Court File and Parties

COURT FILE NO.: CR-23-67 DATE: 2024/11/04

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – MICHAEL MALABRE Defendant

Counsel: Robin Bellows and Leigh Van Gorder, for the Crown [1] Thomas Evangelista, for the defendant

HEARD: September 16, 2024

Ellies J.

CORRECTED REASONS FOR DECISION ON SENTENCE Corrections are listed on page 13

Overview

[1] Michael Malabre was convicted following a jury trial of possessing cocaine and fentanyl for the purpose of trafficking and of possessing the proceeds of crime under $5,000.

[2] He is before me now for sentencing.

[3] The Crown seeks a penitentiary sentence on the higher end of five to seven years. The defence seeks a conditional sentence of 18 to 24 months under strict house arrest.

[4] The central issues are whether the time spent in pre-trial custody and the effects of anti-Black racism are sufficient to bring the sentence into the range in which a conditional sentence is permitted and, if so, whether such a sentence is appropriate.

[5] These reasons explain why a conditional sentence is not appropriate in this case and why, instead, a fit sentence is four years and nine months of incarceration, less time served.

The Offences

[6] The accused was arrested and charged with the present offences during the execution of a search warrant by the Ontario Provincial Police Community Street Crime Unit at a residence on Williams Street, in Parry Sound, on November 19, 2020. The residence was the home of David Merritt. Present in the residence at the time were Mr. Merritt, an acquaintance of his named Ronald Waters, Mr. Malabre, and a cousin of Mr. Malabre’s named Dumari Ewart.

[7] During the search of the residence, the police found drugs in Mr. Merritt’s bedroom, in a makeshift bedroom used by Mr. Waters, and in a fanny pack in the living room. The drugs found in the fanny pack included 28 grams of fentanyl and 58 grams of cocaine. The police also found $4,770 in one of Mr. Malabre’s shorts’ pockets and a digital scale with traces of both fentanyl and cocaine on it hidden in the steering column of his car.

[8] Although the police charged all three of Mr. Merritt, Mr. Waters, and Mr. Malabre with possession of the drugs in the fanny pack, the charges against Mr. Merritt and Mr. Waters were resolved when Mr. Merritt pleaded guilty to possessing the 5.3 grams of fentanyl found in his bedroom for the purpose of trafficking and Mr. Waters pleaded guilty to possessing 1.1 grams of crystal methamphetamine (“crystal meth”). Mr. Merritt was sentenced to two years plus one day in a penitentiary. Mr. Waters was placed on probation.

[9] Both Mr. Merritt and Mr. Waters testified at trial that the drugs in the fanny pack did not belong to them. Mr. Merritt further testified that the drugs belonged to Mr. Malabre, who had come to his home the day before and on previous occasions to sell drugs in exchange for providing Mr. Merritt with crystal meth and fentanyl for his own use.

[10] Although Mr. Malabre testified that the drugs in the fanny pack were not his, his testimony was obviously not accepted by the jury, who found him guilty of all three charges resulting from the execution of the search warrant.

The Offender

[11] Mr. Malabre is 29 years old. He was born in the Scarborough area. When he was almost eight years old, his parents divorced. When he was 10 years old, his mother remarried, and he and his sister had to relocate to Barbados. Mr. Malabre did not do well there so, at age 13, he moved back to Canada to live with his grandparents, while his mother and sisters remained in Barbados.

[12] Mr. Malabre continued to struggle after he returned to Canada. He struggled in school, began to consume drugs and alcohol, and started to get into trouble. He did not finish high school. However, he later managed to achieve high school equivalency and went to college. At the time he was arrested for these offences, he was working full-time for a trucking company and occasionally for a landscaping company.

[13] Mr. Malabre has two children, a stepdaughter and a son. Unfortunately, he also has a criminal record, although it is not long and does not include any drug offences. In 2015, Mr. Malabre was convicted of obtaining a material benefit from sexual services and received a conditional sentence. In 2017, he was convicted of failing to comply with a recognizance.

[14] Following his arrest for these offences on November 19, 2020, Mr. Malabre was held in custody until May 26, 2021, when he was released on consent at a bail review. The terms of his release were strict, requiring that he be under what is commonly called “house arrest”. Those terms were varied about one year later, in June 2022, to allow Mr. Malabre to be out of the house for work purposes.

[15] On June 30, 2023, Mr. Malabre was re-arrested as a result of an allegation that he breached the terms of his release. He remained in custody until July 26, 2023, when he was again released under house arrest, but this time also with a GPS monitoring device. As they had been in June 2022, the terms of Mr. Malabre’s release were varied again on July 29, 2024, to allow him to go to work. Those terms have remained in place until now.

The Positions of the Parties

[16] On behalf of the Crown, Ms. Bellows submits that the appropriate range of sentence for the offences of which Mr. Malabre has been convicted is five to seven years. She submits that the sentence in this case should be at the high end of this range because Mr. Malabre was not selling drugs to supply his own addiction, but was engaged in a mid-level commercial enterprise.

[17] On behalf of Mr. Malabre, Mr. Evangelista submits that, not only is a conditional sentence for these offences now possible because of the passage of Bill C-21, but it is appropriate in this case because of the length of time Mr. Malabre spent in harsh pre-custodial conditions, on strict bail terms, and because of the effect on Mr. Malabre of anti-Black racism. Mr. Evangelista submits that, taking these mitigating circumstances into account, the appropriate sentence is a conditional sentence of between 18 and 24 months under strict house arrest.

The Relevant Legal Principles

[18] Before I address these submissions, I will briefly discuss the law of sentencing.

Fundamental Purpose of Sentencing

[19] The fundamental purpose of sentencing is to protect society, to contribute to respect for the law, and to maintain a just, peaceful, and safe society: Criminal Code, R.S.C. 1985, c. C-46, s. 718.1.

[20] Section 718 of the Criminal Code sets out a number of objectives to be achieved in fulfilling the fundamental purpose of sentencing. They include denunciation of the unlawful conduct and the harm caused by it, deterrence of the particular offender and others, and the rehabilitation of offenders.

[21] Section 10 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, applies specifically to drug offences of the type involved in this case and highlights the objective of rehabilitation in sentencing drug offenders: R. v. H. (C.N.) (2002), 62 O.R. (3d) 564 (C.A.), at para. 31. Section 10(1) provides:

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.

Fundamental Principle of Sentencing

[22] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1. To be fit, a sentence “must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence”: R. v. Priest (1996), 30 O.R. (3d) 538 (Ont. C.A.), at pp. 546-47; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 128.

[23] I will begin by discussing the gravity of the offence.

Gravity of the Offence

[24] In R. v. Morris, 2021 ONCA 680, the Court of Appeal, when discussing the role that the gravity of an offence plays in the proportionality analysis involved in sentencing, wrote at paragraph 67:

The seriousness of the offence is reflected in the essential elements of the offence; the more blameworthy the required mens rea, and the more harmful the prohibited conduct, the more serious the crime. The gravity of the offence is also reflected in the applicable penalty provision. In addition, the specific circumstances surrounding the condition of the offence can make the crime more or less serious.

[25] Clearly, possessing fentanyl or cocaine for the purpose of trafficking is a very serious offence. Under s. 5 of the Controlled Drugs and Substances Act both offences are punishable by imprisonment for life.

[26] Given the gravity of the offence of trafficking in hard drugs, courts have generally held that sentences should involve incarceration: R. v. Ward (1990), 56 C.C.C. (2d) 15 (Ont. C.A.). This is especially true in the case of fentanyl: R. v. Loor, 2017 ONCA 696, at para. 50.

[27] The Crown submits that the appropriate range for a mid-level commercial trafficker in fentanyl is five to seven years in prison. I agree with this submission. This was the range submitted by the Crown and the defence in R. v. Salvati, 2021 ONSC 120, at para. 15. It was also the range identified by my colleague, Davies J., in R. v. Oksem, 2019 ONSC 6283, at para. 19, and is borne out by the other Ontario cases provided by the Crown: R. v. Hillier, 2021 ONCJ 634; R. v. Samuel, 2023 ONSC 5124.

[28] This range is also supported by the Supreme Court of Canada’s decision in R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366. Parranto involved large-scale trafficking in fentanyl. The sentencing judge had concluded that the range in Alberta for such offences was 5 to 7 years, and 5 to 9.5 years if other Canadian jurisdictions were considered. The majority in Parranto agreed with the Alberta Court of Appeal that the appropriate range nationally for wholesale trafficking in fentanyl was between 8 and 15 years: Parranto, at para. 68. Moldaver J., who expressly restricted his comments only to such high level trafficking, held that:

Fentanyl trafficking, and large scale trafficking in particular, are a source of unspeakable harm. Accordingly, while the range of sentences currently imposed for the directing minds of large scale fentanyl operations straddles the upper single digits and lower double digits, sentencing judges should feel justified, where circumstances warrant, in applying a higher range, consisting of mid-level double digit sentences and, in particularly aggravating circumstances, potential sentences of life imprisonment.

[29] Based on these cases, I conclude that the appropriate range of sentence for a mid-level commercial trafficker in fentanyl is five to seven years.

Moral Blameworthiness of the Offender

[30] Like the gravity of the offence, the moral blameworthiness of the offender varies with the circumstances surrounding the commission of the offence. I will come to those circumstances shortly. For now, I wish to make it clear that, like the gravity of the offences, the moral blameworthiness for possessing drugs such as fentanyl and cocaine for sale is also high. This is not an offence that happens almost by accident, the way, for example, manslaughter might. It requires planning and execution. The drugs must be acquired, they must be weighed, they must be packaged, a cash “float” must be secured, customers must be found, and the drugs must be sold.

[31] Mr. Malabre is a Black Canadian. On his behalf, Mr. Evangelista relies on the decision in R. v. Morris, mentioned earlier. In Morris, the Ontario Court of Appeal confirmed that sentencing judges can properly take judicial notice of the existence of anti-Black racism in Canada and its potential impact on Black offenders: Morris, at para. 123. The court held that, while the existence of anti-Black racism does not reduce the gravity of an offence committed by a Black person, it may serve to reduce the offender’s moral blameworthiness: Morris, at para. 75-77, 87-91.

[32] In Morris, the Court of Appeal held that, while there is no requirement for a Black offender to prove that anti-Black racism was the cause of his or her criminal behaviour, there must still be some evidence of a connection between the two. At paragraph 97, the court wrote:

There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender’s moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount [citations omitted].

[33] There is no evidence of such a connection here. Unlike the many cases submitted by Mr. Evangelista on behalf of Mr. Malabre, there is no evidence in this case of the kind of connection necessary to result in diminished moral blameworthiness.

[34] In most of the cases relied upon by the defence, the court had the benefit of at least a Pre-Sentence Report (“PSR”): R. v. Grant, 2021 ONCJ 507, at para. 10; R. v. Russell, 2023 ONCJ 133, at para. 5; R. v. Gordon, 2023 ONCJ 157, at para. 9. In many cases, the court had the benefit of an Enhanced Pre-Sentence Report (“EPSR”): R. v. Williams, 2023 ONCJ 259, at para. 8; R. v. Stewart, 2023 ONSC 281 at para. 18; R. v. White, 2024 ONSC 4200, at para. 6. I have neither a PSR nor an EPSR. Nor do I have any evidence from Mr. Malabre about his experience as a Black person. All I have are letters, including one from Mr. Malabre which he relied upon in support of an oral statement of allocution. None of these letters speaks of the kind of exposure to poverty, violence and prejudice suffered by the Black offenders in the cases relied upon by Mr. Evangelista.

[35] In his submissions, Mr. Evangelista spoke of poverty and the need for handouts from the Salvation Army. However, none of this is borne out by the letters I have read. Mr. Malabre’s mother has been working for eight years for PwC, a large international consulting firm, as a “Regional Human Capital Manager.” She speaks of health issues her son suffered as a boy and of learning disabilities, not of poverty and violence. Mr. Malabre’s grandmother, with whom he came to live at the age of 13, also makes no mention of such things. Mr. Malabre himself testified during the trial that he went to college and was gainfully employed at the time of these offences.

[36] Everyone who speaks of Mr. Malabre's past, including Mr. Malabre, says only that he got mixed up with some bad family members and/or made bad choices both before and after he returned to Canada. There is nothing about his experiences as a Black person living in Canada. Nor do I have any evidence whatsoever of the existence of or effect on Mr. Malabre of anti-Black racism during the seven years he lived in Barbados.

[37] There is simply not enough evidence of a connection between anti-Black racism and Mr. Malabre’s criminal behaviour to reduce his moral blameworthiness on the basis set out in Morris.

Aggravating and Mitigating Circumstances

[38] Section 718.2 of the Criminal Code requires that a sentence be increased or decreased to account for any aggravating or mitigating circumstances relating to the offence or the offender.

[39] Under the Criminal Code, the burden of proving the existence of an aggravating circumstance falls upon the Crown, who must prove the existence of such a circumstance beyond a reasonable doubt: Criminal Code, s. 724(3)(e). The burden of proving the existence of a mitigating circumstance falls upon the offender, who must prove the existence of the circumstance on a balance of probabilities: R. v. Aragon, 2022 ONCA 244, at paras. 105-107.

The Principles Applied

[40] I turn now from a general discussion about the gravity of the offences and the moral blameworthiness of the offender to a more specific discussion about the aggravating and mitigating circumstances in this case.

[41] I will begin by examining the aggravating circumstances and will then examine those that mitigate the sentence.

Aggravating Circumstances

The Nature of the Substances

[42] One of the most aggravating circumstances in this case is the nature of the drugs. The drugs possessed by Mr. Malabre for the purpose of trafficking included fentanyl, one of the deadliest street drugs known.

[43] In Parranto, Moldaver J. cited some stunning statistics about fentanyl with which none of the other justices disagreed. At paras. 93-96, he wrote:

Synthetically produced and readily available on the illicit market, fentanyl is an extremely dangerous and powerful painkiller and sedative. As with other opioids, such as heroin and morphine, it is a highly addictive substance, which, when taken outside of controlled medical environments, puts its users at risk of serious harm, including brain damage, organ damage, coma, and death. Fentanyl’s potential for harm is, however, significantly greater than other opioids. It is, for example, estimated to be 80-100 times more potent than morphine and 25-50 times more potent than pharmaceutical grade heroin. Given its strength, a lethal dose will often be less than two milligrams, an amount as small as a single grain of salt. The risk of overdose and death from fentanyl is thus extremely high, particularly for naïve users or where it is taken in combination with other substances, such as alcohol or other opioids. The risk of overdose is also one that can be difficult to guard against, as traffickers often surreptitiously mix small amounts of fentanyl with other substances to create a cheaper product with the same effects, thereby drastically increasing their profitability. This deceptive practice leaves users vulnerable and unaware, especially as fentanyl is physically indistinguishable from other hard drugs, such as heroin, oxycodone, and cocaine.

The Quantity of the Substances

[44] Given the very low doses at which fentanyl can be lethal, the quantity of the drugs involved here is also an aggravating circumstance. Twenty-eight grams of fentanyl was enough to kill over 100 people. I have no evidence before me of the street value of the drugs or how many typical sales it might represent, but I think it is fair to assume that it represented many.

[45] Therefore, I accept the Crown’s submission that the quantity of drugs involved in this case make Mr. Malabre a mid-level street dealer.

The Commercial Nature of the Activity

[46] The commercial nature of Mr. Malabre’s activity is also a significant aggravating circumstance.

[47] Many of the cases upon which Mr. Evangelista relies in support of his argument that Mr. Malabre should be given a conditional sentence involved “addict traffickers”; offenders who sold small quantities of fentanyl to support their own habit: R. v. Nacinovich, 2020 ONSC 6704, at para. 14; Gordon, at para. 15; R. v. Woods, 2024 ONCA 664, at para. 3. That is not the case here. Mr. Malabre testified at trial that, while he did use cocaine, he did so only recreationally.

The Evidence that Mr. Malabre Had Already Sold Drugs

[48] Also aggravating is the evidence that Mr. Malabre not only possessed the drugs in the fanny pack for the purpose of selling them, but that he had sold some already.

[49] The jury must necessarily have concluded that the $4,770 found in one of Mr. Malabre’s pockets was the proceeds of drug trafficking, as that is the only criminal activity concerning which the Crown introduced evidence. That evidence included the evidence of Mr. Merritt that Mr. Malabre was at his residence to sell drugs and that he had seen him do so.

[50] I bear in mind that Mr. Malabre is not being sentenced for trafficking drugs and that possession for the purpose of trafficking is a less serious offence than that of trafficking: R. v. King, 2013 ONCA 417, at para. 54. However, the fact that he had already sold some of the drugs he had in his possession is an aggravating circumstance with respect to the offence for which he was convicted, in my view.

The Use of the Same Scales to Weigh the Two Drugs

[51] So too, is the evidence that an analysis of the scales found hidden in Mr. Malabre’s steering column showed traces of both fentanyl and cocaine. Fentanyl is so dangerous that most judges do not even allow it to be brought into their courtrooms as evidence and that the police handle it with rubber gloves and extreme care whenever necessary. As Parranto makes clear, it is dangerous in even the smallest quantities.

[52] For this reason, it is an aggravating circumstance that Mr. Malabre was using a scale that he did not clean in between weighing fentanyl and weighing cocaine.

The Effect of Fentanyl in Our Region

[53] I come now to an aggravating circumstance not tied solely to the facts of this case.

[54] In Lacasse, mentioned earlier, the Supreme Court of Canada held that a sentencing judge may take judicial notice of the prevalence of a crime in that judge’s locale: Lacasse, at para. 95. As the former Regional Senior Judge for the Northeast region for the period from 2019 to 2024, I am very familiar with the prevalence of fentanyl trafficking in our region. As one of my colleagues put it, our region is “awash in fentanyl”.

[55] Our region has experienced a disproportionate increase in criminal cases since the pandemic was declared in 2020. As demonstrated in our court's recent report, entitled “Modernizing the Justice System”, there were more criminal proceedings commenced in the Northeast Region in 2022 and 2023 than in the East Region, which includes Ottawa: https://www.ontariocourts.ca/scj/news/annual-reports/2019-2023-EN.pdf.

[56] I view Mr. Malabre’s contribution to this problem as an aggravating circumstance. He travelled over 200 kilometres during the pandemic from the Greater Toronto Area to the Northeast region to sell his drugs in what appears to be a growing market for drug traffickers.

Mr. Malabre’s Criminal Record

[57] Finally, as I indicated earlier, Mr. Malabre has a criminal record. It does not contain any drug-related convictions and, therefore, I do not find it particularly aggravating. However, it does mean that he is not a first offender.

Mitigating Circumstances

[58] I turn now to the mitigating circumstances in this case. Unfortunately, there are not as many as there are aggravating circumstances.

Mr. Malabre’s Youthful Age

[59] I start by observing that Mr. Malabre is still young. He was just 25 years old at the time of the offences and is only 29 years old now.

[60] While his young age does not excuse his behaviour, when combined with the other mitigating circumstances I will come to, Mr. Malabre’s age gives me hope that his criminality is not so deeply entrenched that it cannot be changed.

Mr. Malabre’s Difficult Upbringing

[61] Although I do not have enough evidence of a connection between the existence of anti-Black racism and Mr. Malabre’s life experiences, I do have evidence that he suffered a difficult upbringing for other reasons.

[62] As Mr. Malabre’s mother writes, he was born prematurely, as a result of which he suffered issues with his hearing, a learning ability, and a reduced attention span. As a child, he had to undergo several operations on his ears.

[63] Being separated from his mother and his sisters after he returned to Canada also took a toll on Mr. Malabre.

[64] Mr. Malabre’s grandmother tells us that he was abused by the man his mother married after divorcing his father and that his step-father was responsible for Mr. Malabre getting hooked on drugs. She writes that Mr. Malabre also got involved with friends and relatives once he returned to Canada who were “taking part in inappropriate activities that involved police intervention.”

[65] Mr. Malabre himself confirms that he struggled when he returned to Canada with anger and resentment issues surrounding his mother’s decision to remarry and move to Barbados, and with school because of his issues with his attention span.

[66] I accept that Mr. Malabre’s difficulties as a child and a young adult stand in mitigation of his conduct in this case and, therefore, in mitigation of his sentence.

The Difficult Conditions of Pre-trial Detention and Release

[67] The difficult conditions of Mr. Malabre’s pre-trial detention and the stringent conditions of his release on bail also mitigate the sentence in this case.

[68] While he was in custody awaiting trial on these offences at the Central North Correctional Centre (“CNCC”), Mr. Malabre was on lockdown for 53 days. A memo from CNCC entered into evidence states that, normally, inmates are allowed out of their cells for 12 hours per day, from 7:00 a.m. to 7:00 p.m. It also states that, of the 53 days of lockdown during Mr. Malabre’s stay at that institution, all but three of them were for the full 12 hours. To make matters worse, there were many times where the lockdowns were on successive days. During one period in January 2021, for example, Mr. Malabre was locked in his cell for six days straight. Some of the lockdowns, such as the January 2021 lockdown, were due to medical isolation. Most of the other lockdowns, however, were due simply to staffing shortages.

[69] In addition, I am told that, after he was re-arrested on June 30, 2023, for breaching the terms of his release, Mr. Malabre was locked down at Maplehurst for an additional five days.

[70] In R. v. Duncan, 2016 ONCA 754, the Ontario Court of Appeal held, at para. 6, that “in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1) [of the Criminal Code]”.

[71] Due to the harshness of Mr. Malabre’s pre-trial custody, I would reduce his sentence by an additional six months beyond the credit for pre-trial custody to be given under s. 719(3.1) of the Criminal Code and the decision in R. v. Summers, 2014 SCC 26, which I will come to.

[72] In R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont., CA), at para. 33, the Ontario Court of Appeal also held that “stringent bail conditions, especially house arrest”, should also be treated as a mitigating factor in sentencing.

[73] Mr. Malabre spent just over a year, from May 26, 2021, to June 2022 under house arrest. In addition, after he was arrested for breaching the terms of his release, Mr. Malabre was released on July 26, 2023, again under house arrest and remained on house arrest until July 29, 2024, when the terms of his release were varied to permit him to work. Although he was permitted to leave the house to work, the remaining terms of Mr. Malabre's release order were also strict.

[74] In total, Mr. Malabre was confined to his home for just over two years. I would mitigate his sentence by six months to account for this period, and for a further three months to account for the period during which he was permitted to go to work, but was otherwise subject to the same strict terms of release.

Mr. Malabre’s Potential for Rehabilitation

[75] In my view, the single most significant mitigating circumstance in this case is Mr. Malabre’s high potential for rehabilitation. I accept his statement that he is motivated not to see his son suffer the same way he did with a father who was absent from his life. I also accept the many statements from friends and family members in their letters of support to the effect that Mr. Malabre is highly motivated and has the potential not only to avoid further involvement with the criminal justice system in the future, but also to become a valuable member of society.

[76] In cases like this, the court must be careful not to sacrifice an offender’s potential for rehabilitation on the alter of denunciation and deterrence: R. v. V. (D.), 2013 ONSC 1275, at para. 23; R. v. Hussain-Marca, 2017 ONSC 4033, at para. 33.

The Appropriate Sentence

[77] Taking all of these factors into account and leaving aside the harsh pre-sentence custody and release terms, I respectfully disagree with the Crown that Mr. Malabre should be incarcerated at the high end of the five-to-seven-year range. In my view, a fit and proper sentence in this case should be in the low-to-mid part of the range, namely five and one-half years imprisonment.

[78] However, as I mentioned earlier, I would mitigate the remaining sentence by nine months because of harsh pre-sentence conditions, leaving a sentence of four years and nine months incarceration.

[79] Under s. 719(3.1) of the Criminal Code and the decision of the Supreme Court of Canada in R. v. Summers, to which I referred earlier, Mr. Malabre must be given credit at the rate of one and one-half days for every day spent in custody awaiting sentence because he does not earn remission on pre-sentence custody, as he will on the time spent in custody as part of the sentence.

[80] Four years and nine months equates to 1,410 days. [2] Based on the information provided by counsel and by both CNCC and Maplehurst Correctional Complex, I calculate the time spent by Mr. Malabre in pre-sentence custody to be 216 actual days. Enhanced at the rate of 1.5 to 1, he should be given credit for 324 days. This leaves 1,410 days still to serve.

[81] Given that this sentence exceeds the reformatory time of two years less a day, I need not consider Mr. Evangelista’s submission that a conditional sentence is appropriate, because it is not available under s. 742 of the Criminal Code.

[82] For these reasons, on count #1, possessing fentanyl for the purpose of trafficking, Mr. Malabre will be sentenced to 1,734 days, less time served of 324 days, leaving a total of 1,410 days to serve. On count #2, possessing cocaine for the purpose of trafficking, Mr. Malabre will be sentenced to four years incarceration, less time served, concurrent. And on count #3, Mr. Malabre will be sentenced to three years incarceration, less time served, also concurrent.

Ancillary Orders

[83] In addition to the carceral sentence I have just imposed, I make the following ancillary orders, about which there is no issue”:

(1) under s. 487.04(a) of the Criminal Code, Mr. Malabre shall provide a sample of his DNA;

(2) under s. 109 of the Criminal Code, Mr. Malabre shall not possess anything listed in that section for life; and

(3) under s. 490.1 of the Criminal Code and ss. 16 and 27 of the Controlled Drugs and Substances Act, the offence-related property seized by the police shall be forfeited to the Crown.

M.G. Ellies J. Released: November 4, 2024

Corrected Decision

COURT FILE NO.: CR-23-67 DATE: 2024/11/04 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – MICHAEL MALABRE Defendant REASONS FOR decision ON SENTENCE M.G. Ellies J. Released: November 4, 2024

CORRECTED DECISION: The text of the original decision was corrected on November 12, 2024, and the description of the correction is appended below:

• There was a mathematical error at paras. 80 and 82. The number of days to serve after deducting enhanced time served of 324 days from the sentence of 1,734 days is 1,410 days, not 1380.
• “Micheal” was changed to “Michael” in the style of cause on pages 1 and 12.
• “Lee” Van Gorder was changed to “Leigh” Van Gorder on page 1.

Footnotes

[1] Ms. Bellows appeared as counsel at trial and during the sentencing hearing. However, she was appointed to the Ontario Superior Court of Justice on October 28, 2024.

[2] I have rounded up from 1733.6 days, given that there is a leap year every four years and to make the math simpler.