Court File and Parties

Court File No.: CR-22-00000135-0000 Date: 20240926 Ontario Superior Court of Justice

Between: His Majesty The King And: Marlon Forrest, Defendant

Counsel: N. Ramkissoon, for the Crown J. Fisher, for the Defendant

Heard: August 2, 2024

Reasons on Sentencing

McCarthy J.:

[1] Mr. Forrest (the Defendant) returns before me today for sentencing.

Background

[2] The Defendant was convicted of possession for the purpose of trafficking of fentanyl and possession for the purpose of trafficking cocaine, together with possession of the proceeds of crime. The index offences were committed in December 2020. The quantities of drugs seized were 68.2 grams of fentanyl and 38.4 grams of cocaine, together with 7.3 grams of cutting agent. The street value of the fentanyl was between $8,500 and $34,000.

The Crown’s Position

[3] The Crown seeks a sentence of 8 years for the fentanyl offence, 3 years concurrent for the cocaine offence and 90 days concurrent for the proceeds of crime offence. The Crown asks that this 8-year sentence be consecutive to the 6-year custodial sentence presently being served since May 2024 for unrelated offences stemming from incidents in October/November 2021 (“the subsequent offences”).

[4] The Crown argues that the present offences are separate and distinct from the subsequent offences and should therefore attract a consecutive sentence under s. 718.3 of the Criminal Code. Moreover, the totality principle should apply such that there should be a merging of the 8 years here and the 6 years for the subsequent offences into one combined term of 12 years.

[5] The Crown would concede Summers credits of 1484 days or 4 years and 20 days for the time served between the Defendant’s arrest and release on bail (22 days) and his re-arrest for the subsequent offences of 967 days (November 25, 2021 to the sentencing date May 2, 2024). That application of enhancement of one and a half to one brings about the suggested credit.

[6] The Crown opposes any enhanced Duncan credits on the following grounds: the Defendant has never been triple bunked during his incarceration; he has always had a bed; the lockdowns are typical of the CNCC and there is no affidavit setting out any particular hardship endured by the Defendant. The enhanced Summers credits are sufficient.

[7] There is no evidence that the Defendant had any addiction issues. The quantity of drugs seized places the Defendant in the mid-level dealer range and points to financial gain as his motive for the offences. Any deportation risk he faces has already been triggered by the sentence for the subsequent offences.

[8] The Crown filed a Health Canada Report, which highlights that we are in the midst of a devastating drug epidemic. Health Canada’s statistics establish that our country lost over 6,500 persons to drug overdose between March and December 2022 and approximately 5,900 persons to drug overdose between January and September 2023.

[9] The Crown relies on the line of cases following R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, which established a range of 8 to 15 years for these types of offences. In particular, the Crown relies on the Ontario Court of Appeal decision, R. v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88, where an 8-year consecutive sentence was affirmed in similar circumstances (42.6 grams of fentanyl).

[10] Merging the consecutive sentences and applying the credits, and taking into account the quantities of illicit drugs seized, the moral culpability of the Defendant, the Health Canada information and other aggravating factors, a remnant sentence of 706 days is fair and proportional to the blameworthiness of the Defendant and the seriousness of the offences.

[11] The Crown also seeks ancillary orders under s. 109 for forfeiture of the seized drugs and drug paraphernalia and for a DNA sample to be provided by the Defendant.

The Defence Position

[12] The Defence does not contest the application of s. 718.3 nor the ancillary orders but argues for a sentence of time served or rather time to be served for the subsequent offences. There is no evidence that the Defendant was a sophisticated dealer, and he had no previous criminal record at the time of the index offences. The principle of restraint and respect for totality of a sentence should govern the court’s thinking. In addition, the Defendant endured 280 days during which he was afflicted by some sort of lockdown at CNCC. This totals almost 9 months of lockdown and represents one in every four days in custody. The defendant was only 25 at the time of the offences, he comes from a background of poverty and there remains undiminished potential for rehabilitation.

Principles of Sentencing

[13] Sections 718 to 718.1 of the Criminal Code set out the fundamental principles and purposes of sentencing.

Purpose

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[14] Section 10(1) of the Controlled Drugs and Substances Act (“CDSA”) sets out the fundamental purpose of sentencing individuals for drug offences.

Purpose of sentencing

10 (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

Discussion

[15] In my view, the remnant sentence sought by the Crown is fair and proportional to the gravity of the offence and the moral blameworthiness of the Defendant.

[16] In R. v. Lynch, 2022 ONCA 109, 150 O.R. (3d) 241, the 29-year-old Defendant had a criminal record for non-trafficking related offences. He pleaded guilty to possession for the purpose of trafficking 41 grams of fentanyl, 965 grams of cocaine, and 149 grams of MDMA. The Defendant sold drugs to an undercover officer on several occasions. He received a global sentence of 6 years.

[17] In the circumstances of this case, it would be to ignore and frustrate, rather than promote the twin principles of deterrence, both general and specific, and denunciation, to impose a sentence of time served. I am not persuaded that the lockdown time experienced by the Defendant at CNCC was onerous or oppressive. There is simply no evidence of what he endured or suffered during the lockdowns. We do know that he was never triple bunked and always had a bed of his own.

[18] While the Defendant had no criminal record at the time of the index offences, I am satisfied that the quantity of drugs seized, their street value and the evident motive of commercial gain combine to render these crimes serious and deserving of strong sanction. The number of overdoses reported by Health Canada in the time periods cited leaves one sickened. Fentanyl abuse appears to be at an historic high. Combatting the use of illicit and harmful drugs is now a life and death struggle. Sentencing in drug trafficking cases must play its part in deterring individuals from engaging in the trade at whatever level.

[19] The principle of denunciation and the fundamental purpose of sentencing stipulated in the CDSA both demand the kind of sanction argued for by the Crown. A sentence limited to time served for the subsequent offences would be entirely disproportional to the gravity of the offence. It would both disrespect and subvert the fundamental principles of sentencing. The Defendant must face a distinct and measurable term of incarceration for the crimes he has committed.

Disposition

[20] Mr. Forrest, please stand.

[21] I sentence you to 8 years in the penitentiary for possession for the purpose of trafficking fentanyl, 6 years concurrent for possession for the purpose of trafficking cocaine, and 90 days concurrent for possession of the proceeds of crime. Those terms are consecutive to the present sentence you are serving. In line with the suggestion of the Crown, however, I would merge the two sentences into a sentence totaling 12 years. This translates into 6 years consecutive to the sentence you are serving for the subsequent offences. With the credits of 4 years and 20 days deducted from the 6 years, this leaves a remnant sentence to serve of 706 days consecutive to the sentence you are presently serving.

[22] There shall be a forfeiture order in respect of all seized items.

[23] There shall be a s. 109 weapons prohibition for 10 years.

[24] You shall submit a DNA sample forthwith upon demand.

[25] And that is the sentence of the court.

McCarthy J. Released: September 26, 2024

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.