REASONS FOR SENTENCING
COURT FILE NO.: 489/22 DATE: 20230526
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
D. Smith for Provincial Crown, D. Anger for Federal Crown for the
- and -
ALLAN CLAYTON EGGLETON
D. Chou, for Defendant Allan Clayton Eggleton
HEARD: May 23, 24, 25, 29
The Honourable Justice R. J Harper
Background
1Allan Clayton Eggleton was found guilty by me after a judge alone trial of 17 counts as follows:
i. Count 1: Possession of a Schedule I substance (fentanyl) for the purpose of Trafficking, contrary to section 5(2) CDSA.
ii. Count 2: Possession of Proceeds Obtained by Crime Over $5,000 contrary to section 355(a) CCC.
iii. Count 3: Possession of Schedule I substance (crystal methamphetamine) for the Purpose of Trafficking, contrary to section 5(2) of the CDSA.
iv. Count 4: Possession of a Schedule I substance (cocaine) for the Purpose of Trafficking, contrary to section 5(2) of the CDSA
v. Count 5: He did, without lawful excuse, possess a loaded prohibited firearm, namely a sawed-off shotgun, at 43 Niagara Street, St. Catharines, Ontario, without being the holder of an authorization or a licence permitting such possession at the place and the holder of a registration certificate for the said firearm, contrary to section 95, subsection (2) of the CCC.
vi. Count 6: He did, without lawful excuse, possess a prohibited firearm, namely a Sig Sauer 9 mm semi-automatic handgun, without being the holder of a licence permitting such possession and the holder of registration certificate for the said firearm, contrary to Section 91, subsection (3) of the CCC.
vii. Count 7: He did, at the City of St. Catharines, without lawful excuse, possess a prohibited weapon, which was not a replica firearm, namely a Sig Sauer 9mm semi-automatic handgun, without being the holder of a licence permitting such possession, contrary to Section 91, subsection 3 of the CCC.
viii. Count 8: He did without lawful excuse, possess a prohibited weapon which was not a replica firearm, namely a sawed-off shotgun, without being the holder of a licence permitting such possession contrary to Section 91 subsection (3) to the CCC.
ix. Count 9: He did, without lawful excuse, store a prohibited weapon, namely, a Sig Sauer 9 mm semi-automatic handgun, in a careless manner, contrary to Section 86, subsection (3) of the CCC.
x. Count 10: He did, without lawful excuse, store a prohibited weapon, namely a sawed-off shotgun, in a careless manner contrary to Section 86, subsection (3) of the CCC.
xi. Count 11: He did, without lawful excuse, store ammunition, namely 12-gauge shotgun shells, in a careless manner, contrary to Section 86, subsection (3) of the CCC.
xii. Count 12: He did, without lawful excuse, possess a prohibited firearm namely a Sig Sauer 9mm semi-automatic handgun, while knowingly not being a holder of a licence permitting such possession and the holder of a registration certificate for the said firearm, contrary to Section 92, subsection (3) of the CCC.
xiii. Count 13: He did, without lawful excuse, possess a prohibited firearm namely a sawed-off shotgun, while knowingly not being the holder of a licence permitting such possession and the holder of the registration certificate for the said firearm, contrary to Section 92, subsection (3) of the CCC.
xiv. Count 14: He did, without lawful excuse, possess a prohibited weapon which was not a replica firearm, namely, a butterfly knife, without being the holder of licence permitting such possession, contrary to Section 91, subsection (3) of the CCC
xv. Count 15: He did, without lawful excuse, possess a prohibited weapon, namely a Sig Sauer 9 mm semi-automatic handgun while prohibited from doing so by reason of an order made under Section 109, subsection (3) of the CCC, contrary to Section 117.01, subsection (3) of the CCC.
xvi. Count 16: He did, without lawful excuse, possess a prohibited weapon, namely a sawed-off shotgun, while prohibited from doing so by reason of an order made under Section 109, subsection (3) of the CCC, contrary to Section 117.01, subsection (3) of the CCC.
xvii. Count 17: He did, without lawful excuse, possess a prohibited weapon, namely, a butterfly knife, while prohibited from doing so by reason of an order made under Section 109, subsection 3 of the CCC.
2All of the above noted counts that he was found guilty of took place at 43 Niagara St. St. Catharines, Ontario on April 20, 2021.
Original Date for Sentencing
3Upon his finding of guilt, I ordered a pre-sentence report to be prepared by probation services. The pre-sentence report was to include Gladue considerations as Mr. Eggleton was identified as having Métis heritage from his paternal family.
4The pre-sentence report was completed and filed with the court.
5The matter was adjourned for sentencing on September 14, 2023, at 10:00 a.m.
6At the return of the matter for sentencing, counsel for the provincial Crown, speaking as agent for defence counsel, advised the court that Mr. Eggleton had absconded. Mr. Eggleton cut off his ankle monitoring bracelet and left. He has not been in communication with his lawyer since he fled. His surety obtained a bail revocation Order.
7On September 14, 2023, I issued a bench warrant for Mr. Eggleton’s arrest. If located by the police, he was to be taken into immediate custody pending the adjournment of the matter.
8I adjourned the matter for two weeks, to September 28, 2023, at 10:00 a.m., for three reasons.
9First, to allow time for the Crown to bring an application pursuant to s. 475(1) of the CCC to sentence Mr. Eggleton in absentia.
10Second, to address the concern for public safety if Mr. Eggleton could not be located. Mr. Eggleton was found guilty of very serious offences. Fentanyl is a very dangerous drug, and trafficking in such a controlled substance is a very serious offence. Concern for the safety of the pubic is heightened by Mr. Eggleton’s convictions of possession of weapons, including a loaded sawed off shot gun and 82 shot gun shells that were readily accessible. The danger posed by Mr. Eggleton to the public is heightened by the fact that these offences occurred at a time when he had been in breach of two previous weapons prohibitions.
11Third, the two-week adjournment period was set to allow defence counsel to assess whether it would be appropriate for him to bring a motion to be removed as solicitor of record for Mr. Eggleton.
Sentencing in Absentia
12This is the return date set for the sentencing. Mr. Eggleton is not present. The police have not located him.
13Defence counsel is not aware of Mr. Eggleton’s whereabouts. He brought a motion to be removed from the record and I have granted it.
14In addition, upon the commencement of this hearing, the Crown brought an Application to have Mr. Eggleton sentenced in absentia in accordance with s. 475(1) of the Criminal Code of Canada. For oral reasons given, I granted to Crown’s Application to proceed with the sentencing in absentia.
15I adopt the reasoning of Charney J. in R. v. Tully, 2022 ONSC 3515. In Tully, the accused, after the verdict, cut his ankle bracelet and absconded: Tully at para. 2. Defence counsel applied to be removed from the record, citing failure to communicate with the accused and inability to get instructions as the reasons, and the application was granted: Tully at para. 3. Crown counsel applied for the trial to continue and a sentence to be imposed in the accused’s absence; this application was also granted: Tully at para. 4. Submissions were rescheduled for a later date and Charney J. sentenced the accused in accordance with the jurisdiction given by s. 475(1) of the Criminal Code.
16Importantly, Charney J., at paras. 41-43, wrote that absconding itself is not an aggravating factor, but it does negate certain mitigating factors, such as remorse, as well as negatively affects the prospect of the accused’s rehabilitation. It has also negated what would otherwise be Duncan Factors in reducing the calculation of any sentence imposed.
17The offences here involved the trafficking of very dangerous drugs, including:
i. Fentanyl (13.6g)
ii. Methamphetamine (47.2g)
iii. Cocaine (1.2g)
18In addition, Mr. Eggleton was found guilty of possession of a sawed off shot gun that was loaded with two shot gun shells. Pursuant to a search warrant, the police also recovered two 9 mm bullets and 82 shot gun shells that were carelessly stored and readily accessible. Mr. Eggleton was also found in possession of a number of pellet guns.
19In my reasons for judgment at trial, I accepted the expert testimony of the Crown’s drugs and weapons expert, Detective Tait, who testified that the street value of the drugs seized ranged in amounts as follows:
i. Fentanyl: 13.6 x $180 = $2,448 range to 13.6 x $220 = $2,992
ii. Methamphetamine: 47.2 = 472 points x $10 = $4,720 range to 47.2 = 472 points x $15 = $7,080
iii. Cocaine: 5.5 = 55 pieces x $20 = $1,100
20Det. Tait stated that the price associated with the purchase of drugs is dependent on several factors. Some of these factors include, but are not limited to, risks, locations, weights sold, purity of the drug, supply/demand, and seller/buyer relationships.
21I accept Det. Tait’s uncontradicted testimony that there were many items seized, including multiple controlled substances, digital scales, currency, cell phones, and weapons. When taken together with the quantities of drugs, this was indicative of drug trafficking.
22I also accept Det. Tait’s evidence that the types of weapons seized were the types of weapons that street traffickers would use to protect themselves. Individuals would saw off a shot gun at both ends in order to make it easier to conceal.
Circumstances of the Offender
23Mr. Eggleton is 37 years of age. He identifies as a non-status Métis from his paternal side.
24Mr. Eggleton had a difficult upbringing. His parents separated when he was very young, and he moved with his mother to British Columbia. He was physically and emotionally abused by his stepfather. He also witnessed domestic violence by his stepfather on his mother.
25Mr. Eggleton moved back to Ontario when he was 17 years of age. He lived with his biological father for one week, but neither of them could develop a relationship then or over the years. He did have a positive relationship with his maternal aunt who resided in Ontario and chose to move in with her.
26Mr. Eggleton told the author of the PSR that he has minimal extended family. He advised that did have a close relationship with his maternal grandmother, but she passed away about six years ago. More recently his supportive maternal aunt, whom he has most frequently resided with as an adult, passed away in 2020, about seven months before his arrest for the present Court matter.
27Mr. Eggleton told the author of the PSR that his maternal aunt prematurely passed away because of lung cancer, when she was aged 52. The death of his aunt was a very difficult loss for him. He also told the author of the PSR that their landlord kicked him out within days of her passing.
28While Mr. Eggleton has maintained contact with his mother who resides in British Columbia, it has mostly been by telephone.
29Mr. Eggleton has never been married. He stated that he has been involved in a few dating relationships and has two daughters from different mothers. His first daughter is now age 15 and his second is now age 8. He does not have a relationship with either of his daughters.
30Mr. Eggleton completed his grade 12 education. He has worked in the construction field for several years. At the time of the trial, he still had a job as a roofer. His employer described him as a good worker, and he would continue to allow Mr. Eggleton to work for him.
31Mr. Eggleton has a lengthy criminal record that spans from 2001 to the present. He has been convicted of multiple offences that include robbery, assault, assault with a weapon, dangerous operation of a motor vehicle, possession of property over $1,000 as proceeds of crime, failure to comply with recognizance and disposition, failure to comply with terms of probation, driving while disqualified, trafficking in schedule I substances, operation of a conveyance while prohibited.
32The latest conviction, operation of a conveyance while prohibited, occurred on January 18, 2021. His previous trafficking conviction occurred on June 30, 2017. He was sentenced to 90 days intermittent imprisonment, a term of probation and an indefinite weapons prohibition pursuant to s. 109 of the Criminal Code. It is significant that his present conviction for possession of a loaded sawed off shot gun and substantial ammunition was committed while he was on a lifetime ban from possession of a weapon.
33Given his multiple convictions for breaching terms of probation, recognizance and disposition, it is reasonable to infer that Mr. Eggleton has little to no regard for the Orders of the court.
34The author of the PSR put it this way:
Appearing before the Court is Allan Eggleton, a 37-year-old repeat offender of Métis descent for several drug trafficking and firearms related offences. Niagara Regional Police document these offences occurred at a former residence where the subject stated he frequented as a former girlfriend previously lived there, whom he stated is deceased following an overdose. As evidenced by his not guilty plea, the subject does not take responsibility for these offences. He has allocated blame elsewhere with undetermined other tenants or visitors at the location wherein the offences occurred. Of prime concern are the subject’s denial, poor judgment and decision-making surrounding his present offences and the lifestyle he appears to have immersed himself into in response to longstanding addiction, homelessness, and other personal issues. He has a varied and lengthy criminal record with youth and adult convictions including robbery, non-domestic assault, domestic assault, carrying concealed weapon, thefts, mischief, dangerous operation and drive while prohibited. Negative associates, varied drug abuse, resultant residence, personal and intimate relationship instabilities and unsustained motivation appear to be recurring areas of concerns.
The Fundamental Purpose and Principles of Sentencing
35Section 718 of the Criminal Code sets out the purpose of sentencing. Sections 718.1 and 718.2 set out the fundamental principles of sentencing.
Purpose
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Aggravating Circumstances
36The relevant aggravating factors are as follows:
The drugs Mr. Eggleton was found guilty of trafficking are all dangerous drugs.
The unlawful possession of a loaded sawed off shot gun and 82 shot gun shells along with multiple pellet guns and rifles are serious aggravating factors.
The lengthy criminal record of Mr. Eggleton is an aggravating factor. This is even more significant when taken together with the fact that he has previously been convicted of trafficking, assault and assault with a weapon. In addition, Mr. Eggleton has breached multiple court orders and seems to have a complete disregard to authority.
37The most dangerous of the drugs he was found to be in possession of for trafficking is fentanyl. The degree of concern relative to fentanyl cannot be understated. In R. v. Messoudi, 2022 ONSC 2252, M. L. Edwards RSJ referred to a recent Court of Appeal decision in R. v. Lynch, 2022 ONCA 109. Edwards RSJ adopted, as I do, the comments of Nordheimer J.A., at para. 39:
Dealing with the danger associated with fentanyl, Nordheimer J.A. at para. 15 observed:
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 ONCA 518, at para. 56, leave to appeal to S.C.C. requested, 39854.
38The Court in Messoudi quoted further, at para. 40:
As it relates to the danger posed to society as a result of the trafficking in dangerous drugs, the comments of Nordheimer J.A. at para. 17 are worth repeating:
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.
39In this case, Mr. Eggleton’s girlfriend died of a drug overdose only a few weeks prior to Mr. Eggleton being observed by police surveillance to be trafficking in serious drugs. The death of his girlfriend did not deter him from continuing his dangerous activities.
40In R. v. Smith, 2023 ONCA 620, at para. 9, the Ontario Court of Appeal made the following comments that relate to the sentencing of individuals convicted of weapons and drug trafficking offences:
The facts show that the respondent began trafficking drugs before he became addicted and that he possessed the firearm prior to that time, so his subsequent addiction does not provide an explanation for his possession of the firearm. Even accepting that the appellant dealt drugs in order to support his drug addiction, that does not lessen the seriousness of the gun offences. It can properly be relevant to the sentence on the drug offence, but not on the gun offences. [Emphasis added]
41In R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, the Ontario Court of Appeal commented on the toxic combination of trafficking in drugs and the possession of unauthorized loaded weapons at para. 206:
Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.
Mitigating Circumstances
42Mr. Eggleton experienced dysfunctional formative years and there is evidence noted of Indigenous intergenerational substance abuse, mental health issues and trauma. Adverse aspects of his upbringing have included unstable early home environments, witnessing domestic violence, discovering who he believed his biological father to be was not his father, having endured a highly physically and psychologically abusive stepfather and time spent in a foster home. Several deaths and sources of trauma, grief and/or losses have been cited, including a male that Mr. Eggleton defended himself against in his younger years at the age of 21, a supportive maternal aunt he resided with who passed away in 2020 and an approximately 5-months-along pregnant girlfriend who overdosed and passed in his presence in 2021.
43He has a supportive employer who is willing to continue to hire him as a contract roofer.
44Mr. Eggleton is Indigenous. His biological father is Métis. However, Mr. Eggleton had little to no relationship with his father, and neither his father nor Mr. Eggleton had any relationship with the Métis Community.
45It is appropriate to consider Mr. Eggleton’s background and upbringing as factors relevant to sentencing in order to understand the present circumstances Mr. Eggleton is in. However, that does not dimmish the seriousness of his offences.
46Sentencing is by its nature an individualized process: R. v. Hamilton (2004), 72 O.R. (3d) 1, 186 C.C.C. (3d) 129, (Ont. C.A.), at paras. 140-142; R. v. Borde (2003), 63 O.R. (3d) 417, 172 C.C.C. (3d) 225 (Ont. C.A.). Particulars of an offender’s background are important in determining the reasons for the offender’s conduct, the prospects of rehabilitation, and the type and length of sentence that would best accomplish the objectives of sentencing. In some cases, an offender’s disadvantaged status because of specific or systemic racism will be relevant in crafting an appropriate sentence. However, this must be in a factual context relevant to the particular offender.
47As a result of Mr. Eggleton absconding, I cannot find that there are any mitigating circumstances that would impact on his sentence. His absconding negates what may have otherwise been mitigating factors.
48The court can have no confidence that rehabilitation can be a factor to be considered under these circumstances. I do, however, take into consideration the potential for Mr. Eggleton to make a connection with the Métis services and programs that he has expressed an interest in. Some of the programs can be accessed within the penal setting.
49In cases like this case, denunciation and deterrence must be the paramount consideration.
Range of Sentences
50Sentencing is a complicated task. Ranges of sentences for similar offences can assist the sentencing judge in arriving at an appropriate sentence that is consistent with other sentences that have been given for similar sentences.
51At the same time, no two cases are the same. The circumstances of each offence are often unique and distinguishable from the offence(s) that is before each court. No two offenders are the same. The focus must be on the unique background of the offender who is before the court.
52Using the range of sentencing as a guide, I have taken into consideration the cases provided by the Crown with the caveat that my primary goal is to arrive at a sentence that is tailor-made for this offender and these offences.
53The Crown’s cases demonstrate a range of sentences between 4 to 12 imprisonment years for cases that deal with convictions for the combination of trafficking in the type and quantity of substances as found in this case, along with possession of loaded weapons and or ammunition that was easily accessible.
54The Crown suggests a sentence should be imposed as follows:
i. The court should impose a sentence in the range of 4 to 6 years imprisonment for the weapons offences and a sentence of 1-year consecutive imprisonment on the s. 117 breach. The provincial Crown deferred to the federal Crown for his submissions on the drug trafficking and related offences.
ii. The federal Crown submitted the court should consider the ranges of sentences for serious drugs such as fentanyl being between 8 to 15 years. However, given the approximate amount of fentanyl found in this case – approximately 14 grams – an appropriate sentence would be at the lower end. The federal Crown suggested 8 years for the fentanyl, 3 for the methamphetamine and 1 year for the cocaine. The federal Crown recommended these sentences be concurrent.
Analysis and Sentence
55I am guided by the statement from the Supreme Court of Canada that sentencing is more of an art than a science and is one of the most delicate stages of the criminal justice process: R. v. Parranto, 2021 SCC 46, 411 C.C.C. (3d) 1, at para. 9, citing R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 1. Sentencing requires a balance of multiple factors with the goal of finding a fair, fit and principled sanction: Parranto at paras. 9-10.
56The fundamental principle of sentencing is proportionality. A sentence must be proportionate to the seriousness of the offence and the offender’s degree of responsibility: Lacasse at para. 12. Secondary to the principle of proportionality are the principles of parity and individualization: Parranto at para. 11. Parity requires sentencing judges to give similar sentences to similar offenders who commit similar offences in similar circumstances: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 31-32. Individualization requires the sentencing judge to consider the factors unique to the accused and the facts of the offence.
57In R. v. Smith, 2023 ONCA 500, the accused pled guilty to unauthorized possession of loaded and prohibited firearm, three counts of possession of a firearm while prohibited and possession of 28.6 grams of fentanyl for the purposes of trafficking. He was sentenced to seven years imprisonment.
58In R. v. Ribble, 2019 ONCJ 640, aff’d 2021 ONCA 897, the Ontario Court of Appeal imposed a sentence of nine years for possession of a semi automatic handgun, bullets and cash totalling $1,520 and various narcotics including 0.82 grams of cocaine, 16.35 grams of methamphetamine, some other more minor drugs, and 11.02 grams of fentanyl.
59I am of the view that an appropriate sentence for the weapons and other non-drug related offences in this case is 5 years imprisonment plus an additional 1 year’s imprisonment for the section 117 breach, to be served consecutively.
60For the drug offences, I impose the following sentence:
i. For the fentanyl – 4 years.
ii. For the methamphetamines – 2 years concurrent.
iii. For the cocaine – 1 year concurrent.
61The sentence for the drug related offences shall be consecutive to the sentence for the weapons offence set out above, the total being 10 years imprisonment when the concurrent sentences are noted added to the total time.
62There shall be mandatory ancillary orders for DNA and lifetime weapons ban.
63In addition, there shall be the order for Disposition of Property in accordance with the Form filed by the Crown that is dated September 28, 2023.
64The pretrial custody credit amounts to real time of 695 days grossed up to be 1,042.5 days credited.
