohibited weapon (a flick knife) while prohibited from doing so for life. The guilty pleas were entered after Mr. Duregger applied unsuccessfully to exclude evidence at trial on the bases of alleged Charter violations. The facts of the case were that Mr. Duregger was driving a car that, when searched, uncovered the narcotics, drug paraphernalia, and cash. Specifically, the drugs included: 49.3 grams of fentanyl, 51 grams of cocaine, and 103 grams of methamphetamine. There were other narcotics seized as well, including a very large amount of marijuana and steroids. The Crown requested 7.5 years in prison, less presentence custody. The Defence requested 3 years in jail, less presentence custody. The aggravating factors noted were (i) the prior criminal record which included weapons offences and one narcotics conviction, albeit minor, (ii) the relatively large quantities of the narcotics that were possessed, and (iii) the fact that Mr. Duregger had three different illegal substances, all highly dangerous and one (fentanyl) having captured national attention for its potency and potentially lethal nature. The mitigating factors were the guilty pleas, not early but still mitigating, his family responsibilities especially toward his many children, and his willingness to seek drug treatment. Mr. Duregger was sentenced to five years less pre-sentence custody, for a total remaining sentence of just over 3 years. The lead count was in relation to fentanyl, with other sentences being concurrent.
[81] Given that these cases pre-date guidance from higher courts, and involve significantly lesser amounts of fentanyl, these cases are of little value to this court.
[82] There is no question that the one-time transaction in which Ms. Sevim was involved was at a wholesale commercial level. As previously stated, the gravity of this offence is undeniable and must be reflected in the sentence.
Moral Blameworthiness
[83] In considering the degree of responsibility of the offender, the court must consider the offender’s role in what took place; in other words, their hierarchy in the scheme with which they were involved. Generally speaking, the higher up the hierarchy, the higher up the sentence. The lower down the hierarchy, the lower the sentence. However, if the person plays an important or critical role in the scheme, a lower placement in the hierarchy may be less significant.
[84] In Lynch, referred to above, starting at paragraph 16, the Court of Appeal considered the moral blameworthiness factor – stating as follows:
[16] Relatedly, the trial judge engaged in erroneous reasoning in situating the respondent's moral blameworthiness, a key consideration in determining his degree of responsibility and hence a proportionate and fit sentence. First, the trial judge made extensive comments about the level of culpability of "lower level traffickers in fentanyl", notwithstanding his finding that the respondent was a mid-level trafficker. The comments he made about low-level traffickers are concerning, and clearly influenced his perception of the respondent's level of moral blameworthiness. The trial judge suggested, for example, that "in large part, the culpability of lower level traffickers in fentanyl were similar to lower level traffickers in other drugs, because they are usually the same people". Even if true, the fact that fentanyl traffickers may be the same people that traffic in other drugs has no bearing on their moral blameworthiness for choosing to traffic in fentanyl, a particularly dangerous drug. As the majority recognized in Parranto, at para. 70, moral culpability rises with the risk of serious harm the trafficker is prepared to expose others to.
[17] There is good reason for this. The problems that dangerous drugs pose for our society are well known. They involve drug addiction, adverse health consequences and, unfortunately all too often, death. Further, drugs are often sold to already vulnerable people thereby exacerbating their difficult circumstances. Still further, there are the indirect costs to society through increased health care expense, increased demands on the health care system, increases in robberies or other forms of criminal activity, and increases in violence. Simply put, the greater those risks are when a particular drug is being trafficked, the greater the offender's culpability or moral blameworthiness for choosing to traffic in that drug.
[18] The trial judge also erroneously downplayed the respondent's role in all of these consequences when he said that the respondent was not "the representative of the principals of the trafficking enterprise", who "[produce] fentanyl as a more powerful opioid". Of course, those at the top of the supply chain deserve harsher sentences. But the fact that the respondent was not at the pinnacle of the drug dealing empire does not reduce the respondent's level of moral blameworthiness or mean that his actions are not serious. The producers of a product cannot get it into the hands of the consumer if there is no one to sell and deliver it.
[85] The court had made similar comments in Loor at para. 41, in that Mr. Loor’s “role was necessary to the successful operation of the scheme.”
[86] In this case, on the proven and admitted facts, the Crown established that Ms. Sevim was a courier. She received a large and valuable quantity of fentanyl heroin mix and was trusted with delivering it. She is quite obviously lower on the ladder than Mr. Lu and Mr. Doan. However, this deal, a deal for a half a kilogram of serious drugs, could not take place without her taking the risk. Her role was essential.
[87] In this case, there would seem to be nothing to diminish Ms. Sevim’s degree of moral responsibility for this offence. While there is certainly evidence about her personal difficulties, including mental health issues, there is nothing related in any way to explain this offence as appears in some of the other cases, such as threats of violence, threats of imminent poverty and dispossession, and no indication of substance addiction which might compel someone to do this to finance their habit. The evidence at trial was that she was working, she had a place to live, she had some savings, she had a car. Based on the whole of the evidence, this court is unable to conclude that the motivation was financial. There is simply no evidence one way or the other of financial gain promised or received. It is unclear why Ms. Sevim chose to do what she did, but the fact remains – Ms. Sevim chose to do what she did. She carries full moral responsibility for what happened.
[88] As discussed in Lynch, above, in cases where the Crown can prove the offender had specific knowledge that the substance was not just a controlled substance, but specific knowledge that it was fentanyl, this can be aggravating. This was also discussed in R. v. Lu, 2022 ONSC 1918. This is the same Mr. Lu involved in receiving the package from Ms. Sevim. In Lu, the trial judge found that Mr. Lu knew it was fentanyl. This court is not satisfied that Ms. Sevim necessarily knew exactly the nature of the product, other than the fact that it was an illegal controlled substance. In other words, this court is not convinced that she knew specifically it was fentanyl in the package. This is not an aggravating factor in this case. Further, if the defence can demonstrate that it was a significantly less devastating substance, like marijuana, this can be mitigating. There does not appear to be any evidence of that in this case. Therefore, this factor would seem neutral in these circumstances and does not affect the moral blameworthiness of Ms. Sevim either way.
Some Background of Ms. Sevim
[89] Ms. Sevim is 27 years old. She was born and raised in Toronto, Ontario, in a two-parent household. She has six siblings and is fourth in the sibline. Her father was a construction worker. Her mother went to school for “typing” before having children, after which she stayed at home to care for the children. Ms. Sevim reported that her parents’ relationship “wasn’t the greatest…was very toxic”. She noted that there was little communication between them and that her father “was always in his own little world”. She described her father as “a nice guy, but he was not around…as he would be in Turkey.” As children, she reported that she and her sisters also travelled back to their parents’ hometown in Turkey for a few months at a time to see family (i.e., grandparents). Ms. Sevim had some good memories of childhood, but also endured adversity.
[90] Her mother was first diagnosed with cancer when Ms. Sevim was very young, which caused great anxiety, and added responsibilities. Shortly after her mother’s death in 2016, her sisters moved out of the family home due to marriage. Ms. Sevim inherited responsibility for the household.
[91] Ms. Sevim remains close to her siblings.
[92] Ms. Sevim’s father currently lives in Turkey with her two youngest brothers. She described her relationship with her father as “more of a friend” than a parental figure, which she noted was unusual in Middle Eastern cultures but explained that he “was not much of a dad” while she was growing up.
[93] Currently, Ms. Sevim lives with her two brothers (an older brother who is 33 who suffers with schizophrenia, and a younger brother who is 23) and her 1-year-old son in her family home in Toronto, Ontario.
[94] Ms. Sevim has been in an on and off romantic relationship with the father of her child since she was 15 years old.
[95] Ms. Sevim graduated in 2014. She completed a 1-year college diploma program in “cosmetology and hair” in 2018. She has also completed additional courses in esthetics since that time.
[96] Ms. Sevim currently supports herself with part-time employment as an esthetician and through savings.
[97] Ms. Sevim denies any significant history of alcohol, cannabis, or other recreational substance use. She last had alcohol about 3 years ago. She has tried cannabis but did not like the effects and has not used it or any other drugs over the years. She also denies any history of overuse of prescription medication. She smokes cigarettes daily.
Aggravating and Mitigating Circumstances
[98] The aggravating factors in this case include the nature and quantity of the substance. The dangers of fentanyl trafficking are well documented. The quantity of just under 500 grams has been considered as a wholesale commercial amount. This is extremely serious.
[99] The Crown suggests, as further aggravation, that the offence was motivated by monetary gain, and that this was purely a commercial transaction. The Crown argued that, while there is no evidence that Ms. Sevim herself received any money, there is no other alternative but to find that this was commercially motivated, as there is no evidence of compulsion or addiction. Therefore, the Crown argued, the only reason for her to take this risk was for financial benefit, no matter how large or small. While this may well be true, this court is unable to conclude this on the basis of the evidentiary record, and therefore, unable to accept this as an aggravating factor.
[100] There are several mitigating factors in this case.
[101] Ms. Sevim is a 27-year-old woman with no criminal record. The fact that Ms. Sevim has no criminal history of any kind suggests good prospects for rehabilitation. While denunciation and deterrence are paramount, any custody sentence must be as short as possible to reflect the importance of rehabilitation.
[102] She has been steadily employed. She has been working to support herself and her family from a young age. In 2010, when enrolled in high school, she started working two jobs, to support herself and her siblings. She would finish school at 4:30 p.m. and work until 11:00 p.m. or 12:00 p.m. – 3 to 4 days per week. This caused difficulties at school, but she felt that she had to work to provide for herself and her younger brother. In 2014, when she graduated from high school, she found work as a dietary aid at the Runnymede Healthcare Centre, a long-term care home near her home in Toronto. She did this work for four years. In 2017, she launched an aesthetics business, called Lashland. In January of 2018, Ms. Sevim expanded her aesthetics business to offer hair services. She went to school at Marca College in Toronto, where she completed a 1-year course. In December of 2018, she found work at a hair salon in Richmond Hill, where she worked as a hair stylist. She continued in this job for six months until mid-June of 2019. From March to May of 2019, she stepped away from Lashland to focus on her hair training and to complete the required hours. Ms. Sevim has continued to try to maintain the viability of her business despite this outstanding criminal matter. She has demonstrated the ability to support herself through legitimate means and to lead a pro social life.
[103] Ms. Sevim was a on a strict bail for a period of time. She was arrested on August 5, 2019 on her return to Toronto while passing through Pearson Airport, and released on August 12, 2019. While in custody, she claims to have had food poisoning and was threatened. At the time of her initial release, she was placed on house arrest, with a residential surety, her sister, Meryem, at her residence in Brampton, an unfamiliar place to Ms. Sevim. The only exception to the house arrest condition permitted her to leave the home in the company of one of her sureties, who were her two sisters and her brother-in-law. There were no other exceptions for any reason. During this time, she suffered tremendous business losses, as her clients were simply unwilling or unable to travel to Brampton for her services. Her business was reduced by 90%, which she has not been able to recover. Her sureties were unable to accompany her outside of the home for most of the house arrest. She suffered physically and mentally. Her intimate relationship also suffered. This remained for 1 year, 1 month and 10 days until the bail was varied. Ms. Sevim felt useless and an increased burden on her family. It must be recognized, however, that, during this time, Ms. Sevim was permitted to work, see family, and was able to care for her son. This court is unaware of any request for a bail review to remove this condition prior to September 2020, when it appears that the house arrest condition was changed to a curfew on consent. After that point, the bail included a curfew from 10:00 p.m. to 6 a.m.
[104] With the exception of one incident more recently, Ms. Sevim has complied with her conditions for a very long time. In relation to this one incident, Ms. Sevim accepted responsibility and has resolved this matter for a plea to obstruct peace officer and fail to comply with her recognizance. She received 1 day concurrent on each charge, after receiving credit for 6 days of pre-sentence custody.
[105] The time on restrictive bail that impacts liberty, such as that akin to punishment, is a mitigating factor. In R. v. Dodman, 2021 ONCA 543, the Court stated:
[9] The law regarding Downes credits was recently summarized in R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 108, as follows:
[108] The propriety of treating "stringent bail conditions, especially house arrest", as a sentencing consideration was affirmed in R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 205 C.C.C. (3d) 488 (Ont. C.A.), at para. 33. Although it is not uncommon to speak of providing "credit" for stringent bail conditions, "pre-trial bail is conceptually a mitigating factor" in assessing a fit sentence: R. v. Panday (2006), 205 C.C.C. (3d) 488 (Ont. C.A.). Mitigation is given because stringent bail conditions can be punitive and therefore "akin" to custody: Downes, at para. 29. The criteria to be considered in assessing the weight of the mitigation to be given therefore include the amount of time spent on bail conditions; the stringency of those conditions; their impact on the offender's liberty; and the ability of the offender to carry on normal relationships, employment and activity: R. v. Place, 2020 ONCA 546, at para. 20. The mitigating effect that such considerations have on the sentence to be imposed falls within the discretion of the trial judge: Downes, at para. 37.
[10] Two points are worth emphasizing. First, the granting of Downes credits is not done through the use of a mathematical formula. It is the responsibility of the sentencing judge to review all of the relevant factors and determine what credit, if any, should be applied. This is a highly discretionary exercise, and judges can reasonably differ on what is the appropriate sentence in the circumstances of a given case. Second, appellate courts will not generally interfere with the exercise of that discretion absent undue emphasis on the bail conditions as a mitigating factor (see Joseph, at paras. 108, 112) or the lack of an evidentiary foundation to support the sentencing judge's findings (see R. v. Adamson, 2018 ONCA 678, 364 C.C.C. (3d) 41, at paras. 115-117). A sentencing judge's reasonable exercise of discretion is owed deference by this court: R. v. Ledinek, 2018 ONCA 1017, at para. 13; R. v. Bell, 2021 ONCA 315, at para. 8.
[106] Ms. Sevim relied on R. v. Herchuk, 2011 ABPC 367 where the Court gave credit at a ratio of 1:1 for every day the offender was subject to house arrest and other stringent bail conditions that the court stated were “tantamount to a Conditional Sentence Order”. While this court has considered Herchuk and the argument presented by Ms. Sevim, obviously an Alberta Provincial Court judgment is not binding on this court.
[107] It would appear that the approach taken in Dodman was a sound one. The sentencing judge broke down the time on bail into three periods: house arrest, curfew, and delay of sentencing hearing at the request of the offender. While there is no mathematical calculation required, this is a principled approach. The Crown suggested that a 5-month reduction in sentence would be appropriate (4 months for the period of house arrest and 1 month for the period of curfew), and that it helps to push the sentence toward the 8-year mark, but not below. In this case, there was clear impact on her ability to keep her business going for that one year on house arrest. This court is satisfied that Ms. Sevim has established that the conditions at that time were akin to some degree of punishment, but not to the extent that she suggests. Not that a mathematical calculation needs to be provided, but this court is of the view that this factor is mitigating in this case and would reduce the sentence by approximately 6 months in total: 4 months for the house arrest period (approx. 1/3) and 2 months for the curfew period (1 month for each year). The house arrest conditions certainly impacted Ms. Sevim, however, at the same time, she was able to continue her business to some degree, spend time with family, care for her child, and care for her brother. She still had quality of life which would be far different from spending that time in jail, while at the same time experiencing the typical consequences of a house arrest bail. After the house arrest ended, she was able to go out during the day and carry-on regular activities, therefore, the mitigation is very limited. There will be no credit for the time that Ms. Sevim has delayed this sentencing since December 2022. Every adjournment was at the request of Ms. Sevim, many at the very last minute. Ms. Sevim obtained the benefit of having this further time to prepare for sentencing. Surely, she cannot “double-down” on the reward. It must be remembered that this is a mitigating circumstance to be factored in with all other aggravating and mitigating circumstances, not credit to be taken off the sentence imposed. This factor cannot be used to overpower the proportionality analysis.
[108] A further mitigating consideration is that, shortly after Ms. Sevim’s arrest in August 2019, she severed all ties with her former best friend, her best friend’s boyfriend and his brother. She states that she has now “turned the page in my life, and I am very careful who I befriend, and I now make sure that I only associate with good and decent people.” She is focused on improving herself, her family, and her business. She agrees to pursue any recommended treatment, therapy, or counselling.
[109] Ms. Sevim has the support of family and friends. She has provided thirty-eight character letters, of which this court has read every word. Some of those letters are as follows:
a. Fauzia Yusuf – a family friend who has known Ms. Sevim for more than a decade – She describes Ms. Sevim as one who has consistently demonstrated kindness, compassion, and a strong work ethic, and that one of her standout traits is her generosity, and another of her admirable qualities is her dedication to personal growth and improvement. The letter also describes Ms. Sevim’s fierce and unwavering love for her family.
b. Mina Rashid – a friend and extended family member – The letter states that Ms. Sevim “always aspired to do something that helps the community of women around her, and to help women feel empowered in any way possible.” Ms. Sevim is described as compassionate and kind, caring about her community and family.
c. Quadri Oshibotu – the letter states in part: “She has always been someone funny, understanding and high on family values. She has grown as a person and her relationships are highly important.”
d. Layla Ibrahim – a middle school friend – The letter states: “In addition to her strong sense of responsibility, Zehra also possesses a compassionate and caring nature. She has always shown a sincere concern for others and has always been willing to go out of her way to make sure her friends are happy. She showed an incredible level of empathy and compassion that I have always admired. Overall, she was a great member of our school and positively influenced those around her.”
e. Lulay Ibrahim – family friend for over 20 years – describes these events as out of character and that Ms. Sevim is a kind, honest, and upstanding individual. I do note that the letter undermines this court’s decision and hopes that Ms. Sevim will be given the opportunity to clear her name.
f. Chantel Marinho – The letters states in part: “Have you ever heard the saying, ‘she lights up a room when she walks in’ That is my friend Zehra. Everywhere Zehra goes, she touches the hearts of others. She is a fantastic person to be around, with a contagious positive energy. Sometimes I wonder how she stays so positive and continues to help others and put their needs before her own when she has gone through many obstacles in her life, including her mother's death.”
g. Ceyda Duman – cousin – describes Ms. Sevim as an “exemplary mother, friend and community member.”
h. Izzet Sevim – father – describes Ms. Sevim as “extremely reliable and responsible” as well as “an amazing mother”.
All of the character letters describe the many positive qualities and attributes of Ms. Sevim and the willingness of her family and friends to support her.
[110] Also, in mitigation, Ms. Sevim struggles with some mental health issues. Ms. Sevim has provided a psychiatric report from Dr. Julian Gojer dated April 27, 2023. Dr. Gojer’s report includes the entirety of the psychological assessment conducted by Dr. Justine Joseph, dated April 13, 2023. The psychological assessment speaks of various losses and traumas that Ms. Sevim has suffered, including a friend who died when they were in grade 8, the loss of her mother in 2016, and the loss of a daughter delivered at 22 weeks in 2021, in addition to the fact that her brother was diagnosed with schizophrenia. The report states: “Ms. Sevim indicated that she tries to hide the emotional pain she has been experiencing. She stated that she does not remember what it feels like to experience happy emotions.” Ms. Sevim was also reported to be struggling with anger and this was described. Ultimately, Dr. Joseph concluded that Ms. Sevim met the diagnostic criteria for posttraumatic stress disorder and persistent depressive disorder, with persistent major depressive episode, with anxious distress, moderate to severe.
[111] Dr. Gojer’s report also provides the entirety of a cognitive assessment report from Clinical Psychologist, Dr. Susan Moraes dated April 25, 2023, which concludes at page 63 of the report:
Based on Ms. Sevim’s cognitive assessment (clinical interview and psychometric tests) there is evidence that she may meet the criteria for Mild Intellectual Disability (MID). Individuals within the Mild Intellectual Disability (MID) category may have IQs between 71 and 79 (2nd to 9th percentile). Individuals with MID usually have greater adaptive functioning skills. However, they tend to be concrete thinkers, have difficulty generalizing previously learned information and may display poor judgment, poor concentration and poor planning skills. Individuals with MID present well, may have good verbal/conversational skills, and consequently, others may expect more from them than they are able to produce in the average academic situation without extensive supports. Typical areas of difficulties include literacy, numeracy, organization and memory functioning.
Dr. Gojer’s diagnosis starts at page 89 of the report, where he stated in part as follows:
Ms. Sevim has been suffering from a Persistent Depressive Disorder. Her depression as estimated by myself has ranged from moderate to severe since her mother died. This depressive disorder still persists…. Ms. Sevim’s Depressive Disorder is related to multiple stressors and a traumatic experience…
Ms. Sevim’s has been depressed for several years and there are layers of stressful and traumatic events in her life contributing to her depression. Her mood following the birth of the second child should have been uplifting but her depression continued and she had crying spells and seemed very anxious and depressed. The concept of Post Partum Depression is no longer used in psychiatry, but she certainly was depressed in the post partum period and this depression persists.
Ms. Sevim’s depressive presentation is devoid of any psychotic features but seems to be associated with anxiety and somatic symptoms.
Ms. Sevim also suffers from a trauma syndrome better described as Other Trauma and Stress Disorder Not Otherwise Specified. This trauma syndrome would essentially encompass the time period including and following the death of her child and continues to be present. Her trauma syndrome includes experiences of intrusive thoughts and memories of the death of her mother and her baby.
Her anxiety symptoms are likely related to post traumatic stress related to the loss of her child, dealing with a mentally ill brother and attempting to make ends meet by pushing herself to work. Dealing with her criminal matter further contributed to her stress and with the recent conviction, her stress has been compounded by the prospects of facing a prison sentence.
The history obtained, my observations and the psychological testing does not indicate the presence of a personality disorder. She has no prior criminal history… There is no evidence of any features of a conduct disorder or an antisocial personality disorder…
Ms. Sevim’s history is one of struggling academically, and cognitive testing shows that she falls in the below average range of intellectual functioning. While she seems to have adapted to this limitation by persevering with her interests in cosmetology, her basic intellectual functioning is below average on psychological testing. This could explain her limited coping skills in managing stress and negotiating and coping with losses.
There is no evidence to indicate that Ms. Sevim was suffering from a psychotic illness at any time. There is no evidence of any seizures, head injuries or blackouts.
Dr. Gojer also makes recommendations for her treatment, including medication and psychotherapy.
[112] While Ms. Sevim has made it perfectly clear that she disagrees with this court’s findings and intends to appeal the conviction, and perhaps sentence, Ms. Sevim does express some remorse for the events of May 14, 2019. She indicates in her affidavit sworn April 21, 2023:
I regret the events of May 14, 2019, more than I could ever express. I regret my entanglement with Silman Husani, Asian Hussani, and Anbarin Wardak. I wish that I had never met these people. I wish that I had been more discerning and shown better judgment in the people I chose to associate with. My decision to end my relationship with these people following my arrest in August of 2019, speaks to my decision to turn a new page in my life.
I regret the potential harm my actions could have caused to the community of Oshawa as a result of my conviction for drug trafficking in fentanyl. I am thankful that no one was injured as a result of this police operation. I do not use drugs, and I have no interest in the drug culture. I understand the danger of fentanyl to the public.
I regret and I am sorry for the trouble that I have put my family through, and I will need to work hard to rebuild their trust and to repay the time, care, and money they have invested in my legal defence. I apologize to my partner, and my son, for putting them in this situation. I apologize to the Court for my actions. I ask for any leniency you can show me in sentencing me for this crime.
[113] There are also collateral consequences that this court must consider in determining the appropriate sentence. In R. v. Suter, 2018 SCC 34, the Supreme Court of Canada considered how collateral consequences, consequences that arise from the commission of the offence, the conviction, or the sentence imposed should factor into sentencing. The Court stated as follows:
[46] As I have observed, sentencing is a highly individualized process: see Lacasse, at para. 54; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 82; Nasogaluak, at para. 43. In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, this Court stated that a sentencing judge must have "sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender" (para. 38). Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to look at collateral consequences. Examining collateral consequences enables a sentencing judge to craft a proportionate sentence in a given case by taking into account all the relevant circumstances related to the offence and the offender.
[47] There is no rigid formula for taking collateral consequences into account. They may flow from the length of sentence, or from the conviction itself: see R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 11; R. v. Bunn (1997), 1997 CanLII 22728 (MB CA), 118 Man. R. (2d) 300 (C.A.), at para. 23; R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183 ("Bunn (SCC)"), at para. 23; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289. In his text The Law of Sentencing (2001), Professor Allan Manson notes that they may also flow from the very act of committing the offence:
As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. [Emphasis added; p. 136.]
I agree with Professor Manson's observation, much as it constitutes an incremental extension of this Court's characterization of collateral consequences in Pham. In my view, a collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender.
[48] Though collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2(a) of the Criminal Code -- as they do not relate to the gravity of the offence or the level of responsibility of the offender -- they nevertheless speak to the "personal circumstances of the offender" (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit.
[49] Collateral consequences do not need to be foreseeable, nor must they flow naturally from the conviction, sentence, or commission of the offence. In fact, "[w]here the consequence is so directly linked to the nature of an offence as to be almost inevitable, its role as a mitigating factor is greatly diminished" (Manson, at p. 137). Nevertheless, in order to be considered at sentencing, collateral consequences must relate to the offence and the circumstances of the offender.
[56] I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case — collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. There is, however, no requirement that collateral consequences emanate from state misconduct in order to be considered as a factor at sentencing...
See also: R. v. Morgan, 2020 ONCA 279, paras 9-10
[114] Some collateral consequences in this case are:
a. Ms. Sevim is the mother of a 1-year-old boy who will have a period of time without his mother. Ms. Sevim has made arrangements for her son’s care by her sister.
b. Ms. Sevim is also the primary caregiver of her elder brother, who suffers from schizophrenia, and who will be impacted by her absence.
c. Ms. Sevim has a 3-year-old nephew and a 2-year-old niece who will be impacted by her absence.
d. A term of imprisonment will likely result in the loss of her business, Lashland, which she has spent six years building and invested a great deal of money.
[115] In determining an appropriate sentence, this court has also considered the principle of parity, as it relates specifically to others involved in this specific drug transaction. Mr. Doan and Mr. Lu have both already been sentenced.
[116] Mr. Doan was found to be the directing mind of the scheme. He was responsible for directing all of the incidents referred to in the agreed statement of facts. He had a minor, and for the most part dated, criminal record. He entered a plea of guilty to four counts of trafficking, which involved half a kilogram of cocaine, half a kilogram of purple fentanyl, half a kilogram of blue fentanyl, and half a kilogram of brown fentanyl (which turned out to be brown powered heroin). The offences occurred over several months. He had spent nearly 2.5 years in pre-sentence custody, which was further aggravated by many days of lockdowns and spent this time in custody during the worst of the COVID-19 pandemic. The Defence requested a further 5 years less a day imprisonment, while the Crown requested a further 7.5 years imprisonment. In R. v. Doan, 2021 ONSC 8590, page 10, Justice Bird stated:
Considering the seriousness of the offences and the amount and nature of the drugs Mr. Doan trafficked over the course of several months, I am of the view that an appropriate sentence before taking into account the mitigating factors would be one in the range of 11 years. Taking into account the mitigating factors, including the harsh conditions Mr. Doan has experienced in custody since his arrest, a fit and proportionate sentence is one of 5 years less one day imprisonment in addition to the 864 days of presentence custody he has already served.
[117] Mr. Lu was convicted after a “focused judge alone trial” of:
a. Trafficking in Cocaine – ½ kilogram – January 10, 2019
b. Trafficking in Cocaine – 9 ounces – February 21, 2019
c. Trafficking in Fentanyl – ½ kilogram – April 16, 2019
d. Trafficking in Fentanyl and Heroin – ½ kilogram – May 14, 2019
e. Possession of Cocaine for the Purpose of Trafficking – ½ kilogram – June 18, 2019
f. Possession of MDMA for the Purpose of Trafficking – 200 g – June 18, 2019
g. Possession of Ketamine – 8 g – June 18, 2019
In total, he was involved in a number of drug transactions, involving just under 3 kgs of various Schedule 1 substances. He was considered to be Mr. Doan’s “right hand man”. He had no record. The Crown sought a sentence of 8 to 12 years depending on whether the court was satisfied that Mr. Lu knew he was trafficking in fentanyl. The Defence sought a sentence of 3 to 4 years. In R. v. Lu, 2022 ONSC 1918, Di Luca J. stated in part:
[50] Turning to the facts in this case, I am satisfied beyond a reasonable doubt that Mr. Lu knew he was trafficking in fentanyl and fentanyl and heroin when he delivered drugs to the undercover officer on the final two occasions….
The aggravating factors were found to be: the nature of the drugs involved, including cocaine, fentanyl, and fentanyl/heroin mix, that Mr. Lu was subjectively aware that he was trafficking in fentanyl and a mixture of fentanyl and heroin in the final two transactions, the scope of the scheme being a large-scale commercial undertaking, his role in the scheme as found to be more than “simply a delivery person”, and that he was motivated by greed. Mr. Lu received 9.5 years (specifically, 8 years, 11 months and 4 days for the offence involving Ms. Sevim).
[118] To respect principles of parity, there is no question that Ms. Sevim’s sentence must be substantially less than that of Mr. Doan and Mr. Lu. While her role was essential, the role was not that of either Mr. Doan or Mr. Lu. Further, she was involved in a single transaction, in contrast to the multiple transactions each of them were involved in. Finally, this court is unable to conclude that Ms. Sevim was aware the package contained a fentanyl / heroin mix as found to be an aggravating factor in the case of Mr. Lu.
Conditional Sentence
[119] As stated earlier, Ms. Sevim asks that this court consider imposing a conditional sentence. Certainly, a conditional sentence is technically legally available to Ms. Sevim, assuming this court can conclude that a sentence of less than two years is appropriate, that the service of the sentence in the community would not endanger the safety of the community, and that such a sentence would be consistent with the fundamental purposes and principles of sentencing set out in s. 718 to 718.2.
[120] The Court in R. v. Sharma, 2022 SCC 39, set out the development of the conditional sentence regime since it was enacted.
[121] In one of the early leading cases on the proper application of conditional sentences, R. v. W. (J.) (1997), 1997 CanLII 3294 (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.), Rosenberg J.A. clearly expressed his view that this sentencing option should not be sparingly employed (at pp. 37-38):
…The Sentencing Commission concluded that it was only logical to recommend that imprisonment be used with extreme moderation… Parliament has accepted this conclusion through s. 718.2(d) and (e) and the courts are required to give it real effect in practice through liberal resort to the conditional sentence regime.
[122] The Court also rejected the argument that in many circumstances a conditional sentence insufficiently addresses general deterrence and denunciation. Rosenberg J.A. cited, with approval, the various commissions and studies that have brought into doubt the deterrent value of incarceration. On the other hand, he emphasized the potential for denunciation and deterrence through the efficient mechanism available to the Crown to prove a breach and to seek the imprisonment of the offender to explain an alleged breach. The court also cited the fact that a conditional sentence is not subject to remission by way of parole.
[123] In R. v. Proulx, [2000] 2 S.C.R. 61, the Supreme Court of Canada made it clear that there are no offences (except those now specifically set out in the legislation) that are excluded from the conditional sentencing regime. There should be no presumption in favour of or against a conditional sentence for specific offences. However, the gravity of the offence is a relevant consideration. Community safety is a condition precedent to the imposition of a conditional sentence, but certainly not the only consideration in deciding whether a conditional sentence is appropriate. The consideration on the question of community safety includes the risk of re-offending and the gravity of the damage that could ensue from further offences.
[124] While the legislation has changed over time, the following principles from Proulx are still applicable today:
a. Conditional sentences are meant to be punitive in nature;
b. A conditional sentence can provide a significant amount of denunciation, particularly when onerous conditions are imposed and the term of the sentence is longer than it would have been imposed as a jail sentence;
c. A conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed;
d. When the objectives of rehabilitation, reparation and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence;
e. While aggravating circumstances relating to the offence or the offender increase the need for denunciation and deterrence, a conditional sentence may still be imposed even if such factors are present.
[125] In summary, in deciding whether to impose a conditional sentence, a trial judge first must reject both a penitentiary term and probationary measures as inappropriate sentencing dispositions. The judge should then consider whether it is appropriate for the offender to serve the sentence of less than two years in the community. When the prerequisites of s. 742.1 have been met, the sentencing judge should consider whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing in ss. 718–718.2. A conditional sentence is not a reward. It is a period of incarceration to be served in the community under strict conditions, with no time deducted for good behaviour.
[126] The Defence relied on a number of cases where a conditional sentence was imposed, which this court has carefully considered.
[127] In R. v. Stulec, 2022 BCPC 301, Ms. Stulec entered guilty pleas to trafficking in fentanyl, possessing cocaine for the purpose of trafficking, and possessing fentanyl for the purpose of trafficking. Ms. Stulec completed a pair of dial-a-dope street level sales to undercover operators and stated that she had the connections to complete larger deals. When police executed a warrant on the apartment rented in Ms. Stulec’s name, where she lived with her co-accused, and was present when police arrived, police located packaging material, cutting agents, $51,000 in cash, numerous electronic devices, and score sheets, in addition to cocaine and cocaine blended with phenacetin (703.9 grams), fentanyl / caffeine blend (59.3 grams), a variety of blends with combinations of two or more of heroin/fentanyl/caffeine/phenacetin/U-47700 (120.8 grams), and methamphetamine (21.26 grams). Ms. Stulec’s co-accused received 7 years imprisonment as a result of a joint submission. For Ms. Stulec, the Crown asked for 36 months, whereas the Defence requested 18 months to two years less a day conditional, followed by probation. The Court noted the obvious aggravating factors, including the “dial-a-dope” delivery model, the nature of the drugs and their consequences on the community, and the items found in the apartment. As for mitigation, the court noted the guilty plea, no criminal record, a difficult life that resulted in serious drug addiction, recent rehabilitation, and movement toward helping others with addiction. The Court found Ms. Stulec to be below her co-accused in the hierarchy, but operating at a level above that of a mere street level dealer, although there was no evidence that Ms. Stulec was involved in sales of higher quantities of drugs. The Court found Ms. Stulec to be a vulnerable person, easily exploited by others, such as her co-accused. The Court imposed a conditional sentence of 22 months on each count concurrent, followed by 12 months of probation.
[128] In R. v. Kirk, 2023 BCSC 301, Mr. Kirk was found guilty of three counts of possession of narcotics for the purpose of trafficking, namely fentanyl, cocaine, and methamphetamine. Mr. Kirk was found to be an active participant in a mid-level narcotics distribution enterprise that dealt with significant amounts of fentanyl and other substances and was generating thousands of dollars a day in revenues at the time of his arrest. The amount of each drug possessed was not clear. He was found to be the shipper/receiver of a de facto drug depot and was a willing employee in a high-volume wholesale drug trade to “street-level dial-a-dopers”. Mr. Kirk had a substance use disorder and no previous criminal history. He became involved in the drug trade not only to pay his bills, but to support his own substance use. His criminal offending ended abruptly after his arrest. His pattern of abusing substances had also stopped. He expressed repeated and sincere remorse. According to a pre-sentence psychiatric assessment, he posed a low risk to re-offend. The Crown sought a four-year penitentiary sentence. The Defence sought a conditional sentence and probation. A maximum conditional sentence and maximum probation order was imposed.
[129] In R. v. Coppick, 2023 BCPC 71, Ms. Coppick pleaded guilty to one count of possession for the purpose of trafficking fentanyl and methamphetamine. In this case, police received a tip that drug activities might be occurring at a specified address. Surveillance was conducted. Police then followed a visitor away from the residence and the person was arrested in possession of 2 grams of methamphetamine. Police obtained a warrant for the residence. The accused was arrested inside the unit. In total, police located 28.25 grams of fentanyl and 185.75 grams of methamphetamine. The approximate street value of the fentanyl was $4,360; the methamphetamine was worth about $5,600. Cash was also seized. Ms. Coppick admitted that she had been selling drugs from the house, and that she served about five people per day. She had started with smaller quantities about a year before police intervened and then larger amounts started a few months later. Ms. Coppick’s life had been plagued by addiction, poverty, and abuse. She also suffered from health issues, including cirrhosis of the liver and hepatitis B. She had a criminal record, primarily for property offences, with the last conviction in 2005, and no previous drug offences. She had been stable and sober since the fall of 2021. The court found Ms. Coppick to be a street level dealer operating at the lowest rung of the drug world ladder. Financial benefit was a motive, although she did not seem to be profiting, rather, was retiring the debt to her supplier. She had made changes to life by the time of sentencing. She freely confessed. The Crown submitted that the court should impose a jail sentence in the range of 24-30 months. Counsel for Ms. Coppick suggested a lengthy conditional sentence followed by probation. The Court determined that a conditional sentence of 22 months was appropriate, followed by 12 months of probation.
[130] Other cases provided by the Defence where a conditional sentence was imposed included: R. v. Gordon, 2023 ONCJ 157 (police seized 7.02 grams of cocaine, 12.07 grams of fentanyl, and 30 hydromorphone pills); R. v. Han, 2022 ONCJ 343 (in possession of 15.6 grams of fentanyl for the purpose of trafficking)
Conclusion
[131] General deterrence and denunciation are primary sentencing principles to be addressed in the circumstances of this case. However, rehabilitative prospects must also be considered.
[132] Having carefully considered all of the circumstances in this case, this court has concluded that a sentence of less than two years would be entirely inappropriate. Such a sentence would not be proportionate to the gravity of the offence and the degree of responsibility of the offender. The sentencing range discussed in Parranto, and sentences imposed in other cases referred to above, convey the gravity of the offence in this case. This offers a place to begin. However, it is not a place to end. This court must individualize the sentence in a way that accounts for all relevant factors and circumstances, including both aspects of proportionality, and the circumstances of the person to be sentenced. While this court is satisfied that all of the various factors and circumstances justify a sentence less than the range discussed in Parranto, those factors and circumstances do not justify a sentence in the conditional sentence range.
[133] This is a difficult sentencing – one that requires careful consideration of all of the factors at play. Fentanyl trafficking is very serious and calls for a significant penitentiary sentence. However, Ms. Sevim is a unique offender. Ultimately this sentence must be proportionate and respect all of the principles of sentencing as outlined, without putting undue weight where it does not belong.
[134] Having carefully considered and weighed all relevant factors, departing from the national range outlined in Parranto is appropriate in this case to achieve proportionality. In all of the circumstances, a fit and proper sentence is one of 5 years in custody (1825 days). Ms. Sevim will be given credit for her 8 days in custody at 1.5 to 1 for total credit of 12 days. There will be a s. 109 order for 10 years, which is mandatory in this case. As for the taking of a DNA sample, this is a secondary designated offence, which requires this court to consider the best interests of justice. Given the nature of this offence, the circumstances surrounding its commission, and given that the impact on privacy and security is not grossly disproportionate to the public interest in the protection of society and the proper administration of justice, a DNA order is appropriate in the circumstances and is ordered. It would appear that counsel agree as to the disposition of property in this case. Specifically, there was some money found in a bedroom which is said to belong to Ms. Sevim’s brother. It is anticipated that counsel will be able to sort out these issues, but if not, this court is willing to assist.
Released: September 8, 2023
NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.