COURT FILE NO.: CR-22-018
DATE: 20231110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
GEORGE BRAZIER
Defendant
Indy Kandola and Susan Safar for the Crown
Anthony G. Bryant and Stephanie Marcade for Mr. Brazier
HEARD: Sentencing Submissions Heard October 6, 2023.
reasons for sentence
C. BOSWELL J. (orally)
[1] On June 2, 2023, I convicted Mr. Brazier of trafficking in cocaine and fentanyl and of manslaughter in the death of James Glover, who died on March 23, 2020 of a fentanyl overdose.
[2] Sentencing submissions were adjourned to October 6, 2023 to accommodate a defence request for a Pre-Sentence Report, which was received by the court on September 20, 2023.
[3] The Crown seeks a global sentence of twelve years. Defence counsel urge the court to impose a significantly lower sentence, at between four and six years.
[4] The following reasons explain the sentence imposed today.
THE CIRCUMSTANCES OF THE OFFENCE
[5] When the Covid-19 pandemic hit Ontario in the spring of 2020, James Glover was an in-patient in a drug addiction treatment program at the Waypoint Center for Mental Health in Penetenguishene. Given the high risk of infection in congregate living facilities, Waypoint released a number of in-patients prior to the completion of their programs. Mr. Glover was one of those released. He immediately relapsed.
[6] On March 23, 2020 Mr. Glover made his way by taxi from Waypoint to his parents’ residence in Wasaga Beach where he lived. He had already reached out to someone he knew to be a drug trafficker in an effort to acquire fentanyl and cocaine. That trafficker was George Brazier.
[7] Mr. Brazier supplied Mr. Glover with fentanyl and cocaine on two occasions during the day on March 23, 2020. At about 1:00 p.m., he sold Mr. Glover 2 points of fentanyl (equal to 2/10ths of a gram) and roughly half a gram of cocaine. He sold the same quantity of drugs to Mr. Glover again at about 4:30 p.m.
[8] Mr. Glover ingested the drugs he bought from Mr. Brazier. He overdosed alone in his bedroom sometime after 8:30 p.m. On post-mortem examination he was found to have a concentration of 10 nanograms of fentanyl per millilitre of blood. The scientific literature supports the conclusion that fatalities are associated with fentanyl concentrations of 3 ng/mL and higher.
[9] In convicting Mr. Brazier of manslaughter, I found that his supply of cocaine and fentanyl to Mr. Glover was a significant contributing cause to Mr. Glover’s death and that selling fentanyl to Mr. Glover was an objectively dangerous act.
THE CIRCUMSTANCES OF THE OFFENDER
[10] Mr. Brazier is 54 years old. He is presently single. Whether he has children and how many are very much unresolved issues.
[11] He has a fairly extensive criminal record, stretching from 1988 to 2022. It includes, amongst others, seven convictions for theft, two convictions for break and enter, three convictions for fraud, three for possessing property obtained by crime, two convictions for mischief, four convictions for failing to comply with court orders, one conviction for assault and another for assault with a weapon. He has no prior convictions for possessing or trafficking controlled substances. His longest jail sentence was in January 1994 for 90 days.
[12] The Pre-Sentence Report is not favourable. In some respects, it is a little bizarre.
[13] Mr. Brazier advised the author of the PSR, Jennipher Gandier, that he was raised by his father, though kicked out of his father’s home by age 13. He said he then lived in a van and got a job roofing. According to Ms. Gandier, however, Mr. Brazier indicated in a 2018 PSR that after he was kicked out of his father’s residence, he began to sell drugs as a primary source of income.
[14] Ms. Gandier made a number of references to the 2018 PSR. Mr. Brazier advised the court during his sentencing hearing that he had not participated in a PSR in 2018, but the details provided by Ms. Gandier make it readily apparent that he did.
[15] Mr. Brazier advised Ms. Gandier that he had fathered 22 children, all as a result of one-night stands and none of whom he supports. In the 2018 PSR he indicated that he has had 64 relationships with women and fathered five children he does not know. During the sentencing hearing, he said he would like to be a part of each of his children’s lives. The ones he does know, he said, he sends money to.
[16] Mr. Brazier does appear to have a history of employment in the roofing industry. Ms. Gandier was able to confirm that he has worked on and off for a roofing company for three years. He was described as a hard worker who could do very well if he reduced his alcohol intake. The company is prepared to rehire him in the future.
[17] Mr. Brazier has struggled with drug abuse since his youth. He reports that he has been in many accidents, which have left him in terrible pain. In 2018 he reported that he has been in nine car accidents, six bicycle or motorcycle accidents, struck by lightning twice and fallen off a roof five times. During his testimony at trial, he said he had been in 39 bike accidents, 10 car accidents, struck by lightning twice, drowned, overdosed, and been hit by numerous vehicles.
[18] At any rate, Mr. Brazier reports that he was prescribed opioids at one time by his physician, then eventually cut off from those drugs. He subsequently sourced them out on the street. He told the author of the 2018 PSR that he has historically used fentanyl, heroin and cocaine. He has been on and off the Methadone treatment program for an extended period of time. In August 2022, he was caught using someone else’s urine for his Methadone drug screens.
[19] Mr. Brazier continues to deny that he was a drug dealer. He takes no responsibility for the offences.
THE IMPACT OF THE OFFENCES
[20] The Crown filed three Victim Impact Statements – one each from Mr. Glover’s parents and sister. They speak to the profound impact and heartache of the loss of a loved son and brother.
[21] Mr. Glover’s sister, Jesse Glover, was particularly articulate in describing the impact of her brother’s death. She struggles daily with his loss. She finds it difficult to experience joy in things she once loved. She battles grief, guilt and helplessness. Anxiety and stress have taken a toll on her mentally and physically. She worries constantly about the safety of her other loved ones.
SENTENCING PURPOSES AND PRINCIPLES
[22] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: the denunciation of unlawful conduct, deterrence - both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and the community, and the promotion of a sense of responsibility in offenders and an acknowledgment of the harm done.
[23] The importance of these individual objectives, and how they interact, varies from case to case. In cases involving drug trafficking and manslaughter, the principal drivers of any sentence imposed are denunciation and deterrence – both specific and general.
[24] Identifying the principal objectives engaged in any given case is, however, only a first step. The next step is to assess what sentence is necessary to meet those identified objectives. In making that assessment the court is guided by the fundamental principle of proportionality. Section 718.1 of the Criminal Code directs that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[25] Proportionality engages two concepts: censure and restraint. See R. v. Ipeelee, 2012 SCC 13, at para. 37. As LeBel J. observed, a sentence must promote justice for victims and enhance public confidence in the administration of justice. At the same time, it should not exceed what is appropriate in light of the moral blameworthiness of the offender. The restraint principle directs the court to impose the least intrusive sentence and the shortest duration necessary to achieve a just, fit and proportionate sentence. See R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 (C.A.) at paras. 95-96.
[26] Inherent in the concept of proportionality is the principle of parity. Imposing sentences proportionate to the gravity of offences and the moral blameworthiness of offenders requires the court, on the one hand, to recognize where there are material differences between different offenders and different offences. On the other hand, any sentence imposed must be similar to those imposed on offenders who have committed similar offences with equivalent moral blameworthiness. See s. 718(2)(b) of the Criminal Code. Parity, in other words, is an expression of proportionality. See R. v. Friesen, 2020 SCC 9, at para. 32.
[27] Having said all of that, it is important to recognize that sentencing remains a highly individualized exercise. A sentencing court must focus on tailoring the sentence to the gravity of the offence, the moral blameworthiness of the offender and the harm caused by the offences. See R. v. Nur, 2015 SCC 15, at para. 43. In doing so, the sentencing court must pay careful attention to the unique circumstances of the offender and of the offence, with regard to any aggravating and mitigating circumstances present.
THE LEGAL PARAMETERS
[28] Pursuant to s. 5(3)(a) of the Controlled Drugs and Substances Act, a person convicted of trafficking cocaine or fentanyl is liable to a maximum sentence of imprisonment for life.
[29] Similarly, pursuant to s. 236(b) of the Criminal Code, a person convicted of manslaughter is liable to a maximum sentence of imprisonment for life.
THE PARTIES’ POSITIONS
[30] The Crown seeks a global sentence of twelve years and is indifferent as to how the time is apportioned between the offences. What is important to the Crown is that the sentence reflect the significant gravity of the offence and the elevated moral blameworthiness of Mr. Brazier.
[31] Crown counsel correctly observed that this community, like most others across the country, has a serious opioid addiction crisis. Fentanyl is at the centre of that crisis. It has proven to be an extremely dangerous drug. Overdoses are frequent; deaths from overdoses all too common. Those who traffic in fentanyl, traffic in death. The gravity of Mr. Brazier’s offending is largely informed, the Crown argues, by the social harm it engenders.
[32] Mr. Brazier trafficked in fentanyl. He knew it was dangerous. He knew Mr. Glover was desperate and vulnerable. And he capitalized on those traits to traffic fentanyl to Mr. Glover not once but twice on the date of his death. He profited from misery and death. He has no insight into his offending or its consequences and no remorse.
[33] Mr. Brazier’s counsel urge the court to impose a sentence considerably shorter than that proposed by the Crown. The defence position is that a sentence of 4-6 years for the manslaughter conviction and 3 years, concurrent, for the trafficking offences, is fit and just in all the circumstances.
[34] Defence counsel point to several factors that they say ought to mitigate the length of the sentence imposed, including Mr. Brazier’s significant drug addiction and Mr. Glover’s own contribution to his overdose.
DISCUSSION
Aggravating and Mitigating Circumstances
[35] It is generally appropriate to begin a sentencing analysis by identifying the aggravating and mitigating circumstances of the case.
[36] Counsel have done a good job of highlighting them.
[37] The following features are, in my view, certainly aggravating ones:
(a) First, and foremost, the fact that Mr. Glover perished as a result of the ingestion of drugs sold to him by Mr. Brazier. Mr. Glover’s life was cut short; his name added to the growing roll of those lost to opioid overdoses, because Mr. Brazier sold him a deadly amount of an illicit drug known to kill indiscriminately;
(b) The dangerous and destructive nature of fentanyl. Justice Moldaver recently commented on the grave threat that fentanyl trafficking poses to Canadian communities in R. v. Parranto, 2021 SCC 46, referring to it as “public enemy number one”. He noted, at para. 94, that fentanyl is 80-100 times more potent than morphine and 25-50 times more potent than pharmaceutical grade heroin. A lethal dose is often less than 2 milligrams. The extraordinary risks associated with the ingestion of fentanyl have resulted in a heightened awareness of the gravity of the offence of trafficking in it;
(c) Mr. Glover was in a vulnerable position. He had only just been released from a residential treatment centre, which was a fact known to Mr. Brazier. Moreover, Mr. Brazier was aware, according to his testimony, that Mr. Glover was being released before the completion of the program due to the onset of the COVID-19 pandemic. He was a recovering addict desperate to relapse. Mr. Brazier took advantage of that desperation to turn a small profit on the drugs he trafficked to Mr. Glover; and,
(d) Mr. Brazier trafficked fentanyl and cocaine to Mr. Glover twice on March 23, 2020. He should reasonably have been alive to the fact that Mr. Glover had ingested the fentanyl he had provided at roughly 1:00 p.m. and by 4:00 p.m. was looking for more. The risk to Mr. Glover was high.
[38] By way of mitigation, I accept that Mr. Brazier has had a long-standing addiction to opioids. He has limited education and limited marketable skills. He has been dealing drugs at the street level in large part to support his own addiction.
[39] I do not, on the other hand, accept the assertion that either the gravity of the offence or Mr. Brazier’s moral blameworthiness are lessened as a result of Mr. Glover’s role in his own death. I accept, of course, that Mr. Glover would not have died had he not made the autonomous choice to seek out and ingest fentanyl. He undoubtedly contributed, in a significant way, to his own demise.
[40] But I make the following observations:
(a) Our law has never, to my knowledge, recognized an end-user’s desire to acquire and ingest controlled substances as a mitigating factor on sentencing for a trafficking conviction;
(b) The sentence imposed on Mr. Brazier addresses his conduct only. This is not a situation, as in a negligence case involving multiple tortfeasers, where liability is being apportioned according to degrees of fault. Mr. Brazier has been convicted of three criminal offences. The sentence imposed upon him will reflect the gravity of his criminal conduct and his level of moral blameworthiness. Neither is impacted, in my view, by the fact that Mr. Glover chose to ingest the drugs he purchased from Mr. Brazier. There was never any doubt that Mr. Glover was going to ingest them or that Mr. Brazier knew that he would. Moreover, Mr. Brazier knew the dangers associated with the ingestion of fentanyl. It is important to be mindful of the fact that Mr. Brazier is not being sentenced for intentionally causing Mr. Glover’s death. He is being sentenced for contributing to his death in a significant way, by committing an unlawful act that was objectively dangerous. Others’ roles in the events that unfolded on March 23, 2020 – including Mr. Glover and Ms. McTamney – are of no moment in terms of fixing Mr. Glover’s moral blameworthiness; and,
(c) In the United Kingdom, the common law puts perhaps a higher premium on personal autonomy in this specific area. In R. v. Kennedy (No. 2), [2007] UKHL 38, the House of Lords confirmed that the law in the U.K. is that the act of supplying a lethal opioid, without more, cannot cause harm to the person who acquires it, let alone cause death. That finding is premised on the notion that, generally speaking, “informed adults of sound mind are treated as autonomous beings able to make their own decisions about how they will act.” The informed, voluntary choice to ingest dangerous drugs is, in the U.K. at least, deemed to be an intervening event that breaks the chain of causation.
The Kennedy line of reasoning has been soundly rejected in Canada. See for instance, R. v. Haas, 2016 MBCA 42, leave to appeal denied, [2016] S.C.C.A. No. 306). In Canada, legal causation includes a consideration of whether the defendant should be held criminally responsible for the foreseeable consequences of his actions based on principles of moral responsibility. In other words, the Canadian law of causation tends to focus on the moral responsibility of the accused, as opposed to the autonomous choices of the victim. See R. v. Maybin, 2012 SCC 24. Where it was entirely foreseeable to Mr. Brazier that Mr. Glover would ingest the drugs sold to him, the fact that he autonomously chose to do so, neither breaks the chain of causation nor acts to reduce Mr. Brazier’s moral responsibility for the choice to traffic in fentanyl.
The Sentence for Manslaughter
[41] Manslaughter is an offence that covers a lot of territory. It can, and does, occur in a myriad of circumstances. Those can range from near accidental deaths to killings more akin to murder. See R. v. Ali, 2018 ONSC 5536, at para. 31. The moral blameworthiness of offenders can also vary widely, depending on the circumstances. The court must do its best to fix a sentence that reflects the circumstances of the particular case and of the particular offender. The sentence must also be similar to sentences imposed on similar offenders in similar circumstances.
[42] Equality under the law is an important feature in most people’s conceptualization of justice. It is important that like offenders be treated alike. This principle of parity is codified in our criminal law under s. 718.2 of the Criminal Code. Parity can be tricky to achieve in manslaughter cases given the wide range of circumstances in which the offence may occur.
[43] Sentencing courts naturally tend to look for established sentencing ranges to aid in the pursuit of parity. Unfortunately, it appears that, to date, the common law in this province has not developed a range of sentence applicable to manslaughter committed in the course of trafficking insidious drugs like fentanyl.
[44] As my colleague, Schreck J., recently observed in R. v. Kerr, 2023 ONSC 3892 at para. 29, there appear to be three broad ranges of sentence for manslaughter reflected in the jurisprudence:
Six to eight years in less serious cases where, for example, the accused was not aware of a firearm possessed by a co-accused or where the accused was a youthful first offender with significant rehabilitative potential: R. v. Turner, 2019 ONSC 5435, R. v. Sahal, 2016 ONSC 6864; Kwakye, 2015 ONCA 108, at paras. 5-6.
Eight to 12 years in cases where some significant aggravating factors are present, such as the use of a firearm or brutal violence against a vulnerable elderly victim: R. v. Devaney (2006), 2006 33666 (ON CA), 213 C.C.C. (3d) 264 (Ont. C.A.), at para. 14; R. v. Clarke (2013), 2003 28199 (ON CA), 172 O.A.C. 133 (C.A.); R. v. Cleyndert, 2006 33851 (ON CA), [2006] O.J. No. 4038 (C.A.), at para. 12.
Twelve to 15 years in cases where the most serious aggravating factors are present, such as a significant criminal record, planned violence, active participation in brandishing or discharging firearms or a planned home invasion involving beating of the victims: R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191, at paras. 81-83; R. v. Tahir, 2016 ONCA 136, at para. 2, aff'g [2012] O.J. No. 6449 (S.C.J.); R. v. Atherley, 2009 ONCA 195, at para. 4.
[45] In an effort to situate this case within the range urged upon the court, Crown counsel provided the recent decision of Hilliard J. in R. v. Adams, 2023 ONCJ 63. Mr. Adams was convicted of trafficking in fentanyl and manslaughter. Mr. Adams, age 42, was found to have trafficked fentanyl to a 17-year-old female named Rachel Cook. Ms. Cook ingested the fentanyl and died.
[46] There are a number of parallels between Mr. Adams and Mr. Brazier. Mr. Adams has limited education, a limited work history, a long history of involvement in drugs, an opioid addiction and a lengthy criminal record.
[47] Hilliard J. reviewed a number of decisions over the last five years involving convictions for manslaughter or criminal negligence causing death arising from trafficking in fentanyl. The sentences imposed in the cases reviewed ranged from 18 months to 10 ten years.
[48] The lowest sentence imposed in the cases reviewed involved a guilty plea to manslaughter in circumstances where the offender mistakenly shared fentanyl with a friend, believing it to be cocaine.
[49] At the upper end of the range, 10 years, the offender pleaded guilty to two counts of possession for the purpose of trafficking (cocaine and fentanyl) and one count of criminal negligence causing death. He was sentenced to 6 years for the criminal negligence conviction and 4 years consecutive for the possession for the purpose convictions.
[50] Hilliard J. ultimately imposed a sentence of 8 years for manslaughter and six years, concurrent, for trafficking in fentanyl, noting that Mr. Adams knew well the dangers and potentially devastating consequences of consuming fentanyl at the time he trafficked it to Ms. Cook. He also failed to take responsibility for Ms. Cook’s death and deflected the blame for her substance abuse on other people in her life.
[51] Manslaughter cases involving a death caused by the trafficking of fentanyl do not fit neatly into the three-tiered sentencing ranges described by Schreck J. in Kerr. Those increasing ranges he described tend to reflect increasing levels of violence, planning and other aggravating factors. The absence of violence in cases like those before the bar arguably suggests that a case of this nature might properly fall into the lower range of 6 to 8 years, or perhaps even lower in light of the range of sentences imposed in the cases reviewed by Hilliard J. in Adams.
[52] In my view, it would be a mistake to understate the aggravating nature of the trafficking of fentanyl. One can readily appreciate why sentences increase in cases where there is more brutal violence, or where a firearm is used, or where death occurs in the course of a home invasion. Increased sentences in those cases reflect the increased harm done by the violence used and by the increased intrusion on the lives, the safety and the physical integrity of the victims.
[53] It is time to recognize that the presence of fentanyl in our communities is as dangerous to Canadians as the presence of firearms and thus should be approached with a commensurate level of concern. Consider, for a moment, these statistics cited by Moldaver J. in Parranto, at paras. 96-97:
…[F]ederal 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…The epidemic also shows no signs of abating, with over 6,000 accidental deaths occurring in 2020 alone, 82 percent of which involved fentanyl…These figures throw into stark relief the dark and inescapable reality that “[e]very day in our communities, fentanyl abuse claims the lives of Canadians”.
The scale of fentanyl’s devastating impact becomes even more apparent when one considers that, between 2016 and 2020, there were approximately 3,400 homicides across Canada, a number far below the number of fentanyl‑related deaths.
[54] Mr. Brazier was a low-level drug dealer. And I appreciate that he has his own issues with addictions. He cannot be sentenced as though he were running a largescale fentanyl trafficking operation. But dealing in drugs was his occupation. He has contributed to untold miseries in the community. He trafficked only a small amount to Mr. Glover, but it was more than enough to kill him. He has zero insight into his offence and no remorse.
[55] The sentence in this case must make it clear to Mr. Brazier and others prepared to peddle this insidious drug in our communities that they will pay a heavy price where they traffic in fentanyl and death ensues.
[56] For the conviction of manslaughter, I sentence Mr. Brazier to 8 years in prison.
The Sentences for Trafficking
[57] The sentences for trafficking must be considered separately because different tariffs apply when the substance trafficked is cocaine as opposed to fentanyl.
[58] I will begin with the sentence for trafficking in cocaine. The Court of Appeal has set the usual range of sentence for trafficking in modest amounts of cocaine at 6 months to 2 years less a day. See R. v. Woolcock, [2002] O.J. No. 4927, at para. 15.
[59] The amount of cocaine trafficked in this instance was fairly small. But again, Mr. Brazier trafficked in it on two occasions on March 23, 2020. Moreover, his long criminal record and his lack of remorse and insight into the wrongfulness of his behaviour suggest that the prospect of rehabilitation is not high.
[60] I do not intend to spend a significant amount of time on this offence because it is the least serious of the three Mr. Brazier has been convicted of. Having regard to the aggravating and mitigating circumstances of this case, I impose a sentence of one year in prison for the trafficking in cocaine.
[61] Settling on a sentence for the trafficking in fentanyl is more difficult.
[62] In R. v. Loor, 2017 ONCA 696, the Court of Appeal declined to fix a range of sentence appropriate to trafficking in fentanyl on the basis that insufficient cases involving fentanyl trafficking had reached that court. It was considered by the court to be “too early in [the] jurisprudence to establish a range”. Even so, Laskin J.A. observed that offenders, even first offenders, who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.
[63] Mr. Loor had used a forged prescription to obtain 45 fentanyl patches, which he trafficked. He was sentenced to 6 ½ years in prison. That sentence was upheld on appeal.
[64] Loor was decided six years ago. A lot of fentanyl has been trafficked in Canada in the meantime. Courts were alive to the dangers of fentanyl in 2017, but are acutely more aware of it now, as is the public. I have already referenced Justice Moldaver’s comments in Parranto, where he referred to fentanyl as “public enemy number one”.
[65] Nevertheless, we continue to lack appellate guidance in the form of a sentencing range for street-level trafficking in fentanyl. See, for instance, R. v. Disher, 2020 ONCA 710, at para. 30 and R. v. Olvedi, 2021 ONCA 518.
[66] Recently, in R. v. Tonkin, 2023 ONSC 2139, my colleague Nakatsuru J. reviewed a number of cases involving the trafficking of relatively small amounts of fentanyl. He concluded that the sentences imposed in these cases generally reflect the low penitentiary range. The cases he surveyed included:
• R. v. Oksem, 2019 ONSC 6283 where a 22-year-old, first-time offender was sentenced to 18 months in prison on a guilty plea to possessing 5.62 grams of fentanyl and 7.64 grams of cocaine for the purpose of trafficking;
• R. v. M.H., 2018 ONCJ 397 where a 34-year-old, first-time offender with an opioid addiction was sentenced to 2 years less a day in prison on a guilty plea to possessing 3.5 grams of fentanyl for the purpose of trafficking;
• R. v. Menzie, [2020] O.J. No. 654 where a 23-year-old, first-time offender was sentenced after a trial to just over 26 months for possessing just 5.05 grams of fentanyl for the purpose of trafficking;
• R. v Clayton, 2018 ONSC 4125 where a 43-year-old, first-time offender with addiction and mental health issues was sentenced to 26 months in prison, following a guilty plea to possessing 45 patches of fentanyl;
• R. v. Willis, 2019 ONSC 7324 where a repeat offender was sentenced to 30 months following a guilty plea to possessing 6.2 grams of fentanyl and heroin for the purpose of trafficking;
• R. v. Lu, 2015 ONCA 479 where the offender was sentenced to 30 months in prison following a trial where he was found guilty of possessing 20 fentanyl patches for the purpose of trafficking; and,
• R. v. Gatfield, 2015 ONCJ 526 where the offender was sentenced to 30 months in prison following a guilty plea to trafficking two fentanyl patches.
[67] Undoubtedly, the jurisprudence is continuing to develop in terms of sentencing for trafficking in small amounts of fentanyl. But the trend appears to be towards lengthier sentences as the profound harmfulness of fentanyl sinks in.
[68] Mr. Brazier trafficked only a small amount of fentanyl to Mr. Glover on two occasions. But that small amount was more than enough to kill. As my colleague, Bawden J., observed in R. v. Cinelli, 2018 ONSC 4983, at para. 20, a dose of fentanyl powder as small as two milligrams can be lethal.
[69] While it may still be premature to fix a range for trafficking in small quantities of fentanyl, it would appear to me that the range is beginning to settle into something between 18 months on the low end and 36 months on the high end, depending on the particular aggravating and mitigating circumstances present. Such a range makes sense in light of the Woolcock range of sentences for trafficking in small quantities of cocaine, and taking into account the significantly greater harm caused by fentanyl.
[70] In Mr. Brazier’s case, there are significant aggravating circumstances, which I have referred to. The one mitigating circumstance is his own addiction to opioids. That said, there is no evidence before me that he has done anything to address his substance abuse issues, apart from entering the methadone treatment program, which he cheats on.
[71] In my view, an appropriate sentence for trafficking in fentanyl to Mr. Glover is 30 months in prison.
Concurrent or Consecutive?
[72] Whether sentences are imposed concurrently or consecutively is a matter of judicial discretion. See R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948 at para. 46.
[73] Durno J. observed in R. v. McFarlane, [2012] O.J. No. 6566 (S.C.J.) that concurrent sentences have been imposed in cases where the offences are “closely linked together”, “part of the same transaction or endeavour” or “part of the same course of conduct”.
[74] The Court of Appeal held, however, in R. v. Gummer, 1983 5286 (ON CA), [1983] O.J. No. 181 (C.A.) at para. 13, that “the rule that sentences for offences arising out of the same transaction or incident should normally be concurrent”, does not necessarily apply “where the offences constitute invasions of different legally protected interests”.
[75] In my view, the offences involved here are closely linked together. The trafficking offences were committed together on both occasions on March 23, 2020. Moreover, they are intimately connected to the death of Mr. Glover. His death was a direct result of the trafficking of fentanyl to him.
[76] The trafficking sentences will be imposed concurrent to each other and to the manslaughter sentence.
[77] One could reasonably argue that the trafficking offences constitute an invasion of a different legally protected interest than the manslaughter offence. But the fact is, even if I were to make the trafficking offences concurrently to each other but consecutive to the manslaughter sentence, it would result in a net sentence of 10 ½ years. I would consider that excessive as a global sentence and would reduce it on the basis of the totality principle. In the end, the net result would be the same.
[78] To be clear, that net result is a global sentence of 8 years in prison, which includes the 8 year sentence for the manslaughter conviction, as well as 1 year concurrent for the trafficking in cocaine and 2 ½ years concurrent for the trafficking in fentanyl.
[79] I impose the following ancillary orders as well:
(a) A DNA Order on Counts 1, 2 and 4;
(b) A s. 109 weapons prohibition for life on Counts 2 and 4; and,
(c) An order under s. 743.21(1) of the Criminal Code that, while in custody, Mr. Brazier shall not communicate, directly or indirectly, with Michelle McTamney, or any member of James Glover’s immediate family.
C. Boswell J.
Released: November 10, 2023