Court File and Parties

COURT FILE NO.: CR-22-90000527-0000 DATE: 20240725 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – TENZIN YOUNGDUE

Counsel: Ryan McSheffrey, Counsel for the Public Prosecution Service of Canada Allison Cormie-Bowins, Counsel for Tenzin Youngdue

HEARD: December 11, 2023, and March 14, 2024

HIMEL J.

Reasons for Sentence

[1] Tenzin Youngdue entered pleas of guilty to the following charges: possession of fentanyl for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 as amended (“CDSA”) and possession of proceeds contrary to s. 354(1)(a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46. He had elected to be tried by a judge sitting alone.

[2] The plea inquiry pursuant to s. 606(1) of the Criminal Code was satisfied. Mr. Youngdue confirmed that he was entering these pleas voluntarily, that he understood that the pleas were an admission of the essential elements of the offences, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the pleas, and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence. Counsel have made their submissions on sentence. The following are my reasons for sentence.

Factual Background

[3] The facts were admitted pursuant to s. 655 of the Criminal Code. On Friday, March 5, 2021, at approximately 9:06 p.m., members of the Toronto Police Service Public Safety Response Team executed a Controlled Drugs and Substances Act search warrant at unit 210-165 Jameson Avenue in Toronto. When they entered the unit, they found Mr. Youngdue inside the single bedroom. While he was being arrested, police observed him discarding a quantity of controlled substances. They conducted a search incident to the arrest and found in his backpack various controlled substances.

[4] The items located and seized by police were as follows:

• 98.73 grams of fentanyl.
• 173.77 grams of a cocaine.
• 14.26 grams of Oxycodone; and
• 6.92 grams of hydromorphone.
• Canadian currency in the amount of $1,350.35

Evidence on the Sentencing Hearing

[5] Counsel filed an Agreed Statement of Facts which has been marked as an exhibit. Crown counsel submitted the criminal record of Mr. Youngdue which indicates that on December 8, 2020, he was convicted of traffic in a Schedule I substance (two counts) and possession of a Schedule I substance for the purpose of trafficking and received a sentence of 20 days concurrent and two years of probation in addition to credit for 160 days of pre-sentence custody. He also received a s. 110 order for life. On April 11, 2023, he was convicted of traffic in a Schedule I substance and received a sentence of 258 days imprisonment with credit for 12 days of pre-sentence custody and possession of a Schedule I substance for the purpose of trafficking and received a sentence of six months concurrent.

[6] Counsel for Mr. Youngdue submitted a letter from Chrysalis Dental Centre outlining that Mr. Youngdue had a fractured tooth removed and was in the process of having dental implant surgery. He had a follow up check-up to assess the healing and then the implant was completed on July 22, 2024, after the healing from the surgical procedures.

[7] In addition, Ms. Cormie-Bowins filed letters of support from Mr. Youngdue’s parents, his girlfriend and a friend in the community. Karma Tsultrim Youngdue, Tenzin Youngdue’s father, wrote that Mr. Youngdue had been an honour student when he graduated from high school. He played basketball. He described that his son matured greatly over the last two years and has taken responsibility for his actions. He said Tenzin has volunteered in the community. Mr. Youngdue’s father has expressed his sincere support for his son.

[8] Tenzin Youngdue’s mother wrote that her son had a difficult upbringing and was raised in a single parent household because of his parents’ divorce. He fell in with the wrong crowd and made poor choices. In the last two years, he has distanced himself from those old friends and turned his life around such that he has potential to be a valuable member of society. Dikey Ocer wrote a letter discussing that they grew up in the Parkdale area and that Mr. Youngdue has made great strides in improving his life. Geoffrey Pearson wrote that he has been a friend of Mr. Youngdue for ten years and that Mr. Youngdue has been a supportive friend to him. Akeesan Jeevakanthan also wrote to support Mr. Youndue and to offer insight into his background. Finally, Thipika Balakrishnan wrote on March 5, 2024, that he has known Mr. Youngdue since he was nine years old, initially meeting him at the Parkdale Community Centre. Mr. Youngdue volunteered to provide a basketball drills event with young people in the community.

[9] Mr. Youngdue apologized to the court expressing his regret and saying that he is deeply ashamed for letting down his family and friends.

Positions of the Parties

[10] The Crown and the defence join in their submission to the court that an appropriate sentence in this case is a global sentence of 5.5 years of imprisonment. This would be broken down as follows: 5.5 years for the possession of fentanyl for the purpose of trafficking conviction, and 30 days for possession of proceeds obtained by crime also served concurrently to the sentence of 5.5 years. They further agree that certain ancillary orders should be made: a forfeiture order for the cash located in the home of Mr. Youngdue, a s. 109 order for life, and an order that a DNA sample be taken from Mr. Youngdue in accordance with s. 487.051(3) of the Code.

[11] Mr. McSheffrey submits that the range of sentence for an offence of possession of fentanyl for the purpose of trafficking is between 6 and 9.5 years of imprisonment. Here, there are some significant mitigating factors which include the guilty plea, that Mr. Youngdue has taken responsibility for his actions, that court resources are scarce and that he is young and has prospects of rehabilitation.

[12] The aggravating factors are the quantity of the drugs, the pernicious nature of the drug, that he has a recent related criminal record for trafficking in a Schedule I substance in 2020 (two counts) and possession of a Schedule I substance for the purpose of trafficking also in 2020 for which he received sentences of 20 days concurrent with credit of 160 days all served concurrent. Moreover, on April 11, 2023, he was convicted of trafficking in a Schedule I substance while on bail for these charges and received 258 days in addition to 12 days of pre-sentence custody and 6 months concurrent for possession of a Schedule I substance for the purpose of trafficking. He had been arrested on these charges on March 5, 2021, released on house arrest and arrested on the new charges on September 15, 2021, and released on house arrest with electronic monitoring on October 14, 2021. He was sentenced on April 11, 2023. Thus, he has been on extremely strict bail terms since October 14, 2021.

[13] The Crown and defence agree that Mr. Youngdue should receive credit in accordance with R. v. Downes (2006), 2006 ONCA 3957, 37 C.R. (6th) 46 (Ont. C.A.) for time spent on extremely restrictive bail conditions. They submit that 5 months should be deducted from the sentence so that the remaining sentence is 5 years.

[14] Crown counsel did not oppose the defence request to adjourn the sentence until Mr. Youngdue completed the dental surgical procedure that he has been undergoing.

[15] Counsel for the defence joins Crown counsel in the submission that an appropriate sentence is a global sentence of 5.5 years with credit for pre-sentence custody. The defence points out that Mr. Youngdue was 20 years old at the time of the offences. He is a youthful offender who has significant rehabilitative prospects which justifies a sentence somewhat below the range. He has pleaded guilty and taken responsibility for his actions. Mr. Youngdue’s parents separated when he was young, and he went between his parents’ homes. He completed a high school education. He was not an addict but used cocaine regularly. He stopped in 2021 with the help of attending at the Centre for Addiction and Mental Health. Mr. Youngdue has complied with the terms of bail since the fall of 2021 and has turned his life around. Mr. Youngdue has support from his family and friends. While on bail, he has spent much time with his parents and has taken some business courses on-line. Counsel says his rehabilitative prospects are good.

[16] Ms. Cormie-Bowins joins with the Crown that the appropriate Downes credit for being on a very restrictive bail now without incident for more than two years should be five months. She does not oppose the ancillary orders.

Analysis and the Law

[17] Before turning to the specific circumstances of this case, I first consider the general sentencing principles which apply. The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code. It is to ensure respect for the law and to promote a just, peaceful and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section which include denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

[18] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is known as the principle of parity reflected in s. 718.2(b). Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh otherwise known as the principle of totality reflected in s. 718.2(c). The offender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, particularly Aboriginal offenders. These are known as the principles of restraint reflected in ss. 718.2(d) and (e).

[19] I now turn to the relevant jurisprudence on sentencing applicable to the offences in this case. In cases involving persons convicted of trafficking and possession for the purposes of trafficking in controlled substances, the courts have ruled that deterrence and the protection of the public are of paramount consideration. The nature and quantity of the drug are relevant to the issue of sentencing. Whether there is a significant element of commercialism, the role of the offender and the circumstances of the offender are all relevant considerations. In passing sentence, the court may consider the well-being of younger but presently uncommitted potential users of drugs and in so doing, impose a sentence which emphasizes the protection of the public. The court will also look to the circumstances of the offender including whether the offender has an addiction to drugs. The cases involving possession for the purpose of trafficking where the drug is fentanyl and the quantities are significant support that the range of sentence is between 6 and 9.5 years with some exceptions: see R. v. Sidhu, 2019 ONCA 880; R. v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88, R. v. Boose, 2023 ONCA 493; R. v. Loor, 2017 ONCA 696, [2017] O.J. No. 4628 and R. v. Smith, 2023 ONCA 500.

[20] In the decision of R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, the Supreme Court of Canada upheld that the Alberta Court of Appeal correctly intervened where it found that the sentences imposed at first instance were demonstrably unfit for cases of largescale fentanyl trafficking and that severe penalties involving double-digit penitentiary terms were appropriate.

[21] While the case at bar does not involve largescale commercial trafficking in fentanyl, the comments of Justice Moldaver are relevant regarding the dangers posed by trafficking in hard drugs including direct and indirect harms to society and the specific dangers posed by largescale fentanyl trafficking given the potency of the drug and the risk of overdose and death. While he wrote that heavy penitentiary sentences are appropriate for offenders who have trafficked in large quantities of fentanyl, he did say at para. 99, “[m]y comments that follow do not apply to sentences for street level trafficking or where traffickers are motivated by a need to support their own addiction.” Thus, while the range of sentence discussed by the Supreme Court in Parranto is not applicable to the case at bar, the comments regarding the consequences of fentanyl trafficking and the dangers of this drug are pertinent.

Decision

[22] Sentencing involves the exercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of the offence and the need for the sentence to meet the sentencing objectives outlined by Parliament. The goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: see R. v. Wust, 2000 SCC 18 at para. 44. The sentencing process is an individualized one, but the court must remain mindful of the sentencing ranges discussed in the jurisprudence.

[23] In considering both the circumstances of the offence and the circumstances of this offender, I consider the relevant aggravating and mitigating circumstances. I must also consider that like offenders should be treated alike. I consider the following circumstances to be relevant in the case of Mr. Youngdue.

[24] Mr. Youngdue is 23 years of age and was born on December 13, 2000. He was 20 years old when these offences were committed. He grew up in the Parkdale area. His parents had separated, and he lived with his father who was dealing with alcoholism. He went between his parents’ homes. His mother lived in Brampton and worked hard to pay the bills. Mr. Youngdue had little guidance and in fact, had to provide for his younger siblings. Mr. Youngdue roamed the neighbourhood and got involved with drugs and criminality. Without parental support, he stopped taking school seriously. Since that time, Mr. Youngdue has finished high school and has taken business courses. He has hopes of making clothing. Mr. Youngdue had to have a dental procedure because of a fractured tooth following a fall. Those procedures involved an implant and counsel requested deferring the sentence until the procedure was completed and with the Crown’s consent, this was done.

[25] I am very impressed with the letters filed demonstrating significant support from family and friends and recognition that Mr. Youngdue has changed his ways and has made great strides. The letters reference that he has expressed remorse and regret for his actions and has shown a commitment to change. I am also satisfied that Mr. Youngdue has good rehabilitative potential as demonstrated by his efforts to take courses and to do volunteer work in the community. Mr. Youngdue apologized to the court and says he is ashamed of his actions.

[26] Cases regarding the appropriate range of sentence for possession of fentanyl for the purpose of trafficking emphasize denunciation and deterrence. The effect of fentanyl on drug users is a relevant consideration and the courts view the incredibly negative impact of this drug on users and on society. While the Supreme Court in Parranto dealt with sentencing for commercial high-level drug trafficking in fentanyl, the court’s comments regarding the harm caused by this drug are especially relevant. The jurisprudence cited by the Crown supporting a 6-to-9.5-year range for trafficking or possession of fentanyl for the purpose of trafficking in fentanyl highlight the ills caused by this drug.

[27] In the case at bar, there are many factors in mitigation including that Mr. Youngdue was a youthful offender. He pleaded guilty to the charges and has demonstrated remorse. He is taking responsibility for his actions. He has saved valuable court resources at a time when resources are scarce because of the aftermath of the COVID-19 pandemic. Mr. Youngdue has strong family support and has made efforts at rehabilitation. The letters filed in support demonstrate a changed person who has already embarked on the road to rehabilitation.

[28] The aggravating factors include the nature of the offences, the type of drug involved, and the effect of this type of drug on the public. Fentanyl is one of the deadliest illicit substances. The prevalence of fentanyl in the community is of grave concern. It is obvious that Mr. Youngdue was in possession of fentanyl for the purpose of earning a profit. The further aggravating factor is that he has a criminal record for drug offences.

[29] A sentence for these offences must emphasize denunciation and deterrence. While the courts have suggested a range of sentence of 6 to 9.5 years for possession of fentanyl for the purpose of trafficking in similar quantities (almost 100 grams). I am mindful that there are cases that call for a sentence outside a particular range and the determination of a just sentence is a highly individualized exercise: see: R. v. Lacasse, 2015 SCC 64, at paras 57 and 58. There are a number of mitigating factors which take this case slightly below the range. They include the guilty plea, that Mr. Youngdue has taken responsibility, that court resources are scarce, that he is young and has significant prospects of rehabilitation. The aggravating factors are the quantity of the drug and the nature of the drug in addition to Mr. Youngdue’s criminal record. Further, this is a joint submission of counsel. Joint submissions play a vital role in contributing to the administration of justice and as Justice Moldaver wrote in R. v. Anthony Cook “Without them, our justice system would be brought to its knees and eventually collapse under its own weight.: at para. 41.. In my view, this joint submission is made by experienced counsel who have arrived at a resolution which is fair and consistent with the public interest.

[30] Furthermore, counsel have agreed and jointly submitted to the court that credit for pre-sentence custody should be given at 1.5:1 which would equal 12 days. Counsel also join in their submission that credit for the strict terms of judicial interim release should be granted in the amount of five months. In R. v. Downes, Justice Rosenberg of the Ontario Court of Appeal wrote that time spent while on stringent bail conditions is a relevant mitigating factor that a sentencing judge must consider see: para. 37. The court is to look at the factors of the length of time on bail subject to the conditions, the stringency of the conditions, the impact on the offender’s liberty and the offender’s ability to carry on normal relationships, employment and activity. The judge has discretion to determine the impact of such mitigation. There is no set formula for credit.

[31] I accede to the joint submission that the appropriate sentence in this case is one of 5.5 years less credit for pre-sentence custody at 1.5:1 in accordance with R. v. Summers which equals 12 days and Downes credit of 5 months.

Result

[32] Mr. Youngdue shall be sentenced as follows: for the offence of possession of fentanyl for the purpose of trafficking, he shall be sentenced to 5.5 years imprisonment; for the offence of possession of proceeds ($1,350.), he shall be sentenced to 30 days to be served concurrently to the possession of fentanyl offence. The global sentence for these offences shall be 5.5 years (2007 days) with credit of 5 months (150 days) in accordance with Downes and less 12 days for pre-sentence custody leaving 1,845 days to be served.

[33] There will be a s. 109 order for life. I also order that Mr. Youngdue provide a sample of his DNA pursuant to s. 487.051(3) of the Criminal Code as this is a “secondary designated offence” under this provision.

[34] I further order that the money and other items found in Mr. Youngdue’s residence be forfeited to the Crown.

Himel J. Released: July 25, 2024