COURT FILE NO.: CR-22-101521

DATE: 2023/11/10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Camila Manuela Herrera

Accused

K. Nolan as agent for R. Prendiville, for the Crown

D. Usher, for the Accused

HEARD: July 4-7, 2023, July 10-14, 2023; September 19, 2023

The honourable Justice m.j. valente

Reasons for sentence

[1] Following a trial by jury, Camila Manuela Herrera was convicted of possession of methamphetamine for the purpose of trafficking as well as possession of fentanyl for the purpose of trafficking, both of which are contrary to section 5(2) of the Controlled Drugs and Substances Act, SC 1996, c. 19 (the “CDSA”). It now falls to me to impose a fit sentence for the offences which the jury determined were proven beyond a reasonable doubt.

Circumstances of the Offence

[2] My first task is to set out the facts which are expressed or implied by the jury’s verdict, and to make my own findings of the fact where the implications of the verdict are ambiguous (Criminal Code, R.S.C. 1985, c.-46 (the “Code”), s. 724(2); R v. Ferguson, 2008 SCC 6, at paras 15-19; R v. Brown, 1991 73 (SCC), [1991] 2 S.C.R. 518 (‘Brown’), at paras 14-15). The following description of the events is based on the implications of the jury’s verdict, and my “own independent determination of the relevant facts” (Brown, at para 14).

[3] Several members of the Waterloo Regional Police Service (‘WRPS’) testified with respect to their involvement in a surveillance operation conducted in September 2021 and early October, 2021 of Ms. Herrera and her then boyfriend, Daniel Lightbody, as the couple entered and exited the home they shared at 39 Waterville Way, Caledon (the ‘Caledon Property’) and drove about in a 2019 rented grey Hyundai Tucson motor vehicle (the ‘Tucson’).

[4] At the time of the police surveillance in the early autumn of 2021, Mr. Lightbody had convictions for a variety of offences including robbery, and assault with a weapon and had been charged with possession of a Schedule I substance for the purpose of trafficking pursuant to the CDSA. Mr. Lightbody was well known to the WRPS.

[5] As a part of their investigation of Mr. Lightbody and Ms. Herrera, the police were authorized to track two cell phone numbers that were assigned to the cell phones used by one or both of Mr. Lightbody and Ms. Herrera. By tracking one or both cellphones with the authorized assigned numbers, the WRPS were able to confirm the movements of Daniel Lightbody and Camila Herrera in the Tucson and otherwise.

[6] On September 21, 2021, the Tucson travelled from the Caledon Property to a Concession Street apartment complex in Cambridge before proceeding to two locations in Brantford and returning to the Concession Street address in Cambridge.

[7] On September 22, 2021, the Tucson was observed some time after midnight at a Brantford gas bar as well as at the Cambridge Concession Street apartment where an unknown male came from the apartment to the vehicle, and after some two minutes at the Tucson vehicle, returned to the apartment.

[8] On September 28, 2021, Ms. Herrera was observed in the driver’s seat of the Tucson vehicle at a Brantford gas bar where an unknown female exited the rear of the vehicle, and immediately thereafter, Ms. Herrera left this gas bar for a second Brantford gas bar location before travelling to a Cambridge Tim Horton’s outlet and that city’s hospital.

[9] On October 5, 2021, Ms. Herrera drove the Tucson vehicle with Mr. Lightbody in the passenger seat from the Caledon Property to the Budget Inn in Hamilton. From Hamilton, Camila Herrera drove to Cambridge and then on to Woodstock before returning to Hamilton at approximately 2:00 am when on October 6, 2021, she met up with Mr. Lightbody, and together, they returned to the Caledon Property. Among the many police observations, members of WRPS testified to Ms. Herrera’s movements at the Budget Inn in downtown Hamilton and various interactions with Daniel Lightbody at that location before travelling to Cambridge and Woodstock for short meetings with unidentified individuals.

[10] At or about the time of the arrest of Ms. Herrera and Mr. Lightbody on October 7, 2021, Camila Herrera was observed leaving the Caledon Property with an unidentified backpack on her back before entering the front passenger seat of the Tucson vehicle. For his part, at the moment of Mr. Lightbody’s arrest, he was seated in the driver’s seat of the Tucson vehicle with a satchel across his chest that was described by one of the officer’s as smaller than a backpack but larger than a fanny pack.

[11] After the couple’s arrest and prior to any search of the Tucson vehicle, among other things, a brown women’s handbag was found on the floor of the front passenger seat along with a black Tommy Hilfiger backpack. The backpack was zipped shut.

[12] The police search of the Tommy Hilfiger backpack uncovered three Ziplock bags of methamphetamine, a Ziplock bag containing yellow and pink fentanyl along with eight bindles of fentanyl and a tied plastic bag containing green and purple fentanyl. The eight bindles of fentanyl were of varying weights between 0.03 grams to 0.19 grams. Two digital scales, one with residue on it, and Canadian currency were also found in the backpack. In addition, blueish green fentanyl was uncovered in a men’s camo style hoodie found in the rear hatch of the Tucson vehicle.

[13] A search of the couple’s bedroom at the Caledon Property found, among other items, Canadian currency, unused dime bags and two cellphones.

[14] In the end, 84.01 grams of methamphetamine and 32.4 grams of fentanyl were seized by police. The certificates of analysis entered as trial exhibits confirm the nature and respective quantities of the Schedule I substances pursuant to the CDSA.

[15] Given the jury’s conviction of Camila Herrera on both counts, the jury concluded that based on the WRPS’ observed movements of the Tucson vehicle and the interactions of the occupants of the vehicle, including those of Ms. Herrera, with other persons that drug trafficking was occurring. The jury also concluded that because the Tommy Hilfiger backpack, containing methamphetamine and fentanyl, was found on the front passenger seat floor of the Tucson at the time of arrest and Camila Herrera was wearing a backpack as she exited the Caledon Property and entered the front passenger seat of the vehicle, Ms. Herrera was in possession of the methamphetamine and fentanyl, knew the nature of the substances and possessed the Schedule I substances for the purpose of trafficking.

Circumstances of the Offender

[16] Ms. Herrera was born on December 6, 1998, is currently 24 years of age and was 22 at the time of her arrest. She is single and lives with her mother and stepfather.

[17] Ms. Herrera has no prior criminal convictions.

[18] The pre-sentence report of July 14, 2023 indicates that Camila Herrera was born in Argentina. She first came to Canada in 2001 but left three years later with her mother for her country of birth. In 2010, Ms. Herrera and her mother returned to Canada as permanent residents having been sponsored by the husband of Ms. Herrera’s mother.

[19] Camila Herrera was bullied at school when she returned to Argentina in 2004 because she was not fluent in Spanish. Likewise, Ms. Herrera also reports being bullied at school in Canada upon her return some six years later because of her difficulty with English and her being somewhat overweight.

[20] Ms. Herrera graduated from grade 12 in 2016 and received an achievement accomplishment award. She also earned a health and fitness trainer diploma from Bryan College of Applied Health and Business Science. After completing a bridge program at Humber College, Ms. Herrera was accepted into the kinesiology program at Humber Guelph University. She left the program, however, during COVID when her mother became ill. Her goal is to return to Humber Guelph University.

[21] Ms. Herrera is currently employed as a cashier and line chef at a restaurant/market as well as a receptionist and nail technician at a spa. According to her mother, since the age of 16, Ms. Herrera has worked and volunteered in her spare time.

[22] The pre-sentence report indicates that Camila Herrera has a strong bond with her mother and stepfather who are both hard working individuals. It does not escape me that Ms. Herrera’s mother, Roxana Salgado, was beside her daughter in court on each day of the proceedings.

[23] Ms. Salgado and Vinh Huyah, her husband, describe Ms. Herrera as respectful, responsible, caring, intelligent and loving. Ms. Herrera’s friend, Mariana Ureta, views her as hardworking, goal oriented and responsible. Each of these individuals is of the opinion that the circumstances of the conviction are out of character for Camila Herrera.

[24] The pre-sentence report suggests that Ms. Herrera had low self esteem issues when she met Daniel Lightbody who was her first boyfriend. Mr. Lightbody made her feel beautiful and was her protector. As the relationship progressed, however, Ms. Herrera described Daniel Lightbody as both controlling and physically abusive.

[25] Ms. Herrera does not use illicit substances. She occasionally drinks alcohol. Her physician, Dr. Salim Dahmis, prescribes 7 grams of marijuana per week for chronic pain resulting from an unknown source. In his letter, dated August 24, 2023, Dr. Dahmis describes Ms. Herrera as someone who is dedicated to self-improvement with a newfound sense of responsibility and someone who recognizes her mistakes.

[26] Finally, the pre-sentence report indicates that Ms. Herrera accepts responsibility for her actions, feels terrible and ashamed and regrets her lapse in judgment. The report also indicates that Ms. Herrera acknowledges her “wrong doings” and is “very apologetic”.

Position of Crown and Defence

[27] The maximum penalty for the offences at issue is life imprisonment (ss 5(3)(a) of the CDSA).

[28] The Crown seeks a prison sentence for Ms. Herrera of 6 years. The Crown submits that a 6-year sentence is in accordance with the evolving case law. The Crown stresses in his submissions the dangers of the subject drugs, and in particular, of fentanyl. The Crown relies, in part, on the observations of Justice Wendl in R v. Davidson, 2021 ONCJ 492, and Justice Sopinka in R v. Vezina, 2017 ONCJ 775. At paragraph 12 of his decision, Justice Wendl states that: “the bottom line is this: fentanyl kills, and sentences need to reflect that fact.” For her part, at paragraph 56 of her ruling, Justice Sopinka notes that: “the dangers of fentanyl have become well known, which puts traffickers on notice that their conduct will attract significant custodial sentences”.

[29] The defence proposes a conditional sentence of two years less a day followed by a period of probation for Ms. Herrera. The defence submits that all of the conditions of section 742.1 of the Criminal Code are satisfied in the case of Ms. Herrera, permitting me to exercise my discretion in favour of the offender serving a time of imprisonment in the community. The defence submission is supported by the pre-sentence report recommendation and focuses on Ms. Herrera’s potential for rehabilitation. The defence urges this court not to lose sight of the individual circumstances of Ms. Herrera and to be guided by the principles enunciated by the Supreme Court of Canada in R v. Prouxl, 2000 SCC 5, [2000] 1 S.C.R. 61, where at paragraph 100 of its decision the Supreme Court held that: “a conditional sentence can achieve the principles of denunciation and deterrence as effectively as incarceration”.

[30] For purposes of sentencing, both the Crown and the defence agree Camila Herrera is to be considered as a mid-level dealer.

Principles of Sentencing

[31] Section 718 of the Criminal Code codifies the objectives of sentencing that have been long recognized in criminal law. These objectives are the protection of society and the maintenance of a just and safe society through the denunciation of unlawful conduct; deterrence both general and specific; where necessary, the separation of the offender from society; rehabilitation; reparation for harm done to victims or to the community; and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done both to victims and to the community.

[32] Section 718.1 of the Criminal Code stipulates that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[33] The Supreme Court of Canada in R v. Parranto, 2021 SCC 46 (‘Parranto’), makes clear at para 12 that:

“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” (at para 58) [quoting from R v. Lacasse, 2015 SCC 64] …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)”.

[34] Pursuant to section 718.2, a sentence must also take into account any aggravating or mitigating circumstances relating to the offence or the offender. Section 718.2 of the Criminal Code also requires that a sentence be similar to those imposed on similar offenders in similar circumstances.

[35] While it is well established that the paramount principles of sentencing with respect to the commercial trafficking of illicit drugs are denunciation and general deterrence (see: R v. Lu, 2016 ONCA 479, R v. Hudson, 2019 ONSC 290; R v. Oho, 2019 ONSC 6446), it is also incumbent upon this court to consider all of the principles of sentencing set out in section 718 of the Criminal Code, including the principle of rehabilitation.

[36] I am also guided by section 10(1) of the CDSA that provides that the fundamental purpose of sentencing in drug cases is to contribute to the respect for the law and the maintenance of a just, peaceful, and safe society while at the same time encouraging rehabilitation and treatment in appropriate circumstances of offenders, and acknowledging the harm done to victims and to the community.

[37] Finally, I am mindful of the well-established principle of sentencing established by this province’s Court of Appeal that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence. (see: R v. Priest, 1996 1381 (ON CA), [1996] O.J. No. 3369)

[38] In short, I am of the view that this court must impose a sentence that appropriately denounces Ms. Herrera’s conduct and deters others from following in her footsteps, but at the same time the sentence must not lose sight of Camila Herrera’s potential for rehabilitation.

[39] Each of the Crown and defence agree that in the case of Ms. Herrera, a term of imprisonment is warranted. Where the parties differ is whether Ms. Herrera’s imprisonment be a sentence of incarceration, or a term of imprisonment served in the community pursuant to a conditional sentence order.

[40] Leaving aside the dangers posed by the illicit use of methamphetamine, the public health crisis caused by the unintentional overdosing of people who use fentanyl is well known. The British Columbia Court of Appeal in R v. Smith, 2017 BCCA 112, described fentanyl as a “scourge” (at para 48). The Ontario Court of Appeal in R v. Loor, 2017 ONCA 696 at para 33, noted: “[Fentanyl] is a highly dangerous drug. Its widespread abuse, though recent, has quickly become entrenched in our country. Every day in our communities, fentanyl abuse claims the lives of Canadians”. Finally, Justice Moldaver in the concurring minority decision in R v. Parranto, 2021 SCC 46 (‘Parranto’), summarized the seriousness of the opioid epidemic in Canada as follows:

“More broadly, federal statistics on opioid-related deaths show that between January 2016 and March 2021 approximately 23,000 Canadians lost their lives due to accidental apparent opioid-related deaths, with fentanyl involved in 71 percent of these deaths (Special Advisory Committee on the Epidemic of Opioid Overdoses, Opioid and Stimulant-related Harms in Canada (September 2021) (online)). The epidemic also shows no signs of abating, with over 6,000 accidental deaths occurring in 2020 alone, 82 percent which involved fentanyl (Government of Canada, Federal actions on opioids to date (June 2021) (online)),” at para 96.

[41] The majority of the Supreme Court of Canada in Parranto noted at para 68 that the range of sentence for trafficking in significant amounts of fentanyl is 8 to 15 years. No doubt because of the fact that fentanyl is such a deadly drug.

[42] The Ontario Court of Appeal has held that trafficking in significant amounts of fentanyl, even by first-time offenders, should result in significant penitentiary sentences (see: R v. Loor, 2017 ONCA 696, (‘Loor’) at para 50).

[43] Justice Laskin also observed in Loor that because by 2017, few fentanyl trafficking cases had reached the Court of Appeal, it was too early in the jurisprudence to establish sentencing rangers (at para 50). Three years later, in R v. Disher, 2020 ONCA 710, Justice Gillese echoed the observation: “The caselaw on sentences for trafficking fentanyl is still developing” (at para 30). Writing for the Ontario Court of Appeal in its 2021 decision in R v. Olvedi, 2021 ONCA 518 (‘Olvedi’), Justice Trotter confirmed that it “may be too early in the development of our jurisprudence to establish a range of sentence” in fentanyl cases (at para 55) and noted that “other appellate courts have taken the same, cautious approach, by declining to establish sentencing rangers in fentanyl cases, but upholding significant penitentiary sentences” (at para 56). Justice Trotter also acknowledged in Olvedi that because of the dangerous nature of fentanyl, appellate courts recognize that sentences should be longer than those involving cocaine and heroin (at para 56).

[44] While sentencing rangers for fentanyl trafficking cases have yet to be well defined, what is clear is that a conditional sentence for a fentanyl trafficking conviction is the exception (see: R v. Grant, 2021 ONCJ 507; R v. Gordon, 2023 ONCJ 157; R v. Williams, 2023 ONCJ 259). Conditional sentences are the exception in fentanyl cases because they have been imposed in those rare circumstances where the paramount objectives of deterrence and denunciation can be achieved through a conditional sentence. As the Ontario Court of Appeal noted in R v. Fabbro, 2021 ONCA 494, these are the exceptional cases where a “conditional sentence recognizes the seriousness of the offences while at the same time acknowledging and promoting the significant strides in rehabilitation that the [offender] has made…[and where] [i]mposing a custodial sentence was likely to have a serious negative effect on the [offender’s] progress and would not serve the genuine societal interest” (at para 27).

Aggravating and Mitigating Circumstances

[45] The most aggravating factor is the nature of the drugs trafficked by Ms. Herrera. Methamphetamine and fentanyl are both Schedule I substances and fentanyl, in particular, is a notoriously dangerous drug. Furthermore, 84.01 grams of methamphetamine and 32.4 grams of fentanyl are not insignificant amounts.

[46] Ms. Herrera’s position in the chain of sale or distribution is also an aggravating factor. It is admitted by both the Crown and the defence that Camila Herrera is a mid level trafficker. Based on the surveillance of the WRPS I have no difficulty finding that Ms. Herrera was involved in the business of selling illicit drugs.

[47] A third aggravating factor is that the offence was motivated purely by greed. Ms. Herrera was not an addict who sold drugs to feed her habit; rather her distribution of methamphetamine and fentanyl was motivated by commercial gain.

[48] The fact that Ms. Herrera has no criminal record is a mitigating factor in my determination of an appropriate sentence. I also note that Ms. Herrera has complied with her bail conditions while on remand.

[49] In terms of her level of participation in the sale of the illicit drugs, although I have little doubt that Ms. Herrera voluntarily and actively participated in the distribution of the drugs with her then boyfriend, I am prepared to accept defence counsel’s submission that it was Mr. Lightbody who conceived and directed the trafficking scheme given Ms. Herrera’s positive childhood upbringing on the one hand and Daniel Lightbody’s negative influences on her as a young woman on the other, both of which are detailed in the pre sentence report.

[50] Ms. Herrera’s acknowledgement of her wrongdoing, expression of regret for her lapse in judgment and apology also do not escape me.

[51] Finally, I am of the opinion that Ms. Herrera appears to be an excellent candidate for rehabilitation: she values education, is hard-working and has strong support from her family and community.

The Appropriate Sentence

[52] After considering the circumstances of Ms. Herrera and the principles of sentencing. I am not prepared to accede to the defence’s submission that I make a conditional sentence order. In my opinion, the case before me is distinguishable from those recent cases where a conditional sentence has been imposed. Specifically, in those exceptional cases where the court found a conditional sentence to be appropriate, the amount of fentanyl seized for the purpose of trafficking was at a minimum half of the amount found in the Tommy Hilfiger backpack. Additionally, in all but one case, the offender plead guilty. I also note that in many of the exceptional cases in which conditional sentences have been imposed for possession of fentanyl for purposes of trafficking, the accused was an addict trafficker who, since arrest, had made significant efforts to address their addiction (see: R v. Nacinorich, 2020 ONSC 7604; R v. Han, 2022 ONCJ 343; R v. Gordon, 2023 ONCJ 157). In those cases where conditional sentences have been imposed where the offenders were not addict traffickers but rather were motivated by money, the accused demonstrated that they had turned their life around since their arrest (see: R v. Grant, 2021 ONCJ 507; R v. Russell, 2023 ONCJ 133; R v. Williams, 2023 ONCJ 259). In these latter cases, the facts were such that the offenders turned to trafficking fentanyl because of their very limited economic means due in part to a life of racial discrimination.

[53] The facts surrounding Ms. Herrera’s convictions do not align with those cases where a conditional sentence was ordered for fentanyl trafficking: the amount of methamphetamine and fentanyl seized was sizeable, Ms. Herrera was found guilty only after a 9 day jury trial, she is and was never an addict but rather was involved in a mid-level distribution operation for profit, and finally, there is no evidence to suggest she turned to trafficking because of limited economic means because she was the subject of racism or some other insidious or devastating circumstance over which she had little to no control. Throughout her life Ms. Herrera has benefitted and continues to benefit from a loving and supportive family which taught her the value of education and hard work. She was given all of the advantages of a loving and nurturing environment and although Ms. Herrera may appreciate and value these benefits today, her trafficking of methamphetamine and fentanyl cannot, in my view, be sanctioned with a conditional sentence order. Her misjudgment in selling illicit drugs, and fentanyl in particular, has other consequences.

[54] In imposing sentence, I have considered that the principles of deterrence and denunciation are important when sentencing drug traffickers. I am also guided by the fundamental principles that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I also am mindful that given Ms. Herrera’s background and prospects, she has every potential to reintegrate into society as a productive member once her custodial term has finished.

[55] After considering all the relevant factors and the circumstances of this case, and the developing caselaw as reviewed by Kelly J. in R v. Piri, 2020 ONSC 920, I conclude that a sentence of 4 years’ incarceration is warranted.

[56] Ms. Herrera, please stand. I sentence you to four years in prison concurrent on the two possession for purpose of trafficking offences. I find this sentence meets the requirements of denunciation and deterrence.

[57] As a further consequence of the conviction, I order you to provide a DNA sample to the DNA Data Bank pursuant to section 487.051(3) of the Criminal Code. Furthermore, pursuant to section 109(1)(c) of the Criminal Code you are prohibited from the possession of weapons for a period of 10 years.

M.J. Valente, J.

Released: November 10, 2023