Court File and Parties
Court File No.: CR-21-1248 Date: 2024-04-29 Ontario Superior Court of Justice
Between: His Majesty The King – and – Tyler Scott Jackson, Defendant
Counsel: A. Ghosh, for the Crown J. Rybak, for the Applicant
Heard: February 23, 2024
Reasons for Sentence M.L. Edwards, R.S.J.
Overview
[1] Mr. Jackson has been convicted of possession for the purposes of trafficking fentanyl. Mr. Jackson had 60 grams of fentanyl located on his person at the time of his arrest.
[2] Prior to his conviction, this court dealt with a motion brought by Mr. Jackson alleging breaches of his rights as protected by ss. 8 and 9 of the Charter. The motion was dismissed. Upon receipt of my reasons Mr. Jackson re-elected his mode of trial to judge alone; entered into an agreed statement of fact and called no evidence. A conviction was registered on the fentanyl charge and all other charges were withdrawn at the request of the Crown.
The Facts
[3] On February 4, 2021 York Regional Police were stationed at an address in Newmarket known to police as being involved in drug related activity.
[4] Mr. Jackson was a passenger in a vehicle that was observed by police and subsequently pulled over for a Highway Traffic Act stop. The police had grounds to suspect that the occupants of the vehicle were involved in drug trafficking.
[5] As the investigating officers attempted to search Mr. Jackson he fled from the police and was ultimately arrested after a brief chase. Sixty grams of fentanyl was subsequently discovered in Mr. Jackson’s trousers.
The Circumstances of Mr. Jackson
[6] Mr. Jackson is a relatively young black gentleman who, while not married, is in a long-term relationship of over 12 years. Mr Jackson and his girlfriend are planning to build a family together. Mr. Jackson’s mother is unwell. Mr. Jackson along with his sister have been looking after their mother for the last number of years.
[7] Since Mr. Jackson was released on bail shortly after he was arrested, he has maintained full-time employment with a construction type company where he is earning $40 per hour. Various individuals with whom Mr. Jackson has worked over the last three years have provided letters attesting to the fact that he is a hard worker and a trusted employee.
[8] Mr. Jackson has a prior criminal record which include convictions in 2011 for carrying a concealed weapon; a conviction in 2016 for aggravated assault and the use of an imitation firearm as well as a conviction in 2022 for impaired driving. Noteworthy is the fact that Mr. Jackson’s criminal record has no prior convictions as it relates to the trafficking in a controlled substance.
Position of the Crown
[9] Crown counsel is seeking a sentence of seven years in connection with Mr. Jackson’s plea to the possession for the purposes of trafficking in fentanyl noting that the appropriate range for such a conviction is in the order of seven to nine years. Crown counsel argues that general deterrence should be the main factor in sentencing Mr. Jackson and that rehabilitation is a “distant third factor”.
[10] As it relates to aggravating factors, the Crown refers to the quantity of fentanyl and suggests that 60 grams equates to mid-level dealing where the motivation is solely profit.
[11] Crown counsel argues that there is no indication of remorse on the part of Mr. Jackson, nor are there any addiction issues that this court would have to take into account.
[12] Mr. Ghosh argues that in mitigation it would be appropriate for this court to take into account his family support as well as what has been described as some difficult formative years when Mr. Jackson was younger. Mr. Ghosh also acknowledges that Mr. Jackson’s concession after the Charter ruling is something that this court can take into account in mitigation.
Position of the Defence
[13] While Mr. Rybak acknowledges that there are number of appellate authorities that support the range of sentence argued by the Crown, this court nonetheless needs to adopt an individualized approach to sentencing which in this case Mr. Rybak argues should result in a sentence in the range of four years, stressing rehabilitation as a primary consideration.
[14] Mr. Rybak also correctly argues that Mr. Jackson being a person of colour should prompt this court to apply R. v. Morris, 2021 ONCA 680.
[15] By reference to the letters of reference filed on behalf of Mr. Jackson as part of the sentencing submissions, Mr. Rybak argues that the evidence clearly establishes that over the last three years Mr. Jackson has turned his life around and now has an excellent job with a very good income. Mr. Rybak stresses the fact that Mr. Jackson has led an exemplary life over the course of the three years while he has been on bail and that this court should not impose a sentence of such length that it might be seen to “crush him”.
[16] Mr. Jackson made submissions on his own behalf and in doing so apologized to his family and acknowledged that his past life demonstrated that he had wanted to “make fast money”. Since his arrest Mr. Jackson stated that he realized that his life in the past was not the life that he wanted and that he has taken positive steps to rehabilitate himself, as amply demonstrated by the fact that he now has a well paying job. Noteworthy, Mr. Jackson told the court that this job has kept him away from an area where he used to live and presumably away from the temptation to live a life of crime. Mr. Jackson told the court that he was afraid if he was incarcerated for a lengthy period of time that he might fall back into his former lifestyle.
Principles of Sentencing
[17] The principles of sentencing are well known and are set out in s. 718.1 and 718.2 of the Criminal Code of Canada (the Code). The principles of sentencing are intended for the protection of society and maintenance of a just, peaceful and safe society achieved by the denunciation of unlawful conduct; deterrence both general and specific; and the separation of an offender from society where necessary. Another important principle of sentencing is of course rehabilitation and reparation for harm done to victims and/or the community as well as the promotion of a sense of responsibility in the offender and an acknowledgement of the harm done.
[18] Pursuant to the provisions of s. 718.1 of the Code, a fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence as well as the degree of responsibility of the offender. Aggravating and mitigating circumstances are to be taken into account pursuant to the provisions of s. 718.2 of the Code. As well, a sentence to be imposed must be a sentence similar to those that are imposed on similar like offenders in similar circumstances.
[19] As it relates to a finding of guilt in relation to possession for the purposes of trafficking in fentanyl the jurisprudence has evolved and makes clear now that those convicted of trafficking in fentanyl will face a significant penitentiary sentence and that denunciation and deterrence are of fundamental importance.
[20] Section 10(1) of the Controlled Drugs and Substances Act also reflects that a fundamental purpose of sentencing in a drug case is to contribute to respect for the law and the maintenance of a just, peaceful and safe society while at the same time encouraging rehabilitation and treatment in appropriate circumstances. There is no evidence before this court that Mr. Jackson, while convicted of possession for the purposes of trafficking was doing so for the purposes of his own drug habit. I accept the submissions of Crown counsel that the quantity of fentanyl (60 grams) would generally be associated with a mid-level trafficker and as such, associated with profit as its fundamental purpose.
The Mitigating and Aggravating Factors
[21] Crown counsel is correct in suggesting that general deterrence is the most significant factor that this court must take into account given that the court is dealing with a not insignificant quantity of fentanyl. The quantity by itself is an aggravating factor.
[22] Mr. Ghosh suggests as well that this court can take into account as an aggravating factor the fact that Mr. Jackson ran from the police when he was initially pulled over to the side of the highway for a Highway Traffic Act search.
[23] Mr. Ghosh also points to Mr. Jackson’s criminal record and while acknowledging that there are no prior convictions for drug offences his record includes convictions for aggravated assault and that Mr. Jackson is no stranger to incarceration.
[24] As for the blameworthiness of Mr. Jackson, Mr. Ghosh argues that the offence of trafficking in fentanyl is a calculated offence where the sole purpose is greed and profit.
[25] As for the mitigating factors both the Crown and defence point to the fact that Mr. Jackson appears to have strong family support as well as the support of his employer and co-workers. It is acknowledged that Mr. Jackson may have had a more difficult life during his formative years as a young man.
[26] Mr. Rybak on behalf of Mr. Jackson argues that the evidence filed as part of the evidence on sentencing clearly establishes that Mr. Jackson is the type of person who can be rehabilitated as demonstrated by how he has complied with all of his bail conditions over the last three years and has clearly turned his life around. Mr. Rybak argues that given these efforts the court should not impose a sentence that would throw away all the positive efforts made by Mr. Jackson towards his rehabilitation.
Analysis
[27] The imposition of sentence on almost any person convicted of a criminal offence is one of the more challenging tasks that trial judges must undertake. This is particularly so when imposing sentence on Mr. Jackson. He has been convicted of a very serious offence involving a mid-level quantity of fentanyl – a drug which has been, and continues to be, associated with needless tragedy, all too often involving death. Appellate jurisprudence over the last few years makes it abundantly clear that even first offenders found guilty of trafficking in fentanyl may face a significant penitentiary term of imprisonment.
[28] What makes the imposition of sentence on Mr. Jackson so difficult is that the evidence strongly suggests that Mr. Jackson has real potential for rehabilitation. He has demonstrated over the last three years, while he has been on bail, that he has the capability to lead a life free from crime. He has been able to find employment and his employer and fellow colleagues all speak highly of him as a good worker. The evidence of Mr. Jackson’s mother, sister and girlfriend all suggest he has strong family connections who have undoubtedly also played a key role over the last three years in establishing Mr. Jackson into a better place than where he was in his formative years.
[29] Decisions out of the Supreme Court and the Court of Appeal like R. v. Parranto, 2021 SCC 46 and R. v. Lynch, 2022 ONCA 109 send very clear warnings to anyone involved in trafficking in fentanyl. The court also has to craft a sentence that properly weighs rehabilitation in the balance. General deterrence and denunciation are clearly in the forefront of any sentence involving the trafficking of fentanyl. Rehabilitation however, has not been thrown out as a relevant consideration.
[30] In Parranto Brown and Martin JJ dealt with the issue of range of sentence. From paragraph 36 of their reasons, it is clear that ranges of sentence are guidelines and not hard and fast rules. Of equal importance at para. 26 is the guidance to trial judges that in imposing sentence, judges may “individualize sentencing both in method and outcome” and “different methods may even be required to account properly for relevant systemic and background factors”.
[31] Significantly as it relates to Mr. Jackson, there is evidence as a person of colour he experienced issues in his younger life that may have contributed to his wayward life reflected in his criminal record. As such, this is a relevant consideration in imposing sentence as reflected by the aforesaid comments of Rowe and Martin JJ from Parranto.
[32] As it relates to the starting point for the imposition of sentence it is also worth repeating from Parranto at para. 61 that while on the facts before the court the starting point that was set was nine years, the court makes clear that sentencing judges are “free to depart from the starting point and move up and down from this marker based on the specific characteristics of the offender in order to meet the primary sentencing principle proportionality”.
[33] The danger of fentanyl has been well known now for many years. Despite these known dangers there are members of our society who seem to have no concern that what they do is causing untold misery and death. In his reasons in Parranto, Moldaver J. reviews at great length the impact that fentanyl has had on Canadian society. Noteworthy at para. 98 of his reasons, Moldaver J. states that trafficking in fentanyl is a crime “marked by greed and the pursuit of profit at the expense of violence, death and the perpetuation of a public health crisis previously unseen in Canadian society”.
[34] In the case of Mr. Jackson, given the quantity of fentanyl found on his person at the time of his arrest, there can be little doubt that a significant motivating factor for his involvement in the drug trade was to make quick and easy money. At the point in his life when he was caught trafficking in fentanyl Mr. Jackson saw an easy way to make money that did not involve hard work. Three years post-offence, Mr. Jackson now realises there is another way to earn a good living and that is to find a job that pays well and then to work hard and impress ones’ co-workers and supervisor.
[35] The guidance given sentencing judges by Moldaver J. in Parranto is that the range of sentence for those convicted of large scale trafficking in fentanyl is in the upper single digit to lower double digit – with justification where circumstances warranted to apply a higher range – see para. 101 Parranto.
[36] Since Parranto the Ontario Court of Appeal has also dealt with the range of sentence for those convicted of mid-level trafficking in fentanyl. In R. v. Lynch, 2022 ONCA 109 the Crown appealed the sentence of four years imposed on Mr. Lynch for trafficking in cocaine and fentanyl. The quantity of fentanyl was 41.37 grams. The Crown in Lynch had sought a sentence of 10 years while the defence had argued for a sentence of three years.
[37] In allowing the Crown appeal Nordheimer J.A. at para. 14 of his reasons in Lynch held that the sentencing judge was in error when he compared mid-level trafficking in cocaine to mid-level trafficking in fentanyl. As fentanyl is a far more dangerous drug than cocaine, the aforesaid comparison was wrong. The more dangerous the drug the higher the sentence – see para. 15 Lynch.
[38] Ultimately at para. 25 of his reasons Nordheimer J.A. in Lynch concluded that the requested sentence of the Crown (10 years) for someone convicted of mid-level trafficking in fentanyl was “not unreasonable”. However, at para. 46 of his reasons Nordheimer J.A. accepted that Mr. Lynch’s plea of guilty was a significant “mitigating factor” and taking into account Mr. Lynch’s age (29) and his one entry criminal record, the appropriate sentence was six years.
[39] In his recent reasons for sentence in R. v. Abdella (unreported February 26, 2024), Di Luca J. dealt with an accused who had been found guilty by a jury of trafficking in fentanyl. The amount of fentanyl at issue was 1 ounce. Mr. Jackson has been found guilty of possession for the purposes of trafficking 60 grams of fentanyl. One ounce of fentanyl equals 28 grams. As such 60 grams for purposes of comparison equals 2.116 ounces.
[40] In Abdella the Crown sought a sentence of eight to ten years. The defence suggested a sentence of four years.
[41] In his reasons at para. 9 Di Luca J. stated: Based on my review of the comprehensive case law provided for cases involving trafficking and possession for the purpose of trafficking in the ounce-level quantities of fentanyl, the range of sentence is from four years, at the very low end of the range, to seven to eight years at the higher end, with a few cases reaching nine years or more. Cases at the lower end of this range involve very significant mitigating or extremely extenuating factors and/or guilty pleas. Cases at the higher end of the range usually involve cases that went to trial or had aggravating features such as prior related criminal records, the presence of other or higher quantities of drugs, and/or the presence of weapons.
[42] In imposing sentence both the defence and the Crown referred this court to the decision of the Court of Appeal in R. v. Disher, 2020 ONCA 600. Disher involved an accused who pled guilty to possession of 42.6 grams of fentanyl for the purposes of trafficking. The Crown sought a sentence of 12 years while the defence suggested a sentence of five to seven years. Mr. Disher was noted to have a serious criminal record spanning a period of 15 years without any significant or recent gaps in his offending behaviour. It was also noteworthy that within two weeks from the time of his release on a recognizance for other trafficking charges Mr. Disher was arrested again for trafficking in heroin that contained fentanyl.
[43] The trial judge imposed a sentence of 12 years less pre-trial custody. Mr. Disher appealed on a number of grounds, one of which involved the failure of the trial judge to address the issue of rehabilitation. In addressing that argument Gillese J.A. at para. 22 stated: I do not accept the Crown’s submission. Section 718 of the Criminal Code states that, “The fundamental purpose of sentencing is to protect society and to contribute … 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 six specified objectives. Deterring the offender and assisting in rehabilitating offenders are two of those objectives – and both must be addressed when crafting a “just sanction” that meets the fundamental purpose enunciated in s. 718. In the Statement, the sentencing judge is addressing only whether past sentences had fulfilled the objective of specific deterrence. Nowhere in his reasons does the sentencing judge expressly advert to the rehabilitation objective or consider Mr. Disher’s rehabilitative prospects.
[44] Ultimately in Disher the Court of Appeal reduced the sentence from 12 years to eight years. The failure of the trial judge to address Mr. Disher’s rehabilitative potential was one of the reasons why the Court of Appeal reduced the sentence.
[45] It is clear from a review of the jurisprudence that general deterrence and denunciation are the primary considerations when addressing how to craft a sentence involving someone convicted of mid-level trafficking in fentanyl. I am satisfied that Mr. Jackson falls within the category of someone who was a mid-level trafficker in fentanyl.
[46] It is equally clear that the court is given the discretion to raise or lower the range of sentence depending upon the circumstances of the offender and in that regard the rehabilitative potential of the offender is a relevant consideration.
[47] While Mr. Jackson is not a first offender as revealed by his criminal record, he is, nonetheless, a first offender as it relates to drug offences. I take into account the fact that Mr. Jackson is a person of colour who may have come from a disadvantaged background. I take into account that Mr. Jackson has taken significant steps to turn his life around and, in my view, presents as an offender who has real prospects for rehabilitation. I take into account that while Mr. Jackson did not plead guilty at the earliest opportunity he did so after this court had dealt with the Charter pre-trial motions that in my view, were not frivolous and in fact, were appropriate motions that any good criminal counsel would have pursued on behalf of Mr. Jackson. In my view this court can take into account the timing of Mr. Jackson’s plea as a relevant and significant factor in mitigation of sentence.
[48] I agree with the analysis of Di Luca J. in Abdella based on his review of the case law that the range of sentence for someone convicted of mid-level trafficking in fentanyl (in his case one ounce of fentanyl and in Mr. Jackson’s case two ounces of fentanyl) is four years at the very low end and seven to eight years at the higher end.
[49] Taking into account all of the factors that I have reviewed above, in my view, the appropriate sentence to impose on Mr. Jackson is one of five years.
[50] The Crown also seeks a forfeiture order, a mandatory order under s. 109 as well as a DNA order, all of which are conceded on behalf of Mr. Jackson and such orders shall issue.
M.L. Edwards, R.S.J.
Released: April 29, 2024