Court File and Parties

COURT FILE NO.: CR-21-452 DATE: 2024/10/16 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Plaintiff – and – DANIEL HASTINGS Defendant

Counsel: Tessa Moran, Counsel for the Crown Cristina Valeri, Counsel for the Accused

HEARD: September 13, 2024

REASONS FOR SENTENCE JusticE L. SHEARD (ORALLY)

Overview

[1] On May 23, 2024, following a four-day trial by judge alone, Daniel Hastings was found guilty of both counts on the indictment, namely that:

(i) on May 7, 2020, in the City of Hamilton, he possessed fentanyl for the purposes of trafficking contrary to section 5, subsection 2 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”); and

(ii) on May 7, 2020, in the City of Hamilton, he possessed proceeds of property obtained directly or indirectly from the commission of an offence punishable by indictment of a value not exceeding $5,000 contrary to section 355(b) of the Criminal Code, R.S.C., 1985, c.C-46.

[2] This decision follows an oral sentencing hearing, at which Crown and defence counsel made submissions respecting sentence. Mr. Hastings was also invited to address the court, and chose only to thank the court.

[3] The court was also provided with briefs of authority, a copy of Mr. Hastings’ Criminal Record, a Pre-Sentence Report for Mr. Hastings (PSR), and letters of support from: 1) Dave Hachey, a community outreach worker who is been assisting Mr. Hastings in Guelph, Ontario, dated July 3, 2024; 2) Sharon Osbourne, Mr. Hastings aunt, dated September 11, 2024; and 3) from Deborah Hastings, Mr. Hastings’ mother, dated September 12, 2024.

[4] I have taken all of the foregoing into account in determining what fit and proper sentence should be imposed upon Mr. Hastings.

The Offences

i. Possession for the Purpose of Trafficking

[5] Mr. Hastings and his brother were the targets of a police drug trafficking investigation. On May 7, 2020, Mr. Hastings was seen leaving one of the properties under surveillance via taxicab. He was followed by a police officer to a location near Victoria and Birge Streets, in the City of Hamilton, where he exited the cab. Upon the arrival of a second police officer, Mr. Hastings was arrested.

[6] Upon arrest, Mr. Hastings was in possession of 14.15g of fentanyl, a rolled-up US $1.00 bill with what appeared to be drug residue on it, a cellphone, and cash of $810.35.

[7] These are the facts on which Mr. Hastings was found guilty.

[8] While the Crown led evidence concerning other fentanyl located in one of the properties under surveillance, the Crown was unsuccessful in establishing that this fentanyl belonged to Mr. Hastings.

[9] Mr. Hastings admitted that he was in possession of the fentanyl but asserted that it was for his personal use, not for the purpose of trafficking.

[10] For reasons given orally, I found that the Crown had proved beyond a reasonable doubt that Mr. Hastings was in possession of the 14.15g fentanyl for the purpose of trafficking. Based on the Crown’s expert, the 14.15 g. of fentanyl could have had a 2020 street value of as much as $2,820.

ii. Possession of Proceeds of Crime

[11] At the time of the offence, Mr. Hastings was not receiving any government assistance and his drug addiction prevented him from being able to work, except occasionally, when the effects his drug addiction abated sufficiently that he was able to work for his father, a carpenter. I found that the money found on Mr. Hastings could not have come from any legitimate source and, on this basis, he was convicted of possession of proceeds of crime.

The Positions of the Crown and Defence Respecting Sentence

The Crown’s Position on Sentence

[12] The Crown seeks a global sentence of 4 years. The Crown did not indicate how that sentence should be allocated as between the two counts.

[13] The Crown submits that the sentence sought is supported by the jurisprudence, and in particular, the following:

(a) R. v. Lynn, 2019 ONCA 277. On this sentence appeal, the applicant had been found guilty of trafficking in hydromorphone, a synthetic heroin. The court upheld a sentence of 26 months plus 2 years probation and stated at para. 5: Absent exceptional circumstances, the sale of heroin, even in small amounts by first offenders who are addicts, calls for a penitentiary sentence: R v. Farizeh, [1994] O.J. No. 2624 (Ont. C.A.), at para. 5

(b) R. v. Loor, 2017 ONCA 696 On this conviction and sentence appeal, the appellant was found to have had used a forged prescription to obtain a total of 45 patches of fentanyl from a pharmacy. He was found guilty of three counts of using a forged document (a prescription) and three counts of trafficking in fentanyl. Identified as “a low-level member of a small drug trafficking ring dealing in fentanyl”, the appellant was sentenced to a custodial sentence of six years, less credit for pre-sentence custody. The appellate court dismissed both the conviction and the sentence appeal. It agreed with the trial judge that the sentence “must be proportionate to the seriousness of his crimes and his moral blameworthiness, and that the principles of specific and general deterrence and denunciation are important principles in sentencing drug traffickers” (at para 31). At para, 50 of its reasons, the court stated: Few fentanyl trafficking cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a range. But I think it fair to say that generally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.

(c) R. v. Lynch, 2022 ONCA 109 On this sentence appeal, the Crown sought leave to appeal the sentence of four years imposed on the respondent for drug offences, including trafficking in cocaine, and fentanyl, possession for the purpose of trafficking and possession of the proceeds of crime. The appellate court granted leave to appeal and increased the sentence to six years. The respondent had pleaded guilty to the offences, and accepted responsibility for a total of 965.01 g of cocaine, 149.28 g of MDMA and 41.37 g of fentanyl. The appellate court found that the trial judge erred in concluding that the range of sentence for mid-level traffickers in cocaine to be 4 to 6 years, when the jurisprudence is that the range is 5 to 8 years and it erred in comparing that range of sentence to the conviction for trafficking in fentanyl. At para. 15, the court stated: Fentanyl is now known to be a much more serious drug than almost any other. That reality directs that a sentence imposed for trafficking in fentanyl should be as long or longer: R. v. Olvedi, 2021 ONCA 518. At paragraphs 16 and 17, the court expanded on its view that “moral culpability rises with the risk of serious harm the trafficker is prepared to expose others to” and that the greater the risks associated with a particular drug, “the greater the offender’s culpability or moral blameworthiness for choosing to traffic in that drug.” At para. 18, the court stated that the fact that the respondent was, not at the “pinnacle” of the drug dealing empire his level of moral blameworthiness did not mean that his actions were not serious and that “[T]he producers of a product cannot get it into the hands of the consumer if there is no one to sell and deliver it.”

(d) R. v. Ryn, 2023 ONSC 2919. This is a trial decision respecting sentence. The accused was found guilty of conspiracy to import fentanyl, and possession of fentanyl for the purpose of trafficking. The fentanyl weighed approximately 6g. However, it would appear from the reasons that the drug seized was pure fentanyl, given its valuation of between $250,000 and $1 million. The trial judge considered all of the applicable factors, finding that the principles of general deterrence and denunciation to be the prominent or paramount features in fentanyl trafficking cases, referencing R v. Olvedi. He rejected the defence request to impose a conditional sentence as inappropriate and, in keeping with the other cases referenced by the Crown, found that possession of even a small amount of fentanyl for the purpose of trafficking to be a serious offence, and one that attracts a penitentiary sentence. The trial judge sentenced the accused to a custodial term of four years on the offence of possession of fentanyl for the purpose of trafficking, to be served concurrently with the sentence for a conspiracy to import fentanyl.

(e) R. v. Smith, 2023 ONCA 620 This was a sentence appeal by the Crown from the decision of the Ontario Court of Justice to impose a sentence of two years less a day for convictions of possessing a prohibited firearm with readily accessible ammunition, breach of a weapons prohibition order, possession of a firearm with the serial number removed, pointing a firearm, and possession of cocaine for the purpose of trafficking. The appellate court granted the Crown’s sentence appeal and imposed a sentence of two years, concurrent, for possession of cocaine for the purpose of trafficking. I do not find this case to be particularly helpful, given the significant difference between its facts and those here. However, it is instructive on the issue of the appropriateness of a conditional sentence and, in particular, that the mitigating factors in that case did not warrant a departure from the presumptive penalty of a penitentiary term of imprisonment.

(f) R. v. Shawile, 2012 SKCA 51 The Crown references this case in response to the defence submission that a conditional sentence ought to be imposed. This case is not binding upon this court and is somewhat dated. On appeal, the court found that a 22-month conditional sentence for trafficking in cocaine to be demonstrably unfit, finding that the range for that offence was between 18 months to four years based on the applicable jurisprudence in Saskatchewan. The court imposed a sentence of 18 months imprisonment.

Defence Position Respecting Sentence

[14] Mr. Hastings asks for a two-year conditional sentence, on terms detailed in the defence sentencing brief, followed by a one-year period of probation, together with the ancillary orders sought by the Crown.

[15] A conditional sentence is available pursuant to s. 742.1 of the Criminal Code, which states:

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

(b) the offence is not an offence punishable by a minimum term of imprisonment;

(c) the offence is not an offence under any of the following provisions:

a. (i) section 239, for which a sentence is imposed under paragraph 239(1)(b) (attempt to commit murder),

b. (ii) section 269.1 (torture), or

c. (iii) section 318 (advocating genocide); and

(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more.

[16] In R. v. Proulx, 2000 SCC 5, [2000] 1 SCR 61, the Supreme Court of Canada stated that “a conditional sentence can achieve both punitive and restorative objectives” and that “a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration” (at para. 100).

[17] Mr. Hastings refers the court to the following cases:

(a) R v. Gabbidon, 2017 ONCJ 55 This is a trial decision of the Ontario Court of Justice. The offender was found guilty of possession of 81 grams of cocaine for the purpose of trafficking and possession of proceeds of crime under $5,000. The offender sought a conditional sentence of two years less a day; the Crown sought a custodial term of between 18 months and two years less a day together with the probation and the ancillary orders. At the time - unlike now - a conditional sentence was unavailable under the Criminal Code for the offence of possession for the purpose of trafficking. The circumstances of the offender were important: he had no prior criminal record; was living with his spouse and her child; supported his children from a prior relationship; had a steady employment history; and his involvement with cocaine appeared to have been triggered by an unexpected debt for back taxes, which led him to abuse alcohol and, later, cocaine. His behaviour after arrest demonstrated that he had been rehabilitated to a significant degree: he paid off his tax debt, became involved in his church, and was employed full-time. The offender was sentenced to a custodial term of nine months and a concurrent 18-month conditional sentence for possession of the proceeds of crime, followed by 12 months of probation. At para. 12, the trial judge endorses the principles in the cases referred to this court by the Crown that “sentences in trafficking cases must reflect the seriousness of the offence and the moral culpability of the offender”. The trial judge also considered: that the offence involved profiting from the misfortune of others by selling dangerous drugs to addicts and that the sentence should also take into account where the offender is in the hierarchy of drug trafficking: those at the top of the hierarchy cause “great harm to many people and their moral culpability is significant” and that “those at the bottom, also cause harm, but to a more limited extent” and the sentences imposed on them should reflect this difference.

(b) R. v. Johnson, 2015 ONSC 80 In this trial decision, the accused pleaded guilty to two counts of trafficking cocaine. On the first count, he was sentenced to a custodial term of 90 days, intermittent and, on the second, an 18-month conditional sentence. The offender was a 26-year-old first time offender. He had graduated from high school and secured a college diploma. He lost his job unexpectedly, which created financial pressures; he had a positive work history, no criminal record, and a positive PSR.

(c) R v. Mori, 2020 ONSC 7000 In this trial decision, the accused pleaded guilty to possession for the purpose of trafficking of a mixture of fentanyl and heroin. As there was uncertainty as to whether he knew that he was in possession of fentanyl, he was sentenced only on possession of heroin. The offender was 40 years old at the time of sentencing and had begun to use heroin at the age of 17. While he had used fentanyl, he did not like it and sought to purchase heroin. The accused had a criminal record dating from 1996 to 2012. The longest sentence he had served was 90 days in custody. As at the time of trial, the accused had returned to school; was living with a long-time partner who he planned to marry; had completed a residential treatment program; and planned to return to school to study horticulture, the family business. The Crown sought a custodial sentence of 4 to 5 years, which, the trial judge noted, was consistent with jurisprudence that those who deal in heroin, even a first offender can expect a penitentiary sentence. At para. 29, the court noted that drug addiction is a pressing social problem that causes misery to the addict and suffering to those who love the addict, secondary crime, and significant social costs to deter and rehabilitate the addicts. For that reason, the penalties are severe for those who traffic in drugs, even addict traffickers. Notwithstanding that, the trial judge imposed a conditional sentence of two years less a day that he described as “house arrest”. The judge noted that he was imposing the maximum (conditional sentence) term allowable, without reduction, finding that this sentence would serve to “properly denounce and deter” and, “importantly” will enhance, rather than undermine the substantial prospect of rehabilitation (at para 34). In imposing the conditional sentence, the trial judge took into account that: the accused pleaded guilty; had been on bail for more than three years, with significant restrictions; had completed a residential treatment program for substance abuse; for the first time in his life was living with family in a home that he shared with them; had realistic and achievable plans for study and work; and that his hopes for a better life rested on a firm foundation provided by his step-grandmother. As such, his risk of reoffending was much reduced. The trial judge described these as “unique circumstances” which justified a conditional sentence of two years less one day. The trial judge stated at para. 35:

[35] Paul Mori stands at the cross-roads. His life has been one of addiction and unhap­piness, interspersed with periods of hope and success. Now, he can look forward to a life of joy and productivity. This journey is possible because the efforts of his step-grandmother significantly reinforces his commitment to remain drug free. In this regard, I note that so many other addict traffickers appear before me without such stability and support. Protection of the public means it is difficult to extend to them the more lenient sentence given to the defendant. He should know he is not likely to get this chance again.

(d) R. v. Grant, 2021 ONCJ 507 In this case, following trial, the accused was found guilty of five offences: possession of fentanyl for the purpose of trafficking, 9.5g; possession of crack cocaine for the purpose of trafficking 26g; possession of powdered cocaine for the purpose of trafficking. 13.2g in total; and possession of methamphetamine for the purpose of trafficking, 4g. and simple possession of oxycodone. The Crown sought a sentence of between 3.5 to 4 years and the defence, a suspended sentence, alleging exceptional circumstances. The trial judge found the accused to be a trafficker for profit – a low-level street trafficker – not an addict-trafficker. The accused was 18 years old when he committed the offences and was a first-time offender. He had a positive PSR, which highlighted his rehabilitative potential and established that the crimes were out of character. Prior to sentencing, the accused had demonstrated a commitment to returning to the lawful path he had been on, and that he had overcome the challenges, which had led him to commit the offences. Following arrest, the accused completed high school and had been accepted into college. He demonstrated that he is a hard worker and motivated to achieve in legitimate endeavours; he held down two jobs; was involved in a long-term committed relationship and supported by his partner in his rehabilitative path. Character letters filed spoke positively of the accused and the court found that the accused wanted to be a productive and contributing member of society, which, in the two years since his release, he had shown himself to be. Again, consistent with the jurisprudence, the sentencing judge noted that in cases involving possession for the purpose of trafficking of opioids, including fentanyl, the objectives of denunciation and deterrence are paramount. Notwithstanding that, the court also noted that the offender’s prospects for rehabilitation, the principles of totality and restraint played significant roles in crafting a sentence appropriate for a first time, 20-year-old offender who had committed crimes in an “isolated circumstance”, that were out of character, during a difficult time, when the offender was 18 years old. The court determined that this was a case where a departure from the normal sentencing range was justified, and that the principles and objectives of sentencing, including those of deterrence and denunciation, could be achieved through a conditional sentence given the “exceptional circumstances”. A conditional sentence of two years less a day was imposed, followed by three years’ probation, to be served concurrently with respect to all four counts.

(e) R v. Slack, 2023 ONSC 4497 In this decision on sentence, the accused had pleaded guilty to one count of trafficking fentanyl. The accused was a drug addict and had been approached by another person, who described herself as suffering withdrawal and needing to purchase fentanyl. The accused sold $30 of fentanyl to this person, who was later found dead in the bathroom of her workplace of acute fentanyl and ethanol intoxication. The Crown was unable to establish that the fentanyl that caused the victim’s death had been sold to her by the accused. The Crown sought a sentence of two years less a day and the defence sought a conditional sentence. The accused submitted that her rehabilitation following the victim’s death, constituted “exceptional circumstances”. The sentencing judge concluded that the circumstances of the offence and of the offender mitigated against the imposition of a jail sentence: this was not a commercial transaction, but was an effort by one addict to help another; the offender was employed and sending her to jail would result in her loss of employment and would likely make reemployment difficult. The sentencing judge found that her employment was important to her recovery, in which she had made progress. The court noted also that the offender had children and that by maintaining her employment, it would assist her in her rehabilitation and, possibly, allow her to find employment closer to her children.

(f) R v. Stewart, 2024 ONSC 281 In this case, the offender pleaded guilty to possession of fentanyl (not possession for the purpose of trafficking) and a loaded prohibited handgun. The Crown sought a custodial term of between three and four years and the defence sought a conditional sentence. The court imposed a conditional sentence, finding that exceptional circumstances existed in the case, and the fundamental principles of deterrence and denunciation could be met by “the tightest of house arrest conditions for the whole length of the sentence.” The maximum term of two years less a day was imposed, followed by a period of probation for two years, together with the usual ancillary orders. The court determined that the sentence imposed would reflect the rehabilitative potential of the offender, would protect society, and would uphold the fundamental purpose of sentencing which was “to contribute to respect for the law and the maintenance of a just, peaceful and safe society” (at para. 68). In imposing this sentence, the court noted many mitigating factors, which included: (1) the offender pleaded guilty; (2) the offender was a first-time offender with no prior record; (3) the offender was young at the time of the offence – 19 years old; (4) the offender had the support of their family; (5) while on bail, the offender obtained employment as well as volunteered at the Salvation Army; the offender completed a youth training program with the John Howard Society as well as a program on anger management and emotional issues – which the court found spoke to the potential of the offender’s rehabilitation.

(g) R. v. Woods, 2024 ONCA 664 This is a recent decision of the Ontario Court of Appeal, released on September 9, 2024. The Crown appealed the sentence of two years less-a-day, with house arrest for the duration, followed by three years of probation, that had been imposed on the offender, convicted of trafficking in fentanyl. On the appeal, the Crown sought a sentence of 29.5 months, reflecting a sentence of four years, less credit for time served and restrictive pre-trial bail conditions. The Crown argued that the sentence was demonstrably unfit because it was disproportionate to the gravity of the offence and the moral blameworthiness of the offender and did not achieve the objectives of denunciation and deterrence. The appellate court did not agree and upheld the sentence imposed by the trial judge. The appellate court noted that: the offender was not a commercial dealer; was a friend of the deceased, who, like the offender, was an addict; the offender used drugs with his friends and had sold the deceased a small quantity of fentanyl for personal use. The appellate court found that the sentencing judge had carefully considered the relevant aggravating and mitigating circumstances, including that it was an aggravating factor that the fentanyl sold by the offender had caused the death of his friend, but noting the significant mitigating factors, including: the offender had a difficult life; became an opioid addict as a result of an injury; he entered an early plea and was remorseful; had a positive employment history; had community and family supports; and had made “extraordinary” efforts at rehabilitation. The offender had been sober since his arrest and was found to be a “strong candidate to maintain his sobriety”. In addition, the offender had been subject to strict bail terms that amounted to house arrest for a period of 19 months, which included residential treatment. The appellate court concluded that, although the objectives of denunciation and deterrence would “typically require carceral sentences where fentanyl trafficking is concerned”, in the “unusual circumstances” of the case, it was open to the sentencing judge to impose a conditional sentence, which, it found, was, not demonstrably unfit.

Pre-Sentence Report

[18] Mr. Hastings is 41 years old. The PSR describes Mr. Hastings’ childhood as “tough”. Among other things, he was sexually assaulted as a child (the offender was prosecuted). Mr. Hastings did not indicate that this victimization had a lasting impact on his life decisions or behaviour.

[19] Mr. Hastings was raised with his older brother until his parents separated when he was approximately five years old. His parents’ separation was difficult for him, and he initially went to live with his father but became dissatisfied with his homelife when his father remarried. At the age of 11, Mr. Hastings decided to live with his mother. His brother remained living with his father until the age of 18.

[20] Mr. Hastings advised that his mother had a new partner who had substance use issues, to which Mr. Hastings was exposed. When his family moved to Hamilton, Mr. Hastings reported that it led him into trouble and criminal justice system involvement. As a result, he was in and out of youth custody and often charged with breaches of conditions.

[21] Mr. Hastings’ mother ended her relationship with her new partner, and his brother moved into the home with their mother. They left their municipal housing unit over concerns that Mr. Hastings and his brother had “excessive amounts of visitors entering their unit”.

[22] Mr. Hastings moved into a friend’s house and formed a relationship with a girlfriend which, he describes as “dysfunctional due to their mutual drug use.” Mr. Hastings asserts that he surrounded himself with friends who were “poor influences” and was frequently charged with criminal offences because of the poor influences around him.

[23] Mr. Hastings spent one year in jail in 2004, after which, he began a relationship that lasted for more than two years, during which they had a daughter. He says he and his then partner were both using drugs during her pregnancy. The child lives with the maternal family members.

[24] Mr. Hastings now has a positive relationship with his father, Michael Hastings (referred to in these reasons as Mr. M. Hastings) with whom he works. He speaks to his mother on occasion but has a poor relationship with his brother. Mr. Hastings disclosed that his brother is an active opiate user.

[25] Mr. Hastings advises that he is currently living alone in a rented unit in Guelph, Ontario and is supported by provincial income assistance as well as by his employment with his father. The PSR described his housing situation as stable although Mr. Hastings indicated that meeting rent was a struggle for him and that he was looking for a roommate.

[26] Mr. M. Hastings, who also testified at trial, was interviewed for the PSR. He verified information provided by Mr. Hastings and expressed the view that his sons were exposed to substance use while in the care of their mother, leading them to learn behaviours that have been detrimental to their futures. Mr. M. Hastings confirmed that his son, Daniel Hastings, is employed by him and works four to six days per week, is advancing in his skill set, and is trustworthy on jobsites.

[27] Mr. M. Hastings also confirmed Mr. Hastings’ involvement in a local methadone program and, (contrary to what Daniel Hastings said on his PSR interview) Mr. M. Hastings stated that his son has been free from supplementary drug use for approximately one year.

[28] Mr. Hastings dropped out of high school, but at the age of 27 completed a high school diploma.

[29] Mr. Hastings asserts that is looking at post-secondary options and is considering a path in the trades. He acknowledges he has been frequently unemployed but recounts an enjoyable job with the flooring company in shipping and receiving – which he had 20 years ago - to which he would gladly return if given the opportunity.

[30] The PSR reports that Mr. Hastings began to abuse alcohol at age 11 and begin to use crack cocaine, crystal methamphetamine and opiates at the age of 20. This drug use escalated to intravenous administration. Mr. Hastings described falling in love with the drug use and that he quickly became “hooked” on each new drug.

[31] Mr. Hastings asserted to the PSR interviewer that he was engaged with a local methadone program after failing to go “cold turkey”. However, he is not permitted to have weekly “carries” because of relapses that occurred as recently as one month before the interview (May 23, 2024). Mr. Hastings acknowledged that while the program is a benefit to him, he continues to struggle to abstain from using opiates.

[32] In her submissions on sentence, Mr. Hastings’ counsel advised the court that the reference to the recent relapse in the PSR was not that he was using another drug but, rather, he had missed three doses of methadone. She explained that Mr. Hastings had been visiting his mother in Hamilton and that arrangements could not be made for his methadone dose to be delivered to a location in Hamilton.

[33] Mr. Hastings told the interviewer that he wanted to get out of the criminal justice system and attend trades school. He further asserted that he has made many changes to his life since these charges were laid.

[34] Mr. Hastings’ last conviction was in May 2017, for care or control of a vehicle while impaired. He was subject to a six-month probation order for impaired driving, which expired on November 9, 2017. The PSR reports that Ministry records show that Mr. Hastings had been supported by his grandmother, who enabled his pro-criminal behaviour. Mr. Hastings confirmed that throughout her supervision, he enjoyed opiates, crack and methamphetamine use and was not then ready to change or leave his lifestyle and peers.

Mr. Hastings’ Criminal Record

[35] Mr. Hastings has a lengthy criminal record and a youth record dating back to 2002. While this will be his first conviction for possession for the purpose of trafficking, he has numerous drug-related convictions. He has never served time in a federal institution.

[36] Mr. Hastings acknowledges that he has suffered from drug addiction for most of his life and that his criminal record stems from his need to fund his addictions. Mr. Hastings asks the court to note that he has two convictions for possession of a Schedule 1 substance, offences which would no longer be prosecuted under the current Crown protocol.

Principles of Sentencing

The Relevant Principles of Sentencing

[37] Section 718 of the Code sets out the fundamental purpose of sentencing and reads:

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.

[38] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 (a) requires the court to take into consideration any relevant aggravating or mitigating circumstances relevant to the offence or the offender including, but not limited to, evidence that the offence had a significant impact on the victim, including the victim’s health and financial situation, which shall be considered an aggravating circumstance.

[39] Section 718.2 (b) to (e) requires that: (b) a sentence be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and, (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Analysis: Nature of the Offence and Range of Sentence

[40] I note the following:

(i) despite his long history of drug addiction, this is Mr. Hastings’ first conviction for a trafficking-related offence;

(ii) Mr. Hastings’s offence falls at the low end of the trafficking hierarchy; and

(iii) although he was found to be in possession for the purpose of trafficking of the most harmful street drug of its time, fentanyl, he had a relatively small amount of it, a relatively small amount of money.

[41] With respect to the money and other items seized, a forfeiture order was made on September 13, 2024.

[42] Although in this case there is no evidence of an identifiable victim, different from some of the cases referenced above, the offence of possession for the purpose of trafficking cannot be described as a victimless crime. Mr. Hastings’ own life illustrates the harm caused by his addiction, which has led him to engage in criminal behaviour and to suffer serious harm to his health. For example, Mr. Hastings described his multiple hospitalizations for an infection of his heart and related ailments, caused by his intravenous drug use.

Mitigating and Aggravating Circumstances

[43] I have considered the aggravating circumstances: Mr. Hastings’ has a lengthy criminal record, and the drug was fentanyl.

[44] While not a mitigating circumstance, in her submissions, counsel for the Crown acknowledged that Mr. Hastings has no previous conviction for trafficking and that his convictions for possession are usual to someone who suffers from substance use disorder.

[45] Mr. Hastings’ own history provides a sad story of a life derailed at a young age by drug addiction, from which, he is still struggling to free himself. Mr. Hastings attributes his drug addiction to his own personality and susceptibility to the influence of “anti-social peers.”

[46] At trial, Mr. Hastings testified that at the time of his arrest, he was making plans to leave Hamilton and move to Guelph, where his father lives, in order to start a new life and distance himself from bad influences, including, it would appear, the influence of his brother – his former drug dealer and an ongoing user – who was living across the street from Mr. Hastings at the time of his arrest.

[47] Mr. Hastings’ brother requires specific mention because Mr. Hastings disclosed in the PSR that his brother remains addicted to opiates. Mr. Hastings also says that his brother lives with his mother. I also note that Mr. Hastings’ failure to comply with the rules of his methadone program occurred when Mr. Hastings was visiting his mother in Hamilton. Mr. Hastings’ contact with his brother and, possibly, even with his mother, appear to be interfering with his ability to abide by his methadone program.

[48] I accept the submissions of Mr. Hastings’ counsel that he has tried to turn over a new leaf by leaving Hamilton and moving to Guelph, where his father lives. His father has been very supportive of Mr. Hastings and his recovery plans; I note that it was only after moving to Guelph that Mr. Hastings enrolled in a methadone program.

[49] The methadone program appears to be playing an important role in Mr. Hastings’ ability to turn over a “new leaf”. In her sentencing submissions, counsel for Mr. Hastings advised that while he is enrolled in the methadone clinic, Mr. Hastings is required to undergo a weekly urine test, and to receive a daily dose of methadone. Also, as part of his rehabilitation, Mr. Hastings has engaged with Dave Hachy, an Oak Community outreach worker.

[50] Mr. Hachy submitted a letter of support on this sentencing hearing in which he described how Mr. Hastings has “demonstrated a remarkable commitment to his own recovery” and has been “a source of support and encouragement to his community”. He states that Mr. Hastings is determined to overcome obstacles, make positive changes in his life and has been committed to attending counselling sessions, taking part in group therapy and engaging in community service projects. The court was told that Mr. Hastings sees Mr. Hachy approximately three times each week.

[51] Also, since moving to Guelph, Mr. Hastings has repaired his relationship with his father who provides Mr. Hastings with employment in his carpentry business. This not only provides Mr. Hastings with some income, but it also allows him to work on his carpentry skills, a positive step toward rehabilitation and to living a pro-social life.

[52] Finally, I note that in the four years since his arrest on May 7, 2020, Mr. Hastings has not re-offended.

[53] Mr. Hastings is an addict-trafficker and has struggled with substance abuse disorder for most of his life. However, in the four years following the offence, Mr. Hastings has not re-offended but has taken meaningful steps to distance himself physically from his influences, to address his addiction, improve his relationship with his father, who supports his rehabilitation and provides him with employment and an opportunity to improve his carpentry skills.

[54] Mr. Hastings has demonstrated his willingness to embark upon a path to rehabilitation and, recognizing that there will be missteps, has shown that he will be able to continue on that path.

Determination of Sentence

[55] The jurisprudence is clear that a penitentiary sentence is usually imposed upon a conviction of possession for the purpose of trafficking in a serious drug, such as fentanyl. However, in more recent cases, including the 2024 Ontario Court of Appeal decision in Woods, courts have seen fit to impose a conditional sentence in cases in which exceptional circumstances were found to exist. Those exceptional circumstances almost always began with a guilty plea and strong evidence that the offender expressed remorse for the offence and had taken significant steps to rehabilitation such that the risk of reoffending was much reduced.

[56] In this case, Mr. Hasting admitted that he was in possession of the fentanyl - an offence that the Crown acknowledged it would not prosecute. While he did not plead guilty to possession for the purpose of trafficking, in the circumstances, I do not find that should prevent the imposition of a conditional sentence: the Crown sought to establish that Mr. Hastings possessed other quantities of fentanyl, found in a house to which he was connected. The evidence did not support that factual finding, which, if proven, could have had a bearing on a finding of guilt and most certainly would have had a bearing on sentence.

[57] In this case, I have come to the conclusion that the important sentencing principles of denunciation and deterrence can be met through a conditional sentence, on terms. In reaching that conclusion, I have considered the principles in Proulx that:

1. The conditions must ensure the safety of the community;
2. Conditions must be tailored to fit the circumstances of the offender and the offence;
3. Punitive conditions, such as house arrest, should be the norm, not the exception; and
4. Conditions must be realistically enforceable, which requires a consideration of available community resources.

[58] While I recognize that in most cases, a person found guilty of possession for the purpose of trafficking in fentanyl would be facing a penitentiary sentence, on the facts of this case, I find that a sentence of less than two years falls within the range of sentences available for Mr. Hastings, having regard to the fundamental purpose in principles of sentencing.

[59] I have identified mitigating factors, most important of which are that in the four years following these offences: Mr. Hastings has not reoffended, he has made significant strides to overcome his addiction, and to embark on a pro-social life, which includes regular employment and engaging in volunteer activities assisting others, who might benefit from his experience. In my view, while Mr. Hastings’ may not be the most exceptional circumstances, I nonetheless find there to be exceptional circumstances whereby the fundamental principles can be met by imposing a sentence to be served in the community.

[60] In this case, as in Stewart, I am persuaded that the prospect of Mr. Hastings’ rehabilitation is good and that society will be best protected by the imposition of a sentence that will allow him to continue with his rehabilitation and, I hope, never to reoffend.

MR. HASTINGS, PLEASE STAND

[61] For the reasons set out, on Counts #1 and #2, I impose a global sentence of a period of incarceration of two years less a day to be served conditionally, in the community, on the terms set out below, followed by a period of probation of 18 months.

A. Statutory Terms of Conditional Sentence Order

Mr. Hastings you shall:

(a) Keep the peace and be of good behaviour;

(b) Appear before the court when required to do so by the court;

(c) Report within two working days in person, to a supervisor and thereafter report, when required by the supervisor and in the manner directed by the supervisor;

(d) Remain within the Province of Ontario, unless written permission to go outside to the Province is obtained from the court or the supervisor; and

(e) Notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change in employment.

B. Additional Terms

Mr. Hastings, you shall:

(a) Cooperate with your supervisor. You must sign any releases necessary to permit the supervisor to monitor your compliance and you must provide proof of compliance with any condition of this Order to your supervisor on request;

(b) Live at a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance;

This home confinement condition will be in effect for the entirety of the sentence and you are to remain in your residence at all times, EXCEPT:

(i) Between the hours of 1 PM and 4 PM every Saturday in order to acquire the necessities of life;

(ii) For any medical emergencies involving you or your father, mother or brother;

(iii) To travel directly to and from, and being at: school, employment, the court attendances, religious services, legal or medical or dental appointments;

(iv) To travel directly to or from, and attend: assessment, treatment or counselling sessions, including visits to your methadone clinic and meetings with Guelph Community Health Centre;

(v) To travel directly to and from Royal City Mission Church at 50 Québec St., Guelph, ON to act as volunteer;

(vi) To walk your personal dogs outside your building, on which walks you are not to be accompanied by any persons, except with the prior approval of your supervisor. You are not to make any stops on these dog walks and you shall not walk your dog more than two times a day for maximum period of 30 minutes per walk (for a total of one hour per day) and the walk shall not take place after 8 PM in the evening; and

(vii) With the prior written approval of your supervisor, which is to be carried with you during these times.

(c) During your period of home confinement:

(i) You are not to change your place of residence without first obtaining the written permission of your supervisor;

(ii) You must present yourself at your doorway upon the request of your supervisor or peace officer for the purpose of verifying your compliance with your home confinement condition;

(iii) Except with the written approval of your supervisor, you are not to take on a roommate;

(iv) You are not to have visitors in your home between the hours of 9 p.m. and 8 a.m. and are not to have more than two visitors in your home at any time;

(d) You will complete 100 hours of community service at the Royal City Mission Church or Hope House, or as recommended by your supervisor;

(e) You will stay out of the City of Hamilton at all times EXCEPT:

(i) Directly to, from, and while a court appearances and/or directly to and from and while at meetings with your lawyer;

(ii) Directly to, from, and while at verifiable employment or school; and

(iii) With the prior written approval of your supervisor. This written approval is to be carried with you during these times.

(f) You are to attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor, including, but not limited to, addictions and mental health counselling.

C. Terms of Probation

FOR A PERIOD OF 18 MONTHS AFTER COMPLETION OF YOUR SENTENCE, YOU MUST OBEY ALL OF THE CONDITIONS SET OUT BELOW:

1. Keep the peace and be of good behaviour.
2. Appear before the court when required to do so by the court.
3. Notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change in employment or occupation.
4. Report in person or by telephone to a probation officer within two working days of the expiry of the conditional sentence order and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.
5. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer, particularly counselling for addiction and mental health.
6. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
7. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
8. You will stay out of the City of Hamilton at all times except: (i) For required court appearances or directly to and from and while at meetings with your lawyer; (ii) Directly to, from, and while in verifiable employment or school; or (iii) With the prior written approval of your probation officer. This written approval is to be carried with you during these times.

Ancillary Orders

[62] In addition, I make the following ancillary orders:

(i) A 10-year weapons prohibition order under s. 109 (a) of the Criminal Code;

(ii) A Lifetime weapons prohibition order under s. 109 (b) of the Criminal Code; and

(iii) A DNA Order.

[63] The Victim Fine Surcharge is reduced to $100 to be paid in 12 months.

[64] The conditional sentence and probation order are to be transferred to Guelph, Ontario.

MR. HASTINGS YOU MAY BE SEATED

[65] Before you leave this court. I wish to warn you that should you breach the conditions imposed upon you, you will be brought to prison where the presumption is that you will serve the remainder of your conditional sentence in custody.

[66] I also wish to add that I am hopeful and optimistic that you will be able to take this opportunity to continue in your rehabilitation in what will, no doubt, be a lifelong effort to overcome your drug addiction.

[67] Good luck to you sir.

Justice L. Sheard Released: October 16, 2024

COURT FILE NO.: CR-21-452 DATE: 2024/10/16 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING Plaintiff - and – DANIEL HASTINGS Defendant REASONS FOR SENTENCE L. Sheard J. Released: October 16, 2024