Court File and Parties

Court File No.: CR-24-20000445-0000 Date: 2024-08-29 Ontario Superior Court of Justice

Between: His Majesty The King And: Karson Benjamin

Counsel: E. Pancer, T. Vogel and K. Kim, Counsel for the Crown A. Gold and E. Williams, for Mr. Benjamin

Heard: July 2, 2024

Before: M. Forestell J.

Reasons for Sentence

Overview

[1] The case before me is, as described by the Crown in their written submissions, extraordinary and unique. The offences committed by Karson Benjamin were numerous and profoundly serious. He participated in 34 transactions in which he trafficked 27 firearms, 12 overcapacity magazines, 2 selector switches, a total of just over half a kilogram of fentanyl and 11.3 grams of cocaine. Upon his arrest, he was in possession of other drugs, a loaded handgun and proceeds of crime.

[2] This case is unique and challenging not only because of the number and gravity of the offences, but because of the circumstances of Mr. Benjamin. He is a very youthful first offender. At the time of the commission of the offences, Mr. Benjamin had just turned 18. The first sale to the undercover officer, for which he was not charged, occurred just before his 18th birthday. He is now 20 years old.

[3] I am satisfied that Mr. Benjamin has a real prospect of rehabilitating himself. I reach this conclusion not only because he is youthful and youthful offenders are generally seen as having a greater chance of maturing and reforming over time, but also because of Mr. Benjamin’s early guilty plea. He has taken responsibility for what he has done.

Positions of the Parties

[4] The Crown seeks a 15-year global sentence. The Crown’s position is that the offence of trafficking in fentanyl should attract a ten-year sentence, and the offences of trafficking in firearms should attract sentences of ten years concurrent to each other and consecutive to the trafficking in fentanyl. The other offences (trafficking in cocaine, possession of cocaine for the purpose of trafficking, trafficking prohibited devices, possession of loaded restricted firearm and possession of proceeds of crime) should all attract concurrent sentences. The Crown submits that while the otherwise appropriate sentence would be 20 years, the application of the principle of totality should reduce the global sentence to 15 years.

[5] Mr. Benjamin has fairly conceded that the 15-year sentence sought by the Crown is the starting point for sentencing for these offences. His submission, however, is that the appropriate sentence before considering totality and the early guilty plea is eight years for the fentanyl trafficking and a further eight years for the firearms trafficking. His position is that the combined sentence of 16 years should be reduced in consideration of the early guilty plea and the principles of totality and restraint. Mr. Benjamin submits that the global sentence should be no more than ten years before credit for presentence custody.

[6] The parties have agreed that the harsh conditions of presentence custody should reduce the sentence beyond the statutory or Summers credit and have agreed on the quantum of the reduction. They have agreed that Mr. Benjamin should be credited a total of 1458 days for his presentence custody (approximately 47 months).

Circumstances of the Offences

[7] The details of the offences are set out in the 52-page Agreed Statement of Facts filed on the plea and sentencing. Mr. Benjamin took the stand and admitted these facts under affirmation at the sentencing hearing.

[8] The Crown filed and played an intercepted call between Mr. Benjamin and his intimate partner, in which he admitted to assaulting his partner with a gun. I have also received and reviewed the text messages between Mr. Benjamin and the undercover officers filed as an appendix to the Agreed Statement of Facts.

[9] Mr. Benjamin was introduced to the undercover officer by Anthony Colley. In subsequent transactions, Mr. Benjamin referred to himself as Mr. Colley’s “supplier”. Mr. Benjamin told the undercover officer that he had a firearm for sale.

[10] There were a total of six sales of fentanyl, with the first sale on August 11, 2022 and the last sale on December 14, 2022. The amounts sold ranged from 1.5 to 5.5 ounces, for a total of 22.5 ounces (or 0.638 kilograms).

[11] Mr. Benjamin conducted all but one of the transactions in the company of Mr. Colley. During the negotiations, Mr. Benjamin took orders for the colour of the fentanyl. In one transaction, another participant, Mr. Maharaj, in the presence of Mr. Benjamin, vouched for the quality of the fentanyl, saying, “It kills people.”

[12] There were 16 sales of firearms between August 26, 2022 and January 6, 2023. These sales each involved between one and three firearms. A variety of firearms were sold, ranging from handguns to assault rifles. In addition, Mr. Benjamin sold 12 overcapacity magazines and 2 selector switches. Selector switches allow semi-automatic firearms to function as fully automatic weapons. Mr. Benjamin displayed detailed knowledge of firearms, ammunition and firearms accessories. He said that his friend and his sister’s boyfriend were his suppliers.

[13] On January 6, 2023, Mr. Benjamin’s conversation with his girlfriend was intercepted. In the call, his girlfriend complained of being assaulted by Mr. Benjamin with a gun. He admitted to assaulting her. He was verbally abusive and called her a “rat” and a “fucking snitch”. He told her that she was lucky to be alive.

[14] There is one count of trafficking in cocaine that relates to two incidents. In one incident, Mr. Benjamin sold 9.3 grams of cocaine to the undercover officer. In the other incident, Mr. Benjamin’s mother is captured on the wiretap asking Mr. Benjamin to retrieve a bag of cocaine from her nightstand and to give it to a person who was coming to pick it up. The bag contained approximately two grams of cocaine.

[15] The total amount paid to Mr. Benjamin for the drugs, firearms, ammunition, magazines and selector switches was $179,400.

[16] Upon his arrest, Mr. Benjamin was in possession of a loaded handgun, 14.45 grams of cocaine, 32.53 grams of Percocet, 13.24 grams of OxyContin, 18.88 grams of methamphetamine and $3200 in cash.

Circumstances of the Offender

[17] Mr. Benjamin is a person with a very difficult and disadvantaged background. His parents divorced when he was four years old. Mr. Benjamin’s father was not present in his life until he was eight years old. His father then went to jail in 2021 for sexual assault. He was raised by his mother, and then by his mother and stepfather. His stepfather, who was a father figure and mentor to Mr. Benjamin, died in a tragic boating accident just two weeks before Mr. Benjamin began this crime spree.

[18] He struggled in school because of Attention Deficit Disorder (“ADD”)/Attention Deficit Hyperactivity Disorder (“ADHD”). He is functionally illiterate. He dropped out of school because of the embarrassment of being unable to read and write, but he has taken steps to attend classes while incarcerated. Mr. Benjamin filed educational records of psychological testing in school. That testing shows very compromised executive function. The tests indicate that Mr. Benjamin’s ability to plan or to organize is severely compromised.

[19] Mr. Benjamin has considerable community support as evidenced by the letters of support filed on sentencing. The letters speak to his struggles at school and the toll that his stepfather’s death took on him.

[20] Mr. Benjamin is said to have a close relationship with his mother and sister. It is a matter of some concern that his mother is captured on the wiretap in this case directing Mr. Benjamin to retrieve and deliver two grams of cocaine. His sister’s boyfriend is said to be one of his suppliers of firearms.

[21] Mr. Benjamin’s time in presentence custody has had a profound impact on him. His contact with family has been limited. He has been impacted by frequent lockdowns. He has suffered from depression.

[22] Mr. Benjamin has no criminal record. He has entered very early guilty pleas to all charges. He took the witness stand and admitted his conduct under affirmation. He gave up his right to be part of a Charter challenge to the admissibility of the intercepted communications and other evidence obtained in the investigation. Mr. Benjamin has expressed remorse and has indicated an intent to pursue his education. His illiteracy has been a significant obstacle to obtaining gainful employment. He hopes to have the opportunity to achieve literacy while incarcerated.

Analysis

General Principles

(i) Proportionality and Parity

[23] As the Supreme Court of Canada explained in R. v. Friesen, “All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[24] Rosenberg J.A. wrote in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[25] Related to proportionality is the principle of parity: “similar offenders who commit similar offences in similar circumstances should receive similar sentences.” As observed in Friesen, parity is an expression of proportionality: “[J]udges calibrate the demands of proportionality by reference to the sentences imposed in other cases.”

(ii) The Objectives of Deterrence, Denunciation and Protection of the Public

[26] Section 718 of the Criminal Code identifies the objectives of sentencing, including denunciation, specific and general deterrence, separation of the offender from society, the rehabilitation of the offender, the promotion of a sense of responsibility in the offender, and an acknowledgement of the harm done to victims and to the community.

[27] Deterrence, denunciation and the protection of the public are the predominant sentencing objectives for firearms offences. These courts have repeatedly acknowledged the need for exemplary sentences in gun cases. Gun violence in our community is a matter of grave concern.

[28] As held in R. v. Mackie:

[T]he manufacturing and trafficking of illegal firearms are serious crimes which must be strongly denounced. All too often these firearms end up being used in the commission of offences of violence, with tragic and devastating consequences. Society must be protected from the violence associated with illegal firearms and those who facilitate the manufacturing and/or trafficking of such firearms should expect to receive significant jail sentences when they are brought before the courts for sentencing.

[29] Denunciation and deterrence are also the primary objectives in sentencing for trafficking in fentanyl. Moldaver J. in R. v. Parranto wrote:

Largescale trafficking in fentanyl is not a crime marked merely by the distribution and sale of an illicit substance; rather it is a crime marked by greed and the pursuit of profit at the expense of violence, death and the perpetuation of a public health crisis previously unseen in Canadian society. (…)

(…) [H]eavy penitentiary sentences will be appropriate where offenders have trafficked in large quantities of fentanyl and assumed leadership roles in the trafficking operation. Indeed, in the context of largescale fentanyl trafficking operations, substantial sentences should be neither unusual nor reserved for exceptional circumstances.

[30] The combination of trafficking in Schedule I substances and firearms is a particularly aggravating factor on sentence. It has been recognized that guns and drugs are a “deadly combination”. R. v. Dass; R. v. Manning.

(iii) Rehabilitation and the Principle of Restraint

[31] While denunciation, deterrence and the protection of the public are the primary objectives in sentencing for firearms and drug offences, rehabilitation remains an objective of sentencing, particularly for youthful first offenders. It is a well-established principle that a first sentence of imprisonment should be as short as possible. Priest; R. v. Borde; R. v. Disher; R. v. Desir; R. v. Simpson; R. v. J.T.; R. v. Faroughi; R. v. Hoang.

[32] In R. v. Francis, the Court of Appeal for Ontario re-emphasized the critical role that the principle of restraint plays when sentencing a youthful first offender. Gillese J.A. wrote at para. 80:

While the objectives of denunciation and deterrence must be given adequate weight, they should rarely be the sole determinants of the length of a first penitentiary sentence. Where an offender is young and has never served a period of incarceration, the shortest sentence possible ought to be imposed. [Citations omitted.]

(iv) Mitigation of an Early Guilty Plea

[33] An early guilty plea is a recognized mitigating factor on sentence. A guilty plea in the context of an overwhelming Crown case may be entitled to less weight in mitigation. Friesen. The rationale for this approach, as set out in R. v. Faulds, is that “[i]n some cases, a guilty plea is a demonstration of remorse and a positive step towards rehabilitation. In other cases, a guilty plea is simply a recognition of the inevitable.” However, even where the guilty plea is not found to be an expression of real remorse, it remains a mitigating factor in that it still saves valuable judicial resources. In R. v. Shaikh and Tanoli, Molloy J. held that, in light of the current backlog of cases in this jurisdiction, guilty pleas which save valuable judicial resources should result in more lenient sentences, so long as the resulting sentence remains fit.

[34] The Alberta Court of Appeal, in a series of decisions, has endorsed the principle that, generally, a sentence should be reduced by one third for an early guilty plea. R. v. SLW; R. v. Braile; R. v. McDonald. However, that court has, in other cases, acknowledged that guilty pleas have a variable influence on sentencing and may have little impact on the sentence. R. v. Ryan.

[35] The quantification of a general one third discount for a guilty plea has not been adopted in Ontario. The most recent commentary by the Supreme Court of Canada in Friesen supports the conclusion that the impact of an early guilty plea is variable. In Friesen, the sentencing judge failed to mention the guilty plea as a mitigating factor. The Supreme Court held that explicit consideration of the guilty plea would not have impacted the sentence.

[36] I am of the view that a rigid formula of a one third discount for a guilty plea, even as a starting point or general practice, would be wrong in principle. A guilty plea as a mitigating factor cannot be considered in a vacuum. It is a factor that is case-specific. It must be considered in the context not only of the strength of the Crown’s case but of the circumstances of the offender and the degree to which it is indicative of remorse and supportive of the prospect of rehabilitation. The degree of sentence mitigation for an early guilty plea may also vary depending on the judicial resources saved and the value of the benefit to the court’s resources.

(v) Multiple Offences: Consecutive versus Concurrent Sentences and the Principle of Totality

[37] This case involves multiple offences. The Supreme Court of Canada in R. v. Bertrand Marchand endorsed a sequential approach to sentencing in such cases. In Bertrand Marchand, the sentencing judge first determined the appropriate sentence for each offence individually. Next, she considered whether the sentences should be concurrent or consecutive. Only after doing so did she consider the principle of totality. At paras. 92 and 93 Martin J. wrote:

92 I agree with the sentencing judge's approach in this case and believe it has benefits over the alternative manner of simply setting a global amount for multiple offences. This sequential approach ensures a separate consideration of the fit and appropriate punishment of each offence. (…)

93 Articulating individual sentences for each offence provides needed clarity and is of great assistance when one of the challenged punishments are varied on appeal or declared to be unconstitutional. Setting an individual sentence for each offence provides transparency and allows a judge to weigh the seriousness of each offence. Clearly identifying individual sentences may also prove to be of great assistance in any subsequent sentencing proceedings should an offender re -offend — for example, by providing sentencing judges with a starting point when applying the “jump principle” to repeat convictions for the same offences. [Citations omitted.]

[38] As articulated in Bertrand Marchand and Friesen, "offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences.” Determining whether sentences should be consecutive or concurrent is a fact-specific inquiry.

[39] After determining the overall fit sentence, the court must apply the principle of totality. As explained in Bertrand Marchand, at para. 99:

The effect of the totality principle is to require a judge to ensure that the series of sentences are, in aggregate, "just and appropriate". This involves taking "one last look at the combined sentence" to assess whether it is "unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender". If the principle of totality is offended, the sentences can be adjusted by making some concurrent, or if this does not achieve a just and appropriate sentence, by reducing the length of one or more sentences. [Citations omitted.]

Application of the Principles

[40] The application of the principles of proportionality and parity requires the identification and consideration of aggravating and mitigating factors.

[41] There are aggravating factors in this case.

[42] The nature and quantity of the substances trafficked are aggravating factors. Mr. Benjamin trafficked in both fentanyl and cocaine. As set out above, fentanyl is a lethal substance and the offender in this case was aware of the deadly nature of the drug. The amount trafficked was substantial. Cocaine is a less lethal substance but is a highly addictive and dangerous substance.

[43] The type and quantity of firearms trafficked is a further aggravating factor. Mr. Benjamin trafficked in a variety of firearms, from handguns to assault rifles. He also sold overcapacity magazines and selector switches, making the firearms potentially even more lethal.

[44] The sale of firearms and narcotics in combination is an aggravating factor.

[45] Mr. Benjamin assumed a leadership role in the enterprise. He was integral to the sales and displayed a detailed knowledge of the products sold, particularly with respect to the firearms and accessories. However, in light of Mr. Benjamin’s clearly documented intellectual limitations, he could not have been the architect or directing mind of the enterprise.

[46] Mr. Benjamin struggled in school, having been diagnosed with ADD/ADHD. He left school after grade nine and remains functionally illiterate. Psychological testing conducted when Mr. Benjamin was 12 years old indicated that while he has average verbal abilities, his non-verbal abilities range from low-average to very limited. There were significant concerns with his executive functioning.

[47] Although Mr. Benjamin’s participation in the transactions was integral to the scheme, he lacked the ability to orchestrate these transactions himself. Mr. Benjamin’s intellectual limitations left him vulnerable to the influence of others. I have considered his leadership role as an aggravating factor, but its impact is attenuated by his intellectual and cognitive challenges.

[48] There are significant mitigating factors. Mr. Benjamin is a very young first offender. He was 18 at the time of the offences and is only 20 years old today. Mr. Benjamin has had a difficult childhood and adolescence. His father was absent from his early life, and even when present was not a pro-social role model or mentor. His stepfather with whom he had a close relationship died in a tragic boating accident just before Mr. Benjamin committed these offences.

[49] As I have already outlined, he had inadequate support in school. He left school unequipped for employment or even independent living because of his inability to read and write.

[50] Mr. Benjamin has considerable ongoing family support as evidenced by the letters filed on sentencing.

[51] He has been in custody at the Toronto South Detention Centre (“TSDC”) since his arrest in early 2023. The conditions in the TSDC have been unduly harsh and have impacted Mr. Benjamin’s mental health.

[52] A very significant mitigating factor in this case is Mr. Benjamin’s guilty pleas. Mr. Benjamin entered guilty pleas at a very early opportunity and has taken responsibility for his actions. He has done so knowing that he will receive a significant penitentiary sentence. He has expressed an intention to pursue his education and thus to advance his rehabilitation while incarcerated.

[53] While the case against Mr. Benjamin may be said to be overwhelming on many of the counts in the indictment, he admitted to delivering 2 grams of cocaine, a transaction that was based wholly on an intercepted communication. He also acknowledged aggravating circumstances, including a serious assault on an intimate partner, the proof of which was dependent on an intercepted communication. I am not of the view that less weight should be given to the early guilty pleas because of the overwhelming nature of the Crown’s case. Mr. Benjamin did not wait to enter guilty pleas until after the challenge to the wiretap authorization. He has taken full responsibility for his actions.

[54] In my view, the pleas in this case are indicative of remorse and highly relevant to Mr. Benjamin’s prospect of rehabilitation. The guilty pleas have also saved valuable court resources at a time when court resources are particularly taxed.

[55] Having identified the mitigating and aggravating factors, I will consider the ranges of sentences for these offences and situate Mr. Benjamin within those ranges.

[56] In Parranto, Brown and Martin JJ., writing for the majority, identified a range of 8 to 15 years imprisonment for commercial trafficking in fentanyl on more than a minimal scale. The majority also emphasized that wholesale trafficking offences in fentanyl may be expected to attract even more significant sentences. The appeal involved two appellants, Mr. Parranto and Mr. Felix, both of whom had pleaded guilty to offences involving fentanyl.

[57] Mr. Parranto entered guilty pleas to two counts of possession of fentanyl for the purpose of trafficking, two counts of possession of a loaded handgun, one count of possession of a handgun while prohibited and breach of recognizance. Mr. Parranto was found in possession of fentanyl on two separate occasions. He possessed just over 27 grams the first time and just over 485 grams the second time. At the time of his arrest, he possessed other drugs, guns and body armour. He had a lengthy and related criminal record. Mr. Parranto was Metis and Gladue factors applied. The sentencing judge had imposed a global sentence of 10 years, that was increased by the Alberta Court of Appeal to 14 years. The Supreme Court agreed that a global 14-year sentence was appropriate. The Court noted that it would have been appropriate to impose a 9-year sentence for the first fentanyl offence and a 12-year sentence for the second offence, with the two sentences to run concurrently.

[58] Mr. Felix entered guilty pleas to two counts of trafficking in fentanyl and two counts of trafficking in cocaine, after exhausting Charter challenges. He was the directing mind of a drug trafficking operation that included selling drugs destined for Nunavut. There were five completed transactions and one incomplete transaction. The five completed transactions involved a total of 1398 fentanyl tablets and 19.75 grams of cocaine. The incomplete transaction involved 987 fentanyl tablets and 69.63 grams of cocaine. Mr. Felix was a 34-year-old first offender with good rehabilitative prospects. The Alberta Court of Appeal and then the Supreme Court of Canada held that the seven-year sentence imposed on Mr. Felix was demonstrably unfit. The sentence of ten years imposed by the Court of Appeal was upheld by the Supreme Court of Canada. The Court of Appeal would have imposed a sentence of 13 years if not for the fact that the Crown had only sought a sentence of 10 years.

[59] In this case, Mr. Benjamin is charged with one count of trafficking in fentanyl. The count encompasses six ounce-level sales totaling over half a kilogram of fentanyl. The gravity of the offence takes the sentence beyond the low end of the range, even with the mitigating factors. Mr. Benjamin, in spite of his youth and his limitations, was aware of the lethal nature of the substance and engaged in repeated sales. I find that a sentence of ten years is appropriate for this offence.

[60] Count 2 on the indictment charges Mr. Benjamin with trafficking in cocaine. The two incidents respectively involved two grams and just over nine grams of cocaine. The range of sentence for trafficking in one ounce (28 grams) or less of cocaine has been identified as six months to two years. The eight-month sentence sought by the Crown in this case falls within that range. The fact that there were two instances of trafficking and the aggravating factor of the combination of guns and drugs merits a sentence above the low end of the range, even with the mitigating factors. The Crown submits that a concurrent sentence should be imposed. I accept that the sale of the cocaine can be characterized as part of Mr. Benjamin’s course of conduct in selling Schedule I substances and that a concurrent sentence can be imposed.

[61] Counts 3-29 on the indictment charge Mr. Benjamin with the transfer of firearms (17 prohibited firearms, 7 restricted firearms and 3 non-restricted firearms). The sales occurred on 16 separate dates between August 26, 2022 and January 6, 2023. Count 30 charges him with trafficking in 2 selector switches and count 31 charges him with the transfer of 12 overcapacity magazines. The selector switches and overcapacity magazines were sold with the firearms.

[62] The range of sentence for trafficking in multiple firearms was considered by Nordheimer J. (as he then was) in R. v. Winchester. Nordheimer J. imposed an 8-year sentence on a first offender who had used his firearm license to buy 47 handguns over a 5-month period. He sold 43 of those handguns to a friend. Some of the handguns he sold were recovered at other crime scenes. Thirty of the guns were not recovered. Mr. Winchester was 23 years old when the offences were committed. At the time of his sentencing, he was married with two young children. Nordheimer J. held that an eight-year global sentence was appropriate in that case given Mr. Winchester’s age, his lack of any prior criminal conduct, his pleas of guilt and his remorse.

[63] In R. v. Green, Morgan J. imposed an 8-year sentence on a 24-year-old first offender. Mr. Green was found guilty at trial of using his firearm license to buy 23 firearms over an 8-month period. Several of the firearms Mr. Green trafficked were recovered at other crime scenes and some had been used to shoot people during the commission of other offences.

[64] In R. v. Allison and Cunningham, Kelly J. imposed global sentences of six years and nine years on the two accused. Mr. Cunningham played a role in transporting 29 firearms and sold 19 of those firearms over a 48-hour period. He was sentenced to seven years for the trafficking and two years consecutive for participating in the activities of a criminal organization. Mr. Cunningham was a mature first offender.

[65] The circumstances of Mr. Benjamin and the offences before me are comparable to those of the offenders in Green and Winchester. Mr. Benjamin is a youthful first offender with good prospects for rehabilitation. Unlike Mr. Green, Mr. Benjamin has entered an early guilty plea. I recognize that neither Green nor Winchester involved the combination of drugs and guns as an aggravating factor. However, those cases had other aggravating factors, including the use of the trafficked guns in criminal offences. I find that a sentence of eight years is appropriate for the firearms trafficking counts.

[66] The Crown submits that sentences for each of the firearms trafficking counts should be concurrent to each other but consecutive to the sentence for fentanyl trafficking before consideration of totality.

[67] I find that there is a sufficient nexus between the firearms trafficking counts to justify concurrent sentences. The separate transactions may be considered as part of one continuous course of conduct. Winchester. The sentence would in principle be consecutive to the fentanyl trafficking count which is a distinct offence with different legally protected interests.

[68] I am also satisfied that the sentences on the counts charging the transfer of prohibited devices (counts 30 & 31) should be concurrent to all charges. The Crown seeks concurrent sentences of two years on these counts. I agree that a sentence of two years imprisonment is appropriate.

[69] The last three counts on the indictment relate to Mr. Benjamin’s possession of 14.45 grams of cocaine, a loaded handgun and proceeds of crime ($3,200 in cash) when he was arrested.

[70] In R. v. Nur, the Supreme Court of Canada quoted with approval the observation of Doherty J.A. that, for offenders convicted of possession of loaded firearms who are engaged in truly criminal conduct, a three-year sentence of imprisonment will generally be appropriate.

[71] This is the sentence sought by the Crown in this case. Mr. Benjamin’s possession of a loaded handgun in his residence falls squarely at the “truly criminal” end of the spectrum. The use of a gun in the assault of his intimate partner is a highly aggravating factor. A three-year sentence is appropriate.

[72] The Crown seeks a sentence of 12 months on the count of possession of cocaine for the purpose of trafficking. As set out earlier, the range of sentence for trafficking and possession of cocaine for the purpose of trafficking in amounts of one ounce or less is six months to two years. I have determined that a sentence of eight months is appropriate for the count of trafficking in cocaine. I find that the same length of sentence is appropriate for the offence of possession for the purpose of trafficking and would impose a sentence of eight months’ imprisonment on this count.

[73] Finally, the Crown seeks a sentence of six months for the offence of possession of proceeds of crime. In all the circumstances, I find that a sentence of four months adequately addresses the sentencing objectives for this offence.

[74] The offences relating to the gun, cocaine and cash found upon Mr. Benjamin’s arrest are distinct from the other offences in this case. Each engages different legally protected interests. In principle, these offences could attract consecutive sentences, to each other and to the other offences on the indictment. However, the Crown has sought concurrent sentences on these offences and I would have acceded to that submission if not for my conclusion on totality, which I will now address.

[75] In accordance with the approach dictated in Bertrand Marchand, having determined the appropriate sentence for each of the offences and having considered whether the sentences should be concurrent or consecutive, I must consider the principle of totality. If the combined sentence is unduly long or harsh, the sentence must be adjusted by making some sentences that would otherwise be consecutive concurrent or by reducing one or more of the otherwise appropriate sentences.

[76] The combined sentence in this case would be 18 years imprisonment (10 years for fentanyl trafficking; 8 years consecutive for firearms trafficking, and concurrent sentences on the balance of the offences). This sentence would clearly be unduly long and harsh. The Crown’s position is that the application of the principle of totality should reduce the sentence to 15 years. The defence’s position is that the sentence should be reduced to less than ten years.

[77] In this “one last look” at the combined sentence, I have given careful consideration to the principle of restraint. Mr. Benjamin is very young. His first period of imprisonment will be a very long one in the penitentiary. He has not had the benefit of the supportive and rehabilitative programing available in the youth criminal justice system, although he began committing these offences while he was under 18 years of age. He has not had the opportunity to engage in rehabilitative programming.

[78] I recognize the need for an exemplary sentence for these serious offences. I recognize the integral role played by Mr. Benjamin in the criminal enterprise. I find, however, that a sentence of 15 years would fail to recognize and give adequate credit for the guilty pleas that have demonstrated remorse and saved significant resources. I find that a global sentence of 13 years should be imposed.

[79] This sentence is lenient. I would not impose such a sentence if not for the very early guilty pleas and the youth and vulnerability of Mr. Benjamin.

[80] In order to reduce the global sentence, I will make the 8-year sentences for the firearms trafficking counts concurrent to each other and concurrent to the sentence for trafficking in fentanyl. The 3-year sentence for possession of a loaded firearm will be consecutive to the other sentences.

Conclusion

[81] I therefore impose a global sentence of 13 years before credit for presentence custody. This will be broken down as follows: 10 years on count 1 (trafficking in fentanyl); 8 months concurrent on count 2 (trafficking in cocaine); 8 years concurrent on each of counts 3-29 (trafficking in firearms); 2 years concurrent on counts 30 and 31 (trafficking in prohibited devices); 8 months concurrent on count 32 (possession of cocaine for the purpose of trafficking); 3 years consecutive on count 33 (possession of a loaded firearm); and 4 months concurrent on count 34, the offence of possession of proceeds of crime.

[82] The parties have agreed that Mr. Benjamin should receive both Summers and Duncan credit for his time in presentence custody. The affidavit of Mr. Benjamin and the lockdown records filed support the position that enhanced consideration should be given for the extremely harsh conditions at the TSDC. I accept the joint position of the parties in this regard. I note that in R. v. Marshall, Doherty J.A. observed at paras. 42-43 that:

It is to everyone’s advantage if counsel reaches an agreement as to the amount of any ‘ Duncan ’ credit. (…) If counsel are able to agree on the ‘ Duncan’ credit, the trial judge should depart from that agreement only after careful consideration and giving counsel a full opportunity to address any concerns (…).

[83] Mr. Benjamin has served 540 actual days in custody for which it is agreed that he should receive credit of 1458 days. This leaves 3314 days left to serve, or 9 years and 27 days.

[84] I order that Mr. Benjamin provide a sample of his DNA. The drug trafficking charges are secondary designated offences and it is in the interests of the administration of justice that a sample be ordered. I also make a s.109 weapons prohibition order for life.

M. Forestell J. Released: August 29, 2024