R. v. Wisdom, 2024 ONSC 4047

COURT FILE NOs.: CR-22-90000237-0000, CR-22-90000238-0000, CR-24-90000232-0000

DATE: 2024-07-18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

DAE-SHAWN WISDOM and JASON WISDOM

Counsel:

Diana Lumba and Ryan McSheffrey, Counsel or the Crown

Hans Cedro, Counsel for Dae-Shawn Wisdom

Sharon Jeethan, Counsel for Jason Wisdom

HEARD: June 18, 2024

BEFORE: M.A. CODE J.

Reasons for SENTENCE

A. OVERVIEW

1The two accused, Dae-Shawn Wisdom and Jason Wisdom, were tried by judge and jury on an Indictment alleging nine counts of possession of various drugs for the purpose of trafficking, two counts of possession of proceeds of crime, and one count of possession of a loaded restricted firearm. Four other counts, alleging breaches of s. 109 firearm prohibition Orders and one count alleging breach of a weapons prohibition term in a bail Order, were severed and were tried by me judge alone on the basis of the evidence heard at the jury trial and on the agreement of counsel that the jury’s findings on the s. 95 firearms count would apply at the severed judge alone trial.

2The main trial began with jury selection on April 2, 2024 and concluded with verdicts on April 12, 2024. The nine counts alleging possession for the purpose of trafficking related to different quantities of different drugs found in three different locations in a house and a car, when the police executed search warrants on May 29, 2021. The jury convicted Dae-Shawn Wisdom on six of the drug counts which related to certain seizures in the house (those from the kitchen area) and the seizures in the car. The jury convicted Jason Wisdom on seven of the drug counts relating to all of the seizures in the house. The jury convicted both Dae-Shawn and Jason Wisdom on separate proceeds of crime counts. Finally, the jury convicted Jason Wisdom on the s. 95 firearms count. Dae-Shawn was found not guilty on the firearms count and on some counts relating to drug seizures in the house (in particular, in a second floor ottoman). Jason Wisdom was never charged with the drugs seized in the car. He was convicted of all the drug and firearm seizures in the house (both in the main floor kitchen area and in the second floor ottoman).

3The severed judge alone trial was conducted immediately after the jury returned its verdicts on April 12, 2024. Jason Wisdom was found guilty of three breaches of s. 109 firearms prohibition Orders and he was also found guilty of one breach of a bail term prohibiting possession of weapons. Dae-Shawn Wisdom, who was acquitted by the jury on the s. 95 firearms count, was found not guilty of one alleged breach of a s. 109 firearms prohibition Order.

4On June 18, 2024, I heard sentencing submissions and reserved judgement. These are my Reasons for Sentence.

B. FACTS RELATING TO THE OFFENCES

5The facts relating to the 12 offences tried by the jury, and the five severed offences tried by judge alone, are relatively straightforward. They all relate to the execution of two search warrants on May 29, 2021, at a home in Vaughan and a Nissan car that was parked nearby. Dae-Shawn and Jason Wisdom were both arrested at the home when the search warrants were executed. The police seized drugs, a loaded handgun, and alleged proceeds of crime when executing the search warrants. The drugs were found in three locations: an ottoman in the second floor hallway or landing of the Vaughan home; various locations in the ground floor kitchen area of the Vaughan home; and in an enclosed space under the centre console of the Nissan car. The loaded handgun was found in the same second floor ottoman where many of the drugs were found. The proceeds alleged to be possessed by Jason Wisdom were found in the ground floor kitchen ($4,460) and the proceeds alleged to be possessed by Dae-Shawn Wisdom were found in his pocket ($5,775).

6The parties made a number of realistic admissions at the jury trial. In particular, it was admitted that the various drugs seized by the police were all possessed for the purpose of trafficking. It was also admitted that the loaded handgun was a “restricted firearm” and that neither of the two accused was authorized or licensed to possess it. The main issue in dispute was proof of the elements of “identity” and “possession”. The verdicts returned by the jury resolve that issue as to who possessed which particular seizures.

7There is a detailed summary of the evidence in the Charge to the Jury, at pp. 91-113. A written copy of the Charge was filed as an Exhibit at trial and it is a public document. I adopt that summary of the evidence for purposes of these Reasons for Sentence. In my view, the most important items of circumstantial evidence relating to the elements of “identity” and “possession” were the following:

• First, Jason Wisdom undoubtedly resided at the home in Vaughan. He appeared to reside in the third floor master bedroom. His three year old child appeared to reside in a second floor bedroom. Most importantly, identification and documents connected to Jason Wisdom were found inside an ottoman that was located on the second floor landing. The ottoman had an open lid and a significant amount of drugs and the restricted firearm were found inside the storage area under the open lid;
• Second, Dae-Shawn and Jason Wisdom were arrested together at the home in Vaughan. They emerged from the ground floor and were on the front porch smoking cigarettes, immediately before the police arrived in order to execute the search warrant. Upon entering the ground floor, the police found a plastic shopping bag out in the open on the kitchen counter. It contained various drugs. A piece of paper with apparently drug-related terms was nearby on the kitchen counter. No one else was in the ground floor kitchen area that Dae-Shawn and Jason had emerged from shortly before the search;
• Third, Dae-Shawn Wisdom was associated with the Nissan car where drugs were located under the centre console. The car was parked near the Vaughan home. Dae-Shawn had the keys to the car in his pocket on arrest, as well as $5,775 in two cash bundles. He had been seen by surveillance officers driving the Nissan car on four different days, shortly before the search. On three of these days, the Nissan car was seen parked in front of the Vaughan residence. On the day of the search, Dae-Shawn Wisdom was in the Nissan car with two children, before he brought them to the Vaughan residence. The surveillance evidence also connected Dae-Shawn Wisdom to a residence in Nobleton where no drugs were seized; and
• Fourth, there were significant similarities between the different drugs seized from the three different locations. In particular, both fentanyl and cocaine were seized in the ottoman, kitchen, and car. More significantly, fentanyl that had been cut with three different agents – benzodiazepine, dimethylsulphone, and caffeine – was found at all three locations. There was also a different fentanyl mixture, cut with only two agents (dimethylsulphone and caffeine), that was found at all three locations. Finally, cocaine that had not been cut with any agent was found at all three locations. There was also cocaine cut with phenacetin found at two locations (the ottoman and the kitchen) and a large amount of phenacetin was found in the ottoman. Phenacetin is a common cutting agent for cocaine. A hydraulic press, digital scales, and a vacuum sealer, which are all used in the drug trade, were found in the kitchen as well as $4,460 in alleged cash proceeds.

8The jury must have been satisfied that the loaded handgun and the various drugs seized from the ottoman on the second floor landing were in Jason Wisdom’s exclusive possession (as Dae-Shawn Wisdom was found not guilty on these counts). They must also have been satisfied that the drugs seized from the ground floor kitchen area were in the joint possession of both Dae-Shawn and Jason Wisdom (with the exception of one small baggie of crack cocaine that had apparently been discarded on the floor during the police search, which the jury found to be in Jason Wisdom’s exclusive possession). Finally, they must have been satisfied that the drugs seized from the car were in Dae-Shawn Wisdom’s possession (as he alone was charged with possession of these drugs).

9The exact quantities and kinds of drugs seized from the various locations were as follows:

• In the ottoman on the second floor landing, there was 293.4 grams of fentanyl (in four separate amounts), 146.99 grams of cocaine (both crack and powder, in seven separate amounts), and 330.91 grams of the phenacetin cutting agent, all found to be in the exclusive possession of Jason Wisdom;
• In the main floor kitchen area, there was 63.48 grams of fentanyl (in three separate amounts), 28.02 grams of methamphetamine, and 13.09 grams of powder cocaine, all found to be in the joint possession of Dae-Shawn and Jason Wisdom;
• In an apparently discarded baggie on the floor of the kitchen area, there was 14.21 grams of crack cocaine, found to be in the exclusive possession of Jason Wisdom;
• Finally, in the Nissan car underneath the centre console cover, there was 31.97 grams of fentanyl (in three separate amounts) and 18.93 grams of cocaine (in two separate amounts), all found to be in the possession of Dae-Shawn Wisdom.

10It can be seen that the largest amount of drugs was found in the second floor ottoman, in Jason Wisdom’s exclusive possession, and that distinctively similar drugs were found in the kitchen and in the car in smaller amounts. It can be inferred from all the evidence, and from the jury verdicts, that Jason Wisdom had a large amount of drugs in the second floor of his residence, that he and Dae-Shawn Wisdom were using the kitchen area of the house as a drug distribution centre for some of those drugs, and that Dae-Shawn Wisdom was trafficking smaller amounts of the drugs from the Nissan car.

11The “restricted firearm” found in the ottoman was a semi-automatic 9mm handgun. It had one round in the chamber and 14 rounds in an overcapacity magazine. Also found in the ottoman were 30 additional rounds of 9mm ammunition and 41 rounds of .38 special ammunition. At the jury trial, Jason Wisdom was found to be in exclusive possession of this handgun and ammunition. As a result, at the judge alone trial he was found guilty of breaching three prior s. 109 weapons prohibition Orders, which had been imposed in 2012, 2016, and 2018. He was also found guilty of breaching a term of bail prohibiting possession of weapons, imposed on June 16, 2020, which was less than a year prior to the present May 29, 2021 offences.

C. FACTS RELATING TO THE OFFENDERS

(i) Dae-Shawn Wisdom

12Neither accused testified at trial. As a result, facts relating to their background and antecedents emerged only at the sentencing hearing.

13Counsel for Dae-Shawn Wisdom interviewed his client and two of his client’s grandparents and then provided an account of Dae-Shawn’s antecedents that was based on these interviews. Dae-Shawn Wisdom’s date of birth is May 3, 1999. He is 25 years old and he would have been 22 at the time of the present offences. He graduated from high school in Toronto in 2017, when he would have been 18 years old. He was a good basketball player in high school and played on the Ontario provincial team.

14Counsel stressed a number of difficult personal circumstances that occurred during Dae-Shawn Wisdom’s childhood. His mother was age 15 when Dae-Shawn was born. She raised him as a single parent, with help from her mother, because Dae-Shawn’s father was absent for long periods due to apparent infidelity. Dae-Shawn had two younger siblings, now ages 14 and eight, who were also raised by his mother and maternal grandmother. In 2016, when Dae-Shawn was age 16, his mother died from cancer. This had a significant impact on Dae-Shawn because he had relied on his mother. The two younger siblings lived primarily with their father, after their mother’s death, but Dae-Shawn also had a role in caring for them. The family was living with their maternal grandmother in Mississauga at the time of the mother’s death. Dae-Shawn continued to live with his grandmother until he graduated from high school in Mississauga at age 18.

15When Dae-Shawn was young, and before the family moved to Mississauga to live with their maternal grandmother, they lived with their mother in the Trethewey and Black Creek neighbourhood of Toronto. This was while Dae-Shawn was in elementary school, in grades 3 to 5. After the family left this neighbourhood, Dae-Shawn would return in order to visit with friends. He witnessed a lot of drug dealing and saw how it could generate money. There was also heavy policing in this neighbourhood, which could sometimes be rough and arbitrary, according to Dae-Shawn’s account.

16Counsel submitted that the above circumstances help to explain how Dae-Shawn Wisdom came to be involved in criminal activity, including in the present offences. His criminal record is, as follows:

• In November 2019, when he was 20 years old, he was convicted of possession of a Schedule I substance for the purpose of trafficking and possession of a loaded restricted or prohibited firearm. He was sentenced to two years less a day, after Summers credit for the equivalent of one year in jail (an effective sentence of three years);
• In November 2022, when he was 23 years old, he was convicted of fail to comply with terms of bail. He was given a suspended sentence, after Summers credit for the equivalent of three weeks in jail. He had been arrested on May 29, 2021 for the present offences and had been released on “house arrest” bail a month later, on June 28, 2021. After this November 2022 fail to comply conviction and sentence, the release on bail on the present charges was not revoked;
• On April 30, 2024, about three months ago, he was convicted of possession of fentanyl for the purpose of trafficking, after a guilty plea. He was sentenced to nine years in jail, on a joint submission. He had been arrested for this offence on March 28, 2023, about four months after the above fail to comply conviction and while still on bail for the present offences. He then remained in pre-trial custody until being sentenced. He was given Summers credit for the equivalent of two years in jail, which reduced the sentence to seven years. The use that can be made of this subsequent conviction and sentence, when sentencing for the present offences, will be discussed below.

17In terms of Dae-Shawn Wisdom’s present rehabilitative potential, counsel relies on his relative youth and the ongoing support of his two grandmothers. They were both involved in his upbringing and they remain close to him, although they are disappointed with his criminal activity. In addition, Dae-Shawn cares for his two younger siblings. He was seen by the surveillance officers taking these two children to Jason Wisdom’s home in Vaughan, shortly before the police executed the search warrants. Finally, counsel filed a letter from a friend who has known Dae-Shawn for the past five years. She speaks highly of his character and states that he “has shown tremendous growth and self-reflection … He has expressed sincere remorse …”

18The Crown and defence agree that the only Summers credit for pre-trial custody that applies in sentencing Dae-Shawn Wisdom for the present offences, is for the one month immediately after his initial arrest, from May 29 to June 28, 2021 (as explained above). The remainder of his pre-trial custody, after his March 28, 2023 arrest on a further drug charge, was used up in the April 30, 2024 sentencing for the further offence.

(ii) Jason Wisdom

19Counsel for Jason Wisdom provided an account of his antecedents that was based on interviews with her client. His date of birth is September 3, 1988, so he is now almost 36 years old. He would have been 32 at the time of the present offences. Many of the circumstances in which Jason Wisdom grew up involve similar difficulties to those in which Dae-Shawn Wisdom grew up. Counsel relies on those difficult circumstances to help explain the choices that Jason Wisdom made.

20Jason Wisdom was raised by both parents until he was five years old, when his parents separated. His father moved to the United States where he had work. Jason was then raised by his mother. She worked at three jobs in order to support the family. Jason had a number of siblings and half siblings. The family lived in social housing in the Falstaff and Jane neighbourhood of Toronto. This neighbourhood was poor, it had high levels of crime, and it was racialized. At age 11, Jason was arrested for theft. His mother was worried about crime in the neighbourhood and so she sent Jason to live with his father in New York. He was 12 years old and he missed his mother but he did get work experience by helping in his father’s jewelry store. His father was living in another poor, high crime, racialized neighbourhood. At age 15, Jason was arrested in New York for auto theft. His father sent him back to Toronto to live with his mother in the Falstaff neighbourhood. By age 16, Jason had been robbed twice. He dropped out of high school. He also had a child of his own by age 16. He was struggling with life. His mother kicked him out of the family home because she had debts and she had other children to raise. As a result, by age 16 Jason no longer had the support of his mother.

21At this point, Jason went to live with his grandmother and with an older friend. This older friend was involved in criminal activities and Jason began to develop what became a serious criminal record. I will set out the rest of Jason’s antecedents below, in the context of summarizing his developing criminal record, which is as follows:

• In April 2004, at age 15, he was convicted in Youth Court of fail to comply with terms of bail (x2). He was sentenced to probation;
• In July 2006, at age 17, he was convicted in Youth Court of possession of a loaded prohibited or restricted firearm and fail to comply with bail. He was sentenced to five months in custody, after Summers credit for four months of pre-trial custody. This offence involved joint possession of the gun and it was committed with the older friend who he was living with;
• In August 2008, at age 19, he was convicted of possession of a Schedule I substance for the purpose of trafficking (x3) and fail to comply with bail (x3). He was sentenced to a year in jail, after Summers credit for three months of pre-trial custody. Counsel explained that Jason had worked at a couple of factory jobs at age 17 but he could not hold the jobs and he now had another baby. As a result, he started dealing drugs at age 17, in order to support his child;
• In May 2012, at age 23, he was convicted of possession of a loaded prohibited or restricted firearm. This was his second s. 95 conviction and he received his first penitentiary sentence, namely, three years and three months in jail after Summers credit for one year and nine months of pre-trial custody (an effective five year sentence). Jason was released on parole at age 26. He began working in construction;
• In March 2016, at age 27, he was convicted of possession of a Schedule I substance for the purpose of trafficking and possession of proceeds of crime. As counsel explained, he had been making minimum wage doing construction work and he could not make ends meet. He had fathered two more children with two different women. As a result, he went back to drug trafficking in order to make money. He was sentenced to two months in jail after Summers credit for 10 months pre-trial custody (an effective one year sentence);
• In November 2018, at age 30, he was convicted of assault causing bodily harm (the only crime of actual violence on his record). He received a five month conditional sentence and two years probation. Counsel explained that Jason and his children had been threatened by a childhood friend over a debt. This threat led to the assault;
• In April 2022, at age 33, he was convicted of possession of a loaded prohibited or restricted firearm, possession of a Schedule I substance for the purpose of trafficking, and violation of a prior s. 109 firearms prohibition Order. Jason had been arrested for these offences on June 15, 2019 (about two years before the present offences were committed on May 29, 2021) and he had been released on “house arrest” bail on June 16, 2020. He was still on this bail when the present offences were committed in May 2021. As a result, he was never granted bail on the present offences. He received a six year sentence for the 2019 offences, on the basis of a joint submission after guilty pleas for what was now his third s. 95 conviction and his third conviction for possession of a Schedule I substance for the purpose of trafficking (apparently receiving significant credit for his guilty pleas, in the context of the pandemic backlog in this Court). After 41 months Summers credit for pre-trial custody, the remaining sentence was 31 months. The statutory release date for this latest sentence occurred on November 29, 2023. As a result, the only pre-trial custody for which Summers credit can be applied, in relation to the present offences, is the seven and a half months since the above November 29, 2023 date. The extent to which these subsequent 2022 convictions for the 2019 offences can be taken into account, when sentencing for the present 2021 offences, will be discussed below.

22Counsel explained the context in which the above most recent June 2019 offences and the present May 2021 offences occurred. After he finished serving the short remainder of the March 2016 sentence, Jason Wisdom’s older sister died of cancer. He had loved her like a mother and her last wish was that he stay out of jail. Following her death, he started a car rental business in 2016, hoping to honour his sister’s last wish. The mother of one of his children helped him run the car rental business. It had some good years financially, but it also had some bad years. Jason was making lawful income but it was inconsistent and so he went back to what he knows best, namely, drug trafficking. As counsel put it, Jason Wisdom falls back into drug trafficking whenever he is under financial stress.

23As a result of the above history, Jason Wisdom has been in custody since his arrest on May 29, 2021 on the present charges. However, most of that pre-trial custody has been attributed to the earlier 2019 charges, and it was credited when he pleaded guilty to those earlier charges in April 2022. Some of this pre-trial custody has been served in harsh conditions involving triple-bunking and partial lockdowns. In spite of these conditions, Jason Wisdom appears to have made good use of the programs available at the Toronto detention centres. Counsel filed a book of 14 “Certificates of Completion” for various life skills courses. In addition, Jason participated in the educational programs that are run by Amadeusz at the jails. He completed the courses that he needed in order to receive his Ontario Secondary School Diploma, in May 2024, scoring good marks in all of the courses. The Director of the program wrote a letter stating that “Jason demonstrated that he is a dedicated, capable, and engaged participant. He attended program regularly, completed assignments, took initiative in his learning, and asked for help when needed. Additionally, Jason maintained a positive attitude toward his work with Amadeusz staff.”

24Counsel interviewed the mothers of two of Jason Wisdom’s children. They both stated that he was loving towards his children and was respectful towards their mothers. He was also ashamed and embarrassed by his criminal offending. In this regard, he wrote a letter to the Court, rather than making a “dock statement”. His letter stated the following:

I learned too late in life the things that require hard work and discipline hold much more value and rewards in life, instead of the gain with pain life of selling drugs and carrying a gun for security. I’m not proud of some of my decisions in life … At 36, I believe I can let my past go and walk towards a brighter future because I firmly believe I do not want or need to live a life of crime.

D. POSITIONS OF THE PARTIES

25The positions of the parties in the present case are somewhat complex and disparate for a number of reasons. In the first place, there are two different accused and they are differently situated. Dae-Shawn Wisdom is younger than Jason Wisdom (25 years old versus almost 36 years old). In addition, Dae-Shawn Wisdom has a less serious criminal record than Jason Wisdom (twice convicted of possession of a Schedule I substance for the purpose of trafficking and once convicted of s. 95 firearms possession, in Dae-Shawn’s case, versus three convictions for possession of a Schedule I substance for the purpose of trafficking and three convictions for s. 95 firearms possession in Jason’s case). A second reason for the somewhat complex and disparate positions in this case is that the jury convicted the two accused of different offences, undoubtedly on the basis of their understandably different factual findings. Only Jason Wisdom was convicted of the s. 95 firearms offence and possession of the largest amount of drugs, presumably on the basis that these items stored in the second floor ottoman together with Jason Wisdom’s identification, were under Jason’s exclusive control while he resided on the third floor of the house and while his three year old child resided in a second floor room near the ottoman. On the other hand, only Dae-Shawn Wisdom was convicted of possession of the drugs found in the Nissan car and both accused were convicted of joint possession of the drugs found in the kitchen area, which was a drug distribution centre where Dae-Shawn undoubtedly had access. The rational inference from these facts and verdicts is that Jason Wisdom had the experience, the capital, and the connections needed to purchase, control, and protect the very large “stash” on the second floor, that both accused were jointly distributing drugs from the ground floor, and that Dae-Shawn Wisdom was the more exposed front line trafficker (at a time when Jason was on “house arrest” bail for drug trafficking).

26Because of the above factual differences between the two accused, Jason Wisdom must receive a significantly longer custodial sentence than Dae-Shawn Wisdom. In addition to these factual differences and complexities, there are certain legal complexities in this case. Both accused have criminal records that include convictions entered after the present offences were committed. Jason Wisdom was already on bail for serious 2019 drug trafficking and firearm offences, when the present offences were committed in 2021. He pleaded guilty in April 2022, to the 2019 offences, which was a year after the present May 2021 offences were committed. Dae-Shawn Wisdom was released on bail for the present May 2021 offences, he then committed a new possession of fentanyl for the purpose of trafficking offence in March 2023, while on bail, and he then pleaded guilty to this new offence in April 2024, which was after the present offences occurred and prior to the present convictions. These somewhat complicated circumstances raise issues relating to “Lord Coke’s principle”, which is a particularly difficult rule of sentencing law. Yet another difficult rule of sentencing law that applies in this case is the “totality” principle.

27It can be seen that there are both factual and legal complexities, which explain the somewhat disparate positions advanced by the parties in this case.

28The Crown submits that the appropriate sentence for Dae-Shawn Wisdom is as follows:

• nine years for possession of a total amount of 95.45 grams of fentanyl that was seized from the car and the kitchen and that Dae-Shawn was convicted of;
• four years concurrent for possession of a total of 32.02 grams of cocaine, in the car and in the kitchen, that Dae-Shawn was convicted of;
• four years concurrent for possession of 28.02 grams of methamphetamine, in the kitchen, that Dae-Shawn was convicted of;
• six months concurrent for possession of $5,775 in proceeds of crime seized from Dae-Shawn’s pocket on arrest;
• the resulting nine year sentence should be served consecutively to the seven year sentence that Dae-Shawn Wisdom is presently serving for the subsequent March 2023 offences. Accordingly, the Crown submits that the “totality” principle should reduce the nine year sentence for the present offences to seven years. When Dae-Shawn Wisdom’s two sentences merge, he would then be serving a 14 year total sentence; and
• Summers credit for one month pre-trial custody would reduce the sentence by one and a half months.

29Counsel for Dae-Shawn Wisdom does not dispute the seven to 10 year range of sentence relied on by the Crown for mid-level fentanyl trafficking, and agrees with the Crown’s reduction of Dae-Shawn Wisdom’s sentence on the basis of the “totality” principle. However, counsel submits that a sentence closer to the lower end of the seven to 10 year range, such as six to seven years, is appropriate in this case because it can be inferred that Dae-Shawn Wisdom was more like a street level gram trafficker than a mid-level ounce trafficker.

30The Crown submits that the appropriate sentence for Jason Wisdom is as follows:

• twelve and a half years for possession of a total amount of 356.88 grams of fentanyl that was seized in the ottoman and in the kitchen and that Jason was convicted of;
• five years concurrent for possession of a total of 174.29 grams of cocaine, seized in the ottoman and in the kitchen, that Jason was convicted of;
• four years concurrent for possession of 28.02 grams of methamphetamine, seized in the kitchen, that Jason was convicted of;
• six months concurrent for possession of $4,460 in proceeds of crime seized in the kitchen;
• nine years consecutive for possession of the loaded prohibited or restricted firearm seized in the ottoman;
• six months consecutive for breach of the 2012 firearms prohibition Order;
• six months consecutive for breach of the 2016 firearms prohibition Order;
• six months consecutive for breach of the 2018 firearms prohibition Order;
• six months consecutive for breach of the 2020 bail order prohibiting possession of a weapon;
• the resulting 23 ½ year sentence should be reduced to 18 years, in the Crown’s submission, on the basis of the “totality” principle; and
• Summers credit for about seven and a half months pre-trial custody would reduce the sentence by between11and 12 months.

31Counsel for Jason Wisdom submits that 10 years is the appropriate sentence for the fentanyl possession offence, that nine years is the appropriate sentence for the s. 95 firearms offence, and that the two sentences should be concurrent in order to reflect the “totality” principle. Counsel agrees with the Crown’s position concerning concurrent sentences for the cocaine and methamphetamine possession offences and for the proceeds of crime offence. Counsel also agrees with the Crown’s position concerning six month consecutive sentences for each of the three violations of s. 109 Orders and for breach of the terms of bail. In the result, the defence submits that the total appropriate sentence for Jason Wisdom is 12 years. The defence agrees with the Crown’s position concerning Summers credit.

32It can be seen that the Crown and the defence are not far apart, in relation to Dae-Shawn Wisdom’s sentence. However, they differ substantially in relation to Jason Wisdom’s sentence, mainly due to their differing approaches to consecutive sentences for the two main fentanyl and firearm offences, and their differing approaches to the “totality” principle.

E. ANALYSIS

(i) Introduction and Consecutive Sentences

33The principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code and I am bound by those principles. The most fundamental principle is “proportionality”, that is, the sentences “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

34A significant preliminary issue, that separates the Crown’s position from counsel for Jason Wisdom’s position, is whether the sentences for s. 95 firearm possession and for trafficking in controlled substances should be consecutive or concurrent. In my view, this issue has been decided, both at the level of this Court and at the Court of Appeal level. In R. v. Crevier, 2013 ONSC 2630 at paras. 47-49, Pattillo J. held that “the gun offences and the drug offences … have different legally protected interests. In my view, the sentence for possession for the purpose of trafficking should be consecutive to the sentence for the gun offences.” On appeal, the Court specifically approved of the trial judge’s reasoning on this point. See R. v. Crevier (2015), 2015 ONCA 619, 330 C.C.C. (3d) 305 at paras. 127-130 (Ont. C.A.). Three years later, in R. v. Mark, [2018] O.J. No. 270 at para. 27 (S.C.J.), K. Campbell J. revisited the issue and arrived at the same conclusion, as did I in a decision that followed Crevier and that was upheld on appeal. See R. v. Graham, 2018 ONSC 6817 at para. 43, aff’d 2020 ONCA 692. Also see R. v. Owusu, 2024 ONSC 671 at paras. 24-25.

35On the basis of the above line of authority, I am satisfied that Jason Wisdom’s sentences for the s. 95 firearm offence and for the drug trafficking offences should be served consecutively. I note that it is only because of the imposition of consecutive sentences that the “totality” principle becomes engaged, both pursuant to the modern Criminal Code provision and at common law. See s. 718.2(c) and R. v. Chisholm, 1965 CanLII 211 (ON CA), [1965] 4 C.C.C. 289 at 291 (Ont. C.A.).

36Before leaving the issue of consecutive sentences, I should note that I agree with the joint position of the Crown and counsel for Jason Wisdom concerning the imposition of four separate consecutive sentences for the three violations of s. 109 weapons prohibition Orders and for the one breach of terms of bail relating to weapons possession. A long line of authority, both in this Court and affirmed on appeal, has held that these sentences should be consecutive (including consecutive to each other, depending on totality). See R. v. Manning, [2007] O.J. No. 1205 (S.C.J.); R. v. Chambers, 2012 ONSC 817, aff’d 2013 ONCA 680 at paras. 20-27; R. v. Ellis, 2013 ONSC 3092, [2013] O.J. No. 2409 (S.C.J.), aff’d 2016 ONCA 598; R. v. Carrol, 2014 ONSC 2063; R. v. Graham, 2018 ONSC 6817 at para. 41, aff’d 2020 ONCA 692. Once again, the imposition of consecutive sentences for these offences will engage the “totality” principle.

37Finally, on the issue of consecutive sentences, I agree with the Crown and counsel for Dae-Shawn Wisdom that the sentence imposed on Dae-Shawn for the present 2021 drug offences should be consecutive to the seven year sentence that he is presently serving for the 2023 drug offences. See s. 718.3(4)(a) of the Criminal Code. These two sets of offences are entirely separate. Once again, the imposition of consecutive sentences engages the “totality” principle.

(ii) “Lord Coke’s principle”

38As noted above, Jason and Dae-Shawn Wisdom both have criminal records that include offences where the convictions were entered after the date of the present offences. Jason Wisdom was on bail for 2019 drug and firearm offences, when the present offences took place in 2021. He pleaded guilty to the 2019 offences and was sentenced in April 2023, a year before the present jury trial took place in April 2024. In other words, Jason Wisdom had not yet been convicted of the 2019 offences at the time when the present offences were committed in 2021.

39Dae-Shawn Wisdom was released on bail for the present 2021 offences and was subsequently charged with further drug offences in 2023. He pleaded guilty to these further 2023 offences on March 26, 2024, shortly before the present jury trial commenced on April 2, 2024. He was sentenced for the further 2023 offences on April 30, 2024, shortly after the jury returned guilty verdicts on the present Indictment on April 12, 2024. In other words, Dae-Shawn Wisdom had not yet committed and had not yet been convicted of the 2023 offences at the time when the present offences were committed in 2021.

40In my view, both of the above situations engage “Lord Coke’s principle” of sentencing law because they involve subsequent convictions. That somewhat complex principle was most recently explained by Paciocco J.A., speaking for the Court in R. v. M.V., 2023 ONCA 724 at paras. 63-65, where all the leading and sometimes conflicting authorities were cited:

“Coke’s principle” holds that “subsequent convictions cannot be relied upon to aggravate the sentence imposed for a prior offence”: R. v. Wilson, 2020 ONCA 3, 384 C.C.C. (3d) 355, at para. 60; see also R. v. Skolnick, 1982 CanLII 54 (SCC), [1982] 2 S.C.R. 47. Put otherwise, even if offence #1 occurred before the offence being sentenced (offence #2), offence #1 cannot aggravate the sentence imposed for offence #2 unless the accused was convicted of offence #1 before committing offence #2. Stated in this way, Coke’s principle may be too broad. Some courts are of this view: R. v. Andrade, 2010 NBCA 62, 363 N.B.R. (2d) 159, at paras. 12-22; and see the obiter dictum in R. v. D.(G.), 2013 QCCA 726, at para. 20. Others are not: see, for example, R. v. Pete, 2019 BCCA 244, at para. 33. Uncertainty remains about the extent and intensity of the application of Coke’s principle in Ontario: see R. v. R.M., 2020 ONCA 231, 150 O.R. (3d) 369, at paras. 31-37.

I do not propose to settle the general controversy over the entire influence of Coke’s principle but as I explained in Wilson, at para. 61, there is undeniable sense in the rule, depending upon the inference being drawn. For example, prior criminal convictions are ordinarily aggravating because it is contemptuous for offenders who have already been convicted to disregard that experience and offend again. If an offender has yet to be convicted of offence #1 that reasoning cannot apply. Similarly, a prior criminal record can be a predictor of the need for a harsher sentence to specifically deter the offender since the last penalty was not effective in doing so, given the subsequent offence. That inference is equally unavailable where no prior sentence has been imposed. Nor, in my view, can the earlier criminal conduct enhance the need for denunciation of the later offence. The sentence that denounces that offence is the one that is imposed for that offence.

Having said this, it would be irrational not to recognise the relevance of repeat offending to the prospect of rehabilitation or even the need for incapacitation. This is so, regardless of the order in which the convictions occurred: R.M., at paras. 6, 31-37; Wilson, at paras. 65-67. Put simply, evidence that the accused was engaging in prior criminal conduct for which he was not yet convicted at the time of the offence being sentenced should not be treated as an aggravating factor calling for a harsher sentence as it does not speak to the gravity of the offence or the degree of responsibility of the offender, but it can appropriately impact on the goals of sentencing in the particular case, and influence the tools of sentencing that are employed, for example, incarceration or probation. [Emphasis added].

41Applying “Lord Coke’s principle” to the facts of this case, Jason Wisdom’s 2023 convictions and Dae-Shawn Wisdom’s 2024 conviction are not aggravating circumstances. However, they do indicate a pattern of ongoing offending that is relevant to the two accused’s current rehabilitative potential. In this regard, also see R. v. Graham, 2018 ONSC 6817 at paras. 30-32, aff’d 2020 ONCA 692.

(iii) The aggravating and mitigating circumstances relating to Jason Wisdom

42In my view, the aggravating circumstances relating to Jason Wisdom include the following:

• First, he is a mature adult recidivist, in relation to both drug trafficking and possession of loaded handguns. He is almost 36 years old and he has three convictions for possession of a Schedule I substance for the purpose of trafficking (in 2008, 2016, and 2022) and three convictions for s. 95 possession of loaded prohibited or restricted firearms (in 2006, 2012, and 2022). The 2022 convictions are not prior convictions and so they cannot be treated as aggravating circumstances, pursuant to “Lord Coke’s principle”. Their relevance relates to Jason Wisdom’s current rehabilitative potential, as discussed above. In other words, the aggravating circumstance is that Jason is now a third time mature recidivist (but not a fourth time recidivist) in relation to both the drug offences and the firearms offence. He was not deterred by his two prior sentences and so there is a strong need for specific deterrence;
• Second, he stored the loaded firearm in the top of an open ottoman, close to the bedroom of his three year old child (and close to the bedrooms of two other apparent second floor residents of the home), putting the safety of the child at risk. See R. v. Mansingh, 2017 ONCA 68 at para. 24;
• Third, the loaded firearm had an oversized magazine, it had a bullet in the chamber ready to be fired, and there was a large amount of additional ammunition stored nearby. These factors increased the risk to public safety;
• Fourth, the firearm was possessed for an unlawful purpose, which distinguishes this case from less serious regulatory or licensing forms of s. 95 offences;
• Fifth, in relation to the drug offences, the three drugs possessed by Jason Wisdom for the purpose of trafficking – fentanyl, cocaine, and methamphetamine – are amongst the most dangerous hard drugs. They are well known to cause death, addiction, and untold misery. They are also associated with collateral crimes of violence;
• Sixth, the proximity of these three dangerous drugs to a small child is further aggravating. In particular, fentanyl is dangerous to the touch and all three drugs are dangerous if consumed;
• Seventh, the quantities and varieties of these three drugs possessed by Jason Wisdom is extraordinary – 356.88 grams of fentanyl, 174.29 grams of cocaine, and 28.02 grams of methamphetamine. At a minimum, he was a sophisticated and well-connected mid-level trafficker, distributing approximately ounce amounts of fentanyl and cocaine to Dae-Shawn Wisdom. However, his possession of more than one third of a kilo of fentanyl situates Jason Wisdom in close connection to high-level wholesale distributors of this very dangerous drug and it also means that he was capable of multi-ounce wholesale distribution; and
• Eighth, there is no suggestion that Jason Wisdom was a user of these drugs, and he was certainly not an addict. This was a purely commercial enterprise, deliberately and knowingly designed to make money while putting the lives of addicts at risk.

43I have not included the fact that Jason Wisdom committed the s. 95 firearm offence in violation of three prior s. 109 Orders and in violation of terms of bail, as an aggravating circumstance. This circumstance will be taken into account by imposing consecutive sentences for these separate offences.

44On the other hand, the mitigating circumstances relating to Jason Wisdom include the following:

• First, he has made good use of his time in pre-trial custody, completing his high school diploma and other life skills programs offered at the detention centres. The extent to which his current rehabilitative potential can be inferred from these recent steps taken while in custody is qualified by his ongoing pattern of serious offending, as discussed above in relation to “Lord Coke’s principle”;
• Second, he grew up in difficult circumstances in racialized neighbourhoods characterized by poverty and high rates of crime. The hardship and lack of opportunities associated with this kind of upbringing reduces his moral culpability to some degree. However, this social context evidence carries less weight in cases like the present one where the gravity of the offences, as well as Jason Wisdom’s apparently entrenched recidivism, mean that denunciation, deterrence, and protection of the public become predominant sentencing objectives. See: R. v. Parranto and Felix, infra at para. 80; R. v. Abdulle (2023), 2023 ONCA 32, 166 O.R. (3d) 307 at paras. 39-40 (C.A.); R. v. Husbands (2024), 2024 ONCA 155, 170 O.R. (3d) 486 at para. 60 (C.A.);
• Third, he experienced some harsh conditions, including triple bunking and partial lockdowns during some portion of his pre-trial custody that has not already been taken into account at the earlier April 2022 sentencing. There is some uncertainty in the factual record about the extent, duration, and impact of this factor. See R. v. Marshall, 2021 ONCA 344 at paras. 50-53; and
• Fourth, counsel retained and instructed by him conducted a focused and efficient trial, making responsible admissions of those facts and issues that were not realistically in dispute.

(iv) The aggravating and mitigating circumstances relating to Dae-Shawn Wisdom

45In my view, the aggravating circumstances relating to Dae-Shawn Wisdom include the following:

• First, he was still young at the time of the present offences (22 years old). However, he was already a recidivist, having been convicted at age 20 of possession of a Schedule I substance for the purpose of trafficking. The effective three year sentence that he received in November 2019 obviously did not deter him from reoffending in May 2021;
• Second, as with Jason Wisdom, the three drugs possessed by Dae-Shawn for the purpose of trafficking – fentanyl, cocaine, and methamphetamine – are amongst the most dangerous hard drugs. They are well-known to cause death, addiction, and untold misery. They are also associated with collateral crimes of violence;
• Third, the quantities and varieties of these three drugs possessed by Dae-Shawn situate him at the mid-level of the drug trade hierarchy. I agree with counsel for Dae-Shawn Wisdom that the drug trafficking apparently being carried out from the Nissan car tends to infer street-level trafficking in gram amounts (there was just over an ounce of fentanyl and just under an ounce of cocaine in the car, they were packaged in five separate amounts, and they were found together with a large number of small unused plastic baggies and digital scales). However, Dae-Shawn was not only convicted in relation to this apparently street-level trafficking being carried out from the car. He was also convicted jointly with Jason Wisdom in relation to the much larger scale distribution of various drugs that was being carried out from the kitchen area of the house. Dae-Shawn was ultimately found guilty for possession and distribution of the following total amounts: 95.45 grams of fentanyl, 32.02 grams of cocaine, and 28.02 grams of methamphetamine. This is not indicative of street-level trafficking; and
• Fourth, as with Jason Wisdom, there is no suggestion that Dae-Shawn Wisdom was a user of these drugs, and he was certainly not an addict. This was a purely commercial enterprise, deliberately and knowingly designed to make money while putting the lives of addicts at risk.

46On the other hand, the mitigating circumstances relating to Dae-Shawn Wisdom include the following:

• First, Dae-Shawn was still young at the time of the present offences, and so he may be capable of growth and change. However, his ongoing pattern of serious offending while on bail for the present offences, casts some doubt on his current rehabilitative potential, as discussed above in relation to “Lord Coke’s principle”;
• Second, the ongoing support of his two grandmothers and the one friend who wrote a letter to the Court, should help Dae-Shawn when he is released from serving his prison sentence (although the nature of this support is unclear);
• Third, he grew up in some difficult circumstances, losing his mother to cancer at age 16 and living for three years at an early age in a poor racialized neighbourhood with high crime rates. This reduces his moral culpability to some degree. Once again, as with Jason Wisdom, the gravity of the fentanyl trafficking in this case and Dae-Shawn Wisdom’s recidivism mean that denunciation, deterrence, and protection of the public become predominant sentencing objectives, reducing the weight to be given to this social context evidence. See: R. v. Owusu, infra at para. 28; and
• Fourth, as with Jason Wisdom, counsel retained and instructed by Dae-Shawn Wisdom conducted a focused and efficient trial, making responsible admissions of those facts and issues that were not realistically in dispute.

(v) The applicable sentencing ranges for fentanyl trafficking

47Counsel for both Dae-Shawn and Jason Wisdom did not seriously dispute the Crown’s analysis of the appropriate sentencing ranges, both for the drug offences and for the firearm offence.

48The most serious offence in the present case is undoubtedly possession of fentanyl for the purpose of trafficking. It carries a maximum life sentence and it generally attracts the lengthiest drug trafficking sentences because it is so dangerous. In addition, it is important to bear in mind that the possession of drugs for the purpose of trafficking in this case involved three drugs – fentanyl, cocaine, and methamphetamine – and all three are dangerous hard drugs. Furthermore, the parties agree that shorter concurrent sentences should be imposed in relation to the cocaine and the methamphetamine. As a result, the sentences for the fentanyl counts must reflect the “total gravity” of this joint fentanyl, cocaine, and methamphetamine trafficking operation, because the size, variety, and scope of the entire operation is an important aggravating circumstance. See R. v. England, 2024 ONCA 360 at para. 102.

49I recently analysed the ranges of sentence for fentanyl trafficking in R. v. Owusu, 2024 ONSC 671 at paras. 32-40, relying on a line of recent Court of Appeal authorities (Weaver, Disher, Loor, Lynch, and Olvedi) and on the recent Supreme Court decision in R. v. Parranto and Felix (2021), 2021 SCC 46, 411 C.C.C. (3d) 1 (S.C.C.). The accused in Owusu was in possession of 127.75 grams of fentanyl. I was satisfied that he was a “mid-level” trafficker, capable of selling at the ounce level, and that nine years was the appropriate sentence (before considering the “totality principle”). The Crown submits that a range of seven to 10 years emerges from the analysis in Owusu of cases that involve “mid-level” fentanyl trafficking. The Crown also relies on the Court of Appeal’s recent decision in R. v. England, supra at paras. 91-105, as supporting that range and impliedly agreeing with the analysis in Owusu. Finally, the Crown submits that a longer range of eight to 15 years emerges from Parranto and Felix for “wholesale commercial level” fentanyl trafficking. Applying these ranges to the present case, the Crown submits that the seven to 10 year “mid-level” range from Owusu applies to Dae-Shawn Wisdom’s possession of 95.45 grams of fentanyl for the purpose of trafficking, and that the eight to 15 year “wholesale” range from Parranto and Felix applies to Jason Wisdom’s possession of 356.88 grams of fentanyl for the purpose of trafficking.

50I agree with the Crown’s analysis of this line of authority which, once again, was not seriously disputed by defence counsel. The key aspects of the reasoning in Owusu, supra at paras. 34 and 36-40, which I repeat and adopt for purposes of the present case, were as follows:

As with heroin and cocaine trafficking, deterrence and denunciation are the primary sentencing objectives in cases of fentanyl trafficking. Young first offenders with good rehabilitative prospects receive significant penitentiary sentences in these cases, even after pleading guilty and after assisting the police and the Crown by testifying against their co-accused. See: R. v. Loor, 2017 ONCA 696; R. v. Disher and Weaver (2020), 2021 ONSC 2370, 396 C.C.C. (3d) 419 (Ont. C.A.); R. v. Baks, 2015 ONCA 560; R. v. Olvedi, 2021 ONCA 518 at paras. 35-60. The policy reasons for taking this strict deterrent and denunciatory approach to sentencing in fentanyl trafficking cases is the same as in cocaine and heroin trafficking cases, namely, the extraordinary harm associated with these drugs, the collateral crime associated with them (including crimes of violence), and the premise that rationally premediated commercial crimes like drug trafficking by a non-addict are particularly amenable to deterrence. See: R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 186 C.C.C. (3d) 129 at paras. 103-106 (Ont. C.A.); R. v. C.N.H. (2002), 2002 CanLII 7751 (ON CA), 170 C.C.C. (3d) 253 at paras. 35-6 (Ont. C.A.); R. v. Parranto and R. v. Felix, supra at paras. 70, 73, 87-101; R. v. Graham, supra at paras. 44-6, aff’d R. v. Graham, supra.

The above three decisions from the Court of Appeal are all thoroughly written and researched, they are reserved judgements, and they are relatively recent. In my view, all three of these cases – Weaver, Loor, and Disher – involved less serious offences and/or more mitigated offenders than the case at bar. In particular, they all involved smaller quantities of fentanyl. In addition, Weaver and Disher were street-level addict traffickers, apparently dealing in no more than gram amounts. Loor was a “low-level member of a small drug trafficking ring” who did “not profit much” from trafficking in pharmaceutical grade prescription patches. In all three cases, there were some mitigating circumstances that were at least as strong or stronger than in the case at bar. I am satisfied that Owusu must receive a sentence that is greater than the four years, six years, and eight years imposed in Weaver, Loor, and Disher, in order to respect the principle of parity.

In addition, in its more recent decision in R. v. Lynch, 2022 ONCA 109 at paras. 5, 14-15, and 24-26, the Court of Appeal held that the appropriate range for “mid-level traffickers” in cocaine is five to eight years, that fentanyl is “a more dangerous drug than is cocaine”, and that “long or longer” sentences should be imposed in fentanyl cases. In the present case, Owusu was in possession of 127.74 grams of fentanyl, more than three times as much as the 41.37 grams of fentanyl that Lynch possessed. I am satisfied, based on the reasoning in Lynch, that Owusu is a “mid-level trafficker” in fentanyl and that the appropriate range is somewhat greater than five to eight years. Also see R. v. Olvedi, supra at para. 56, where the Court held per Trotter J.A., that “due to the dangerous nature of fentanyl, sentences should be longer than those involving cocaine or heroin.” Based on these authorities, Mr. Zeeh submitted that the appropriate range for a “mid-level” fentanyl trafficker like Owusu would be between 6/7 years and 9/10 years. Mr. Zeeh also conceded that Owusu is not at the bottom end of the range.

The above suggested range emerging from Lynch and Olvedi is arguably or generally consistent with the Supreme Court’s relatively recent decision in R. v. Parranto and R. v. Felix, supra at para. 68, where the majority judgement of Brown and Martin JJ. (on behalf of four members of the Court) set out a potential range of sentence for “wholesale commercial level” fentanyl trafficking. That potential range appears to focus on the quantity of fentanyl, given that the amount being trafficked is one measure of the extent of harm or danger to the public. Brown and Martin JJ. stated the following:

A more accurate range based on a review of reported case law nationally would be in the region of 8 to 15 years. For example, eight‑year sentences were imposed in Smith (2019) (1834 pills, as part of an 11‑year sentence), as well as R. v. Leach, 2019 BCCA 451 (11,727 pills, as part of a 16‑year sentence); R. v. Sinclair, 2016 ONCA 683; R. v. Solano‑Santana, 2018 ONSC 3345 (5000 pills); R. v. White, 2020 NSCA 33, 387 C.C.C. (3d) 106 (2086 pills); and R. v. Borris, 2017 NBQB 253 (4200 pills). Other sentences imposed include: an 8‑year and two‑month sentence in R. v. Sidhu, C.J. Ontario, No. 17‑821, June 16, 2017, aff’d 2019 ONCA 880, in which the offender trafficked 89 g of fentanyl and other drugs soon after being released on parole; a 10‑year sentence in R. v. Petrowski, 2020 MBCA 78, 393 C.C.C. (3d) 102, for trafficking 51 g fentanyl where the offender used a co‑accused to insulate himself from detection; 11 years for trafficking 204.5 g of a fentanyl blend in R. v. Vezina, 2017 ONCJ 775; 13 years for trafficking 232 g fentanyl and large quantities of other drugs as part of a sophisticated drug trafficking operation in R. v. Mai, [2017] O.J. No. 7248 (QL) (Ont. S.C.J.); and 15 years for a profit‑motivated offender who was the directing mind of “a large‑scale drug trafficking operation involving an enormous amount of fentanyl” in R. v. Fuller, 2019 ONCJ 643 (the offender possessed about 3 kg of fentanyl in the course of the conspiracy). [Emphasis added].

I appreciate that the present case does not involve “wholesale” level trafficking, like Parranto and Felix. Nevertheless, the above summary of case law in the majority judgement in Parranto and Felix, appears to provide considerable authority for sentences over eight years in cases like the present one, when focusing primarily on the quantity of fentanyl as a measure of harm and relying on cases like Sidhu, Petrowski, and Vezina. The concurring judgement of Moldaver J. (on behalf of three members of the Court) would appear to support even longer sentences. Furthermore, in the present case there are a number of significant aggravating factors, in addition to the 127 gram quantity of fentanyl. Based on the authorities cited in Parranto and Felix, and other trial level cases, the Crown submitted that 8 to 12 years is the range for cases like the present one.

In conclusion, I am satisfied that the particular mix of aggravating and mitigating circumstances in this case justifies a sentence of nine years …

51Applying the above analysis of the applicable sentencing ranges to the facts of the present case, I am satisfied that Jason Wisdom’s possession of 356.88 grams of fentanyl for the purpose of trafficking places him in the higher Parranto and Felix range of eight to 15 years. The particular mix of aggravating and mitigating circumstances set out above situates Jason Wisdom towards the higher end of that range. In particular, his entrenched recidivism, his uncertain rehabilitative prospects, and the “total gravity” of his possession of large quantities of three hard drugs for the purpose of trafficking easily justifies the 12 ½ year sentence sought by the Crown.

52Turning to Dae-Shawn Wisdom’s possession of 95.45 grams of fentanyl for the purpose of trafficking, I have already explained my view that he was a “mid-level” trafficker, given his joint involvement with Jason Wisdom in the distribution of relatively large amounts of three hard drugs from the kitchen area of the house in Vaughan. Accordingly, the seven to 10 year Owusu range applies. I would situate Dae-Shawn Wisdom in the middle of that range, given the particular mix of aggravating and mitigating circumstances in his case. On the one hand, he is still young and he was playing a lesser role than Jason Wisdom. On the other hand, he is a recidivist, his prospects of rehabilitation are somewhat uncertain, and the “total gravity” of his possession of relatively large amounts of three hard drugs for the purpose of trafficking is significant. In my view, eight and a half years is the appropriate sentence for this offence and this offender.

53The parties agree on a number of concurrent sentences for the other drug trafficking and drug proceeds offences and I would adopt their joint positions on these related cocaine, methamphetamine, and proceeds counts.

(vi) The applicable range of sentence for the s. 95 firearm offence

54The Crown relies on the ranges set out in Graham and in Owusu for s. 95 firearm recidivists and submits that nine years is the appropriate sentence for Jason Wisdom. The defence does not dispute the Crown’s analysis of the range of sentence that emerges from the case law and agrees that nine years is an appropriate sentence for Jason Wisdom’s s. 95 offence. The parties disagree, however, about whether the sentence should be consecutive to the drug sentences and they disagree about “totality”. I have already addressed the issue of consecutive sentences above, and I will address the “totality principle” below.

55In R. v. Graham, supra at paras. 36-40, I reviewed the leading authorities in this province concerning the appropriate range of sentence for s. 95 recidivists, based on the law as it stood in late 2018. That decision was upheld on appeal. See R. v. Graham, 2020 ONCA 692. I adopt that earlier analysis for purposes of the present case, as follows:

In relation to the s.95 firearms offence, 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). See R. v. Danvers (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.); R. v. Nur (2013), 2013 ONCA 677, 303 C.C.C. (3d) 474 at para 206 (Ont. C.A.), aff’d (2015), 2015 SCC 15, 322 C.C.C. (3d) 149 at para 120 (S.C.C.); R. v. Smickle (2013), 2013 ONCA 678, 304 C.C.C. (3d) 371 at paras 26-32 (Ont. C.A.). In addition, there is a strong need for specific deterrence in this case, given Graham’s persistent recidivism.

There is now considerable guidance in the case law, since the mandatory minimum sentences were struck down in 2013, as to the appropriate range of sentence in these s.95 cases. In R. v. Carrol, 2014 ONSC 2063, Molloy J. analyzed the effect of Nur and Smickle on the appropriate range of sentence for well-situated first offenders like the two accused in those cases. It will be recalled that Nur was 19 years old, he had pleaded guilty, he had strong support from his pro-social family, and he had excellent rehabilitative prospects. Smickle was found posing with a gun while alone in the privacy of an apartment. Both were first offenders. Molloy J. held in R. v. Carrol, supra that two years less a day to three years was now the appropriate range of sentence in this kind of first offence s.95 case involving well situated first offenders.

More recently, the Court of Appeal has held that three years to five years is the appropriate range for a first s.95 offence where the use and possession of the gun is associated with criminal activity, such as drug trafficking. In R. v. Marshall, (2015), 2015 ONCA 692, 340 O.A.C. 201 (C.A.) and R. v. Gobire, March 7, 2016, Ontario Court of Appeal, the court upheld a three and a half-year sentence for Marshall and imposed a three year sentence for Gobire, both of whom committed first s. 95 offences and both of whom where young first offenders. Marshall was 23 and Gobire was 21 and Gobire was held to have excellent rehabilitative prospects. Both accused were involved in the drug trade and were carrying the guns in association with drug crime. Also see: R. v. Mansingh, 2017 ONCA 68; R. v. Crevier, 2013 ONSC 2630, [2013] O.J. No. 2257 (S.C.J.), aff’d (2015), 2015 ONCA 619, 330 C.C.C. (3d) 305 (Ont. C.A.).

In the case of s.95 recidivists, like Graham, MacDonnell, J. analysed the effect of the 2013 post-mandatory minimum sentence cases in R. v. Hector, 2014 ONSC 1970. He noted that in R. v. Charles (2013), 2013 ONCA 681, 303 C.C.C. (3d) 352 (Ont. C.A.) and in R. v. Chambers, 2013 ONCA 680, the Court of Appeal upheld sentences of seven years and eight years for s.95 recidivists who had each breached two prior s.109 prohibition orders. MacDonnell, J. implicitly held that the cases indicate an appropriate total range of six years to nine years for s.95 recidivists who breach s.109 orders, after the 2013 striking-down of the mandatory five-year minimum sentence. More recently, in R. v. Slack (2015), 2015 ONCA 94, 321 C.C.C. (3d) 474 (Ont. C.A.), the Court upheld a total sentence of ten years, made up of eight years for a s.95 recidivist who also received a two year consecutive sentence for breach of prohibition orders. A number of recent cases in this Court have imposed total sentences of eight and nine years for recidivist s.95 offences and breaches of s.109 prohibition orders. See: R. v. J.G., [2005] O.J. No. 4599 (S.C.J.); R. v. Alexander, 2012 ONSC 6117, [2012] O.J. No. 5087 (S.C.J.); R. v. Dunkley, [2014] O.J. No. 3062 (S.C.J.).

The defence relies heavily on Hector, the case at the bottom end of the above range, where MacDonnell J. imposed a total sentence of six years (five years for the s.95 offence and one year consecutive for the s.117.01 breaches). However, the one significant circumstance in Hector, that moved the case towards the bottom end of the range, was that the loaded handgun was found hidden in an air conditioning unit inside an apartment. It was not being carried about in public in association with unlawful activity, as in the present case. As noted previously, the mix of aggravating and mitigating factors in the present case situate it much closer to the upper end of the appropriate range. That upper end of the range supports an eight to ten year total sentence for s.95 recidivists who breach s.109 orders.

56The above review of the leading Ontario authorities, relating to s. 95 recidivists was updated in early 2023 in R. v. Owusu, supra at para. 30, as follows:

The Crown referred me to three additional cases, decided shortly before and after Graham, which similarly indicate that six to nine years imprisonment is generally the appropriate range for s. 95 recidivists. In R. v. Barton, 2017 ONSC 4039, Akhtar J. sentenced the accused to nine years for a s. 95 offence and one year consecutive for violating a firearms prohibition Order. The accused was 32 years old, he had previously been convicted in 2005 and 2008 of the same s. 95 offence, and he was an admitted drug dealer. In R. v. David, 2019 ONSC 2758, Monahan J. (as he then was) sentenced the accused to eight years (six years for a s. 95 offence and two years consecutive for violating prior prohibition Orders). The accused was 22 years old and he had prior convictions for discharging a firearm, robbery, assaults with weapons, and assaults causing bodily harm. In R. v. Owusu, 2019 ONCA 712, the Court of Appeal upheld Croll J.’s imposition of a six year sentence for a s. 95 offence. The accused was “only 19 years old” and had previously been convicted of a s. 95 offence in Youth Court. It was noted that he had “made efforts to further his education while in custody.” In light of the above authorities, Mr. Zeeh conceded on behalf of the defence that six to nine years is a normal sentence for s. 95 recidivists.

57In applying the above six to nine year range of sentence for s. 95 recidivists, it is important to note that 10 years is the maximum sentence, even for a repeated recidivist. I am satisfied that the nine year sentence submitted by both the Crown and the defence is appropriate in this case. Jason Wisdom is a mature third time s. 95 recidivist, the loaded handgun was being stored dangerously in the top of an open ottoman close to a small child’s bedroom, the handgun was ready to be fired with a bullet in the chamber, its oversized magazine was fully loaded, and there was more ammunition stored nearby. In addition, the mitigating circumstances that apply to Jason Wisdom, as set out above, do not carry a great deal of weight. In my view, the case should be situated at the top end of the range, namely, nine years.

(vii) The “totality principle”

58The above analysis of the appropriate consecutive sentences for Jason Wisdom leads to a very substantial total sentence as follows: 12 ½ years for the fentanyl offences; nine years for the firearms offence; and two years for breaches of three s. 109 Orders and one bail Order. The total sentence would be 23 ½ years.

59The parties agree that the “totality principle” is engaged in this case but they take very different approaches to its application. Defence counsel submits that the way to comply with the “totality principle” is to make the s. 95 firearms sentence concurrent with the longer fentanyl sentence and the four consecutive breach sentences, resulting in a total sentence of 12 years which reflects “the gravamen of the overall criminal conduct.” The Crown submits that the way to comply with the “totality principle” is to add up the separate consecutive sentences and then significantly reduce the 23 ½ year total sentence to 18 years. There is authority in Ontario for both of these approaches. See, e.g. R. v. Jewell and Gramlick (1995), 1995 CanLII 1897 (ON CA), 100 C.C.C. (3d) 270 at 279 (Ont. C.A.); R. v. Smith (2011), 2011 ONCA 564, 274 C.C.C. (3d) 34 at paras. 48, 88, and fn. 2 (Ont. C.A.); R. v. Ahmed (2017), 2017 ONCA 76, 346 C.C.C. (3d) 504 at paras. 78-88 (Ont. C.A.); R. v. England, supra. Appellate authorities outside Ontario overwhelmingly support the approach recommended by the Crown, namely, first deciding on appropriate consecutive sentences and then applying any necessary adjustment for “totality”. See: R. v. Draper (2010), 2010 MBCA 35, 253 C.C.C. (3d) 351 (Man. C.A.); R. v. Hutchings (2012), 2012 NLCA 2, 282 C.C.C. (3d) 104 (Nfdl. C.A.); R. v. Adams (2010), 2010 NSCA 42, 255 C.C.C. (3d) 150 (N.S.C.A.); R. v. Taylor (2010), 2010 MBCA 103, 263 C.C.C. (3d) 307 (Man. C.A.); R. v. Punko (2010), 2010 BCCA 365, 258 C.C.C. (3d) 144 (B.C.C.A.); R. v. Daye (2010), 258 C.C.C. (3d) 348 (N.B.C.A.); R. v. Wozny (2010), 2010 MBCA 115, 267 C.C.C. (3d) 308 (Man. C.A.).

60From a practical point of view, the methodology that emerges from the latter line of authority is much easier to apply, and it appears to be more doctrinally consistent with the authoritative Supreme Court decision, R. v. C.A.M. (1996), 1996 CanLII 230 (SCC), 105 C.C.C. (3d) 327 at para. 42 (S.C.C.). That is because the “totality principle” only becomes engaged after the judge has decided to impose consecutive sentences for separate offences, and after deciding the appropriate sentence for each of those separate offences. At that point, the judge must apply the “totality principle” and assess whether the “cumulative sentence” exceeds “the overall culpability of the offender”, as Lamer C.J.C. put it in C.A.M., speaking for the unanimous full Court. It should be noted that C.A.M. was decided in March 1996, almost a year after the root Ontario case, Jewell and Gramlick, was decided in July 1995. The Court of Appeal did not have the benefit of C.A.M., when deciding Jewell and Gramlick, and the subsequent appellate case law in Canada has overwhelmingly departed from that early Ontario decision and has closely followed C.A.M. In my view, it is open to real doubt as to whether Jewell and Gramlick should still be followed, however, that is for the Court of Appeal to decide.

61In the most recent Ontario case, England, the trial judge adopted the approach recommended by the Crown in the present case (imposing sentences of 10 years for firearms offences and seven and a half years consecutive for drug offences, and then reducing the total sentence by two years in order to reflect the “totality” principle). On appeal, Zarnett J.A. on behalf of the Court, helpfully summarized the law relating to “totality” and upheld the trial judge’s approach (at paras. 6, 92, and 105):

The totality principle “requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender”: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 42. A “combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences in question or the overall culpability of the offender”: R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, at para. 18.

The trial judge’s decision on the appropriate way to account for the totality principle was discretionary and warrants appellate deference: R. v. Dhillon, 2019 ONCA 159, 373 C.C.C. (3d) 392, at para. 23; R. v. McNelis, 2007 ONCA 777, at para. 2; R. v. Edwardsen, 2021 BCCA 338, at para. 41; R. v. Cromwell, 2021 NSCA 36, at paras. 89-90. In light of the primary sentencing principles of denunciation and deterrence, and the appellant’s criminal record, the sentence imposed by the trial judge properly reflected the principle of totality. It was not “crushing” in light of the appellant’s record and prospects: M. (C.A.), at para. 42. And it did not exceed the gravity of the offences in question or the overall culpability of the offender. It was a fit sentence. [Emphasis added].

62Applying the above principles set out in England, which emerge from C.A.M. and from Johnson, defence counsel’s approach to “totality” can only succeed if the longest sentence proposed (10 years for the fentanyl counts) and any shorter consecutive sentences (two years for the breach offences) actually reflect “the overall culpability of the offender.” In my view, this is the flaw in defence counsel’s position. By seeking a concurrent sentence for the very serious and separate s. 95 offence, committed by a third time recidivist, the overall culpability of the offender is not reflected in the total proposed 12 year sentence. Indeed, the s. 95 firearm conviction is almost ignored in the proposed 12 year sentence. The Crown’s approach, on the other hand, leading to a total sentence of 18 years, does reflect “the overall culpability of the offender.” In addition, it is not “unduly long or harsh” for this offence and this offender, which is the other requirement of the “totality principle”. Given Jason Wisdom’s persistent recidivism, in relation to both trafficking in hard drugs and possessing loaded firearms, and given his uncertain rehabilitative prospects, a sentence of 18 years length is necessary and proportionate, in order to protect the public and to reflect the sentencing objectives of denunciation and deterrence.

63In the result, the 23 ½ year combined consecutive sentences in Jason Wisdom’s case are reduced by five and a half years in order to reflect the “totality principle”, resulting in a total sentence of 18 years. The sentence is further reduced by 12 months Summers credit. Accordingly, the sentence remaining to be served is 17 years.

64Applying the “totality principle” in Dae-Shawn Wisdom’s case is somewhat more difficult. That is mainly because the sentence for Dae-Shawn’s present fentanyl offences is being made consecutive to an earlier sentence imposed by a different judge in relation to an offence that is not presently before this Court. In the earlier case, North J. of the Ontario Court of Justice imposed a nine year sentence for possession of fentanyl for the purpose of trafficking and then reduced the sentence to seven years, in order to reflect two years Summers credit and Duncan mitigation. This earlier sentencing took place on April 30, 2024 and none of the relevant facts relating to that case are before me (except that the Crown advised during submissions that the fentanyl trafficking in the case before North J. was at the “ounce level”). I can infer from the fact that a nine year sentence was imposed, on the basis of a joint submission and after a guilty plea, that it must have been a relatively serious case of “mid-level” trafficking. Beyond that, it is difficult to assess Dae-Shawn Wisdom’s “overall culpability” for the offence that was before North J. and for the offences that are now before me. A further difficulty is that the Crown’s position in the present case was that a nine year sentence, reduced to seven years for “totality”, was appropriate in relation to the fentanyl counts. As set out above, my view is that eight and a half years is the appropriate sentence for the fentanyl counts in this case, before adjusting the sentence for “totality”. In other words, I start from a lower sentence than the one proposed by the Crown, before adjusting that sentence for “totality”.

65In light of Dae-Shawn Wisdom’s recidivism, the relative gravity of the present offences, and Dae-Shawn’s somewhat uncertain rehabilitative prospects, I am satisfied that the eight and a half year consecutive sentence in the present case should be reduced to seven and a half years, in order to reflect the “totality principle”. After Summers credit of one and a half months (rounded up to two months) the remaining sentence to be served is seven years and four months consecutive to the seven year sentence imposed by North J. In other words, the total sentence after the two separate sentences merge, will be 14 years and four months.

F. CONCLUSION

66The final task is to allocate the above sentences to the various counts in the two Indictments where guilty verdicts have been entered. In relation to the drug offences, it will be recalled that the Crown separated the different amounts of fentanyl and cocaine into separate counts in the Indictment, based on where the drugs were seized (in the ottoman, in various places in the kitchen, and in the Nissan car). For purposes of sentencing, the parties have sensibly made their submissions on the basis of the total amount of each drug possessed by each accused, regardless of its particular location. Accordingly, I will allocate each accused’s fentanyl and cocaine sentences to both locations where the drugs were seized (in the ottoman and in the kitchen, in Jason’s case, and in the kitchen and in the Nissan car in Dae-Shawn’s case), but will make these sentences concurrent to each other. I will also apply the reductions for “totality” and for Summers credit, as best I can, to the counts that carry the longer consecutive sentences.

67In conclusion, Jason Wisdom is sentenced as follows:

(i) Count 1, beginning with the jury Indictment (fentanyl in the ottoman): 12 ½ years reduced by three and a half years for totality, resulting in a nine year sentence; (ii) Count 2 (fentanyl on the kitchen counter): 12 ½ years reduced by three and a half years for totality, resulting in a nine year concurrent sentence; (iii) Count 3 (cocaine in the ottoman): five years concurrent; (iv) Count 4 (cocaine on the kitchen counter): five years concurrent; (v) Count 5 (cocaine in the kitchen drawer): five years concurrent; (vi) Count 6 (crack cocaine on the kitchen floor): five years concurrent; (vii) Count 7 (methamphetamine on the kitchen counter): four years concurrent; (viii) Count 10 (cash proceeds in the kitchen): six months concurrent; (ix) Count 12 (firearm in the ottoman): nine years reduced by two years for totality, resulting in a seven year consecutive sentence; (x) Count 2, in the judge alone Indictment (breach of s. 109 Order): six months consecutive; (xi) Count 3 in the judge alone Indictment (breach of s. 109 Order): six months consecutive; (xii) Count 4 in the judge alone Indictment (breach of s. 109 Order): six months reduced by six months Summers credit, resulting in a suspended sentence; (xiii) Count 5 in the judge alone Indictment (breach of recognizance): six months reduced by six months Summers credit, resulting in a suspended sentence.

68In the result, and after the above adjustments for both “totality” and Summers credit, the total sentence for Jason Wisdom is 17 years (made up of nine years on Count 1 of the jury Indictment, seven years consecutive on Count 12 of the jury Indictment, six months consecutive on Count 2 of the judge alone Indictment, and six months consecutive on Count 3 of the judge alone Indictment). All the other sentences are concurrent or they are suspended sentences.

69In the case of Dae-Shawn Wisdom, the sentences are as follows:

(i) Count 2, beginning with the jury Indictment (fentanyl on the kitchen counter): eight and a half years reduced to seven and a half years for totality and reduced by two months Summers credit, resulting in a seven years and four month sentence consecutive to the sentence already being served; (ii) Count 4 (cocaine on the kitchen counter): four years concurrent; (iii) Count 5 (cocaine in the kitchen drawer): four years concurrent; (iv) Count 7 (methamphetamine on the kitchen counter): four years concurrent; (v) Count 8 (cocaine in the car): four years concurrent; (vi) Count 9 (fentanyl in the car): eight and a half years reduced to seven and a half years for totality and reduced by two months Summers credit, resulting in a seven years and four months concurrent sentence; (vii) Count 11 (cash proceeds on his person): six months concurrent.

70In the result, the total sentence for Dae-Shawn Wisdom is seven years and four months consecutive to the sentence already being served, previously imposed by North J. on April 30, 2024.

71I will hear submissions from counsel as to any ancillary Orders.

M.A. Code J.