Court File and Parties

COURT FILE NO.: CR-22-065 DATE: 2024-04-16 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: His Majesty The King – and – Dajour Campbell, Defendant

Counsel: Karen Jokinen for the Crown Jassi Vamadevan for Mr. Campbell

HEARD: February 16, 2023

Reasons for Sentence

C. Boswell J. (Orally)

This written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions, it is this official written Ruling that is to be relied upon.

[1] On September 20, 2023, I convicted Mr. Campbell, following a four-day trial, of four offences: possession of fentanyl, possession of fentanyl for the purpose of trafficking, dangerous operation of a motor vehicle and flight from police.

[2] Sentencing was adjourned to October 4, 2023 to be spoken to regarding whether Mr. Campbell would be seeking an enhanced Pre-Sentence Report. On October 4, 2023 his counsel advised that he would not be doing so. Sentencing submissions were scheduled for December 8, 2023. Unfortunately, defence counsel was ill on December 8, 2023 and sentencing submissions had to be adjourned to February 16, 2024. Submissions were received on that date and Mr. Campbell was adjourned to today’s date for the imposition of sentence.

[3] On the agreement of counsel, and pursuant to the principles of Kienapple v. The Queen, [1975], 1 S.C.R. 729, the conviction for possession of fentanyl simpliciter, is conditionally stayed. Kienapple stands for the principle that there ought not to be multiple convictions for the same “delict” or “cause”. The conviction for simple possession is subsumed in the conviction for possession for the purpose of trafficking.

[4] Counsel made sentencing submissions with respect to the three remaining convictions. The following reasons explain the sentence imposed today.

The Offence

[5] Mr. Campbell and a former co-accused were travelling in a BMW sedan from Brampton to Collingwood on May 29, 2020. Mr. Campbell was driving. The co-accused was under surveillance by the Ontario Provincial Police as part of a drug investigation.

[6] A decision was made to conduct a traffic stop of the BMW as it travelled on Raglan Street in Collingwood. Although the police managed to force the BMW into a ditch beside the road, Mr. Campbell was able to extricate the car from the ditch and he fled from the police in a southbound direction on Raglan Street. Raglan ends in a “T” intersection at Hume Street. Hume Street is a major thoroughfare through the Town of Collingwood.

[7] Mr. Campbell failed to observe the stop sign at the intersection of Raglan and Hume. He proceeded through the intersection and turned left. He thereafter proceeded at a high rate of speed along Hume Street heading east, zigzagging through traffic. He ran through a red light at the next intersection. The BMW was abandoned about 1 kilometre down Hume Street in the parking lot of a Chrysler dealership.

[8] I found that Mr. Campbell fled from the police and, in doing so, manifested driving that was a marked departure from that expected of a reasonable, prudent driver in the circumstances.

[9] As Mr. Campbell drove through the intersection at Raglan and Hume Streets, his passenger tossed a tube sock out of the window. It was recovered by the police and found to contain significant amounts of fentanyl. The police also found a small, oval bag in the rear of the Chrysler dealership near a dumpster. It was found to contain roughly 27 grams of cocaine.

[10] A subsequent search of the BMW resulted in the detection and seizure of 109 tablets in an envelope inside a backpack located in the trunk.

[11] I did not find Mr. Campbell guilty of any offences connected with the drugs in the sock or the drugs in the little, oval bag. I did, however, find him guilty of possession for the purpose of trafficking in relation to the 109 tablets that were found in the trunk of the BMW. The tablets appeared to be Percocet but were confirmed by Health Canada to be fentanyl.

[12] I was not satisfied that Mr. Campbell knew that the tablets were fentanyl, but I was satisfied that he knew they were a controlled substance.

The Offender

[13] Mr. Campbell is a youthful, Black male. He has just recently turned 26. He was 22 years old at the time of the offences. He has no criminal record. He has a high school education and is employed as a general labourer at Hydro Aluminum. He has a life partner, with whom he has a one-year-old child.

[14] Mr. Campbell grew up initially in the Jane and Finch area of Toronto, which has long been notorious for high levels of crime. Mr. Campbell reports being a witness to drugs, gangs, guns and shootings in his neighbourhood. His family was eventually able to relocate to Brampton when he was 13. He grew up in an intact home with a mother, father, five siblings, and two half-siblings. His mother was in and out of employment. His father did not work for the majority of Mr. Campbell’s life. He was on a disability pension. Mr. Campbell worked odd jobs throughout high school and assisted with household expenses.

[15] Roughly two months prior to the index offences, Mr. Campbell’s older brother, D’Andre, was shot to death by officers of the Toronto Police Service. D’Andre suffered from mental health issues. During a manic episode he called 911. The police attended at the Campbell family home and, during the encounter with D’Andre, shot and killed him. Mr. Campbell was not present in the home at the time of the shooting, but he arrived shortly after it occurred.

[16] Defence counsel filed three letters of support on behalf of Mr. Campbell. One was written by his sister. The second by his life partner. The third by his life partner’s mother. Each of them describes Mr. Campbell in very positive terms. He is, by their accounts, a hard worker, dependable, loving, caring and a strong family man.

The Impact on the Community

[17] The offences here are ones that have no specific, identified complainant. That does not mean that they were victimless offences.

[18] We are in the midst of an opioid crisis in many locations across Canada, including in Simcoe County. The extreme dangers associated with fentanyl are well-known. It was recently described by Justice Moldaver as “public enemy number one”. See R. v. Parranto, 2021 SCC 46. It is an insidious drug – addictive and destructive. Those who traffic in it traffic in misery and death.

[19] Mr. Campbell endangered members of the community by possessing fentanyl for the purpose of trafficking. He further endangered the community by operating his vehicle in the manner that he did. His flight from the police and dangerous driving along Hume Street, fell substantially below what members of the community rightly expect from other motorists on the road. In his attempt to escape from the police, Mr. Campbell endangered the safety of everyone else driving along that one kilometre stretch of Hume Street on the occasion in issue.

The Governing Principles

[20] 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.

[21] The importance of these individual objectives, and how they interact, varies from case to case. In cases involving possession of controlled substances for the purpose of trafficking and in cases involving dangerous operation of a motor vehicle, the principal drivers of any sentence imposed are denunciation and deterrence – both specific and general. Nevertheless, given Mr. Campbell’s age, his lack of a criminal record and his role as a parent to an infant son, serious consideration must still be paid to the objective of rehabilitation and the principle of restraint.

[22] Identifying the principal sentencing objectives engaged in any given case is only the 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.

[23] 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), 72 O.R. (3d) 1 (C.A.) at paras. 95-96.

[24] 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.

[25] 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

[26] Section 5(3) of the Controlled Drugs and Substances Act provides for a maximum penalty of life imprisonment on conviction of possession of a Schedule I substance for the purpose of trafficking. Fentanyl is a Schedule I substance.

[27] Section 320.19(5) of the Criminal Code provides for a maximum penalty on conviction for dangerous driving of ten years and a similar maximum penalty on conviction for the offence of flight from police.

The Parties’ Positions

[28] The Crown seeks a sentence of 6 to 8 years in prison for the offence of possessing fentanyl for the purpose of trafficking. Crown counsel submits that such a sentence is within the range of appropriate sentences identified by the Ontario Court of Appeal in R. v. Lynch, 2022 ONCA 109, for mid-level trafficking in fentanyl.

[29] Though I found, when convicting Mr. Campbell, that there was insufficient evidence to conclude beyond a reasonable doubt that he knew he was in possession of fentanyl, the Crown says this finding is irrelevant on sentencing. In the Crown’s submission, neither the gravity of the offence nor the moral blameworthiness of Mr. Campbell are reduced as a result of the fact that he may not have known that the tablets in his trunk were fentanyl as opposed to Percocet (Oxycodone).

[30] Fentanyl, the Crown correctly observes, is an incredibly dangerous and destructive drug. It is at the forefront of the opioid crisis now gripping this country. A significant penitentiary sentence is necessary, the Crown says, to sufficiently denounce and deter Mr. Campbell’s conduct in peddling this substance for his own commercial gain.

[31] The Crown additionally seeks a four-month consecutive sentence for the driving offences. These offences were distinct from the drug offences but presented another acute danger to the public created by Mr. Campbell’s conduct. His driving was egregious and put others at risk of harm. Crown counsel is content that concurrent sentences be imposed for the dangerous driving and flight from police convictions but urges the court to impose a custodial sentence for those offences that runs consecutive to any sentence imposed on the drug conviction.

[32] Mr. Campbell’s position on sentence stands in stark contrast to that of the Crown. His counsel contends that the inability of the Crown to prove that he knew the tablets seized from his car were fentanyl, significantly mitigates his moral blameworthiness for the drug-related offence.

[33] Defence counsel submits that the tablets looked identical to Percocet. There was no reason for Mr. Campbell to be suspicious that they were anything but Percocet pills. It cannot be said that he was wilfully blind as to the contents of the tablets.

[34] Defence counsel accepts that denunciation and deterrence are the primary sentencing objectives engaged in the circumstances but given Mr. Campbell’s age at the time of the offences (he was 22) and his lack of a criminal record, rehabilitation ought also to play a significant role.

[35] Defence counsel urges the court to sentence Mr. Campbell as though he was convicted of possessing Oxycodone for the purpose of trafficking. Given the amounts involved, he suggests that a sentence in the range of two years less a day, to be served conditionally, is sufficient to adequately serve the objectives of denunciation and deterrence.

[36] In terms of the driving offences, defence counsel urges the court to consider the imposition of a concurrent 90-day custodial sentence, to be served intermittently.

Discussion

The Applicable Range for Possession of Fentanyl for the Purpose of Trafficking

[37] Sentencing judges will typically commence their analyses of fit and just sentences by considering whether the jurisprudence has established a range of sentence appropriate to the offence in issue.

[38] There is limited appellate jurisprudence on the appropriate sentencing range for possession of fentanyl for the purpose of trafficking, so identifying that range is challenging. The challenge presented by the limited jurisprudence is exacerbated by the fact that it can be difficult to compare quantities of fentanyl given the differences in the ways it can be formulated, for instance, as patches, pills or powder.

[39] Crown counsel submitted that the Court of Appeal’s decision in Lynch establishes a range of sentence applicable to the index offence. Mr. Lynch was convicted of trafficking in fentanyl and cocaine and possession of cocaine for the purpose of trafficking. He entered a guilty plea and accepted responsibility for having trafficked 965.01 grams of cocaine, 149.28 grams of MDMA and 41.37 grams of fentanyl.

[40] It appears there was no dispute that Mr. Lynch was a mid-level trafficker in both cocaine and fentanyl. At the Court of Appeal, Nordheimer J.A. identified the sentencing range for mid-level traffickers in cocaine as five to eight years. He observed that fentanyl is a more dangerous drug than cocaine and identified the applicable sentencing range for mid-level trafficking in fentanyl as between six and eight years.

[41] The decision in Lynch is consistent with the Court of Appeal’s decision in R. v. Olvedi, where Trotter J.A. accepted the observation of Laskin J.A. in R. v. Loor, 2017 ONCA 696, that offenders who traffic in significant amounts of fentanyl – even first time offenders – should expect to receive significant penitentiary sentences. He went on to hold, at para. 56, that due to the dangerous nature of fentanyl, sentences should be longer than those involving cocaine or heroin.

[42] A number of cases have applied Lynch since it was released. Amongst others:

(a) R. v. Owusu, 2024 ONSC 671, where Code J. imposed a 9-year sentence for possession of 127.75 grams (or roughly 4.5 ounces) of fentanyl for the purpose of trafficking. He imposed it consecutive to a sentence of 9 years for various firearms offences. He reduced the global sentence to 15 years to account for the totality principle; (b) R. v. Pereia, 2024 ONCJ 11, where Silverstein J. imposed a 5-year sentence for possession of 52.2 grams of fentanyl for the purpose of trafficking; (c) R. v. Williams, 2023 ONSC 6273, where Allen J. imposed a 4-year sentence for possession of 187 pills comprised of fentanyl and acetaminophen. She indicated that she would have imposed a sentence of six or seven years but for her consideration of the totality principle (Mr. Williams was already serving time for another, unrelated offence). The pills in issue were referred to as “fake Oxies” because they looked like the prescription drug, Oxycontin. There was uncertainty as to the relative amounts of fentanyl and acetaminophen in each pill. Allen J. provided, at para. 36, a helpful summary of other cases involving possession of fentanyl for the purpose of trafficking, including:

• R. v. Aden, 2021 ONSC 2370: 113.9 grams of fentanyl - 7 years, less pre-trial custody;
• R. v. Ansah, 2021 ONSC 6339: 85 grams of fentanyl - 5 years for fentanyl, 3 years for firearm reduced to 6 years on totality, less pre-trial custody;
• R. v. Beauparnt, 2022 ONSC 4686: 38.9 grams of fentanyl - 5 years;
• R. v. Griffith, 2022 ONSC 6406: 68 grams of fentanyl - 5 years;
• R. Musa, 2022 ONSC 3734: 130 grams of fentanyl plus a loaded firearm and other drugs - 7 years consecutive to a firearm offence (reduced to 8 years in totality);
• R. v. Piri, 2020 ONSC 920: 27.22 grams of fentanyl (plus other drug offences) - 6 years less pre-trial custody;
• R. v. Shramek, 2021 ONSC 436: 156.7 grams of fentanyl (plus other drugs) - 7.5 years;
• R. v. Richer, 2022 ONSC 6872: 22 grams of fentanyl (plus other drugs) - 4 years.

[43] There have been numerous other relevant cases, but the foregoing provide a good overview and generally demonstrate sentences falling within a range of 5 to 8 years for possession of fentanyl for the purpose of trafficking in mid-level amounts.

[44] What is not clear from the caselaw is where the demarcating line is between low-level, or street-level trafficking, and mid-level trafficking? Crown counsel took the position during sentencing submissions that the number of tablets possessed by Mr. Campbell was consistent with mid-level trafficking. The Crown did not adduce any expert evidence at trial, however, about that issue.

[45] The sentencing range for trafficking in smaller amounts of fentanyl is not yet settled.

[46] In R. v. Tonkin, 2023 ONSC 2139, Nakatsuru J. reviewed a number of cases involving the trafficking of relatively small amounts of fentanyl and concluded that the sentences imposed in those cases generally reflected the low penitentiary range. Those cases included:

• R. v. Oksem, 2019 ONSC 6283: 5.62 grams of fentanyl and 7.64 grams of cocaine – 18 months;
• R. v. M.H., 2018 ONCJ 397: 3.5 grams of fentanyl – 2 years less one day;
• R. v. Menzie, [2020] O.J. No. 654: 5.05 grams of fentanyl – 26 months;
• R. v Clayton, 2018 ONSC 4125: 45 patches: 26 months;
• R. v. Willis, 2019 ONSC 7324: 6.2 grams of fentanyl and heroin – 30 months;
• R. v. Lu, 2015 ONCA 479: 20 fentanyl patches – 30 months; and,
• R. v. Gatfield, 2015 ONCJ 526: 2 fentanyl patches – 30 months.

[47] In R. v. Brazier, 2023 ONSC 6315, I suggested that a range appeared to be developing for trafficking in small amounts of fentanyl (or possession of small amounts of fentanyl for the purpose of trafficking) of 18 to 36 months, depending on the aggravating and mitigating circumstances of the case.

[48] Obviously, the amount of fentanyl an offender possessed, for the purpose of trafficking, is going to have an impact on the sentence imposed. Comparing one case to another can be difficult with fentanyl cases because, as I said, it can be sold in a variety of different forms. It is difficult to compare a certain number of grams of fentanyl in powder form, to a certain number of pills or patches containing fentanyl.

[49] In the case at bar, there is very limited evidence of the amount of fentanyl in the tablets seized from Mr. Campbell. The Health Canada certificates filed by the Crown indicate that the tablets contained both fentanyl and acetaminophen. In what relative proportions it is impossible to say.

[50] It must be remembered, however, that fentanyl is a very dangerous drug. Very small amounts of it can – and regularly do – kill. From all appearances, Mr. Campbell was dealing in opioids at the street level. But 109 pills is a significant amount of fentanyl. Presumably it is consistent with 109 doses. It strikes me as being more than the amounts present in the various cases cited by Nakatsuru J. in Tonkin. It is arguably less than some of the cases I have referred to as “mid-level”. It is, for instance, about 60% as many as the number of “fake Oxies” in the Williams case where Allen J. imposed a sentence of four years. She noted however, that she would have imposed a six- or seven-year sentence had she not reduced it in light of the totality principle.

[51] The amount involved here tends to straddle the amounts reflected in cases characterized as small amounts (or “low-level”) and those reflected in cases characterized as “mid-level”. In my view, an appropriate sentence for such a straddle case would be in the four- to five-year range.

The Applicable Range for Dangerous Driving and Flight from Police

[52] General deterrence and denunciation are the most important sentencing objectives in dangerous driving cases. As Epstein J.A. noted in R. v. Rawn, 2012 ONCA 487, at para. 33, “Other, like-minded people need to know that irresponsible use of a motor vehicle on our highways will not be countenanced.”

[53] Rawn identified the normal range of sentence for dangerous driving causing bodily harm as between a conditional sentence and two years less a day. See para. 43. It did not identify the normal range of sentence for dangerous driving simpliciter, but one might reasonably infer that, as a less serious offence, the range will be below that applicable to dangerous driving causing bodily harm.

[54] In R. v. Wheeler, [2014] N.J. No. 137, Orr J. held that the normal range of sentence for dangerous driving, where no injury had resulted, was between a fine and six months imprisonment. In Ruby, Clayton C., Gerald Chan, Nader R. Hasan and Annamarie Enenajo, Sentencing, 9th ed. Toronto: LexisNexis, 2017, the authors note, at para. 23.811 that sentences imposed for dangerous driving simpliciter rarely exceed a few months in jail.

[55] To situate these offences in light of the ranges I have just described requires that I consider the particular aggravating and mitigating circumstances of the case.

Aggravating and Mitigating Circumstances

[56] In relation to the offence of possessing fentanyl for the purpose of trafficking, the aggravating circumstances include:

(a) Fentanyl is an extraordinarily dangerous drug. In Parranto, Justice Moldaver observed, 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. He went on to cite some particularly grim statistics, at paras. 96-97. Notably, “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”; and, (b) Mr. Campbell had a significant amount of fentanyl in his possession, along with digital scales and dime baggies. He was engaged in the sale of fentanyl for commercial gain.

[57] In relation to the driving offences, aggravating circumstances include:

(a) Mr. Campbell’s flight from the police and the subsequent speed he drove at in an effort to make good his escape put the police and many other motorists on the road in significant danger; and, (b) His dangerous driving occurred at about 10:00 a.m. on a Saturday along one of the busiest thoroughfares in Collingwood.

[58] Mitigating factors, in relation to all offences, include the following:

(a) Mr. Campbell has no criminal record; (b) He was just 22 years of age at the time of the offences; (c) A month or so prior to the offences, his brother was shot to death by the police in their family home. This event undoubtedly had a profound impact on Mr. Campbell; and, (d) The offences were committed almost four years ago. In that time, he appears to have turned his life around. He is in a committed relationship, is the father to an infant child, and is working steadily.

[59] Mr. Campbell’s counsel urged the court to consider two other factors in mitigation of Mr. Campbell’s sentence. Neither, in my view, on the record before the court, significantly mitigates Mr. Campbell’s moral blameworthiness.

[60] Defence counsel submitted, firstly, that I should take judicial notice of the factors in R. v. Morris, 2021 ONCA 680. More particularly, that I should take judicial notice of the fact that young Black males like Mr. Campbell are the product of systemic racism.

[61] Counsel’s submissions take the principles discussed in Morris a little too far. His submission is effectively that the moral blameworthiness of any Black male convicted of a criminal offence is reduced on account of the impact on that offender of systemic racism. That is not what the Court of Appeal said in Morris.

[62] As the Court of Appeal observed in Morris, sentencing judges have always taken into account an offender’s background and life experiences when assessing that offender’s moral responsibility for an offence. Experience with anti-Black racism and the impact of that racism on the offender may be an important part of the offender’s background and circumstances.

[63] That said, there must be “some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue.” Otherwise, mitigation “becomes a discount based on the offender's colour.” Such a discount is not recognized by our law. See Morris, at para. 97.

[64] I am certainly prepared to take judicial notice of the fact that systemic racism exists in this province. Moreover, I would be very surprised if Mr. Campbell has not been impacted in some way by that systemic racism at times in his life. But to have mitigating effect, there must be some demonstrated linkage – though not necessarily causal – between the offender’s experience and the offences that brought him before the court. See R. v. Ansah, 2021 ONSC 6339 at paras. 41-42.

[65] On the evidentiary record before the court, that necessary linkage is absent.

[66] Defence counsel next submitted that because Mr. Campbell did not know that the tablets he possessed contained fentanyl, as opposed to Oxycodone, he should be sentenced as though he was convicted of possession of Oxycodone for the purpose of trafficking. His position was that upper reformatory sentences are typically imposed on conviction for possessing similar amounts of Oxycodone for the purpose of trafficking. See R. v. Holmes, 2014 ONSC 2986; and R. v. Waquad, 2015 ONCJ 261.

[67] He cited R. v. Hamilton, [2004] O.J. No. 3252 (C.A.) in support of his argument. There, Doherty J.A. observed that mitigating circumstances may be so significant in a particular case that they take it below the otherwise appropriate sentencing range. He offered, by example, the case of R. v. H. (C.N.), [2002] O.J. No. 4918, where the offender’s co-operation with the authorities and his belief that he was importing marijuana and not cocaine justified a sentence well below the range of sentence ordinarily imposed on a conviction for importing substantial amounts of cocaine.

[68] Defence counsel further cited the case of R. v. Mesfin, 2020 ONCJ 93. Mr. Mesfin was convicted, following a guilty plea, of possessing fentanyl and cocaine for the purpose of trafficking. A Gardiner hearing was held to determine what level of knowledge he had regarding the fentanyl he possessed at the time he was arrested.

[69] The trial judge determined that Mr. Mesfin did not know, nor was his wilfully blind to the fact, that he possessed fentanyl. He believed that all he possessed was cocaine. The trial judge considered that fact to be significantly mitigating on sentencing.

[70] There is some superficial attraction to defence counsel’s argument. I reject it, however, for the following two reasons.

[71] First, unlike the facts in Mesfin, I have not made any positive finding that Mr. Campbell did not know that the tablets he possessed did not contain fentanyl. I do not know the extent of Mr. Campbell’s knowledge. He may have known. He may not have.

[72] Second, it would appear that the weight of the jurisprudence does not support counsel’s submission.

[73] In R. v. Campbell (no relation), 2022 ONCA 666, the offender was convicted of possession of fentanyl and heroin for the purpose of trafficking. He had been found in possession of heroin laced with fentanyl. He argued that his sentence of six years imprisonment was unfit, largely because the trial judge should not, he said, have treated the presence of fentanyl as an aggravating factor, given that he was unaware that the package seized from him contained fentanyl.

[74] On appeal, Trotter J.A. held that the offender’s position “overlooks the fault requirement for offences concerning the possession of controlled substances. The Crown need not prove knowledge …of a specific controlled substance as long as it proved that the accused knew or was wilfully blind to the fact that the package contained a controlled substance”.

[75] I found at trial that Mr. Campbell was aware that the tablets contained a controlled substance.

[76] As Trotter J.A. observed, whether the offender “knew that the package contained fentanyl does not diminish the threat to the community posed by the substance he possessed”. See also R. v. Jenkins, 2018 ONSC 5078.

[77] Mr. Campbell, in effect, assumed the risk of the presence of fentanyl in the controlled substance he possessed.

Sentences Imposed

[78] I noted earlier that the applicable range of sentence in relation to the possession of fentanyl for the purpose of trafficking, in the amount possessed by Mr. Campbell, was roughly 4 to 5 years.

[79] In my view, the sentence imposed here should be at the low end of that range in view of the efforts that Mr. Campbell has made towards rehabilitation. I appreciate that a penitentiary sentence is likely to impede his efforts in that regard. But the imposition of a conditional sentence of less than two years, as suggested by his counsel, does not in my view, sufficiently manifest the principles of denunciation and deterrence so important in cases involving the commercial trafficking in fentanyl. It has been repeatedly emphasized that those who traffic in fentanyl traffic in death.

[80] Mr. Campbell is, however, also a youthful first offender. I am mindful of the instruction of Rosenberg J.A. in R. v. Borde, [2003] O.J. No. 354 (Ont. C.A.), at para. 36, that the length of a first penitentiary sentence for a youthful offender should rarely be determined solely on the objectives of denunciation and deterrence and that a sentencing court, in such circumstances, should proceed on the basis that the shortest possible sentence will achieve the relevant objectives. See also R. v. Priest, [1996] O.J. No. 3369.

[81] The shortest possible sentence sufficient to achieve the purposes and objectives of the sentence for the possession of fentanyl for the purpose of trafficking is, in my view, 3 years. It is somewhat below what I have identified as the low end of the appropriate range. But it is fit, in my view, in light of all of the mitigating circumstances I have identified.

[82] The Crown sought 4 months imprisonment for each of the dangerous driving and flight from police offences. She was content that they be imposed concurrent to one another, but urged the court to impose them consecutive to the conviction for the drug offence.

[83] Whether sentences are imposed concurrently or consecutively is a matter of judicial discretion. See R. v. McDonnell, [1997] 1 S.C.R. 948 at para. 46.

[84] 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”.

[85] The Court of Appeal held, however, in R. v. Gummer, [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”.

[86] While the offences here were all committed in proximity to one another, it must be recognized that they constitute invasions of different legally protected interests. Moreover, the Saskatchewan Court of Appeal held in R. v. Akapew (2009), 2009 SKCA 137, 249 C.C.C. (3d) 212 that sentences for fleeing from the police should be imposed consecutively, subject to reduction to give effect to the totality principle. See also R. v. Sturge, [2001] O. J. No. 3923 where the Court of Appeal for Ontario stressed that it was essential that sentences for dangerous driving and flight from police – occurring in that case as the accused fled from the police following a robbery – be imposed consecutively. They instructed that “police officers who are required to put themselves at risk to make arrests must be assured that those who physically resist arrest will be dealt with sternly by the courts.”

[87] More recently, in R. v. Jarvis, 2022 ONCA 7, the Court of Appeal for Ontario re-affirmed the need for consecutive sentences for offences relating to flight from the police, holding, at para. 5, that “If sentences for such offences are not consecutive, flight from police might well seem worth the risk…”

[88] In the result, I impose sentences of 3 months for each of the dangerous driving and flight from police convictions. These sentences will be concurrent to one another but consecutive to the sentence imposed for the drug-related conviction.

[89] In total, the sentence imposed is one of 39 months.

[90] In addition, I make the following ancillary orders:

(a) A DNA order on Count 6, which is a secondary designated offence. I am satisfied that it is in the interests of justice to make such an order in all the circumstances. These are very serious offences which created a significant risk to the public and to the police officers who attempted to arrest Mr. Campbell. Moreover, the requested order does not appear to be opposed; (b) A s. 109 weapons prohibition on Count 6; and, (c) A one-year driving prohibition under s. 320.24(4).

C. Boswell J. Released: April 16, 2024