COURT FILE NO.: 22-90000204 DATE: 20240911

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – RUSHAUNE CHAMPAGNIE Defendant

Counsel: Connor Macorin, for the Crown Sam Boutzouvis, for the Defendant

HEARD: September 4, 2024

REASONS FOR SENTENCE G. ROBERTS, J.:

OVERVIEW

[1] On February 14, 2023, Rushaune Champagnie pleaded guilty to two counts of possession of fentanyl for the purpose of trafficking. Following his guilty plea, we waited for almost a year and a half for an enhanced pre-sentence report (EPSR).

[2] Defence counsel seeks a sentence of 7 years, minus credit for pre-sentence custody at the statutory Summers rate of 1.5:1, plus an additional credit of either 1:1 or .5:1 for every day Mr. Champagnie was subjected to lockdown while in pre-sentence custody.

[3] The Crown seeks a sentence of 8 years, minus credit for pre-sentence custody at the statutory Summers rate, but no additional credit for lockdown days, or particularly harsh conditions of pre-sentence custody. The Crown acknowledges that Mr. Champagnie has established that his conditions of pre-sentence custody were harsh, but notes that this is already taken into account in the statutory Summers credit. Any additional consideration is a mitigating circumstance, and his position of 8 years is at the bottom of the range, and already takes this mitigating circumstance into account.

[4] There is no question that this was a very serious offence, and Mr. Champagnie has a lengthy and serious record giving rise to public safety concerns. At the same time, Mr. Champagnie had a difficult up-bringing, and the principle of restraint is fully engaged as a result. In addition, there has been a lengthy delay in getting the enhanced pre-sentence report required in this case, during which time the conditions of Mr. Champagnie’s pre-sentence custody have been particularly harsh. In all the circumstances of the offence and the offender, I conclude that a sentence of 6 and ½ years is fit and appropriate. This number takes into consideration the mitigating effect of the harsh conditions of pre-sentence custody. Only the statutory Summers credit is to be deducted.

CIRCUMSTANCES OF THE OFFENCE

[5] On March 30, 2021, police, who had an outstanding arrest warrant for Mr. Champagnie, found Mr. Champagnie driving a car. He was the sole occupant. Police followed him and saw him enter a convenience store. When he returned to his car, police boxed him in with marked patrol cars. Mr. Champagnie reversed into two patrol cars, hitting them, then accelerated forward and wedged his car between a pillar and the store. Mr. Champagnie subsequently complied with police commands and got out of the car and was arrested.

[6] Police searched the car incident to arrest and found a purple substance resembling fentanyl in an opaque grocery bag in the centre console. Police then obtained a search warrant. During its execution, police found the following items:

• 205 grams of purple fentanyl in the centre console in an opaque grocery bag;
• 2.83 grams of pink fentanyl and .68 grams of cocaine in a compartment next to the steering wheel; and
• An electronic scale in the right rear passenger cubby.

CIRCUMSTANCES OF THE OFFENDER

[7] Mr. Champagnie has been institutionalized for a significant part of his life. As a child, he was in and out of CAS care, with little stability and support. As an adult, he has been in and out of custody; more in than out.

[8] Mr. Champagnie was born on November 10, 1989 in Toronto. He was 31 years old at the time of the offence. He is currently 34 years old.

[9] Mr. Champagnie has four half siblings (they share the same mother), including younger sister Shanekia Doyley (32) and older brother Howard Buchanan, both of whom contributed to the EPSR. Mr. Champagnie also has two children, aged 2 and 7.

[10] Mr. Champagnie was largely raised by his maternal great-grandmother. His maternal grandfather was also a presence in his life. The EPSR writer explains that Mr. Champagnie’s mother “was more focused on her lifestyle than she was on parenting”. Mr. Champagnie’s mother was mistreated by her own mother, and gave birth to her first child (Howard Buchanan) when she was 17. She declined to participate in the preparation of the EPSR. Mr. Champagnie’s father was never present in his life, having been deported to Jamaica when Mr. Champagnie was about 5 years old.

[11] Mr. Champagnie was first apprehended into CAS care when he was 5, due to concerns about neglect and his mother’s criminal activity. He was returned to his mother at some point, and was primarily raised by his maternal great-grandmother.

[12] Mr. Champagnie was much loved by his maternal great-grandmother, but appears to have had limited guidance or support, from her or anyone. He reported that before the age of 10 he was hanging out on the streets by himself, including at night, taking the bus alone and engaging in criminal behaviour, such as petty theft, breaking into people’s homes and begging for money. He rarely attended school. There was little discipline. His role model was his beloved older brother Shamari (between Mr. Champagnie and Howard Buchanan in the birth order), who was involved in criminal activity.

[13] Mr. Champagnie was apprehended into care again at age 10, and became a Crown ward at this time. While he enjoyed the stabililty of the group home, he frequently ran away to be with his mother and family. Mr. Champagnie’s maternal great-grandmother died in 2002 at the age of 90. His grandfather died in 2004. His older brother Shamari, who he looked up to, was murdered in 2005 at the age of 20, when Mr. Champagnie was 15, and in grade 10. Mr. Champagnie reported to the EPSR writer that at this point he determined he had to “make moves” to survive, and relied on criminal activity to do so.

[14] Mr. Champagnie’s mother was deported to Jamaica in 2008, when Mr. Champagnie was 18. Although she had lived in Canada since she was an infant, she never obtained citizenship, and was deported due to criminal activity.

[15] Mr. Champagnie reported liking school and his teachers, who were good to him. Nonetheless, he lost interest in school around grade 7, and stopped attending. While his mother made an effort to take him to school around this time, he would leave after being dropped off.

[16] Mr. Champagnie has limited work history: some landscaping; a summer job at a waterpark when he was 15, and car detailing.

[17] Mr. Champagnie explained that the offence, and the convictions in his criminal record, were rooted in financial need.

[18] Mr. Champagnie has a lengthy criminal record dating back to 2008. It covers his entirely adult life, thus far. The only breaks appear to come when he was in custody, awaiting or serving a sentence.

[19] The record includes offences relating to the administration of justice, including obstruct police and flight from police, property offences, drug trafficking offences, firearms possession offences, and offences of violence, the most serious of which is robbery using a restricted or prohibited weapon. The criminal record was made exhibit 1 at the time of the guilty plea. An updated record was made exhibit 7 during the sentencing hearing, reflecting a conviction for being in possession of cannabis while in custody.

[20] Mr. Champagnie’s most recent sentence prior to the current offences was 13 months and 15 days, imposed on October 23, 2019, in relation to a series of offences arising from the illegal possession of a loaded gun. He was not out of custody long before being arrested in relation to the current offences.

[21] Mr. Champagnie has been in custody since his arrest on March 30, 2021. Initially he was at the TSDC (from his arrest on March 30, 2021 to December 21, 2022). He was then moved to the CNCC (December 21, 2022 to February 11, 2024). He was returned to the TSDC on February 11, 2024 so that the EPSR could be completed.

[22] Mr. Champagnie reported that he has good people skills, and manages to get along with the other inmates and the guards. However, he also reported that he was considered a security issue at the CNCC due to possession of contraband and other misconducts, including fighting.

[23] Mr. Champagnie has been offered some programming while at the TSDC, but not when he was on Tier 1 or Tier 2, which involve higher security and longer lockdowns. He was frustrated that he was left on Tiers 1 and 2 much longer than felt fair to him. He believed that white inmates tended not to go to Tier 1 or 2, or cascaded down faster. Notwithstanding his difficulty accessing programing, he managed to complete numerous programs, including problem solving (x2), leaving the lifestyle, overdose prevention, substance use, anger management, thoughts to action, managing stress, use of leisure time, looking for work, recognizing healthy relationships, planning for discharge, supportive relationships, goal setting, and changing habits.

[24] During Mr. Champagnie’s initial time at the TSDC, he also worked with F-U, The Forgiveness Project, a non-profit, community-based outreach program offering programming to incarcerated youth and men. The founder and director of the program, Tara Muldoon, reported to the EPSR writer that Mr. Champagnie was a positive force in their programs, staying out of drama, and encouraging others to participate. She noted that he is “tired of his own shit” and has been reflecting on what he has to do differently. Ms. Muldoon also wrote a letter of support for Mr. Champagnie, noting that he “exhibited punctuality, leadership, teamwork, communication, and problem-solving skills. He was an eager participant in the program and consistently contributed to the conversation.” Ms. Muldoon’s letter, and Mr. Champagnie’s certificates, reflecting his graduation from creative writing courses facilitated by the Forgiveness Project, and the programs he completed at the TSDC, were made exhibit 2.

[25] At the CNCC, Mr. Champagnie was far from friends and family. He could not have video access calls with counsel (only telephone). He has high blood pressure, and could not regularly check his blood pressure. There was no regular access to the exercise yard. Programming was not available to him.

[26] Mr. Champagnie’s older brother Mr. Buchanan described Mr. Champagnie as kind and polite with potential for a hopeful future if he can step out of the cycle of criminal activity. Mr. Buchanan disclosed that he was released from custody a few years ago and managed to change his life by finding steady employment.

[27] Mr. Champagnie’s younger sister Ms. Doyley described Mr. Champagnie as smart with good communication skills. She believed if Mr. Buchanan could change his life, Mr. Champagnie could too. Defence counsel noted that Ms. Doyley needs a kidney transplant and Mr. Champagnie hopes that he is a match.

[28] Mr. Champagnie chose to address me prior to being sentenced. He acknowledged that he has a bad record. He explained that he has been through a lot, and that his time in pre-sentence custody has affected him. Previously he only thought about himself, but it has been very difficult to be away from his family, particularly when his sister got sick. It hurt not to be able to be there for her because of poor decisions he made. He noted that if his brother can change, so can he.

RANGE OF SENTENCE

[29] Both trafficking in a schedule I substance, and possession of a schedule I substance for the purpose of trafficking, contrary to sections 5(1) and (2) of the Controlled Drugs and Substances Act (CDSA) respectively, are punishable by a maximum sentence of life. There is no mandatory minimum sentence.

[30] Both offences capture a broad spectrum of conduct, and the range of sentence is correspondingly broad. Where an offence lands within the range generally reflects both the nature of the drug trafficked, and the nature of the trafficking involved. Cocaine, heroin and fentanyl are all considered to be extremely serious drugs, toxic to entire communities, with fentanyl replacing heroin as the “worst of the worst”. Trafficking is considered to fall within the following general hierarchy, from least to most serious (see R. v. Haye, 2014 ONCA 6575 per Code J.A., aff’d [2014] O.J. No.6575 (C.A.)):

(1) Street level seller – small hand-to-hand transactions, often an addict-trafficker; (2) Street level supplier – transactions up to an “Eight-Ball” or one ounce; (3) Supplier to street level supplier (mid-level) – multi-ounce transactions; (4) Distributor to Supplier (high-level) – one-half kilo to multi-kilo transactions; and (5) Importer to Distributor.

[31] Where the trafficking falls in the hierarchy will turn on all the circumstances, including the amounts trafficked, and the persistence of the trafficking: Haye, per Code J; R. v. Evans et al, 2013 ONSC 7003 per Dambrot J. (sentence upheld in 2019 ONCA 715). The amount of fentanyl found in this case suggests that Mr. Champagnie was involved in mid-level trafficking.

[32] In R. v. Parranto and Felix, 2021 SCC 46 at para.68, a majority of the SCC noted cases across the country suggested a “national” range of 8 to 15 years for mid-level and/or wholesale trafficking, affirming 10 and 14 year sentences for two wholesale commercial traffickers who pleaded guilty (Felix was a first offender; Parranto had a significant record but was Indigenous and entitled to Gladue consideration).

[33] In R. v. Lynch, 2022 ONCA 109, post-Parranto, the Ontario Court of Appeal approved a range of 6-8 years for mid-level trafficking in fentanyl. Mr. Lynch, who had no criminal record, pleaded guilty to being in possession of 41.37 g of fentanyl, 965 g of cocaine, and 149.28 g of MDMA for the purpose of trafficking. His initial sentence of 4 years was increased to 6 years on appeal.

[34] More recently, in R. v. Owusu, 2024 ONSC 2024 and R. v Gordon-Brown, 2024 ONSC 1300, Justice Code, after a thorough analysis of Parranto, Lynch and other authority from the Court of Appeal, put the range for a mid-level fentanyl trafficker dealing at the ounce and multi-ounce levels at 8 to 11 years. Justice Code explicitly recognized that Parranto and Felix involved fentanyl trafficking at the wholesale level, but noted that the Supreme Court’s comments about the seriousness of fentanyl apply in the context of a mid-level trafficker.

PRINCIPLES OF SENTENCING

[35] The principles of sentencing are now largely codified. Though some still come from the common law. I consider them in the course of my analysis.

[36] As with any sentencing decision, the relative weight to be accorded to each sentencing principle or objective will vary depending on the circumstances of the particular offence. Ultimately a sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender.

ANALYSIS

[37] I will begin with the aggravating circumstances, then address the mitigating circumstances, and finally what is a fit sentence in all the circumstances of this case.

[38] There is no question that this was a very serious offence. Fentanyl has eclipsed all other illegal drugs as the undisputed “worst of the worst”. It is devastating our communities and killing our children.

[39] Mr. Champagnie was found with a substantial quantity of fentanyl – approximately 207 grams or over 1/5 of a kilogram. His motive was profit. The amount he was found with places him at the mid-level in the drug-trafficking hierarchy.

[40] Mr. Champagnie asserted to the EPSR writer that he believed the drugs he had were cocaine. Both counsel agree that this does not affect the integrity of the guilty plea, as he acknowledges being in possession of a schedule I substance for the purpose of trafficking. Nor do I believe it diminishes Mr. Champagnie’s blameworthiness. Accepting his mistaken belief at face value (without assessing its hearsay nature or reasonableness), it potentially put customers at greater risk. At the end of the day, I agree with the Crown that Mr. Champagnie’s mistaken belief is a neutral factor, neither mitigating nor aggravating.

[41] Mr. Champagnie has a significant criminal record. It is lengthy, involves serious offences of different sorts (including trafficking offences and serious crimes of violence), and unrelenting. Since becoming an adult, it appears that Mr. Champagnie has been in custody more often than out of custody. As I noted, the current offence occurred not long after Mr. Champagnie was released in relation to a series of offences relating to being in possession of a loaded gun, for which he received a year and 45 days on October 23, 2019.

[42] The circumstances of the offences are also aggravating. Mr. Champagnie admitted that he backed into the police cars when they boxed him in, damaging their cars and the convenience store. While Mr. Champagnie did not plead guilty to the charge of dangerous driving, he admitted the underlying facts, and I take them into account as an aggravating circumstance on sentence pursuant to s.725(1)(c) of the Criminal Code. The corollary of this, of course, is that no further proceedings may be taken in relation to these facts, subject to any appeal of the convictions entered following the guilty plea.

[43] Courts have repeatedly held that general deterrence and denunciation are of paramount importance in sentencing for serious drug trafficking-related offences motivated by profit, especially where fentanyl is involved.

[44] In addition to the significant aggravating circumstances, there are a number of significant mitigating circumstances.

[45] Mr. Champagnie entered a guilty plea. While it was not an early guilty plea, it came during a time when the resources of this court were under particular strain due to the COVID-19 backlog. In these circumstances, the Crown concedes that it should be given significant weight. I agree.

[46] Mr. Champagnie has had an extremely difficult up-bringing. Mr. Champagnie is a relatively young Black man who has been institutionalized for almost his entire life, and not adequately supported. Notwithstanding CAS involvement in his life from a young age, he does not have an education. His maternal great-grandmother loved him very much. But neither she, nor any of the other adults in his life, made him go to school, or even to bed at a consistent reasonable hour. One of the occasions that Mr. Champagnie came into care was prompted by police picking up a 10-year-old Mr. Champagnie wandering around the vicinity of Woodbine race track and casino late at night looking for his mother. Mr. Champagnie reported to the EPSR writer that some of his happiest times were when was in care in Belleville and felt stress free. Despite this, he missed his family, and often ran away. His closest role-model was his older brother Shamari (between Mr. Champagnie and Mr. Buchanan) who, like Mr. Champagnie’s mother, was involved in a criminal life-style. As I noted, his brother Shamari was murdered at age 20, when Mr. Champagnie was 15. His mother was deported when Mr. Champagnie was 18, and declined to speak to the EPSR writer.

[47] While Mr. Champagnie is not a youthful first offender, he is a Black man who has been failed by the system, and his own family. His background does not diminish the seriousness of the offences he admitted committing, or the predominant role of general deterrence and denunciation, but it is important to this sentencing process in two important respects (as explained in R. v. Morris, 2021 ONCA 155). First, I believe it helps explain how Mr. Champagnie came to be involved in the offences, and diminishes Mr. Champagnie’s moral blameworthiness as a result. Second, it means that the principles of restraint and rehabilitation are fully engaged in this case, notwithstanding Mr. Champagnie’s age and criminal record.

[48] Mr. Champagnie has been in custody since his arrest on March 30, 2021. He tried to get bail, but I understand that the justice of the peace was not satisfied with his surety, and the bail hearing was struck. He did not have another plan and remained in custody. During this time, Mr. Champagnie has been subject to very harsh conditions of pre-sentence custody.

[49] At the CNCC he was locked down for 109 days (100 full and 9 partial). He was triple-bunked for 1 day. As noted, he was isolated from friends and family, and could not have video calls with counsel. He could not properly monitor his high blood pressure.

[50] At the TSDC he was locked down for approximately half the time he has spent there (which I total at 896 days as of September 11, 2024, the date of this sentence). He was triple-bunked at the TSDC for three weeks following July 16, 2024. A significant portion of this custody has been during COVID-19. Like other courts, I take judicial notice that this has made custody particularly harsh for many reasons (well documented in the relevant case law, see eg. R. v. Morgan, 2020 ONCA 279). In addition, Mr. Champagnie provided an uncontested affidavit detailing the harsh conditions of pre-sentence custody, and their effect on him, including limited ability to shower, exercise, socialize, take programs or contact family by phone. He has had trouble getting the medical support he needs. He has high blood pressure and wears compression socks. They ripped at the CNCC. He had to pay $50 to replace them, but the replacement socks do not fit. Laundry is inconsistent, and sometimes they do not get a change of sheets for a month or more. While at the CNCC his blood pressure was not regularly checked.

[51] Notwithstanding the harsh conditions of pre-sentence custody, Mr. Champagnie chose to wait for the EPSR. It was inordinately delayed. He continued to wait despite my assurance that I would take judicial notice of anti-Black racism, would request a PSR that paid particular attention to Morris factors, and would permit defence counsel liberal scope to make submissions about Mr. Champagnie’s background, and its effect on him. In many cases the consequences of a decision to wait for an inordinately delayed EPSR in these circumstances would be largely for the inmate to bear. But I do not think that would be fair in the circumstances of this case. Given Mr. Champagnie’s lengthy and extensive involvement with the CAS from a young age I agree with defence counsel that it was important and helpful to have an EPSR prepared by a skilled EPSR writer. Unfortunately, it was inordinately delayed, which had a very negative effect on Mr. Champagnie.

[52] I also agree with defence counsel that the harsh conditions of pre-sentence custody must be considered and taken into account in order to fashion a fit sentence in this case. The question is how best to do this. The Court of Appeal has repeatedly indicated that harsh conditions of pre-sentence custody should be considered as a mitigating factor rather than a credit attracting a particular deduction similar to a Summers credit. While Justice Doherty explicitly noted that the calculation of a specific number of days of months as credit is “not necessarily inappropriate”, he cautioned that such an exercise could cause the harsh conditions of pre-sentence custody to take unwarranted significance in fixing the ultimate sentence: R. v. Marshall, 2021 ONCA 344 at para.52. Since Marshall, the associate chief has emphasized that harsh conditions of pre-sentence custody should be considered as a mitigating circumstance rather than the subject of a particular credit: R. v. Menezes, 2023 ONCA 838.

[53] Notwithstanding the careful and helpful calculations prepared by defence counsel, I decline to attach a particular number or credit to the harsh conditions of pre-sentence custody in this case. However, as I have noted, I agree with defence counsel that the conditions of pre-sentence custody were particularly harsh and must be considered as a significant mitigating circumstance in this case.

[54] In all the circumstances of this case, I believe that a sentence of six and a half years is fit and appropriate on count 1. I recognize that this is below the range of sentence applicable given the amount of fentanyl involved, especially in light of Mr. Champagnie’s criminal record. But ranges are not straight-jackets. I also recognize that the sentence is below the range requested by counsel. However, I am mindful that counsel set out their positions before the inordinate delay occasioned by the EPSR. In addition, the defence position includes a request for additional credit or deduction, over and above the statutory Summers credit, for days spent subject to lock down. In all the circumstances, including the serious aggravating circumstances and the significant mitigating circumstances, I believe a six and a half year sentence is fit and appropriate in this case.

[55] The sentence on count 2 will be six and a half years concurrent.

[56] Mr. Champagnie must be given credit for the pre-sentence custody in this case. I calculate this as 1230 days (March 30, 2021 to September 11, 2024, minus 31 days used up in relation to the possession of cannabis charge). When I gross this up by the statutory multiplier of 1.5 %, I get 1845 days. When this is subtracted from the six and ½ year sentence I conclude is fit, I am left with 529 days, or 17 months and 12 days remaining to be served.

[57] Given that the effective sentence is a reformatory term, I am going to impose two years of probation. I believe this will provide additional protection for the public, and also support that I hope will assist Mr. Champagnie in his rehabilitation. In addition to the statutory terms, Mr. Champagnie is to:

• Seek and maintain employment, or attend school.
• Report to a probation officer, within 2 days of being released from custody, and thereafter when required by the probation officer and in the manner directed by the probation officer.
• Attend for and participate in treatment or counselling as directed by your probation officer, and sign releases as necessary to monitor your participation and progress.
• Boundary condition: do not attend at numbers 10, 22, and 44 Willowridge Road in Willowdale.
• Not to possess any non-prescription drugs.
• Not to possess anything defined as a weapon in the Criminal Code

[58] There will be a DNA order. Possession for the purpose of trafficking is a secondary designated offence. I believe it is in the interests of the administration of justice to make a DNA order in this case.

[59] There will be a s.109 weapons prohibition for life.

[60] There will be a forfeiture order.

[61] There will not be a victim fine surcharge. Mr. Champagnie has been in custody since the commission of the offence and is not in a position to pay a fine.

G. ROBERTS, J. Released: September 11, 2024