COURT FILE NO.: CR-21-50000630 DATE: 20231121

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – UYGAR KAAN CELENK

Counsel: David Morlog and Stuart Rothman, for the Crown Jody Berkes, for Uygar Kaan Celenk on August 14, 2023 Uygar Kaan Celenk, Self-Represented on November 9 and 17, 2023

Heard: August 14, November 9, and November 17, 2023

PINTO J.

sentencing decision

Introduction

[1] On March 31, 2023, following a jury trial, Uygar Kaan Celenk was convicted of the following offences:

1. Possession of 1.35 kg of fentanyl for the purpose of trafficking, contrary to s. 5(3)(a) of the Controlled Drugs and Substances Act (CDSA);

2. Possession of a loaded prohibited Smith & Wesson firearm without being the holder of an authorization or license permitting such possession and without being the holder of a registration certificate, contrary to s. 95(2) of the Criminal Code; and

3. Possession of a restricted or prohibited Smith & Wesson firearm, while knowingly not being the holder of both a license permitting such possession and a registration certificate for the firearm, contrary to s. 92(3) of the Criminal Code.

[2] The circumstances of the offences are that on May 13, 2020, an unoccupied tow truck was found on fire in the parking lot of an apartment building in Toronto. Police found illegal drugs, identified as fentanyl, and two firearms - a Ruger handgun and a Smith & Wesson handgun, each loaded with ammunition - in the tow truck, which was owned and operated by Mr. Celenk. Health Canada confirmed that the purple hard chunk substances seized from the tow truck contained fentanyl. The total weight of the substances was 1.35 kgs. The evidence at trial was that fentanyl is sold in various amounts that can range from a single $20 point (approximately 0.1 gram) to $180 to $220 per gram. The 1.35 kgs, if distributed as $20 points, could be sold as approximately 13,500 doses of fentanyl, which could generate approximately $270,000.

[3] The jury convicted Mr. Celenk of possession of fentanyl for the purpose of trafficking and of two firearm offences related to the Smith & Wesson, a prohibited handgun, which was loaded with 13 cartridges (bullets). Mr. Celenk was acquitted of all charges associated with the Ruger handgun.

[4] Mr. Celenk did not testify at trial.

[5] The Crown requests that Mr. Celenk receive a significant prison sentence of 15 years, whereas the Defence submits that the circumstances warrant a conditional sentence of two years less a day, to be served in the community. For the reasons that follow, I find that a total global sentence of 13 years is appropriate, before the application of 1 year for various credits. Mr. Celenk will have to serve a remaining sentence of 12 years imprisonment.

Circumstances of the Offender

Pre-Sentence Report

[6] A Pre-Sentence Report (PSR) authored by Radika Koneswaran, a Probation and Parole Officer, was provided.

[7] Mr. Celenk is 26 years old. He was born in Turkey. He immigrated to Canada when he was 6 years old. He is now a Canadian Citizen. He graduated from high school in 2015. After high school, he attended the Police Foundation College but stopped attending after one semester.

[8] He has no children and has never been in a common-law or marital relationship. Currently, he lives with his mother, and they share a one-bedroom apartment. He attended Centennial College in the International Business program from Winter 2021 to Summer 2023. He is 6 courses away from graduating with a diploma in that program.

[9] Mr. Celenk has had a number of different jobs: grocery store attendant from 2012 to 2015; dispatch operator/security at a hospital for 2015-16; employment at a car dealership in 2016-17; and then a Tow Truck Operator from 2019-2020. He worked from September 2021 to March 2023 as a UPS driver. His most recent employment has been with the Local 27 Carpenters Union, a full-time position he commenced in February 2023.

[10] The PSR indicates that Mr. Celenk’s first experience with alcohol and marijuana was at the age of 16. He claims that he has never tried any other illicit drugs. He had an addiction to marijuana, which he overcame with assistance from his psychiatrist. He no longer smokes cannabis.

[11] Mr. Celenk does not have any record of criminal convictions and is to be treated as a first-time offender.

[12] The PSR notes that Mr. Celenk grew up in the Etobicoke area of Toronto. When reflecting on his upbringing, Mr. Celenk reported that he experienced mental and physical abuse at the hands of his father. No child welfare agency was involved. Mr. Celenk reported that his father’s domestic violence was reported to the police and that his father was arrested and charged. However, his mother decided to have the charges dropped in order to give the father another chance. Mr. Celenk believes that he has unresolved trauma from this father / childhood. Mr. Celenk has not had any contact with his father since the age of 9.

[13] The PSR notes that Mr. Celenk described his first experience with a panic attack on November 7, 2020, when he was in custody at the Toronto South Detention Centre (TSDC). He subsequently received treatment for anxiety, depression and panic attacks from the Centre for Addiction and Mental Health (CAMH). He is currently prescribed Prozac, Fluoxetine and Quetiapine. Mr. Celenk reported some suicidal ideation and, as a result, his psychiatrist increased his medication.

Defence Materials on Sentencing

[14] The Defence provided the following materials:

a) An affidavit from Mr. Celenk;

b) Four letters of support from Mr. Celenk’s mother, aunt and two friends; and

c) A letter from Dr. Imraan Jeeva, a staff Psychiatrist at the CAMH, who has been treating Mr. Celenk since January 2021.

[15] Mr. Celenk’s affidavit stated that, following his arrest on May 14, 2020, he was detained at the TSDC until his release on bail on November 6, 2020. He experienced 55 days of lockdown. During his time at the TSDC he was in segregation between May 27 and June 5, 2020, due to potential COVID exposure. He suffers from asthma and feared that he would catch COVID and die.

[16] Mr. Celenk had limited visits from his mother and others while in detention. He felt forgotten and suffered a lot mentally.

[17] Mr. Celenk was on house arrest from November 6, 2020 to September 13, 2021 for 312 days.

[18] Mr. Celenk’s mother wrote that her ex-husband beat her and her son. She described Mr. Celenk as very close to her and her family. She suggested that her son’s offences were completely out of character and that her son fell in with the wrong group.

[19] Mr. Celenk’s aunt wrote that Mr. Celenk “is very ashamed and I know he wants to go down a different path.” A neighbourhood friend wrote that Mr. Celenk had helped her at a difficult time in her life after her father passed away due to COVID-19. She also expressed the view that Mr. Celenk’s arrest, charges and conviction had left him very sad and ashamed.

[20] Another friend, Ms. Eddison, met Mr. Celenk in July 2019 when he assisted her in his capacity as a tow truck driver. They became close friends and confided in each other. Ms. Eddison learned that Mr. Celenk and his mother were physically and emotionally abused by Mr. Celenk’s father, and that Mr. Celenk never received any medical attention for his mental health. Mr. Celenk’s parents were divorced when he was a teenager, and he felt that he had to step up to be the “man of the house” and take care of his mother. Ms. Eddison suggested that Mr. Celenk was extremely naïve and was easily taken advantage of when he changed towing jobs and fell in with the wrong crowd.

[21] The Defence also provided a letter from Dr. Imraan Jeeva, a staff psychiatrist at CAMH, who has been treating Mr. Celenk since January 2021. Dr. Jeeva met Mr. Celenk shortly after Mr. Celenk completed approximately 6 months of incarceration while he was awaiting trial on his current charges. Dr. Jeeva stated that Mr. Celenk was diagnosed with marked depression and anxiety. Mr. Celenk has a past history of developmental trauma and features of post-traumatic stress disorder (PTSD), which worsened after his experience in custody. Dr. Jeeva stated that Mr. Celenk experienced severe emotional and physical abuse from his father in his early development.

[22] Mr. Celenk read a personal statement in court at the sentencing hearing. He vowed to change his life. Working with his psychiatrist, he has come to understand the effects of his childhood trauma and six-months spent in jail. He has quit cannabis, attended College and entirely changed the friends he was spending time with. He is eager to participate in any counseling, therapy or educational programs that may help him develop the necessary skills to become a law-abiding, productive citizen.

Sentencing Position of the Crown

[23] The Crown seeks a global sentence of 15 years for the possession of a controlled substance (fentanyl) for the purpose of trafficking offence, less any credits including for pre-trial custody.

[24] The Crown submits that the appropriate sentences for the firearms offences are in the 3-to-4-year range, to be served concurrently with the fentanyl offence.

[25] The Crown seeks a mandatory prohibition for a period of 10 years on Mr. Celenk owning a firearm, under section 109 of the Criminal Code.

[26] The Crown leaves it to the court to determine whether a DNA order is required.

[27] The Crown acknowledges that since Mr. Celenk was incarcerated from May 14, 2020 to November 6, 2020, a period of 177 days, he is entitled to a Summers credit of 266 days or roughly 8.8 months.

[28] The Crown also acknowledges that Mr. Celenk should be entitled to some mitigation in respect of lockdowns that occurred during his pre-trial incarceration, albeit the Crown leaves it to the court to determine this aspect while noting that much of society was on a form of lockdown due to the Covid-19 pandemic in 2020.

[29] The Crown submits that the 15-year global sentence is warranted for the following reasons:

a) The combination of drugs and guns is a lethal combination.

b) Fentanyl is a particularly dangerous drug that is devastating communities: R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389 (“Parranto”).

c) Mr. Celenk was engaged in mid-to high level commercial trafficking given the 1.35 kgs quantity of fentanyl found in the tow truck in various locations.

d) The gravity of the offences and the degree of culpability are both high. Parliament has signaled the gravity of the offences in question since the maximum sentence for possession for the purpose of trafficking is life, and for possession of a loaded firearm, 10 years.

e) The key sentencing principles are denunciation and deterrence.

f) The principle of rehabilitation and restraint should be factored in but should not overshadow the importance of denunciation and deterrence.

g) If this was a recidivist trafficker, the Crown’s position would have been higher than 15 years. 1.35 kgs is almost 3 times the amount of fentanyl involved in Parranto, where Mr. Parranto was found in possession of 485.12 g of fentanyl for the purpose of trafficking on one of the indictments and received a global 14-year sentence.

h) The Crown disagrees with the Defence’s characterization of Mr. Celenk as a mere warehouser of drugs. The Crown reminds the court that the evidence at trial was that Mr. Celenk possessed the only set of keys to his tow-truck. While it was not proven beyond a reasonable doubt that Mr. Celenk was a drug kingpin or mastermind, given the quantity and street value of the drugs involved, Mr. Celenk was evidently a trusted member of a commercial drug operation.

i) Canada and Toronto’s opioid epidemic is well documented and is correlated with the rise in the trafficking of fentanyl. Fentanyl is 100 times stronger than morphine and 20 times stronger than heroin. The extreme toxicity of fentanyl has resulted in death to unsuspecting individuals and requires special handling measures by law enforcement.

j) The presence of a significant quantity of fentanyl and a loaded, prohibited firearm in a commercial towing vehicle are aggravating factors that speak to Mr. Celenk’s serious moral culpability. This is not a situation where Mr. Celenk was an addict trafficker or from a community that has historically suffered discrimination.

Sentencing Position of the Defence

[30] The Defence seeks a conditional sentence of 2 years less a day. The Defence proposes that Mr. Celenk serve his sentence under house arrest with strict conditions as to his movements and who may visit.

[31] The Defence disagrees with the Crown’s contention that Mr. Celenk was engaged in a mid to high level commercial fentanyl trafficking operation. Rather, the Defence submits that the evidence at trial and the jury’s conviction of him on a subset of charges suggests that Mr. Celenk was a mere warehouseman, rather than a trafficker of the fentanyl.

[32] The Defence made additional submissions that:

a) Mr. Celenk was 23 when he committed the offences and is 26 at the time of sentencing. He should be treated as a youthful, first offender.

b) Sentencing is a highly discretionary, individualized process: Parranto, at para. 35 onwards.

c) Starting points and sentencing ranges are not and cannot be binding in theory or in practice: Parranto, at para. 36.

d) Denunciation and deterrence cannot be allowed to obliterate other sentencing objectives:

e) Sentencing proportionality supersedes the notion of sentencing parity: Parranto, at para. 38.

f) Even a significant departure from a range of sentencing does not necessarily render a sentence unfit: Parranto, at para. 38.

g) A court does not have to find an exceptional circumstance to depart from a sentencing range: R. v. Ellis, 2022 BCCA 278, 82 C.R. (7th) 223, at paras. 117 and following.

h) Mr. Celenk is an excellent candidate for rehabilitation, having support from his family and friends. He has enrolled in community college and obtained mental health support. Additionally, he has maintained compliance with his bail conditions.

i) Mr. Celenk’s personal statement confirms that he has specifically thought about and taken responsibility for the impact of his drug and firearms offences.

j) The principle of restraint is mandated for all offenders: s. 718.2 (e) of the Criminal Code. Where incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: R. v. Priest (1996), 30 O.R. (3d) 538 (C.A), at p. 545 (“Priest”).

k) Conditional offences are available for Mr. Celenk’s offences: s. 742.1 of the Criminal Code, following the passing of Bill C-5, declared in force on November 17, 2022, which removed certain mandatory minimum sentences.

l) Conditional sentence can provide significant denunciation and deterrence: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para 127.

Analysis

Caselaw on Large Quantity Possession of Fentanyl for the Purpose of Trafficking

[33] The Supreme Court’s decision in Parranto figured prominently in the parties’ submissions. Parranto was presented both for its statement of general sentencing principles and discussion of drug, particularly fentanyl, offences. In Parranto, the majority held that the national range of sentences for trafficking large quantities of fentanyl was 8 to 15 years of custody. The majority suggested that 12 years would have been appropriate on the charge related to Parranto’s possession of 485.12 grams of fentanyl for the purpose of trafficking. Mr. Parranto was 43 years old at the time of sentencing, had a lengthy criminal record, and had re-established his presence as a wholesale trafficker following an earlier release.

[34] While I reviewed all the authorities provided to me by counsel, I found post-Parranto Ontario decisions that involved possession of 1 kg or more of fentanyl to be particularly instructive.

[35] In R. v. Olvedi, 2021 ONCA 518, 157 O.R. (3d) 583 (“Olvedi”), the Ontario Court of Appeal upheld the trial judge’s sentencing of a 33-year-old first-time offender to a term of 12 years for possession of 499.5 grams of 100% fentanyl citrate worth $19 million. The sentence for possession was to run concurrently with a 15-year sentence for importation. The trial judge found the offender genuinely remorseful with excellent rehabilitative potential.

[36] In R. v. Hoang, 2022 ONSC 2534, Dunphy J. sentenced a 38-year-old first-time offender to 18 years in prison for possession of 2.4 kilograms of heroin and fentanyl for the purpose of trafficking, and possession of approximately one kilogram of heroin, fentanyl and carfentanyl for the purpose of trafficking. The drugs were located in the offender’s car along with a semi-automatic shotgun and loaded magazine.

[37] In R. v. Dalia, 2023 ONSC 2114, Goodman J. sentenced the offender to 13 years in circumstances where he was found guilty of possessing 1.7 kgs of fentanyl for the purpose of trafficking contrary to the CDSA. The street value of the drugs was $510,657 based on a sale price of $30.00 per point (0.1 g), or $174,121 if sold for $2,900 per ounce. Justice Goodman held, at para. 35, that, “[w]hile recognizing that this case involves significant quantities of fentanyl, it cannot be termed as a commercial or largescale enterprise. However, I accept that Dalia was on the scale of a high-end mid-level trafficker (supplier to street-level supplier), in the oft-referred-to five step hierarchy.” The court noted, at para. 43, that Dalia had prior related convictions and had in his possession “profoundly large amounts of fentanyl, cocaine and other illicit drugs, with an imitation weapon, along with all of the known paraphernalia for the purpose of trafficking in these substances.”

[38] In Dalia, Justice Goodman referenced and summarized the decision in R. v. Janisse, 2022 ONSC 4526 (“Janisse”):

[20] [Janisse] was a decision released after Parranto. The offender had two kilograms of fentanyl in his possession and was found guilty of multiple counts of possession of cocaine, fentanyl, and crystal methamphetamine for the purpose of trafficking. He was sentenced to 16 years in prison for the fentanyl-related count.

[21] Janisse involved a significant quantity of drugs (a total of 21 kilograms of cocaine and two kilograms of fentanyl, with an estimated street value of over one million dollars) and large sums of money (nearly $100,000 was seized). In addition to the “immeasurable harm” and “despair” the drugs are known to cause, the circumstances in Janisse were aggravated by the finding that it was a commercial enterprise: at para. 36. Further, the judge concluded that any prior convictions did not appear to have a deterrent effect.

[39] In R. v. Abdelgadir, 2023 ONCJ 446, a decision that was not addressed by counsel as it was released after the sentencing hearing, Camara J. of the Ontario Court of Justice (OCJ) sentenced the offender to 13 years in prison for possession of approximately 2 kgs of fentanyl for the purpose of trafficking. The offender was 28 years old with a recent and related criminal record, including a previous federal sentence. He was on parole from that sentence when the offence for which he was being sentenced was committed. The sentencing judge described the offender as not at the top of the drug trafficking hierarchy, but near the top. He was described, at para. 19, as “on the upper end of a mid-level trafficker.”

[40] In sentencing Mr. Celenk, I am bound by the Court of Appeal’s decision in R. v. Lynch, 2022 ONCA 109, 160 O.R. (3d) 241. In Lynch, at para. 15, the court held that fentanyl is a 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: see Lynch, at para. 14, and Olvedi, at para. 56.

[41] The court in Lynch also held that the fact that the offender was not at the pinnacle of the drug dealing empire did not reduce his level of moral blameworthiness or mean that his actions were not serious. The court noted that, “the producers of a product cannot get it into the hands of the consumer if there is no one to sell and deliver it”: at para. 18. Further, the court held that, “generally, offenders — even first offenders — who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences”: at para. 25, quoting R. v. Loor, 2017 ONCA 696, at para. 50.

[42] In the case a bar, there is a stark disparity in the parties’ sentencing positions. While the Crown calls for a 15-year global sentence, the Defence submits that a properly individualized sentence is a conditional sentence of two years less a day that Mr. Celenk could serve in the community.

[43] In R. v. Collins, 2023 ONSC 5768, another post-Parranto decision, Code J. cited the small number of decision where the appropriateness of a conditional sentence for drug trafficking was addressed:

[75] As a result of the above recent history, there are now a small number of cases that have addressed the appropriateness of conditional sentences for drug trafficking. See, e.g. R. v. Whittaker, 2021 ONSC 5278 [“Whittaker”]; R v. Ramos, 2023 ONSC 1094; R. v. Williams, 2023 ONCJ 259. Once again, some of these cases are obviously distinguishable from the present case. In Ramos, the accused was a young first offender who pleaded guilty to s. 95 possession of a loaded firearm and possession for the purpose of trafficking of 7.7 grams of fentanyl and ounce amounts of both powder and crack cocaine. However, she was not the principal in these offences and she had minimal control over the gun and the drugs. In addition, she was “significantly addicted” and was involved in both the drug trade and the sex trade as a result of abuse from her pimp. Perhaps most significantly, she had been on bail for almost five years and had made significant rehabilitative progress by the time of sentencing. In particular, she had been able to end “her dependency on hard drugs”. None of these “exceptional” mitigating circumstances apply to Collins. In Williams, the accused was also a young first offender who pleaded guilty. However, unlike Ramos, he was a commercial trafficker who was in possession of 14.2 grams of fentanyl (including cutting agent). The “exceptional” mitigating circumstances in Williams, in addition to being a young first offender who pleaded guilty, were that he grew up in a disadvantaged social context that included poverty, racism, witnessing a shooting, and having two friends who were shot and paralysed. He became involved in drug trafficking as a “one time event”, due to the financial pressure of his girlfriend’s pregnancy. Perhaps most importantly, he had taken “significant steps” to rehabilitate himself while on bail. In this regard, he was employed full time, he had upgraded his skills to become qualified as a welder, and he had completed 525 hours of volunteer work with a mentorship program for “racialized youth” and had received “very positive accolades” for this community work. These latter two circumstances, relating to social context and rehabilitative progress, both apply to Collins in the present case, although Collins is clearly not a first offender like the accused in Williams or in Ramos. The one case that is most helpful, amongst these drug trafficking cases where conditional sentences were imposed, is Whittaker. I will refer to it in greater detail below.

[44] Code J. went on to describe that, in Whittaker, the accused pleaded guilty to one count of possession of 74 grams of cocaine for the purpose of trafficking. Whittaker was sentenced to two years in prison after six months of pre-trial custody. He was a mature recidivist drug trafficker, as was Collins. Another aggravating factor was that Whittaker was not an addict. He was a commercial trafficker, like Collins. Corrick J., the sentencing judge in Whittaker, also stressed two mitigating factors:

a) First, Whittaker had a disadvantaged and traumatic upbringing, which reduced his moral blameworthiness to some degree. He grew up in a “high conflict” family in subsidized housing in the Jane and Finch neighbourhood. His own father led “a criminal lifestyle” and “it was impossible to avoid drug activity” in his own family and in his community. In addition, there was a “neighbourhood war” that led to the murder of Whittaker’s uncle.

b) Corrick J. found that Whittaker was “profoundly affected” by these events and he became “an angry man” who had difficulty expressing his feelings. The other important mitigating factor was the efforts that Whittaker had made to “transform his life” during the 4 ½ years that he was on bail.

[45] In R. v. Menzie, 2020 ONSC 1000, a 21-year-old offender with no criminal record was found in possession of 5 grams of fentanyl for the purpose of trafficking. Jaffe J. imposed a sentence of 2 years less a day plus 3 years of probation.

[46] In R. v. Gordon, 2023 ONCJ 157, the 35-year-old offender pleaded guilty to possession of 12.07 g of fentanyl for the purpose of trafficking. He was born in Jamaica and came to Canada when he was 9 years old. He had an extremely troubled youth. He became a father at the age of 18 and had a 15-year-old son at the time of sentencing. The court characterized him as an addict-trafficker and imposed a conditional sentence of two years less a day, under strict house arrest for the first 15 months of the sentence and a curfew for the remaining 9 months. He also received probation for 18 months.

[47] I note from the above survey of conditional sentence cases that the quantities of drugs involved were orders of magnitude smaller than the 1.35 kgs of fentanyl that Mr. Celenk was convicted of possessing for the purpose of trafficking.

Caselaw on Possession of a Loaded Prohibited or Restricted Firearm

[48] I will turn then to sentencing cases involving a loaded prohibited or restricted firearm.

[49] In R. v. Musa, 2022 ONSC 3734 (“Musa”), Charney J. dealt with an offender who had been convicted of possession of cocaine, methamphetamine, and 130 g of fentanyl for the purpose of trafficking, and possession of a loaded prohibited firearm. The offender was 20 years old at the time of arrest and, although convicted previously, he was facing his first penitentiary sentence. Charney J. described the current judicial approach to this serious firearms offence:

[29] There are a multitude of cases describing the gravity of gun crimes and the particular danger posed by a loaded handgun in a public place. A recent decision is the Ontario Court of Appeal’s decision in R. v. Morris, 2021 ONCA 680, where the Court stated, at para. 71:

Apart from the specific provisions in the Criminal Code, Canadian courts have long recognized that the gravity of certain kinds of offences requires sentences emphasizing denunciation and general deterrence. Gun crimes involving the unlawful possession of loaded handguns in public places fall squarely within that category. McLachlin C.J., in Nur (SCC), at para. 82, observed that a three-year sentence may be appropriate “for the vast majority of offences” under s. 95: see also Nur (ONCA), at para. 206; R. v. Mansingh, 2017 ONCA 68, at para. 24; R. v. Marshall, 2015 ONCA 692, 340 O.A.C. 201, at paras. 47-49; and R. v. Danvers (2005), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 77.

[30] The following analysis by Campbell J. in R. v. St. Clair, 2018 ONSC 7028, at para. 47 is representative of the current judicial approach to possession of a loaded handgun:

The courts have repeatedly noted that the possession of loaded handguns remains an all too prevalent threat to the people of Toronto, and to others in the Greater Toronto Area. Such firearms are frequently employed in connection with other kinds of serious criminal activity. Often, as illustrated by the facts in the present case, individuals engaged in the business of drug-trafficking have loaded firearms as one of the tools of their illicit trade. In any event, the possession and use of loaded firearms tragically results, all too frequently, in serious bodily harm or death to others. The unlawful possession of firearms remains a menace to society. To combat this serious social problem, these offences must be met with exemplary custodial sentences that proportionally reflect the sheer gravity of the crime, and which appropriately stress the need to denounce and deter such crimes. In the absence of such sentences, these offences and their disastrous consequences will only continue unabated. The public must be adequately protected. This can only be accomplished by sentences that ensure that potential offenders know that their illegal possession of loaded handguns will almost invariably be accompanied by serious penal consequences. Some of the authorities in support of this position are collected in R. v. Mark, 2018 ONSC 447, at para. 24.

[50] In Musa, Charney J. found that, putting aside issues of the totality principle, he would have imposed an 8-year sentence for the possession of fentanyl for the purpose of trafficking, and a 3 and ½ year sentence for the possession of a prohibited loaded firearm. This would have resulted in a total sentence of 11.5 years. However, in respect of the totality principle, Charney J. went on to reduce the sentence for possession of fentanyl for the purpose of trafficking by 12 months, and the sentence for possession of a loaded prohibited firearm by 9 months, for a total reduction of 21 months, resulting in a total sentence of 9 ¾ years.

[51] In R. v. Donison, 2022 ONSC 741, Schreck J. held that:

[46] Firearm possession offences such as this are all too frequent in this jurisdiction and pose a grave threat to the safety of the community. The court is required to denounce this type of conduct in the strongest terms: R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 206, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Marshall, 2015 ONCA 692, 340 O.A.C. 201, at para. 47.

[47] In this case, it is an aggravating factor that Mr. Donison possessed not one, but two firearms, and he hid one in a location where it could have been, and in fact was found by someone else. As noted earlier, the fact that he possessed at least one of the guns in public increases the gravity of the offence. As also noted earlier, the possession of firearms as part of the drug trade is a “toxic combination” of offences. While the combination of gun possession and drug trafficking warrants an increased global sentence, in my view it should not be considered as an aggravating factor with respect to the gun possession offences if the sentences imposed for the drug offences will be consecutive to the sentences for the firearm offences: R. v. Graham, 2018 ONSC 6817, at para. 26; R. v. Peterkin, 2013 ONSC 2116, at para. 23.

[52] Schreck J. issued a sentence of 4 years for the firearms possession offences.

[53] In R. v. Lovell, 2023 ONSC 5776, Boswell J. found that the caselaw supports a sentence in the three-year range in circumstances, which included a first-time youthful offender, who had entered a guilty plea to possession of a loaded, prohibited firearm, which was possessed in a public location.

Aggravating and Mitigating Factors

[54] Next, I turn to the aggravating and mitigating factors in this case.

[55] The fact that Mr. Celenk did not plead guilty is not an aggravating factor. However, since he did not plead guilty, that issue is not a mitigating factor: R. v. Johnston and Tremayne, [1970] 2 O.R. 780 (Ont. C.A.)

[56] The aggravating factors here are the large quantity - 1.35 kgs - of fentanyl, one of the most dangerous drugs, found in various locations in Mr. Celenk’s tow truck. Moreover, Mr. Celenk was additionally found in possession of a prohibited Smith & Wesson firearm loaded with 13 bullets found in the front seat of his vehicle, which was located in an open-air parking lot of an apartment building.

[57] Our courts have repeatedly stated that the “toxic combination” of drug and gun offences requires a significant jail term: R. v. Wong, 2012 ONCA 767, at paras. 11-12.

[58] The mitigating factors are that Mr. Celenk is a youthful, first offender; that he has strong rehabilitative potential with support from his mother and some friends; and that he has expressed remorse and some insight into the serious nature of his crimes. For the purpose of sentencing, I accept that Mr. Celenk has developmental trauma from his conflictual relationship with his father, who was violent and abusive towards his mother and him. Moreover, based on Mr. Celenk’s spotted employment history and the fact that he was raised by a single mother who was an immigrant to Canada and whose first language was not English, I surmise that Mr. Celenk grew up in financially constrained circumstances.

Sentencing Decision

[59] I find the Defence submission that Mr. Celenk should receive a conditional sentence of two years less a day to be entirely untenable. As described in the above case law concerning conditional sentences for drug offences, the 1.35 kgs of fentanyl found in Mr. Celenk’s possession was anywhere from 20 to 100 times greater than the quantity of drugs that have typically received conditional sentences, and the mitigating circumstances in those cases were far greater.

[60] Perhaps recognizing the dissonance between his conditional sentence request and the caselaw, Defence counsel relied on the novel argument that Mr. Celenk was not, in fact, a trafficker of fentanyl, but rather a mere warehouseman or storer of drugs that other individuals trafficked. While I agree that Mr. Celenk was convicted of possession for the purpose of trafficking and not trafficking, I find this Defence argument similarly untenable. The sentencing cases in respect of possession for the purpose of trafficking do not recognize diminished levels of responsibility for offenders who have stored drugs. In Janisse for example, while the offender also trafficked cocaine, he was convicted and received a global sentence of 16 years primarily for storing large quantities of drugs in two safes in a stash house.

[61] In arriving at my sentencing decision, the factors that I have considered include:

a) On balance, notwithstanding the significantly higher quantity of drugs in the present case, a sentence in the range of 12 to 13 years for the fentanyl possession offence is consistent with Parranto. The Supreme Court considered that 12 years was appropriate on the charge in Parranto related to possession of 485.12 grams of fentanyl for the purpose of trafficking. Mr. Celenk was found in possession of 3 times that quantity of fentanyl. However, Mr. Parranto was 43 years old at the time of sentencing, had a lengthy criminal record, and had re-established his presence as a wholesale trafficker following an earlier release. Mr. Celenk, by contrast, is now 26 years old and is a first-time offender.

b) A prison sentence of 12 to 13 years was found to be appropriate in 3 cases with high quantities of fentanyl. In Abdelgadir, the offender had a recent and related criminal record and was near the top of the trafficking hierarchy. He received a sentence of 13 years for possession of 2 kgs of fentanyl for the purpose of trafficking. In Dalia, the offender, described as a high-end mid-level trafficker with prior related convictions, also received 13 years when found in possession of 1.7 kgs of fentanyl. And in Olvedi, a 33-year-old first-time offender received a sentence of 12 years for possession of 499.5 grams of 100% fentanyl citrate valued at upwards of $19 million. Arguably, Mr. Celenk’s criminal conduct is not as serious as the conduct in these cases, setting aside his loaded, prohibited firearm offence.

c) Although the offender in Hoang was a first-time offender who received an 18-year sentence, I note that he was 38 years old, so considerably older than Mr. Celenk who is 26. In Hoang, the quantity of drugs included 2.4 kgs of heroin and fentanyl which is approaching double the 1.35 kgs of fentanyl possessed by Mr. Celenk. In my view, Mr. Celenk should certainly not receive a sentence comparable to that of Mr. Hoang.

d) Mr. Celenk did not testify at trial. The circumstances of his involvement in fentanyl trafficking activities are unknown. However, even accepting that he was not at the pinnacle of a drug trafficking organization, he is still blameworthy for the offence, which could have generated 13,500 points of fentanyl for distribution. Furthermore, the estimated $270,000 street value of the fentanyl found in Mr. Celenk’s tow truck suggests that whatever his involvement, he was trusted sufficiently to store a very high value cache of drugs in his vehicle.

e) “The paramount principles of sentencing with respect to the commercial trafficking of illicit drugs and the possession of prohibited firearms are denunciation and general deterrence. At the same time, it is incumbent upon the court to consider all of the principles of sentencing contained in s. 718 of the Criminal Code, including rehabilitation”: Musa, at para. 38, citing R v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88, at para. 27.

f) The principle of restraint is mandated for all offenders: s. 718.2 of the Criminal Code. Where incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused.

[62] Given the many factors, I would impose a 13-year sentence for the possession of fentanyl for the purpose of trafficking offence; a 3½-year sentence for the possession of a loaded prohibited firearm; and a 3-year sentence for the possession of a firearm knowing he was not the holder of a license or registration certificate.

[63] To give effect to the totality principle, I would have the firearm sentences run concurrently to the fentanyl possession sentence. This will result in a global sentence of 13 years. I find that this sentence appropriately reflects and balances out the various sentencing objectives including restraint. The sentence would have been greater were Mr. Celenk not a youthful, first-time offender with strong rehabilitative potential. Yet, the 13-year sentence is still a heavy one calculated to strongly denounce the lethal combination of drug and firearm possession.

Discussion of Credits

[64] The parties are in agreement that since Mr. Celenk was incarcerated pre-trial for a period of 177 days, he is entitled to a Summers credit of 266 days or roughly 8.8 months.

[65] While I decline the specific Defence request that Mr. Celenk’s period of house arrest be the basis of a Downes credit of 104 days based on a ratio of 3 days house arrest to one day of credit, I have taken his period into account in terms of additional credits as described below.

[66] The Defence also requests a Nasogaluak credit on the basis that improper state action that does not rise to a Charter breach may still be a relevant factor in sentencing. Here, the Defence argues that there was a deliberate ignoring of counsel’s requests for the jail to comply with the statutory duty to schedule a timely Myers review. Earlier this year on March 21, 2023, I ruled against the Defence stay application, but I left open the possibility that the issue of Mr. Celenk’s Myers review not happening in a timely manner could be revisited at sentencing. Once again, I have taken this circumstance into account in terms of additional credits.

[67] Mr. Celenk spent 55 days in lockdown while in custody and a further 10 days in segregation after two inmates on his range tested positive for Covid-19. In R. v. Duncan, 2016 ONCA 754, the Court of Appeal recognized that enhanced credit could be provided for “particularly harsh presentence incarceration conditions.” I accept that Mr. Celenk had asthma and was particularly fearful of being infected with what in 2020 was a novel and possibly fatal disease. In my view, in the circumstances of this case, given the duration of the lock down conditions, and their adverse impact on Mr. Celenk, he should be extended some credit which, once again, I have combined with other discretionary credits.

[68] In light of the foregoing, I would grant Mr. Celenk credits equivalent to 3.2 months in light of the Downes, Nasogaluak and Duncan credits. When combined with the Summers credit of 8.8 months, Mr. Celenk is entitled to a credit of 12 months or 1 year. Give his global sentence of 13 years, this means that Mr. Celenk will have to serve a remaining 12 years in custody.

Sentencing Order

[69] In conclusion, Mr. Celenk is sentenced to:

a) 13 years in custody on Count 1 in respect of possession of fentanyl for the purpose of trafficking;

b) 3½ years in custody on Count 5 in respect of possession of a loaded prohibited firearm, to be served concurrently to the drug offence; and

c) 3 years in custody on Count 7 in respect of possession of a firearm knowing he was not the holder of a license or registration certificate, to be served concurrently to the drug offence.

[70] I agree with the Crown in respect of the ancillary terms of sentence. Accordingly, I also order that Mr. Celenk be subject to an order that he be prohibited from carrying or applying for weapons for 10 years, pursuant to section 109 of the Criminal Code.

[71] Finally, I have determined that Mr. Celenk shall provide a sample of his DNA for inclusion in the DNA data bank. The offence of possession of fentanyl for the purpose of trafficking is a secondary designated offence, which means that there is discretion in ordering whether a sample be provided. Given the gravity of the drug possession offence, notwithstanding Mr. Celenk’s young age, I find that Mr. Celenk’s right to privacy must give way to the public interest.

[72] In closing, let me state that the truly unfortunate aspect of this case is that Mr. Celenk, a relatively young man with no previous criminal record and a strong rehabilitative potential will be spending the next few years in prison. Yet, Mr. Celenk’s sentence, while individualized, is commensurate with the deadly consequences that his offences are having on our community. The sentence I have issued is a fit sentence in all the circumstances.

Pinto J. Released: November 21, 2023