Court File and Parties

Court File No.: CR-21-90000017 / CR-21-90000244 Date: 2024-05-22 Ontario Superior Court of Justice

Between: His Majesty The King And: Dennis Mensah and Marvin Nyarko Mensah

Counsel: Laura Precup-Pop, for the Crown Catherine Szpulak, for Dennis Mensah Magdalena Wyszomierska, for Marvin Nyarko Mensah

Heard: April 8, 2024

Reasons for Sentence

Schabas J.:

Introduction

1On December 16, 2022, following a judge-alone trial, I delivered written Reasons for Judgment in this matter which are reported as R. v. Mensah, 2022 ONSC 7051. I found Dennis Mensah (“Dennis”) guilty of six offences under the Criminal Code. Four of the offences related to the possession of a loaded handgun found in a car occupied by him. Two offences were for possession of fentanyl and carfentanil for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act, SC 1996, c 19 (“CDSA”). I found Dennis’s brother, Marvin Mensah (“Marvin”), guilty of one count of possession of fentanyl and carfentanil for the purpose of trafficking, and of possession of the proceeds of crime under the Criminal Code. I found both accused not guilty of a separate count relating to possession of proceeds of crime.

2The matter was adjourned to obtain pre-sentence reports prior to sentencing. As the accused are both young black men, they requested that enhanced pre-sentencing reports (“EPSRs”) be obtained that would address the impact of anti-black racism on them. In R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, the Court of Appeal recognized the existence and impact of anti-black racism in our society, and held that sentencing courts can take this into account as part of the social context. As the Court of Appeal stated in Morris at para. 79:

The social context evidence can, however, provide a basis upon which a trial judge concludes that the fundamental purpose of sentencing, as outlined in s. 718, is better served by a sentence which, while recognizing the seriousness of the offence, gives less weight to the specific deterrence of the offender and greater weight to the rehabilitation of the offender through a sentence that addresses the societal disadvantages caused to the offender by factors such as systemic racism.

3Inquiries were made of the Sentencing and Parole Project, a non-profit organization which prepares EPSRs, and the matter was adjourned with the consent of the Crown to explore the possibility and timing for obtaining such reports. Due to demand, and the limited resources of the Sentencing and Parole Project, EPSRs were not completed until November 2023. Submissions on sentence were not made until April 8, 2024.

The “Kienapple” issue

4The Crown submits, and I accept, that in order to comply with the rule against multiple convictions for the same crimes as set out in Kienapple v. The Queen, [1975] 1 SCR 729, convictions should only be entered on two of the four firearms offences charged against Dennis.

5Accordingly, convictions shall only be entered for the charges under sections 94 and 95 of the Criminal Code found in counts 4 and 5 of the Indictment. The count under section 94 deals with occupying a vehicle when Dennis knew it contained a restricted firearm. The section 95 count deals with the quite different offence of being in possession of a loaded handgun without authorization. The charges in counts 2 and 3 under ss. 91 and 92 of the Criminal Code shall be stayed.

Positions of the parties

6The Crown seeks a total sentence for Dennis of six and a half years, together with ancillary orders including a lifetime prohibition on possessing weapons. Crown counsel submits that an appropriate sentence for the drug offences is three and a half years and that three years is a fit sentence for the firearms offence. The Crown acknowledges that Dennis has spent 275 days in pre-trial custody and should receive credit of 413 days for that time pursuant to R. v. Summers, 2014 SCC 26. However, the Crown submits that I should be cautious about how I may credit Dennis for time spent in detention under harsh circumstances in accordance with R. v. Duncan, 2016 ONCA 754, and that I should address it as a mitigating factor in considering a fit global sentence: R. v. Marshall, 2021 ONCA 344 at para. 52; R. v. Smith, 2023 ONCA 500 at para. 37. Crown counsel also submits some credit may be given for time spent under strict release conditions pursuant to R. v. Downes, 2006 ONCA 3957, at para. 33, but that such credit should be limited and also be treated as a mitigating factor in exercising my discretion: R. v. Dodman, 2021 ONCA 543 at paras. 9 and 10; R. v. Sevim, 2023 ONSC 5056 at paras. 105-107.

7For Marvin, who has a criminal record and was found in possession of a significant amount of carfentanil, the Crown seeks a total sentence of nine years, together with ancillary orders similar to those sought for Dennis. Summers credit based on 94 days in pre-trial custody totals 141 days. Crown counsel takes the same position as she did with Dennis respecting Duncan and Downes credit.

8Counsel for Dennis submits an appropriate total sentence should be three and a half years, and that with credits pursuant to Summers (413 days), Duncan (128 days) and Downes (approximately 2 years), this will put him in a time-served position.

9Counsel for Marvin submits an appropriate sentence for him is four years. In addition to Summers credit (141 days), counsel seeks credit of 226 days pursuant to Downes for a total credit of 367 days.

Dennis Mensah’s circumstances

10Dennis is 27 years old. He has no criminal record.

11Dennis has two older brothers, Jesse and Marvin. His mother, Amma Nyarko Mensah, now 60, came to Canada from Ghana in her late 20s. She settled in the Jane-Finch area of Toronto. She enrolled in high school in Canada and completed Grade 10. She met and married Kwame Mensah with whom she had the three boys. They separated when Dennis was an infant. Ms. Nyarko Mensah worked as a housekeeper in a hotel for many years and is now on disability and does not work.

12Dennis was raised in the Jane-Finch neighbourhood by his single mother. He did not see much of his father; however, he did live with him for about a year and a half during his middle school years because he was misbehaving in school and it was hoped a change would help. After that, Dennis saw less and less of his father and now has little or no contact with him.

13Dennis’ mother has lived in the same subsidized apartment for the past 30 years. She described it as “a bad, bad place.” The area is one with high poverty, and high crime, including violent crime. Dennis was exposed to this throughout his childhood. He and Marvin both described an incident involving their brother Jesse, who was almost shot in an elevator. Dennis also said that some of his friends have died from gun violence. Jane-Finch is an area with a heavy police presence, and Dennis had many contacts with the police who, he said, regularly stopped black youths, a point supported by Dennis’ surety and friend from high school, Tarandip Samra, who is not black and would be left alone by the police.

14Dennis attended high school. His academic performance was poor. His focus was on basketball. He wanted to get into an American college to play basketball. However, he received suspensions at high school for fighting and was ultimately expelled. He still has not completed his high school credits. Dennis’ mother and others referred to Dennis spending time with negative peer groups in the neighbourhood.

15Dennis’ work experience is very limited. He was a counsellor/mentor at a basketball camp when he was 17. In 2022, while he was on bail, he worked with his friend, Mr. Samra in landscaping, planting trees and flowers. While on house arrest, he has begun a dog breeding business, and has sold three litters of dogs.

16For the past five years Dennis has been in a relationship with a woman, Alexis, whose mother is Dennis’ surety. Dennis has been living with Alexis and her mother while on house arrest. They both spoke favourably of Dennis, as did Mr. Samra. While on bail, Dennis has also done some volunteer work with Kids with Incarcerated Parents (“KIP”).

17Other long-time friends of Dennis who have gone on to have successful careers (in professional basketball, insurance and teaching) spoke positively about Dennis’ character and his prospects for rehabilitation. They also referred to the challenges of growing up in a very tough and impoverished neighbourhood.

18The EPSR highlighted the challenges Dennis has faced, growing up in a neighbourhood where black residents experience poverty and police interaction at disproportionate rates. Although Dennis said he did not want for things as a child, his family experienced economic hardship. The report notes that “Dennis is still a relatively young man who has the opportunity to forge a better path ahead if he maintains the focus that is required to do so.”

Marvin Mensah’s circumstances

19Marvin is 31 years old. His upbringing was similar in many ways to Dennis’s childhood. He described their apartment building as “nasty” and “disgusting”. His father had a limited presence. He would see the children every other weekend, usually taking them out to eat. Like Dennis, Marvin had few positive role models growing up. Marvin described being exposed to people who earned “fast money” but a friend said Marvin kept his distance and was not influenced by them. Marvin believes the last time he saw his father was when he was 15 or 16 years old.

20Marvin reported having positive peer relationships with friends who were athletes, and said he tried to stay away from people who were engaging in illegal activity. Like Dennis, he described incidents of mistreatment by police, including random stops, detention and even having guns pulled on him, when he was a teenager.

21Unlike Dennis, Marvin completed high school in an academic stream. Prior to his arrest, Marvin had almost completed a course in HVAC at George Brown College. He is currently employed full-time at a furniture warehouse but has said he intends to complete the HVAC course when released.

22Marvin has a six-year-old daughter whom he sees every weekend, speaks to daily and helps her with her homework.

23Although Marvin did not have a criminal record at the time of his arrest in 2019, in September 2023 Marvin was convicted of possession of cannabis for the purpose of distribution contrary to s. 9(2) of the Cannabis Act, SC 2018, c 16, and was given a suspended sentence followed by two years probation.

Applicable sentencing principles

24Section 718 of the Criminal Code states:

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:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

25Section 10(1) of the CDSA states that “the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.”

26Sentencing is highly case-specific and must be tailored to the individual circumstances of the accused and the offences. The sentence imposed “ must be proportionate to the gravity of the offence and the degree of responsibility of the offender”, as set out in s.718.1 of the Criminal Code. I must take into account aggravating and mitigating circumstances, including those set out in s. 718.2 of the Criminal Code. Section 718.2 also directs that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” Judges must also exercise restraint in imposing imprisonment to ensure that sentences are not “unduly long or harsh”, especially when ordering consecutive sentences.

27Drug trafficking is a serious offence, especially when it involves highly dangerous and/or addictive drugs such as carfentanil, fentanyl and cocaine which cause significant direct and indirect damage to users, their families, and to the safety and security of society. Drug trafficking is also associated with violence. As Doherty J.A. stated in R. v. Hamilton, 2004 ONCA 5549 at para. 104, a case involving cocaine:

The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be dissociated from its inevitable consequences.

28This case involves trafficking in carfentanil and fentanyl. In R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at paras. 87–92, Moldaver J. discussed in detail the harmful effects of hard drugs such as heroin and cocaine which, he noted are “far less deadly than fentanyl.” Moldaver J. listed effects such as the serious harm to health and, not infrequently, death, for users. Violence and other criminal activity go hand in hand with trafficking such drugs. Families, and particularly children, suffer harm from the effects of addiction in homes, and families can be torn apart by such drug use. Trafficking in these drugs, Moldaver J. observed, “tears at the very fabric of society” (at para. 92, quoting from Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 98), with huge costs to the community and the public, in health care, social supports and law enforcement. The emergence of fentanyl “has altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy number one”: Parranto, at para. 93.

29Carfentanil, I am advised, is approximately 100 times more powerful than fentanyl. A lethal dose can be less than 2 milligrams, making even passing exposure to it potentially fatal. In light of these effects, in carfentanil and fentanyl trafficking cases I must give much weight to the need for denunciation and deterrence.

30As the charges against Dennis involve a firearm, I must give considerable weight to the need for denunciation and deterrence of those offences as well. Armstrong J.A. stated in R. v. Danvers, 2005 ONCA 30044 at para. 78:

There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed.

31Similarly, in R. v. Brown, 2010 ONCA 745, the Court of Appeal stated at para. 14:

Handguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.

32As Code J. stated more recently, in R. v. Graham, 2018 ONSC 6817 at para. 36: “it is settled law that denunciation, deterrence and protection of the public are the predominant sentencing objectives because of the prevalence and the great danger posed by loaded handguns in this city (or handguns with readily accessible ammunition).”

33The presence of a gun in a drug trafficking case is especially troubling. This “toxic combination” has been described as a “serious aggravating factor” due the “pernicious and persisting threat to public safety and the welfare of the community”: R. v. Wong, 2012 ONCA 767 at paras. 11-13.

34In R. v Nur, 2015 SCC 15, a case dealing with loaded firearms, the Supreme Court of Canada stated that the objectives of denunciation and deterrence are satisfied by the imposition of custodial sentences of three years or more for possession of a loaded handgun where the firearm is being carried as "a tool of his or her criminal trade": paras. 25 and 28. Similarly, in R. v. Marshall, 2015 ONCA 92, the Court of Appeal upheld a 3.5 year sentence for possession of a loaded firearm by a 23 year old first offender, who was also engaged in trafficking cocaine.

35Another issue that arises is whether sentences should be consecutive or concurrent. Where offences are separate and distinct, or affect different legal interests, they may attract consecutive sentences: R. v. Gillis, 2009 ONCA 312 at para. 9. Also clearly engaged in this case is the totality principle which requires consideration of whether the aggregate sentence is “just and appropriate” as “the combined sentence should not be unduly long or harsh”: R. v. Parry, 2012 ONCA 171 at para. 17; Criminal Code, s. 718.2(c).

Aggravating and mitigating circumstances – Dennis

36There are several aggravating factors for Dennis. These include:

• Trafficking in two deadly drugs, carfentanil and fentanyl
• Carrying a loaded firearm which poses a danger to the public in any circumstance
• Carrying a loaded firearm while dealing in drugs, a statutorily aggravating factor pursuant to section 10(2)(a)(i) of the CDSA
• Trafficking in drugs for commercial gain, or greed, and not to maintain or feed an addiction
• The quantity of drugs was significant
• The use of a concealed compartment in Dennis’ car with an electronic locking mechanism demonstrates a high level of sophistication, planning and financial investment.

37On the other hand, there are also mitigating factors:

• Dennis is relatively young – 23 when arrested and 27 today
• Dennis has no criminal record
• Dennis was able to find some employment and has been developing a dog-breeding business while on bail
• Dennis is in a stable, long-term relationship

38Dennis did not plead guilty; however, this is not an aggravating factor. Nor should Dennis be faulted for bringing a pre-trial Charter application. His rights were found to have been violated, although the evidence was not excluded: R. v. Mensah, 2022 ONSC 7051. Defence counsel submits the Charter breach should effectively be treated as a mitigating factor. I agree, but it has little impact here as the breach was short-lived and was found to be “at the less serious end of the culpability spectrum” (para. 50). As Code J. stated in R. v. Collins, 2023 ONSC 5768 at para. 69, a sentence reduction due to a Charter breach is “relatively rare” and is usually reserved for cases of excessive force or other violations which “have some punitive or degrading effect on the accused.”

39Dennis has not expressed any remorse for his conduct. As the EPSR points out, Dennis refused to discuss the offences because he is considering an appeal. That, of course, is his right, and the lack of remorse is not an aggravating factor. However, the inability of the social worker to discuss the offences with Dennis limited any conclusions that could be drawn about Dennis’ insight into the offences and any connection between them and his upbringing. Similarly, although Dennis filed several letters of support, none of them addressed the issue of the harmful nature of the offences, but simply offered the view that Dennis is a good person.

40While the Crown accepts that Dennis has begun developing a business while on bail, it does not accept that that he has complied with his bail at all times. Although not convicted of any offence, while executing a search warrant in 2022 the police found Dennis and Marvin in a residence together without a required surety present. This was, apparently, not long after a variation in their bail orders had been obtained to permit contact between the brothers, but only with a surety present.

Aggravating and mitigating circumstances - Marvin

41There are several aggravating factors for Marvin. These include:

• Trafficking in two deadly drugs, carfentanil and fentanyl
• The quantity of the drugs possessed was large – much larger than the amount found on Dennis, and of considerable street value
• Trafficking in drugs for commercial gain, or greed, and not to maintain or feed an addiction
• The use of a concealed compartment in Marvin’s car with an electronic locking mechanism demonstrates a high level of sophistication, planning and financial investment.

42On the other hand, there are also mitigating factors:

• Marvin is relatively young, though not as young as Dennis – he is now 31 years old
• Marvin had no criminal record at the time he committed these offences
• Marvin has been gainfully employed while on bail
• Marvin is a devoted father and this may be a motivation for him to rehabilitate himself.

43Like Dennis, Marvin’s lack of a guilty plea is not an aggravating factor, nor is the fact that he brought a pre-trial Charter application.

44As was the case with Dennis, Marvin has not expressed any remorse for his conduct as he refused to discuss the offences because he is considering an appeal. This also limits any conclusions that can be drawn about Marvin’s insight into the offences and any connection between them and his upbringing. Similarly, Marvin’s letters of support failed to address the issue of the harmful nature of the offences, but simply offered the view that Marvin is a good person and a good father.

45The Crown submits that Marvin’s commission of a criminal offence while on bail is an aggravating factor, as is the apparent breach of bail conditions when the police found Dennis and Marvin in a residence together, without a required surety present.

Analysis and appropriate sentences

46The principle of restraint applies to all offenders but is especially important for youthful first offenders. A first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the offender rather than solely for the purpose of general deterrence: R. v. Francis, 2022 ONCA 729 at para. 80. Put against this is the emphasis given to the principles of deterrence and denunciation in crimes involving dangerous drugs and firearms.

47In Francis, Tulloch C.J.O allowed a sentence appeal in which the accused, a 23-year-old first-time offender at the time of his arrest, was sentenced to a total of seven years for possession of fentanyl and cocaine for the purpose of trafficking and for possession of a loaded firearm. The Court of Appeal reduced the sentence to five years, finding that the trial judge did not give sufficient consideration to the principle of restraint. Although there may have been more mitigating factors in that case, including a strong and supportive network of family, friends and community workers, Chief Justice Tulloch also observed that the accused, like Dennis and Marvin, grew up in a violent neighbourhood with “rampant drug use and criminal behavior” and that this social context evidence is a relevant mitigating factor.

48The Crown seeks a longer term for each of Dennis and Marvin than was imposed in Francis, noting the lack of a guilty plea and the fact that Dennis and Marvin had larger quantities of drugs, including carfentanil, which is far more dangerous than fentanyl.

49There are not yet many sentencing cases involving carfentanil, but in one, R. v. Gill, 2022 BCCA 127, the British Columbia Court of Appeal substituted a four-year sentence for a 19 year old first offender who had pleaded guilty, shown remorse and had very positive prospects for rehabilitation. Other cases involving fentanyl and/or cocaine, but not carfentanil, suggest a range between 3.5 and 5 years.

50In R. v Dang, 2022 ONSC 6210, Corrick J. agreed to a joint submission of a sentence of four years for trafficking in carfentanil which led to the death of a woman. The accused was 26 at the time of the offence. In her decision, Corrick J. observed at para. 21 that “the appropriate range of sentence for trafficking in small amounts of carfentanil has not yet been firmly established.” She also stated the following:

Although no evidence was called about the nature of carfentanil, I am aware of other cases where courts have heard such evidence and considered it in their judgments. In R. v. Imeson and R. v. Kochanska, the court considered the evidence of Dr. Karen Woodall, a forensic scientist in the field of toxicology. Mr. Justice Mckay quoted a report from Dr. Woodall at para. 9 of Imeson as follows:

Carfentanil is a synthetic opiate that is used as a tranquilizing agent for large animals and has never been approved for therapeutic use in humans. It is an extremely potent opiate that has been reported to be up to 10,000 times stronger than morphine and 100 times stronger than fentanyl.

The lethal nature of carfentanil was also recognized by the Supreme Court of Canada in R. v. Parranto, 2021 SCC 46, where Justice Moldaver noted at para. 95"that it has no safe or beneficial human use, even within the medical community in highly controlled environments."

51Even if this case only involved fentanyl, however, I must bear in mind the comments of Laskin J.A. in R. v. Loor, 2017 ONCA 696 at para. 50, that “generally, offenders – even first offenders – who traffic in significant amounts of fentanyl should expect to receive significant penitentiary sentences.” It has been observed that, when it comes to fentanyl, “significant amounts” are relative, as even a very small amount can be fatal. In R. v. Gagnon, 2017 ONSC 7470 at para. 39, 12.34 grams of fentanyl was considered a “significant amount.” In this case, Dennis had over 10 grams of fentanyl and carfentanil, and Marvin was found with almost 113 grams of carfentanil. Having regard to the much greater danger of carfentanil, these are significant amounts meriting significant penitentiary sentences.

52Turning to firearms offences, the Court of Appeal has held that 3 to 5 years is the appropriate range for a first s. 95 offence where the use and possession of the gun is associated with criminal conduct, such as trafficking in dangerous drugs: see R. v. Marshall, 2015 ONCA 692, 340 O.A.C. 201 (C.A.) at paras. 47-56. I agree that this is the appropriate range and recognize that the Crown seeks a sentence at the bottom of that range.

53However, ranges are not ironclad; sentencing must always be tailored to individual circumstances. As is common at sentencing hearings, Crown and defence counsel have provided me with many decisions to support their positions. I recognize that cases involving drug trafficking and guns have resulted, occasionally, in lower sentences than are sought here, even, exceptionally, conditional sentences (e.g., R. v. Collins, 2023 ONSC 5768 -cases discussed at para. 76), but these types of cases are rare and have far more mitigating factors than exist here. Such factors include an early guilty plea, very strong family and community support, including that the accused have completely rehabilitated themselves, and mental health and addiction issues. At the same time, there are also cases in which much higher sentences have been imposed than are sought for Dennis and Marvin, where there are more aggravating factors than are present here.

54Although the social context evidence is not connected directly to the offences, like in Francis it is a mitigating factor in assigning moral culpability: see, e.g., R. v. Kandhai, 2020 ONSC 3580 at paras. 56-58. Dennis and Marvin grew up in a low-income family in a violent area, raised by a single mother and were subjected to anti-black racism. Dennis’ lack of motivation to complete high school is not unusual or surprising given the lack of good role models, poor access to community programming and his treatment as a young black man who is particularly vulnerable to criminalized behaviour: see, e.g., R. v Marfo, 2020 ONSC 5663 at paras. 19-20 and 49-52. In my view the social context evidence is a significant mitigating factor for both accused.

55While I appreciate that Dennis and Marvin have not expressed remorse, I do not conclude that their rehabilitation prospects are low. Both are relatively young. Dennis is a first offender, and Marvin has only a limited record. Marvin completed high school and took a course at George Brown College that he intends to complete. He takes his role as a father seriously. Dennis has now taken steps to develop a business and made efforts to mentor young people through the Kids with Incarcerated Parents organization.

56This causes me to give particular weight to the principle of restraint, which means that I should “impose the shortest term of imprisonment that was proportionate to the crime and the responsibility of the offender”: R. v Brown, 2015 ONCA 361 at para. 7. As Shreck J. stated in R. v. Beharry, 2022 ONSC 4370 at para 43:

All of the sentencing objectives, including denunciation, deterrence and rehabilitation, are subordinate to the fundamental purpose of sentencing as set out in s. 718 of the Code, which is "to protect society." Arguably, the objective of rehabilitation, where rehabilitative prospects exist, will go further towards achieving the fundamental purpose of sentencing than sentences designed to give effect to the objective of general deterrence, which empirical evidence suggests has uncertain effect. [citations omitted]

57Nevertheless, the crimes Dennis and Marvin have committed are serious and dangerous, and their sentences cannot disregard those indisputable facts.

Dennis

58I have concluded that the appropriate sentence for Dennis should be a total of four and a half years. Although the offences have separate and distinct wrongs which would support consecutive sentences, each offence also calls for a significant jail term. For that reason, I impose a sentence of four and a half years on each count, but they are to be served concurrently. This reflects the seriousness of each offence while giving effect to the totality principle.

59Downes’ credit for spending significant time on strict terms of release while awaiting trial is to be treated as a mitigating factor, and is not simply formulaic: R. v. Smith, 2023 ONCA 500 at para. 37. In reaching my conclusion as to what should be a fit sentence for Dennis, I have taken into account that Dennis has been subject to strict house arrest conditions for much of the four years that he has been on release. He has worn GPS monitors (for some period at his own expense) and has not been able to leave home without a surety. In the absence of such conditions, his sentence would have been at least one year longer. See also: R. v Schlaepfer, 2022 ONCA 566, in which the Court of Appeal gave five months credit for approximately two years on judicial interim release, although the circumstances differed.

60Dennis is entitled to 413 days Summers credit based on having served 275 days in pre-trial detention. Dennis was affected by lockdowns on about 128 occasions during his 275 days in custody. However, many of those lockdowns did not involve full days. On the other hand, counsel for Dennis emphasized the harsh conditions of his pre-trial custody. I have no doubt that the conditions were difficult, but this is a reason why Summers credit is calculated at a rate of 1.5:1. Exercising my discretion, I would award Dennis an additional 65 days (or a half-day per lockdown) credit pursuant to Duncan.

61Accordingly, Dennis shall have 478 days deducted from his sentence of four and a half years.

Marvin

62Marvin must receive a longer sentence than Dennis. This is due, largely, to the amount of carfentanil in his possession.

63Marvin is older than Dennis and, although of limited weight, Marvin has also acquired a criminal record since these offences were committed.

64On the other hand, Marvin did not have a firearm, and he has been gainfully employed while on bail and is a conscientious parent. I cannot conclude that his prospects for rehabilitation are any lower than those for Dennis.

65Also, while I must take the facts as I find them, and apply the law, it strikes me as perhaps fortuitous for Dennis that he had a smaller amount of drugs in his possession and at the same time perhaps fortuitous for Marvin that he was not found with the firearm. Given the toxic combination of drugs and guns, one can question why Dennis should get a shorter sentence than Marvin. However, the positions of the Crown and the defence both support this result, which I accept.

66In my view a total sentence of five and a half years for Marvin appropriately balances the aggravating and mitigating factors and gives effect to the principle of restraint and the need to denounce and deter the commission of the offences. Marvin shall receive a sentence of five years for the possession for the purpose of trafficking charge, reflecting the seriousness of trafficking in fentanyl and carfentanil, and six months for possession of the proceeds of crime. These sentences shall be served consecutively.

67Marvin shall receive Summers’ credit of 141 days based on having served 94 days in pre-trial detention. I also award him 10 days credit for time in lockdowns pursuant to Duncan.

68Marvin has been able to work and be with his daughter and therefore seems to have been subject to somewhat less strict bail conditions with more of an ability to carry on with his life than Dennis. This is also reflected in the differing requests for Downes’ credit by the two accused. On the other hand, Marvin breached his terms of release and committed an offence while on bail. Overall, I have considered the time spent on restrictive bail conditions as a mitigating factor in reaching my conclusion that a sentence of five and a half years is appropriate. In the absence of this mitigation, Marvin’s sentence would have been at least six months longer.

69Accordingly, Marvin shall have 151 days deducted from his sentence of five and a half years.

Ancillary Orders

70The Crown seeks ancillary orders, only one of which was disputed – the length of the weapons prohibition pursuant to s. 109 of the Criminal Code. The Crown seeks a lifetime ban for both accused. Counsel for Dennis objects because this is his first offence, arguing that the minimum ban of ten years should apply. Counsel for Marvin also objects, noting that Marvin’s prior conviction is for an offence committed after the offences for which he is now being sentenced, and that a lifetime ban may not be mandatory in these circumstances, citing R. v. Wilson, 2020 ONCA 3 at paras. 60-61, and R. v. Ellis, 2001 ONCA 8532.

71I agree that the cases cited by Marvin raise questions about whether, in these circumstances, a lifetime ban is mandatory for Marvin. However, it remains in my discretion to impose the terms I find reasonable, including a ban for life. Given the sophisticated nature of the offences committed by Marvin, I am satisfied that a ban of more than ten years is appropriate. As to Dennis, who was the one found in possession of a firearm, I see no reason to differentiate between the two brothers.

72I therefore make the following ancillary orders:

• Dennis and Marvin shall each provide a sample of their bodily substances as may be required for forensic DNA analysis pursuant to the Criminal Code;
• Pursuant to s. 109 of the Criminal Code, Dennis and Marvin shall be prohibited from being in possession of a weapon, ammunition or other items as described therein for life; and
• The Lexus automobiles seized on arrest from each of them shall be forfeited to the Crown pursuant to s. 16(1) of the CDSA. The firearm, drugs and other items seized shall also be forfeited.

Schabas J.