Court File and Parties

COURT FILE NO.: CR-23-16053-00 DATE: 20241118

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – JACOB MARTIN NORN Defendant

Counsel: Michael Hill and Heather Cook, for the Provincial Crown Mr. Paul Greenway for the Federal Crown Peter Thorning and Sonya Pfeiffer, for the Defendant

HEARD: October 16, 2024

Reasons for Sentence

REGIONAL SENIOR JUSTICE EDWARDS

Overview

[1] Trial judges often say the most difficult part of their job is the sentencing of an accused person. The facts of this case demonstrate that difficulty.

[2] Mr. Norn sold fentanyl to Tyler Ginn (Tyler). Tyler and Mr. Norn may not have been close friends but according to Tyler’s mother they were friends. Tyler’s father tragically found his son dead in his bedroom the morning of March 12, 2021, after Tyler had consumed the fentanyl supplied to him by Mr. Norn.

[3] Tyler was 18 years of age when he died. Mr. Norn was 19 when he sold Tyler the fentanyl that contributed to his death. Both Tyler and Mr. Norn had their entire lives ahead of them. Tyler will never see his life as it might have unfolded. Mr. Norn will have to live with the consequences of his actions for the rest of his adult life. Two families have been scarred for life by what happened the night of March 11/12, 2021. No sentence this court can impose will alter this tragic set of circumstances. That said this court has the responsibility to impose a sentence consistent with the principles of sentencing and relevant jurisprudence.

The Offences

[4] On March 11, 2021, Mr. Norn received a message from his friend Tyler requesting fentanyl. Mr. Norn travelled to Tyler’s house and supplied him with the drugs he requested. Tyler subsequently consumed the fentanyl. On March 12, 2021, Mr. Ginn’s father discovered him deceased in his bedroom. The cause of death was fentanyl and etizolam toxicity.

[5] At the start of the trial Mr. Norn entered a guilty plea to Trafficking of a Schedule I Substance contrary to section 5(1) of the Controlled Drugs and Substances Act (“CDSA”). He was found guilty of Manslaughter after a seven-day judge alone trial.

Mr. Norn’s Background Facts

[6] Mr. Norn was 19 at the time of the offence. He is now 23 years old. He has no prior criminal record. Since his arrest and while on bail he has obtained his high school equivalency certificate. He has been working in Saskatoon in a potash mine where he has compiled over 4000 hours towards his accreditation as an iron worker.

[7] It is clear from both a review of the presentence report (the PSR) as well as from the evidence of his mother that Mr. Norn has struggled with drugs; an addiction that both pre and post dates the subject offences. Mr. Norn began drinking alcohol in Grade 7. He began smoking marijuana in grade 8. By grade 9 Xanax was added to Mr. Norn’s life. He began experiencing blackouts and memory issues. Mr. Norn began stealing from cars looking for the money he needed for drugs. He also began selling drugs to support his growing need for drugs.

[8] It is noted in the PSR that Mr. Norn completed a short term stay in a rehab facility in Portage where unfortunately he tore his ACL for which he received a prescription for Percocet. He almost immediately developed an opioid addiction. He suffered an overdose. While recognizing the impact his drug habit was having on both himself and his family Mr. Norn continued to abuse drugs. Mr. Norn has apparently been able to overcome his addiction to Xanax.

[9] Eventually Mr. Norn was introduced to fentanyl while he was attending an adult learning centre. He became addicted but realized how much stronger fentanyl was compared with anything he had used to that point in time. Despite this knowledge and despite the tragedy that befell Mr. Ginn the evidence establishes that Mr. Norn continues to use non-prescriptive drugs. The Agreed Statement of Fact filed as part of the sentencing submissions reveals that on June 9, 2024, Mr. Norn was stopped by the police. He was found to be in possession of 10.6 grams of fentanyl packaged in 3 clear plastic bags. All of this occurred within months of Mr. Norm plea of guilty to trafficking in fentanyl and the tragedy that unfolded with Tyler’s death.

[10] Mr. Norn’s mother Tammie Kip testified during the sentencing submissions. It is clear to me that she is very concerned for her son; a concern that is reflected in the numerous occasions she has tried to get Mr. Norn to participate in rehabilitation aimed at getting him away from the drugs that have dominated his life; drugs which ultimately led to the tragic outcome in this case.

[11] Ms Kip is a well-educated lady who holds a position of seniority with a major insurance company. She described in her evidence the first occasion when her son overdosed-a time frame that coincided with his prescription for Percocet. Ms Kip testified that Mr. Norn was in a coma for 2 days after he was discovered in his bedroom. He was 17 at the time. As Ms Kip exclaimed after this near fatal outcome “we didn’t know what to do”. Mr. Norn was taken to the emergency department of a well-known mental health facility where Ms Kip was encouraged that for once her son would get the treatment he needed. Sadly this didn’t happen and to this day the mental illness that Mr. Norn suffers from has not been properly addressed.

[12] Mr. Norn has been diagnosed with a major depressive disorder. Ms Kip, not surprisingly, testified that she is of the belief that because Mr. Norn was prescribed Percocet the health care system is at least partially at fault for her son’s opioid addiction. She also believes the health care system has failed her son by not providing the necessary treatment for his mental illness and drug addiction.

[13] It is clear to me Mr. Norn comes from a loving caring family. His life is not at an end. He has a future ahead of him. The future in the short term will be difficult but with treatment he can overcome the last 10 years and lead a productive life. For this to happen Mr. Norn must somehow with the appropriate supports find a life that does not include drugs. The tragedy of Tyler’s death has had an undoubted effect on Mr. Norn-of this I have no doubt. But it was Mr. Norn who sold the fentanyl to Tyler.

The Impact of the Offences

[14] The Crown filed a brief of victim impact statements from various members of Tyler’s family and friends. I have reviewed all of those statements that speak from the heart and make clear to the court that Tyler was much loved. The statements also reflect the many issues that Tyler faced in his life which included his use of illicit drugs.

[15] The statement from Tyler’s mother speaks volumes to the loss she and others suffered when Tyler consumed the fentanyl supplied to him by Mr. Norn. Gayle Fowlie finishes her statement as follows:

A mother losing a child is considered the ‘ultimate tragedy’. I did not know anything could hurt this much. It was beyond comprehension, before Tyler passed, that anything could hurt this much and for so long. Every single day is a battle to get through and all holidays are sad now and will be for the rest of my life.

[16] The person who last saw Tyler alive was his then girlfriend, Sarenity Story. She filed a victim impact statement. Sarenity was only 16 at the time. Her statement is both frank, poignant and full of insight. Sarenity has, to use her words, “battled depression and substance abuse”. Tyler’s death has had a significant impact on Sarenity. I take from the last few paragraphs of her statement that while she will never forget Tyler, she has gone on to complete high school and enroll in college. Sarenity ends her statement as follows: “It is not my place to judge if a person has room to grow, I can accept that people can change”. I take from this (perhaps incorrectly) that Sarenity was referring to Mr. Norn. People can change. Mr. Norn can change if he wants to.

Position of the Crown

[17] The Provincial Crown seeks a sentence of 8 years on the charge of manslaughter. The Federal Crown seeks a sentence of 3 years concurrent to any sentence imposed for manslaughter.

Position of the Defence

[18] Given the lack of a mandatory minimum in section 236 (b) of the Criminal Code and 5(1) of the CDSA, counsel for Mr. Norn argue that a conditional sentence remains available to Mr. Norn.

[19] Counsel for Mr. Norn argue that he has repeatedly been failed by our mental health care system – from the time he was a teenager to this day. It is argued that by including a condition that Mr. Norn attends an in-patient rehabilitation program, the Court can be satisfied that the sentence will not pose a risk to the public.

[20] Conceding that a conditional sentence for a manslaughter charge is rare counsel for Mr. Norn argue that his situation is unique and calls for a conditional sentence. It is argued that the author of the pre-Sentence Report provides some support for a conditional sentence when she opines that “should the Court consider community supervision in lieu or in addition to another disposition, a condition to attend counselling for mental health and substance use is recommended.”

[21] Counsel for Mr. Norn argue that a conditional sentence order for a period of two years, less one day, to be served concurrently would be appropriate in the circumstances of this case. Mr. Norn would attend an in-patient rehabilitation centre during this time to address the underlying issues that led to these offences. This sentence would balance the various sentencing objectives, including the need for deterrence and denunciation as well as rehabilitation.

Aggravating Factors

[22] The Crown argues that Tyler’s death is the most aggravating factor this Court must consider. Both the crown and the defence agree that the dangerous and destructive nature of the substance trafficked – namely fentanyl – is an aggravating factor. No one disputes that Fentanyl is an extremely deadly substance that has caused an epidemic of overdoses in Canada.

Mitigating Factors

[23] The Crown argues that there are few mitigation factors in this case but does acknowledge that the following should be considered in mitigation:

a) Youth – Mr. Norn was 19 years old when the offence was committed. b) Employment – Mr. Norn has held steady employment in the past. c) Lack of Criminal Record – Mr. Norn does not have a criminal record.

[24] The Crown argues that the following factors are not mitigating factors.

[25] Mr. Norn was a low-level trafficker – While Mr. Norn was not running a large-scale drug dealing operation, dealing in drugs was Mr. Norn’s occupation.

[26] The fact that Mr. Norn is himself an addict has been found not to be a mitigating factor. The Crown refers to R. v. Holt, [1983] 4 CCC (3d) 32, where the Ontario Court of Appeal declined to reduce the accused's sentence for trafficking when he had been unable to show a causal connection between his addiction to heroin and trafficking in heroin. The Crown also refers to R. v. Barham, 2014 ONCA 797 stating: "In order for mental health issues and addiction to be considered as mitigating factors, there must be some connection between those matters and the criminal conduct at issue."

[27] As it relates to what has been described as Mr. Norn’s “Call to warn” the Crown argues that this is not a mitigating factor. The evidence at trial established that Mr. Norn called Mr. Ginn to warn him “not to do a lot of the stuff”. The Crown argues this so-called warning demonstrates a high degree of moral blameworthiness on the part of Mr. Norn because he knew he was selling a potentially deadly substance to an 18-year-old friend.

[28] While the Crown sees few if any mitigating factors in this case the Defence refers to numerous factors that point to a sentence that does not lead to the inevitable result of Mr. Norn being incarcerated in a penitentiary. These factors are set forth below and are largely drawn from the written submissions made on behalf of Mr. Norn.

[29] The leading principle in manslaughter sentencing decisions is that general deterrence and denunciation require a custodial sentence in the absence of exceptional circumstances - see R. v. Johnny, [1994] B.C.J. No. 1373 at para 14. The defence argues that exceptional circumstances exist in this case. Counsel for Mr. Norn argue that a custodial sentence would have a detrimental impact on Mr. Norn and would likely worsen the mental health challenges that underlie his conduct that tragically led to Tyler’s death.

[30] Counsel for Mr. Norn point to a number of mitigating factors this Court must consider in arriving at an appropriate sentence. These factors begin with the fact Mr. Norn entered a guilty plea to Trafficking contrary to section 5(1) of the CDSA. By entering this guilty plea, it is argued, Mr. Norn accepted responsibility for his actions.

[31] Mr. Norn is a youthful first-time offender. He was 19 years old at the time of the offence and is 23 at the time of sentencing.

[32] Counsel for Mr. Norn argue that the evidence establishes Mr. Norn is an addict offender. His trafficking was not for his own financial gain, but rather to support his own addiction. The pre-sentence report outlines Mr. Norn’s history with substance abuse that began in his youth when he began self-medicating for the debilitating symptoms of his underlying mental health issues. Mr. Norn’s underlying mental health issues began around grade seven. To date, he has been diagnosed with Cannabis Use Disorder, Opioid Use Disorder & Stimulant Use Disorder, Major Depressive Disorder, Generalized Anxiety Disorder, Social Anxiety Disorder. All of these conditions are systemic to his addiction and drug use. His reliance on substances gradually increased and he was introduced to opioids after suffering a knee injury.

[33] Mr. Norn first entered rehabilitation for his addiction at 17 years old. His efforts towards rehabilitation continue to this day. Counsel for Mr. Norn point to the following efforts made by Mr. Norn that demonstrate he has worked to rehabilitate himself:

i. He returned to school in April 2022 and earned his high school diploma, in an effort to set himself up for a brighter future. ii. He completed a 35-day rehabilitation program at Denovo Treatment Centre in July 2021. iii. He visited CAMH in March 2022 for an emergency visit – he was diagnosed with Major Depressive Disorder and was provided anti-depressants. iv. Between April - June 2022 he completed 6 counselling sessions with a psychotherapist. v. Between April-June 2022, he attended addiction treatment sessions through Fourcast Addiction Services. vi. He was accepted to Stonehenge Treatment Centre in June 2022 and attended two weekly group sessions to secure his place on the waiting list. vii. He continued to attend these group sessions until he was admitted in November 2022, at which time he completed an intense 6-month rehabilitation program. viii. Following his discharge from Stonehenge, he has maintained steady employment in the ironworking industry – he has the full support of his employer, who has assured him that he will always have a job available to him.

[34] At the core of the submissions made on behalf of Mr. Norn is the suggestion that despite Mr. Norn’s desire to heal, he has been failed by our mental health system. There may be some truth to this suggestion. It is a belief certainly shared by Mr. Norn’s mother.

[35] It is argued by the defence that when Mr. Norn supplied the fentanyl to Tyler he was “intoxicated”. It is suggested that Mr. Norn now wishes he was thinking with “a clear head at the time of the offence”. There is no evidence to support what state of mind Mr. Norn had at the time he sold the fentanyl to Tyler. What I do accept is that Mr. Norn feels a great deal of remorse for what happened on March 11, 2021. This is made clear from the presentence report as well as the various letters filed in support of Mr. Norn as part of the sentencing submissions.

[36] Counsel for Mr. Norn argue that how this matter ultimately got to trial has had a significant negative impact on Mr. Norn’s mental wellbeing which should be considered in mitigation of sentence. Specifically, it is argued that both Mr. Norn and his counsel believed the Crown had agreed to withdraw the manslaughter charge if Mr. Norn plead guilty to the fentanyl trafficking charge. This issue was litigated before me as an abuse of process application and was dismissed. Mr. Norn may very well have believed that the manslaughter charge might be withdrawn but as I concluded there never was a meeting of the minds between the Crown and the defence concerning a resolution of this matter.

[37] Counsel for Mr. Norn point to the undoubted full support of his family moving forward. His family is familiar with supporting an individual trying to overcome substance abuse issues. This is demonstrated by Mr. Norn’s grandfather (a retired police officer with nearly 40 years in policing) who saw both of his brothers through recovery from their own drug addictions. I have no difficulty in accepting that Mr. Norn has been and will continue to be supported by a unique and experienced community of family and friends that is dedicated to seeing him succeed.

[38] Counsel for Mr. Norn argue that Mr. Norn was under harsh bail conditions from April 2021 to July 2023 when he was granted a bail variation. Mr. Norn was to remain in his house at all times, except for medical reasons for him or a family member, court appearances, meetings with his Counsel, employment purposes, or with his surety or father. He remained under these stringent conditions for approximately 27 months. Stringent bail conditions are to be considered as a factor in sentencing.

Analysis

[39] The principles of sentencing are well known and are set out in s. 718.1 and 718.2 of the Criminal Code of Canada (the Code). The principles of sentencing are intended for the protection of society and maintenance of a just, peaceful and safe society achieved by the denunciation of unlawful conduct; deterrence both general and specific; and the separation of an offender from society where necessary. Another important principle of sentencing is of course rehabilitation and reparation for harm done to victims and/or the community as well as the promotion of a sense of responsibility in the offender and an acknowledgement of the harm done.

[40] Pursuant to the provisions of s. 718.1 of the Code, a fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence as well as the degree of responsibility of the offender. Aggravating and mitigating circumstances are to be taken into account pursuant to the provisions of s. 718.2 of the Code. As well, a sentence to be imposed must be a sentence similar to those that are imposed on similar like offenders in similar circumstances.

[41] The offences that Mr. Norn has been convicted of are grave and demonstrate a high degree of moral blameworthiness. The dangers of fentanyl were well known to Mr. Norn as evidenced at least in part by the warning Mr. Norn gave Tyler after he had sold him the fentanyl, Mr. Norn called Tyler to warn him “not to do a lot of the stuff” because he “didn’t want to be responsible for anything that happened”. These words strongly suggest that Mr. Norn was aware that he had sold Tyler a potentially deadly substance.

[42] There is no doubt that Tyler struggled with drug addiction. There is equally no doubt that Mr. Norn has had his own struggles with drug addiction. Tyler did ask Mr. Norn to sell him fentanyl. Tyler chose to ingest the fentanyl sold to him by Mr. Norn. This does not lessen the gravity of the offence, lessen the high level of moral blameworthiness or deserve consideration as a mitigating factor. Canadian law does not recognize a line of reasoning adopted in the jurisprudence in the United Kingdom that the willful consumption of lethal opioids by the end user breaks the chain of causation. (See R. v. Kennedy (No. 2), [2007] UKHL 38 and R. v. Haas, 2016 MBCA 42, leave to appeal denied, [2016] S.C.C.A. No. 306.

[43] One of the principles of sentencing requires the Court to impose a sentence that assists in the offenders’ rehabilitation. The evidence before this court reflects many attempts by Mr. Norn and his family to get Mr. Norn treatment for his mental health issues and his drug addictions. The proposed terms of the conditional sentence recommended to this court by his counsel adopt much of what Mr. Norn will need in the future to address his mental health and his drug addictions. But as with so many offenders who come before this court someone with a drug addiction must demonstrate they want to and will participate in their rehabilitation. The events of June 24, 2024, give this court real concern that Mr. Norn wants to kick his involvement with drugs – which includes not just the use of, but the sale of drugs.

[44] Mr. Norn was driving his Honda Ridgeline motor vehicle in Oshawa on June 9, 2024, at approximately 11:00 a.m. when he was stopped by the police for an investigation. He was found to possess fentanyl. The total weight of the fentanyl was 10.6 g. It was found packaged in 3 separate clear plastic bags which together were in a cloth bag on the driver’s seat floor. This occurred after his conviction while he is awaiting sentencing.

[45] The Crown does not suggest that Mr. Norn be sentenced for any untried offences in this proceeding. The Crown in its submissions argues that the evidence of Mr. Norn’s outstanding charges is relevant to Mr. Norn’s character, and his prospects for rehabilitation – see R. v. Angellilo, 2006 SCC 2 at para. 31-33.

[46] There is no doubt that Mr. Norn has struggled with addiction during his formative teenage years and now into his 20’s. In October 2023 while on bail for these offences he again overdosed and was hospitalized. I entirely agree with the suggestion that one should never give up hope that addiction can be overcome. But Mr. Norn has at least on 2 occasions since his matter came into the Superior Court of Justice demonstrated an inability to come to grips with his drug addiction. In my view the sentencing principle of rehabilitation must be given less weight in all the circumstances of this case.

The Sentence for Manslaughter

[47] Counsel for Mr. Norn readily concedes that while a conditional sentence is available for this court’s consideration such a sentence for manslaughter would be rare. I agree on both points. A conditional sentence is not excluded but it would be rare. I would also suggest on the facts of this case a conditional sentence would be demonstrably unfit.

[48] In support of his position that a conditional sentence is an appropriate disposition counsel for Mr. Norn referred the court to R. v. Skookum, 2024 YKTC 30 where the accused had supplied his friend opioids. His friend died. The cause of death was “an acute combined fentanyl and etizolam intoxication”. Chief Judge Cozens imposed a sentence of two years less one day which was accounted for by time served in custody awaiting disposition. The sentence imposed was after a plea of guilty to a charge of manslaughter and most significantly it was a joint recommendation from the Crown and defence. Mr. Norn did not plead guilty to the manslaughter charge nor is there a joint recommendation on sentence.

[49] The court was also referred to R. v. Clemons, 2003 MBCA 51 at para. 7 where the Manitoba Court of Appeal summarized the range of sentence for manslaughter as follows:

They range from a suspended sentence to life imprisonment. A review of past sentencing decisions, whether in this jurisdiction or others, demonstrate that the breadth of those options has been exercised and it is extremely difficult to attempt to compare facts, circumstances and background of offenders in order to establish a restrictive or narrow range of fit and proper sentences. In colloquial language, the sentences are all over the map.

[50] Clemons involved an accused who plead guilty to a charge of manslaughter. The accused was in a highly intoxicated condition and had been provoked by the deceased over a period of time. The Crown sought a sentence of five years. The trial judge imposed a conditional sentence of two years less a day plus three years’ probation. At the end of his reasons dismissing the Crown appeal it is worth observing that Monnin J.A. stated:

…I would no more interfere with the sentence being appealed than I would have if the sentencing judge had imposed the five-year term that the Crown was seeking. In my view an acceptable range for manslaughter is at the very least that wide ranging and possibly even more.

[51] Counsel for Mr. Norn also referred the court to R. v. Rodgers, 2020 ONCJ 495 to support his argument that a conditional sentence was available as a disposition for Mr. Norn. Rodgers was a case involving an accused who plead guilty to manslaughter where he and the deceased were using a drug, they believed to be cocaine. It turned out to be a much more deadly substance-specifically U-47700 (a synthetic opioid that has a potency 7.5 times greater than morphine). The Crown sought a sentence of 18 months in prison. The defence suggested a sentence of time served after a Downes credit of time served to 90 days in prison. The sentence imposed was 18 months.

[52] The Crown has provided the court with a chart referencing numerous cases where an accused was convicted of either manslaughter or criminal negligence after trafficking fentanyl. These cases establish a range of 3 years to 10 years. Many of the accused had prior criminal records. Some involved pleas of guilty. The case of R. v. Walker, 2019 ONSC 1263 is strikingly similar to the facts in Mr. Norn’s case. Harpur J described Walker as a 23-year-old low level trafficker who had sold a small quantity of fentanyl and heroin to his friend who subsequently died. Walker plead guilty to criminal negligence causing death and trafficking in fentanyl. Noteworthy in his reasons is reference to the fact Walker had on a prior occasion warned one of his customers that “only a line” of fentanyl can kill you. On these facts Harpur J was of the view that the appropriate sentence was one of 5 years. The actual sentence imposed was one of 3.5 years. The reduction in the sentence was a reflection of the assistance Mr. Walker provided to the Crown in prosecuting another accused person.

[53] A more recent sentencing decision involving fentanyl and a conviction after trial on a charge of manslaughter is the decision of Boswell J. in R. v. Brazier, 2023 ONSC 6315. In his reasons Boswell J described the accused as a low-level trafficker. He had sold the deceased 2/10ths of a gram of fentanyl and a half gram of cocaine at 1:00 p.m. and the same quantity at 4.30 p.m. on the day the deceased died. Brazier was convicted of manslaughter and trafficking in cocaine and fentanyl. The Crown sought a sentence of 12 years while the defence sought a sentence of 4-6 years. In imposing a sentence of 8 years the following comments of Boswell J are worth repeating:

In my view, it would be a mistake to understate the aggravating nature of the trafficking of fentanyl. One can readily appreciate why sentences increase in cases where there is more brutal violence, or where a firearm is used, or where death occurs in the course of a home invasion. Increased sentences in those cases reflect the increased harm done by the violence used and by the increased intrusion on the lives, the safety and the physical integrity of the victims.

It is time to recognize that the presence of fentanyl in our communities is as dangerous to Canadians as the presence of firearms and thus should be approached with a commensurate level of concern. Consider, for a moment, these statistics cited by Moldaver J. in Parranto, at paras. 96-97:

…[F]ederal statistics on opioid-related deaths show that, between January 2016 and March 2021, approximately 23,000 Canadians lost their lives due to accidental apparent opioid-related deaths, with fentanyl involved in 71 percent of these deaths…The epidemic also shows no signs of abating, with over 6,000 accidental deaths occurring in 2020 alone, 82 percent of which involved fentanyl…These figures throw into stark relief the dark and inescapable reality that “[e]very day in our communities, fentanyl abuse claims the lives of Canadians”.

The scale of fentanyl’s devastating impact becomes even more apparent when one considers that, between 2016 and 2020, there were approximately 3,400 homicides across Canada, a number far below the number of fentanyl-related deaths.

Mr. Brazier was a low-level drug dealer. And I appreciate that he has his own issues with addictions. He cannot be sentenced as though he were running a largescale fentanyl trafficking operation. But dealing in drugs was his occupation. He has contributed to untold miseries in the community. He trafficked only a small amount to Mr. Glover, but it was more than enough to kill him. He has zero insight into his offence and no remorse.

The sentence in this case must make it clear to Mr. Brazier and others prepared to peddle this insidious drug in our communities that they will pay a heavy price where they traffic in fentanyl and death ensues.

[54] The jurisprudence makes it crystal clear that those dealing in fentanyl, whether they are low level, mid-level or high-level dealers, are complicit in the opioid crisis that is everyday news in this province and across North America. Mr. Norn was a low-level drug dealer. Regardless he knew full well he was trafficking in a deadly substance. His knowledge in that regard is more than borne out when he called Tyler and warned him to be careful and not to use too much of the drug, he had sold him. The warning would never have been necessary if Mr. Norn had not sold Tyler the fentanyl.

[55] The jurisprudence is full of warnings from all levels of court that those caught trafficking in fentanyl will face significant periods of incarceration that will reflect their level in the drug trade. The higher the level of dealing the higher the sentence. But just because Mr. Norn was what I have described as a low-level drug dealer does not mean he should not face the consequences of his actions. Even a low-level dealer is part of the insidious drug trading pyramid. The high-level dealers at the top of the pyramid need the mid-level dealers to move their product. The mid-level dealers near the low-level dealers like Mr. Norn to get their poison into the hands of drug addicts like Tyler.

[56] Having reviewed all of the jurisprudence provided to me by counsel and recognizing that Mr. Norn is a relatively young offender with no prior criminal record and accepting that Mr. Norn has some potential for rehabilitation the sentence on the charge of manslaughter is one of 6 years in the penitentiary.

The Sentence for Trafficking Fentanyl

[57] As it relates to a finding of guilt in relation to possession for the purposes of trafficking in fentanyl the jurisprudence has evolved and makes it clear that those convicted of trafficking in fentanyl will face a significant penitentiary sentence and that denunciation and deterrence are of fundamental importance.

[58] Section 10(1) of the Controlled Drugs and Substances Act also reflects that a fundamental purpose of sentencing in a drug case is to contribute to respect for the law and the maintenance of a just, peaceful and safe society while at the same time encouraging rehabilitation and treatment in appropriate circumstances.

[59] The emphasis on deterrence and denunciation as it relates to the trafficking in controlled drugs is nothing new. Over thirty years ago the Court of Appeal in R. v. Farizeh, [1994] O.J. No. 2624, made it clear that the sale of even small amounts of heroin by first time offenders would attract a penitentiary sentence absent exceptional circumstances.

[60] Over 20 years ago the dangerous nature of crack cocaine came in for judicial commentary in R. v. Woolcock, [2002] O.J. No. 4927. The Court of Appeal commented on the extremely dangerous nature of crack cocaine with its potential to cause great harm to members of society, and thus directed sentencing judges to emphasize the principles of deterrence and denunciation.

[61] The most recent pronouncement from the Supreme Court of Canada as it relates to the sentencing of someone convicted of trafficking fentanyl is R. v. Parranto, 2021 SCC 46. While this decision may be more often cited as it relates to sentencing ranges the comments of the court as it relates to the dangers of fentanyl provide important guidance to sentencing courts.

[62] If there is any doubt about the severity of sentence to be imposed for someone convicted of what might be described as street level trafficking of fentanyl as distinct from someone trafficking to support their own addiction, the following from the reasons of Moldaver J. makes clear that the sentence will be significant:

[100] In my view, heavy penitentiary sentences will be appropriate where offenders have trafficked in large quantities of fentanyl and assumed leadership roles in the trafficking operation. Indeed, in the context of largescale fentanyl trafficking operations, substantial sentences should be neither unusual nor reserved for exceptional circumstances. As this Court has previously explained, maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances”, but rather should be imposed whenever the circumstances warrant it (R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 22; see also Friesen, at para. 114).

[101] Ultimately, largescale trafficking in fentanyl is a crime that preys disproportionally on the misery of others — the marginalized and those whose lives are marked by hopelessness and despair. It is a crime motivated by greed and by a callous disregard for the untold grief and suffering it leaves in its wake. Above all, it is a crime that kills — often and indiscriminately. It follows, in my view, that what matters most is that those individuals who choose to prey on the vulnerable and profit from the misery of the Canadian public for personal gain are sentenced in accordance with the severity of the harms they have caused. Fentanyl trafficking, and largescale trafficking in particular, are a source of unspeakable harm. Accordingly, while the range of sentences currently imposed for the directing minds of largescale 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.

[63] Decisions out of the Supreme Court and the Court of Appeal like Parranto, and R. v. Lynch, 2022 ONCA 109 send very clear warnings to anyone involved in trafficking in fentanyl. The court also has to craft a sentence that properly weighs rehabilitation in the balance. General deterrence and denunciation are clearly in the forefront of any sentence involving the trafficking of fentanyl. Rehabilitation however, has not been thrown out as a relevant consideration.

[64] In Parranto Brown and Martin JJ dealt with the issue of range of sentence. From paragraph 36 of their reasons, it is clear that ranges of sentence are guidelines and not hard and fast rules. Of equal importance at para. 26 is the guidance to trial judges that in imposing sentence, judges may “individualize sentencing both in method and outcome” and “different methods may even be required to account properly for relevant systemic and background factors”.

[65] As it relates to the starting point for the imposition of sentence it is also worth repeating from Parranto at para. 61 that while on the facts before the court the starting point that was set was nine years, the court makes clear that sentencing judges are “free to depart from the starting point and move up and down from this marker based on the specific characteristics of the offender in order to meet the primary sentencing principle of proportionality”.

[66] The danger of fentanyl has been well known now for many years. Despite these known dangers there are members of our society who seem to have no concern that what they do is causing untold misery and death. In his reasons in Parranto, Moldaver J. reviews at great length the impact that fentanyl has had on Canadian society. Noteworthy at para. 98 of his reasons, Moldaver J. states that trafficking in fentanyl is a crime “marked by greed and the pursuit of profit at the expense of violence, death and the perpetuation of a public health crisis previously unseen in Canadian society”.

[67] The guidance given sentencing judges by Moldaver J. in Parranto is that the range of sentence for those convicted of large-scale trafficking in fentanyl is in the upper single digit to lower double digit – with justification where circumstances warranted to apply a higher range – see para. 101 Parranto.

[68] Since Parranto the Ontario Court of Appeal has also dealt with the range of sentence for those convicted of mid-level trafficking in fentanyl. In R. v. Lynch, 2022 ONCA 109 the Crown appealed the sentence of four years imposed on Mr. Lynch for trafficking in cocaine and fentanyl. The quantity of fentanyl was 41.37 grams. The Crown in Lynch had sought a sentence of 10 years while the defence had argued for a sentence of three years.

[69] In allowing the Crown appeal Nordheimer J.A. at para. 14 of his reasons in Lynch held that the sentencing judge was in error when he compared mid-level trafficking in cocaine to mid-level trafficking in fentanyl. As fentanyl is a far more dangerous drug than cocaine, the aforesaid comparison was wrong. The more dangerous the drug the higher the sentence – see para. 15 Lynch.

[70] Ultimately at para. 25 of his reasons Nordheimer J.A. in Lynch concluded that the requested sentence of the Crown (10 years) for someone convicted of mid-level trafficking in fentanyl was “not unreasonable”. However, at para. 46 of his reasons Nordheimer J.A. accepted that Mr. Lynch’s plea of guilty was a significant “mitigating factor” and taking into account Mr. Lynch’s age (29) and his one entry criminal record, the appropriate sentence was six years.

[71] In his recent reasons for sentence in R. v. Abdella, 2024 ONSC 1260 Di Luca J. dealt with an accused who had been found guilty by a jury of trafficking in fentanyl. The amount of fentanyl at issue was 1 ounce.

[72] In Abdella the Crown sought a sentence of eight to ten years. The defence suggested a sentence of four years.

[73] In his reasons at para. 9 Di Luca J. stated:

Based on my review of the comprehensive case law provided for cases involving trafficking and possession for the purpose of trafficking in the ounce-level quantities of fentanyl, the range of sentence is from four years, at the very low end of the range, to seven to eight years at the higher end, with a few cases reaching nine years or more. Cases at the lower end of this range involve very significant mitigating or extremely extenuating factors and/or guilty pleas. Cases at the higher end of the range usually involve cases that went to trial or had aggravating features such as prior related criminal records, the presence of other or higher quantities of drugs, and/or the presence of weapons.

[74] As it relates to the issue of rehabilitation and how it intersects with the principles of deterrence and denunciation the Court of Appeal decision in R. v. Disher, 2020 ONCA 600 provides guidance. Disher involved an accused who pled guilty to possession of 42.6 grams of fentanyl for the purposes of trafficking. The Crown sought a sentence of 12 years while the defence suggested a sentence of five to seven years. Mr. Disher was noted to have a serious criminal record spanning a period of 15 years without any significant or recent gaps in his offending behaviour. It was also noteworthy that within two weeks from the time of his release on a recognizance for other trafficking charges Mr. Disher was arrested again for trafficking in heroin that contained fentanyl.

[75] The trial judge imposed a sentence of 12 years less pre-trial custody. Mr. Disher appealed on a number of grounds, one of which involved the failure of the trial judge to address the issue of rehabilitation. In addressing that argument Gillese J.A. at para. 22 stated:

I do not accept the Crown’s submission. Section 718 of the Criminal Code states that, “The fundamental purpose of sentencing is to protect society and to contribute … 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 six specified objectives. Deterring the offender and assisting in rehabilitating offenders are two of those objectives – and both must be addressed when crafting a “just sanction” that meets the fundamental purpose enunciated in s. 718. In the Statement, the sentencing judge is addressing only whether past sentences had fulfilled the objective of specific deterrence. Nowhere in his reasons does the sentencing judge expressly advert to the rehabilitation objective or consider Mr. Disher’s rehabilitative prospects.

[76] Ultimately in Disher the Court of Appeal reduced the sentence from 12 years to eight years. The failure of the trial judge to address Mr. Disher’s rehabilitative potential was one of the reasons why the Court of Appeal reduced the sentence.

[77] It is clear from a review of the jurisprudence that general deterrence and denunciation are the primary considerations when addressing how to craft a sentence involving someone convicted of mid-level trafficking in fentanyl. I am satisfied that Mr. Norn falls within the category of someone who was a low-level trafficker in fentanyl.

[78] It is equally clear that the court is given the discretion to raise or lower the range of sentence depending upon the circumstances of the offender and in that regard the rehabilitative potential of Mr. Norn is a relevant consideration. I accept that Mr. Norn does have some prospect for rehabilitation with the supportive family he has behind him. His relapses since being arrested in this case however reflect poorly on Mr. Norn’s short-term prospects for rehabilitation. Taking into account all of the principles of sentencing and the caselaw provided by counsel the sentence to be imposed for trafficking in fentanyl is one of 3 years in the penitentiary.

Downes Credit

[79] The Court of Appeal in R. v. Downes, [2006] O.J. No. 555 summarized the factors a sentencing court is to take into account as it relates to what if any credit is to be given as it relates to stringent bail conditions as follows:

[37] In summary, credit for pre-trial bail conditions should be approached in the following manner: -- Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor. -- As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence. -- The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle. -- The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply. -- The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity. -- Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code. [page333]

[80] The sum extent of the submissions made as it relates to any credit for the bail conditions imposed on Mr. Norn can be found in the written submissions contained in the sentencing material submitted to the court. At para. 35 (i) the following submission is made:

(a) Mr. Norn was under harsh bail conditions from April 2021 to July 2023 when he was granted a bail variation. Mr. Norn was to remain in his house at all times, except for medical reasons for him or a family member, court appearances, meetings with his Counsel, employment purposes, or with his surety or father. He remained under these stringent conditions for approximately 27 months. Stringent bail conditions are to be considered as a factor in sentencing.

[81] Other than this submission there is no evidence from Mr. Norn as required by para. 37 of Downes. The Crown in oral submissions noted that the bail conditions imposed on Mr. Norn were not harsh and that when a variation was sought it was granted on consent. The evidence would support the Crown position that variations were granted which is at least, in part, evident from the fact Mr. Norn appears to have been able to accumulate 4000 hours of work experience as an iron worker – some of it in the Potash mine in Saskatoon.

[82] In the absence of evidence from Mr. Norn that he was in fact impacted by harsh bail conditions, I do not accept that in this case the bail conditions were such as to trigger any Downes credit.

Concurrent versus Consecutive

[83] The Crown did not seek a consecutive sentence. The global sentence imposed is one of 6 years in the penitentiary. The sentences imposed are to run concurrently.

Alleged Charter Breach Reduction in Sentence

[84] Mr. Norn argues that the manner of his arrest and the ensuing police questioning that produced a “confession” resulted in a breach of his S.7 and 10 (b) Charter rights that should be considered as a mitigating factor in the sentence to be imposed by this court.

[85] Just prior to his arrest Mr. Norn was seen by police officers conducting surveillance to participate in what was a suspected sale of drugs to another person. Part of the arrest involved one of the police officers unholstering her police service firearm. Counsel for Mr. Norn argues that when he was arrested Mr. Norn was exhibiting bizarre behavior. While accepting that Mr. Norn was given his rights to counsel and that he in fact did speak to a lawyer it is also argued that there was a change in jeopardy that required the police to provide Mr. Norn with a further opportunity to speak to counsel. It is argued that the police conducted the interview of Mr. Norn knowing full well that he had been told by his lawyer not to speak to the police and that despite this knowledge the police persisted in questioning Mr. Norn about his involvement in Tyler’s death. It is also argued that the officer questioning Mr. Norn improperly made inducements and false statements to him resulting in his confession.

[86] In assessing the issues raised as it relates to the allegations of breaches of Mr. Norn’s Charter rights context is an important consideration. Mr. Norn argues the alleged police misconduct resulted in an involuntary confession in which amongst other things Mr. Norn agreed he had sold fentanyl to Tyler. At the beginning of trial an agreed statement of fact was filed with the court. At the beginning of the trial Mr. Norn plead guilty to trafficking fentanyl to Tyler. Mr. Norn’s so-called confession never became part of the trial. It is difficult to see what if any prejudice Mr. Norn may have suffered if this court were to accept the argument that police misconduct resulted in his confession.

[87] The factual question of the manner in which Mr. Norn’s statement was obtained, was fully litigated at the seven-day preliminary hearing held before West J in September 2022. On January 11, 2023 West J released his reasons, R. v. Norn, 2023 ONCJ 10, that address the voluntariness of Mr. Norn’s statement. His statement was ruled voluntary and admissible for purposes of the preliminary hearing. The reasons of West J are of course not binding on this court but in my view as they relate to the argument that there has been a breach of Mr. Norn’s Charter rights warranting a reduction in his sentence they are a full answer to the issues now raised. At para 52 and 53 West J made the following critical findings-findings made with the advantage of hearing and seeing all of the relevant evidence as it relates to Mr. Norn’s statement:

Considering the whole of the statement I am not concerned that Sgt. Bortoluss' conduct created an atmosphere of oppression during Mr. Norn's interview. In fact, I find there was no atmosphere of oppression. Mr. Norn fully appreciated and understood the questions being asked of him and made his own decisions about whether to answer them or not. The defence submits that Sgt. Bortoluss took unfair advantage of Mr. Norn, given his age and what they term his fragile mental and physical state. There is no evidence to support that Mr. Norn was under the influence of a controlled substance or what his mental health issues were, if in fact he even had any. Considering the whole of the interview it is my view that Jacob Norn is an intelligent young man who fully appreciated his circumstances and made his own decisions respecting when and what he said. The defence argued the questioning was lengthy and aggressive; however, having observed the video-taped statement it is my view that Sgt. Bortoluss was anything but aggressive. She was empathetic and sympathetic towards Mr. Norn and in my view, she was quiet and calm in her demeanor and manner of asking questions. She showed him respect and at no time did she raise her voice or become angry or hostile with him. At no point did she ever threaten or attempt to intimidate him. There are many examples in the statement where it is abundantly clear that Mr. Norn was capable of making an independent choice of whether to speak or not to speak. He expressed on a number of occasions his belief that what he said to Sgt. Bortoluss could be used against him if he answered her questions. It is my view that the circumstances surrounding his interview and detention do not create any doubt as to whether Jacob Norn was able to make an independent choice to speak to the police or remain silent. I find his will was never overborne.

The defence submitted that Sgt. Bortoluss in effect denigrated or undermined Mr. Norn's counsel's advice which resulted in denying his right to choose to remain silent. The fact Mr. Norn asserted his right to silence 17 or 18 times does not make the statement involuntary. In Singh the Supreme Court held this is but one factor a judge must take into consideration in assessing whether the Crown has met their onus. As I have already found, in my view Jacob Norn had no difficulty choosing to speak to Sgt. Bortoluss and at no time was his will overborne. There was no atmosphere of oppression. Looking at the whole of his statement it is my view he chose to speak to Sgt. Bortoluss and answer questions because of the guilt he felt from learning his friend Tyler Ginn had died from Fentanyl toxicity. As I indicated there were occasions where Jacob Norn was crying particularly when the questions and his answers touched on Tyler Ginn's death. It is my view his emotional upset was caused by this, and he expressed this when he told Sgt. Bortoluss, "It's tearing me up" when she asked how he felt concerning Tyler Ginn’s death.

[88] If I am wrong in accepting the findings of West J and if I were to accept the written submissions of Mr. Thorning that there was police misconduct in how Mr. Norn’s statement was obtained by the police, it does not necessarily follow that this misconduct will result in a reduced sentence. It is not every Charter breach or police misconduct that results in a reduction of sentence. In order for the breach or misconduct to have a mitigating effect on sentence it must relate to the circumstances of Mr. Norn.

[89] In R. v. Nasogaluak, 2010 SCC 6 the sentence imposed for impaired driving and flight from police was reduced because the police used excessive force in arresting the accused and breached his Charter rights during his arrest and detention. When the state misconduct does not relate to the circumstances of the offence or the offender an accused can not seek a remedy through the sentencing process – see Nasogaluak at para 3-4 and 46-49. In determining if the state misconduct referenced in Mr. Thorning’s written submissions warrant a reduction in sentence the court needs to ask some fundamental questions. Those questions include whether the state misconduct caused Mr. Norn any harm or additional prejudice and whether the state misconduct resulted in the obtaining of relevant information that provided an advantage to the Crown. The Court should also ask whether the failure to reduce Mr. Norn’s sentence would constitute a form of additional punishment – see R. v. Griffith, 2021 ONCA 302, [2021] O.J. No 2514 (OCA) at para 87 and R. v. Collins, 2023 ONSC 5000 at paras 70 and 71.

[90] Even if one accepted that there was police misconduct in the manner in which Mr. Norn was arrested and the manner in which his statement was obtained there is no causal connection to that misconduct and how the trial unfolded. Mr. Norn plead guilty to trafficking fentanyl. The only issue at trial was whether it was the fentanyl sold by Mr. Norn that caused Tyler’s death. Mr. Norn’s statement was never used at trial. The Crown was not advantaged by the obtaining of the statement as a result of police misconduct. There is no basis upon which to reduce Mr. Norn’s sentence even if this court had accepted there was police misconduct in the manner in which the police obtained his statement.

Conclusion

[91] The sentence imposed on Mr. Norn is six years for manslaughter and three years concurrent for the trafficking in fentanyl. There is no reduction in the sentence.

Ancillary Orders

[92] The Crown requests and the following ancillary orders are granted.

a) A DNA order (s. 487.051 of the Criminal Code). b) A section 109 order for 10 years. c) A non-communication order with the victims during the custodial period of the sentence (s. 743.21 of the Criminal Code). d) A forfeiture order for all items seized for destruction (s. 491 of the Criminal Code).

EDWARDS, R.S.J. Released orally: November 18, 2024

COURT FILE NO.: CR-23-16053-00 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – JACOB MARTIN NORN Defendant REASONS FOR SENTENCE Regional Senior Justice Edwards Released Orally: November 18, 2024