Ontario Superior Court of Justice

Court File No.: CR-21-625
Date: 2025-05-20

Between

His Majesty the King
Applicant
Counsel: Tina T.H. Kim

-and-

David Morias
Respondent
Counsel: Adam Newman

Heard: April 7, 2025

Reasons for Sentence

Fowler Byrne

A. Overview and History of Proceedings

[1] Mr. Morias was charged with these offences following the execution of a search warrant at his home on July 11, 2019:

a) Possession of a firearm, to wit, a handgun, knowing he was not the holder of a license to do so, contrary to section 92(1) of the Criminal Code, RSC 1985, c C-46;

b) Possession of a prohibited device: to wit, a magazine, knowing he was not the holder of a license, contrary to section 92(2) of the Criminal Code;

c) Possession of a loaded, restricted firearm while not being the holder of an authorization of license, contrary to section 95(1) of the Criminal Code;

d) Possession of the property to wit: money, of a value exceeding five thousand dollars, knowing it had been obtained by the commission in Canada of an indictable offence, contrary to section 354(1)(a) of the Criminal Code;

e) Possession for the purpose of trafficking a Schedule I substance (cocaine), contrary to section 5(2) of the Controlled Drugs and Substances Act, SC 1996, c 19 (“CDSA”); and

f) Possession for the purpose of trafficking a Schedule I substance (fentanyl), contrary to section 5(2) of the CDSA.

[2] He was tried before a judge and jury. On May 9, 2023, he was found guilty of counts 1, 2, 3, 5 and 6. The matter was adjourned pending the receipt of an enhanced pre-sentencing report. Due to the backlog of demands for such enhanced reports, and a change of counsel on Mr. Morias’ part, sentencing submissions were not heard until April 7, 2025.

B. Circumstances of the Offence

[3] Given that this was a trial before a jury, I am required to accept all proven facts, express or implied, that are essential to the jury’s verdict: Criminal Code, s. 724(2). In this case, the verdicts rendered by the jury provide me with a clear picture of what they found to be the facts of this case.

[4] In July 2019, officers of the Peel Regional Police Service (“PRP”) obtained a search warrant for 7493 Catalpa Road, in Mississauga. The search warrant was executed on July 11, 2019. Given that the PRP believed weapons would be at the residence, they requested their Tactical Response Unit (TRU) to clear the residence first. Once the unit was cleared, the PRP executed the search warrant and found the following:

a) A loaded Beretta 9 mm semi-automatic firearm, which was found wrapped in a t-shirt, in the toilet bowl of a non-functioning toilet, in the basement area occupied by Mr. Morias;

b) 84 g of fentanyl, found in a Ziploc bag in the toilet bowl of the same non-functioning toilet where the firearm was located;

c) 4.9 g of cocaine in total was found divided between a small grey bag on a shelf above the bed in the basement bedroom and in a baggie found in a beer stein in the same bedroom;

d) 32.26 g of fentanyl, found in two little plastic baggies that were in the same beer stein in the basement bedroom; and

e) A magazine for a Glock firearm, loaded with 13 rounds of .45 auto calibre ammunition, which was located in a black bag found under the bed in a basement bedroom.

[5] Mr. Morias and several others were at the home at this time. Mr. Morias was arrested at the residence. Mr. Morias was suffering from some medical distress, so he was brought to the hospital for several hours before he was brought to the police station for processing.

[6] With respect to the offence of possessing a restricted or prohibited firearm without a license, the jury found that Mr. Morias did possess the gun. Given that the firearm was not found on Mr. Morias’ person, they found that Mr. Morias either knew the exact nature of the firearm or was willfully blind to what it was. They also found that he knowingly put or kept the firearm in a particular place, and that he intended to have the firearm in that place for his use and benefit or for the use or benefit of another. It was an admitted fact that the firearm was a prohibited firearm, and that Mr. Morias knew he did not have a license allowing him to have this firearm, nor has he ever had such a license.

[7] With respect to the offence of possessing a firearm magazine, the jury found that Mr. Morias possessed this magazine, not on his person, but in the same manner as he possessed the firearm, which was explained to the jury to be constructive possession. Again, it was an admitted fact that the magazine was a prohibited device, and that Mr. Morias did not have a license allowing him to have this firearm, nor did he ever have such a license.

[8] For the offence of possessing a loaded prohibited firearm, it involves the same firearm from count 1. The only difference is that for this offence, the firearm must be loaded. It was an admitted fact that it was.

[9] With respect to the offence of possessing cocaine for the purpose of trafficking, the jury found that Mr. Morias either constructively possessed the cocaine, as explained above, or he had joint possession of the cocaine with others who knew and agreed that he possessed the cocaine. Mr. Morias has admitted that the substances found were cocaine and he admitted to the quantities found. The jury found that Mr. Morias knew it was cocaine or was wilfully blind to the fact that it was. Finally, it was an admitted fact that it was possessed for the purpose of trafficking.

[10] Likewise, with the offence of possessing fentanyl for the purpose of trafficking, the jury found that Mr. Morias either constructively possessed the fentanyl, as explained above, or he had joint possession of the fentanyl with others who knew and agreed that he possessed the fentanyl. Mr. Morias has admitted that the substance found was fentanyl and he admitted to the quantities found. The jury found that he knew it was fentanyl or was wilfully blind to the fact that it was. Finally, it was an admitted fact that it was possessed for the purpose of trafficking.

C. Circumstances of the Offender

[11] The court had the benefit of receiving an Enhanced Pre-Sentencing Report, completed on November 19, 2024, by Michelle Richards, a registered social worker.

[12] Mr. Morias is currently 29 years old and was 23 years old on the date of the offence. His mother was only 15 years old when she had Mr. Morias. She moved in with her grandmother, who is Mr. Morias’ great-grandmother, in Malton. Mr. Morias states that it was his great-grandmother who raised him. His father was never present in his life, and he has never met him in person. Mr. Morias is the eldest of his mother’s three children, and he has 8 siblings through his father, who all reside in Jamaica. He is in a relationship but does not have any children himself.

[13] Mr. Morias was in middle school when his mother finished school and was able to get her own place. He chose to remain with his great-grandmother. He still supports his great-grandparents, helping them around the house, and taking them to medical appointments. His great-grandmother states that he was a lovely boy, attended church and never caused any trouble. Various cousins and other extended family members describe him as quiet and well-behaved.

[14] Despite his stated devotion to his great-grandparents, Mr. Morias started hanging out with other people of which his great-grandmother did not approve. She did not like that they all had free access to her house and that they freely smoked cannabis. One of Mr. Morias’ friends even pushed her aside to gain entrance to her home. She and Mr. Morias’ extended family did not approve of the friends he kept. Mr. Morias acknowledges he started socializing with the wrong crowd when he was in high school.

[15] His family always struggled financially. He started working as soon as he was able.

[16] Mr. Morias did not like school. He suffered from a lisp and was required to obtain special assistance for his speech. His mother believes that it was rooted in poor hearing from birth. When in high school, he was put in an academic stream that did not allow for college after graduation. He upgraded himself and changed to an applied stream. When in school, Mr. Morias was frequently suspended for fighting. He skipped classes and did not feel like he fit in. He started using cannabis and then started selling it so that he would not have to rely on his grandmother financially.

[17] With the help of a resource teacher at his high school, he graduated and attended two semesters at Humber College and studied business management. He dropped out following a motor vehicle accident, in which he was sued. He stated that it caused him too much stress.

[18] Mr. Morias’ employment history was in the restaurant industry. He claimed he was subjected to racism, which denied him any advancement. Then he obtained a position in sales. He was able to advance and became a truck driver for two years. He left following a car accident due to his injuries. When he returned, he felt he was mistreated as a Black man and eventually quit. He now works with a friend in a car detailing business.

[19] Mr. Morias has had negative experiences with the police since his youth. He would be stopped and questioned for no reason when walking home or driving. He reports one instance when he was assaulted by the police and tasered. The charges resulting from that arrest were eventually dismissed. Mr. Morias was also tasered when arrested for the offences that are the subject of this sentencing hearing, and he had to be hospitalized as a result. He is now fearful of the police and believes they operate outside of their authority.

[20] All of Mr. Morias’ friends and extended family describe him as gentle and hard working.

[21] Ms. Richards opines that Mr. Morias’ placement in the Locally Developed stream in school, as opposed to the Applied stream, is reflective of the racism experienced by Black students where there are low expectations about them, and they normalize poor outcomes. She also states that Mr. Morias was subjected to anti-Black racism and racial profiling when growing up. She reports that Mr. Morias is very worried about incarceration. Ms. Richards indicated that his employment prospects will be weakened when he is released.

[22] Following his conviction, Mr. Morias started attending therapy in the fall of 2024 and has been consistent in his attendance. He is learning trauma-focused cognitive behavioural therapy. His therapist notes that Mr. Morias is very engaged in the process and wants to continue.

[23] Mr. Morias does not have a criminal record. He is maintaining his defence position, so he made no comments regarding his role in these offences or any remorse he may be experiencing.

[24] Mr. Morias has been employed full time with ABAutoSpa since February 2021. His employer states that he has a strong work ethic and positive attitude.

[25] I have also reviewed a personal letter of support from Paulette Collymore, who speaks to Mr. Morias’ strong character and his compassion towards his cousin with autism. She believes this offence is not a true reflection of who he really is – which is a young man with ambition, compassion, and a desire to improve himself and those around him. I have also reviewed a letter of support from Leatitia Nanziri, who describes Mr. Morias as a kind-hearted person, who has a great deal of empathy and humility and who is always willing to lend a hand.

[26] Finally, I have reviewed a letter from Devyn May, who supervises Mr. Morias as a volunteer at Unique Respite Services. This is an agency that provides support and respite for individuals with developmental and intellectual disabilities. In his volunteer duties, Mr. Morias has shown compassion, patience, and empathy.

[27] The pre-sentencing report and the letters of support show Mr. Morias as a person of compassion and empathy. While this is commendable, it also is contrary in nature to a person who used his great-grandmother’s home as his own home, allowing people to come and go and contrary to her wishes, people who at times were rough with her. This is the woman who raised him. He also put his great-grandmother and his extended family at risk by keeping a loaded firearm and deadly illegal drugs in their family home. While there is no immediate victim of his crimes, he seemed oblivious to the deadly impact this sort of activity, and these drugs, can have on a large number of people and his community at large, blaming only the people he associated with.

D. Position of the Parties

[28] The Crown is seeking a sentence of ten years incarceration. In particular, for possession of a loaded prohibited firearm (count 3), she seeks a sentence of 4 years, to be served concurrently with a sentence of 2 years for the possession of a prohibited device (count 2). For possession of fentanyl for the purposes of trafficking (count 6), the Crown seeks 8 years of incarceration, to be served concurrently with a sentence of 2 years incarceration for possession of cocaine for the purposes of trafficking (count 5). The Crown suggests that the weapons sentence be served consecutive to the drug offences. The total period of incarceration would be 12 years, which the Crown proposes be reduced to 10 years for the principle of totality. The Crown asks that the sentence on count 1 be stayed pursuant to the principles set out in R. v. Kienapple, [1975] 1 S.C.R. 729.

[29] The Crown is also seeking a number of ancillary orders, namely, a s. 109 prohibition for life, a DNA order and a forfeiture order for the items seized.

[30] Mr. Morias submits that a global period of incarceration of 5 to 6 years is more appropriate. He takes no issue with the ancillary orders sought.

E. Analysis

a. Principles in Sentencing

[31] Imposing a fit sentence is a highly individualized and fact specific exercise.

[32] The principles of sentencing are set out in sections 718, 718.1 and 718.2 of the Code and I am bound by those principles. I am to consider the objectives of denunciation, deterrence, and rehabilitation. I must consider aggravating and mitigating circumstances, the sentence must be similar to sentences imposed on similar offenders for similar offences, and an offender should not be deprived of their liberty if less restrictive sanctions may be appropriate.

[33] That being said, it is a fundamental principle of sentencing that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is measured by reference to both the offence and the offender: Criminal Code, s. 718.1; R. v. Morris, 2021 ONCA 680, paras. 61-62.

[34] When considering the second part of this analysis, the degree of responsibility of an offender, one may consider evidence that the offender’s choices are limited or influenced by his disadvantaged circumstances, such as systemic anti-Black racism. Mr. Morias’ experience with anti-Black racism, which may explain why he found himself in this situation, speaks not to the gravity of the offence, but rather to his moral responsibility for the crime he committed: Morris, at para. 76.

[35] With the appropriate social context evidence, which I have in this case, I can give added weight to the objective of rehabilitation and less weight to the objective of specific deterrence. This does not diminish the seriousness of the crime but recognizes that the ultimate sentence imposed must be tailored to the specific offender and the potential rehabilitation of that offender. As long as the sentence ultimately imposed remains proportionate to the offence and the offender, the actual sentence imposed is a fit sentence: Morris, at paras. 79-81.

[36] That being said, with respect to firearm offences, the court has long recognized that handguns are dangerous, and loaded and concealed handguns even more so. A person who carries a loaded weapon in a public place is by definition a dangerous person. It is for this reason that the principles of denunciation and deterrence are emphasized in sentencing of weapons offences: R. v. Danvers, paras. 77-78; R. v. Ferrigon, paras. 25-29. Convictions under s. 95 of the Code demand denunciatory sentences. Most s. 95 offences will attract a penitentiary term even for first offenders: R. v. Smickle, 2014 ONCA 49, para. 19; Morris, at para. 70.

[37] With respect to drug trafficking offences, deterrence and denunciation are also the primary sentencing objectives. The policy reasons for taking this strict deterrent and denunciatory approach to sentencing in fentanyl trafficking cases is the same as in cocaine and heroin trafficking cases. Namely, the court recognizes the extraordinary harm associated with these drugs, the collateral crime associated with them (including crimes of violence), and the premise that rationally premediated commercial crimes like drug trafficking by a non-addict are particularly amenable to deterrence: R. v. Owusu, 2024 ONSC 671, para. 34.

[38] Fentanyl is highly dangerous. Its effects have been well documented by the court: R. v. Parranto, 2021 SCC 46, para. 94. It is 100 times more powerful than morphine and 20 times more powerful than heroin. Even first-time offenders who traffic in significant amounts of fentanyl should expect to receive significant penitentiary sentences: R. v. Loor, 2017 ONCA 696, paras. 35-39, 50.

[39] In this case, I must sentence Mr. Morias for drug trafficking and firearm offences. Our courts have repeatedly stated that the “toxic combination” of drug and gun offences require a significant jail term to achieve the goals of denunciation and deterrence: R. v. Wong, 2012 ONCA 767, paras. 11-13.

b. Aggravating and Mitigating Factors

[40] There are a number of aggravating factors in this case. First, the firearm found was loaded. There was another round of ammunition available. The firearm and magazine were found with lethal drugs. There is no suggestion that Mr. Morias suffered from any addiction issues. The motivation for the trafficking was solely for financial gain.

[41] Secondly, the drugs and firearm were found in a residential home, where elderly and vulnerable people live. The house was in a residential neighbourhood. The guns were loaded and had oversized magazines.

[42] Also, it is an aggravating factor that fentanyl was found. This drug is extremely dangerous and can kill. The trafficking of fentanyl exploits the most vulnerable in our society – such as addicts. The manner in which it was left in his great-grandmother’s home shows that he does not appreciate the seriousness of this drug.

[43] The Crown asks that I draw an inference that Mr. Morias was trying to hide evidence. When the TRU team arrived, the uncontested evidence was that they found a safe on the floor, opened, with the key still in the lock, which also had Mr. Morias’ car key on it. The firearm was wrapped in a t-shirt, with more ammunition and fentanyl, and found in a toilet. The other magazine was in a bag, under the bed. The Crown asks that I infer that he resisted arrest causing him to be tasered.

[44] I do find that the evidence establishes that Mr. Morias was trying to hide the firearm and drugs when the police arrived. As noted above, during the execution of the search warrant, the police found a safe opened, with the key still in it. Also on that key chain was Mr. Morias’ car key. Clearly the contents of the safe were removed and put somewhere less obvious – like a toilet bowl. The fact that the toilet was non-functioning does not diminish that it was a place that was a less obvious hiding place for a firearm and drugs.

[45] With respect to mitigating factors, Mr. Morias was relatively young at the time of the offence (23 years old). He has no criminal record. He is a high school graduate and has some post-secondary education. He wants to finish his education. He was born to a 15-year-old mother. He was raised by his great-grandmother who did the best she could. Mr. Morias’ father has not played any role in his life.

[46] Mr. Morias and his family suffered financial insecurity. His enhanced pre-sentencing report shows a steady history of employment. He is sponsoring a child in Zambia. Since his conviction, he has been attending counselling and is volunteering with intellectually disabled adults.

[47] He does take responsibility for his choice of friends, who he believes led him down the wrong path. At his sentencing hearing, Mr. Morias did state that he has demonstrated that he can stay out of trouble and stay on the right track, and asks for an opportunity to do so.

c. Parity in Sentencing

[48] Sentencing ranges, while they are used mainly to ensure parity, reflect the principles and objectives of sentencing. They are summaries of the minimum and maximum sentences imposed in the past, which serve as guides for the application of all the relevant principles and objectives. That being said, they are not to be considered averages, let alone straightjackets, but rather a historical portrait to be used by sentencing judges, who must still exercise their discretion in each case. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation: R. v. Lacasse, 2015 SCC 64, paras. 57-58.

[49] The Crown provided a number of cases showing sentences given when the drug offences also involved firearms, and those that show the sentences given for trafficking fentanyl alone. Mr. Morias has also provided a number of cases showing the sentences that involved both fentanyl trafficking and firearms offences. It is those cases where the sentence is for both fentanyl trafficking and firearms offences that I find most helpful. I will start with the appellate level decisions.

[50] In R. v. England, 2024 ONCA 360, the accused was found to be part of a high-level commercial drug trafficking operation. He was convicted of trafficking fentanyl and other harmful drugs as well as offences regarding a loaded weapon. He had a lengthy criminal record. He was sentenced to 10 years for the drug offences and 7.5 years for the firearms offences, to be served consecutively. After a number of credits, and a reduction to reflect the principle of totality, the aggregate sentence was 13 years and 9 months.

[51] In R. v. Achilles, 2022 ONCA 382, Mr. Achilles was convicted with 2 counts of possession of 135.1 g of fentanyl and 729.9 g of methamphetamine, both for the purposes of trafficking, and possession of a prohibited weapon. He was sentenced globally to 8 years less credit for pre-trial custody. On appeal, his conviction for possession of the prohibited weapon was quashed but the sentence on the drug charges was only reduced by 2 months to account for the global nature of the sentence prior to that charge being quashed.

[52] In Owusu, following a trial, the accused was found guilty of 10 offences related to two loaded and prohibited firearms, two prohibited devices, careless use of a firearm, an altered serial number offence, a breach of a prior firearms offence, and possession of 127.75 g of fentanyl for the purposes of trafficking. He tried to escape arrest. When on foot, he accidently discharged one weapon in a residential neighbourhood. He then tried to dispose of two loaded firearms and 127.75 g of fentanyl in a backyard of a home with small children, but luckily, they were subsequently recovered. Mr. Owusu was 23 years old at the time of the offence. He had a serious Youth Court record, which included weapons offences and 2nd degree murder when he was 16 years old. He showed remorse by apologizing for his actions and expressed gratitude that no one was hurt. Given the quantity of fentanyl seized, Mr. Owusu was characterized as being in the mid-level of the drug trafficking hierarchy. He was not an addict. Mr. Owusu was sentenced to 9 years for the gun offenses and 9 years consecutive for the fentanyl charges, reduced to 15 years for totality.

[53] In R. v. Shaikh and Tanoli, 2024 ONSC 774, the two accused pleaded guilty to a number of offences which included possession of a prohibited firearm. Mr. Shaikh pleaded guilty to trafficking cocaine and Mr. Tanoli pleaded guilty to possession of fentanyl (114 g) for the purposes of trafficking. Mr. Tanoli was sentenced to 7 years for the fentanyl to be served concurrent with 4 years for the firearms offences. One year was deducted due to unnecessarily harsh incarceration conditions.

[54] In R. v. McPherson, 2023 ONCJ 160, Mr. McPherson pleaded guilty to five counts of possession of a prohibited loaded firearm, possession of a restricted weapon while prohibited, possession of a prohibited device, possession of fentanyl for the purposes of trafficking (317.5 g) and possession of methamphetamine for the purpose of trafficking (34.7 g). There was no enhanced pre-sentencing report. He was considered a mid-level trafficker. Mr. McPherson had a good childhood but experienced downward spirals after the death of his father, and then due to losing his job during COVID. He was sentenced to 9 years of imprisonment for the drug related offences, and 3 years for the firearms offences, to be served consecutively. It was reduced by one year, to 11 years, for the principle of totality.

[55] In R. v. Musa, 2022 ONSC 3734, Mr. Musa was convicted of possession of cocaine (36 g of crack cocaine and 59 g of cocaine), methamphetamine (39 g) and fentanyl (130 g) for the purposes of trafficking, as well as possession of a loaded and prohibited firearm. This was as a result of a guilty plea following a failed Charter application to exclude evidence. At the time of his arrest, he was bound by a recognizance for weapons offences with a condition that he does not possess firearms. He was charged with that as well. He was sentenced to 8 years for the fentanyl charges, and 3.5 years for the firearm offence, for a total of 11.5 years, but the fentanyl sentence was reduced by 1 year and the firearm offence by 9 months to reflect the totality principle.

[56] In R. v. Matthew, [2023] O.J. No. 3567 (S.C.), following a failed Charter application to exclude evidence, an agreed statement of facts was filed, and Mr. Matthew gave no evidence. He was found guilty of possession of a loaded prohibited weapon; unauthorized possession of a firearm, unauthorized possession of a firearm in a motor vehicle, possession of a prohibited device, breach of a probation order, possession of 35.79 g of fentanyl for the purpose of trafficking, and possession of 26.65 g of heroine for the purpose of trafficking. The court had the benefit of an enhanced pre-sentencing report. Mr. Matthew was 25 years old when he committed the offences. He is Black. He was in a steady relationship with someone and had a 5-year-old child with that woman. He had another 11-year-old son from a prior relationship. He had a criminal record for trafficking and failing to comply with an undertaking. He was raised by a single father, who had an alcohol dependency issue, and his mother was deported when he was 2 years old. He did not finish high school. He was in remedial classes in school. He had a limited employment history. He was considered a mid-level trafficker. Mr. Matthew was sentenced to 5 years for the drug charges, 2.5 years for the firearms offence, to be served consecutively, and 6 months for the breach of probation order, for a total of 8 years. After considering pre-sentencing custody and various credits, it was reduced to 3.5 years.

[57] In R. v. Dugas, 2023 BCSC 85, Mr. Dugas pleaded guilty to possession of fentanyl for the purpose of trafficking and possession of a loaded prohibited firearm. He was found with 59.05 g of fentanyl, 18.96 g of cocaine, 42.39 g of phenacetin, and 159 tablets of benzodiazepine. The last two items were used to cut with cocaine or fentanyl. His firearm was a 9 mm semi-automatic handgun, and he threatened a member of the public with it. The court had the benefit of a Gladue Report, although Mr. Dugas was not connected to his heritage at that time. Mr. Dugas was 26 years old at the time of the offence. He was homeless and living with addiction. His upbringing was not stable, having little contact with his father. He was sexually assaulted when he was 8 years old. He was removed from his mother’s care when he was 12 years old. He did not graduate from high school. His close friend died of an overdose, and he blamed himself. He was characterized as a “youthful” offender. He was sentenced to 4 years for fentanyl trafficking, and three years for the firearms offence to be served consecutively. The 7-year sentence was then reduced to 6 years as a global sentence on the basis of proportionality.

[58] In R. v. Pelgrom, 2022 BCSC 1058, Mr. Pelgrom pleaded guilty to possession of various drugs for the purpose of trafficking, which drugs includes methamphetamine (69 g), heroine-fentanyl (53 g) and fentanyl (82 g). He also pleaded guilty to possession of an unloaded prohibited or restricted firearm. He was 37 years old at the time of sentencing. He identified as Métis and had the benefit of a Gladue report. His mother suffered from addiction and his father was not present. He was sexually abused by a boyfriend of his mother. He and his brother (who is also an addict) were in and out of foster care. He has made efforts at rehabilitation while in custody and had the support of family and friends. He had a significant criminal record, in excess of 80 convictions and sentences, which included weapons and drug offences. He was found to be a mid-level dealer. He was sentenced to 4 years for the drug offences to be served concurrently. He also received 4 years incarceration for the weapons offences, to be served consecutively. On the principle of totality, it was reduced to 7 years.

[59] In R. v. Niyonzima, [2021] O.J. No. 2305, Mr. Niyonzima pleaded guilty to possession of fentanyl (64 g) and cocaine (329 g) for the purposes of trafficking, possession of a loaded firearm, possession of proceeds of crime, and of resisting arrest. He had a prior record, for trafficking, where he already served 450 days of pre-sentence custody. He was under a weapons prohibition. He was 26 years old when sentenced. His family were refugees from Rwanda, and all other members of the family have done well. They were supportive of Mr. Niyonzima. For the fentanyl offence, Mr. Niyonzima was sentenced to 5 years, which the judge characterized as being at the low end of the accepted range. This sentence was then reduced by various credits. He was sentenced 30 months for the cocaine, to be served concurrently with the other drug sentence. For possession of the handgun, he was sentenced to 1145 days, also to be served concurrently.

[60] Finally, in R. v. Schramek, 2021 ONSC 436, Mr. Schramek was found guilty of possession for the purpose of trafficking with respect to 156.7 g of fentanyl. He was also charged with possession of plus 1.2 g of cocaine and 3.4 g of methamphetamine, and two counts of possession of a prohibited weapon, and possession of property obtained in the commission of an offence. Mr. Schramek is the single parent of twin sons. The CAS took the twins from their mother shortly after birth. Mr. Schramek was addicted to opiates, which started when he was prescribed them for a work-related knee injury. The fentanyl was found throughout Mr. Schramek’s residence, including used needles, all easily accessible by children. He had no criminal record at the time of the offence. He had graduated high school and had some post-secondary education. His family was supportive. He was sentenced to 7.5 years for the fentanyl trafficking, concurrent with the other charges. He then received credit for pre-sentencing custody.

[61] The Crown did give examples of sentencing involving fentanyl trafficking alone, not involving firearms. These are helpful to understand how the quantity of fentanyl found relates to the sentence given.

[62] At the appellate level, in R. v. St. Rose, 2024 ONCA 893, Mr. St. Rose pleaded guilty to possession of fentanyl (44.26 g) for the purposes of trafficking. The trial judge sentenced him to 6 years. On appeal, it was confirmed that Mr. St. Rose was a mid-level dealer. Mr. St. Rose was addicted to drugs. Other than reduce the sentence by 3 days to account for pre-sentencing custody, the sentence was upheld.

[63] In R. v. Lynch, 2022 ONCA 109, 160 O.R. (3d) 241, Mr. Lynch pleaded guilty to possession of 149.28 g of MDMA and 41.37 g of fentanyl. He was considered a mid-level trafficker. He was sentenced to 4 years. The sentence was overturned on appeal. The Court of Appeal found that the judge misapprehended the gravity of the offence, gave too much weight to the guilty plea and he erred in principle in evaluating Mr. Lynch’s degree of blameworthiness. At the time of the offence, Mr. Lynch was 29 years old. He has one prior conviction, unrelated to drug activity. The sentence was increased to 6 years.

[64] Finally, in R. v. Campbell, 2024 ONSC 2220, following a trial, Mr. Campbell was convicted of possession of fentanyl, possession of fentanyl for the purpose of trafficking (109 tablets), dangerous operation of a motor vehicle and flight from police. The conviction for the possession charge was stayed. Mr. Campbell was 22 years old at the time of the offence. He had no criminal record. He graduated high school and was employed as a general labourer. He had a life partner with a one-year-old child. He grew up in an intact family with both parents and 5 siblings. He was found to be on the line between a low-level and a mid-level trafficker. He was sentenced to 3 years for the fentanyl trafficking plus another 3 months consecutive for the dangerous driving.

[65] After reviewing the cases, it appears that fentanyl trafficking cases, where the convicted person is found to be a mid-level trafficker, result in a sentence of 5 to 10 years. Those sentences in the lower range tend to be found when the accused had suffered a particularly harsh life (losing parents at a young age, being in foster care, or being sexually assaulted). I do not believe those cases apply to Mr. Morias. Upon my review of the cases, I find that range of sentences for trafficking fentanyl that would be more applicable to Mr. Morias, fall in the range of 7 to 9 years. The higher end would be for those offenders with a prior criminal record. Mr. Morias is clearly in the range of a mid-level trafficker but has no record. Any sentence for the trafficking of cocaine would be shorter and served concurrently to that sentence.

[66] With respect to the firearms offences, the offences range from 7.5 years (where multiple firearms were used) to 2.5 years. Given that the firearm was not in use at this time, and it appears, but for the search, it was kept in a locked safe, and that he had no prior weapons convictions, I would put Mr. Morias in the lower end of this range.

F. The Appropriate Sentence in this Case

[67] Clearly, the trafficking of fentanyl and cocaine, in combination with possession of loaded and prohibited firearms, are serious offences. No one has suggested otherwise. Then, I must consider Mr. Morias’ moral culpability. When doing so, I must also consider how Mr. Morias’ background, and in particular his experience with systemic anti-Black racism has impacted his degree of moral responsibility.

[68] Clearly, there is high moral culpability. He kept a loaded weapon and dangerous drugs in his great-grandmother’s basement. He used it for his own purposes, without regard to the elderly people living upstairs. He sold these drugs for financial gain alone.

[69] Next, I must also consider his personal experiences prior to the offences. While there does not need to be a direct causal link between Mr. Morias’ experience with anti-Black racism and his offences, there must be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate Mr. Morias’ criminal conduct. Racism may have impacted Mr. Morias in a way that bears on his moral culpability for his offences, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, though, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. There should be no such discount: Morris at para. 96-97.

[70] In the case before me, the connection between the anti-Black racism has some connection to the offences, but not to a great degree. Mr. Morias’ criminal activity was motivated by financial gain. I accept that his placement in a remedial academic stream may have been motivated by racism. This, no doubt, led to low self-esteem and a need to prove himself otherwise. I also accept that due to his family circumstances, money was tight in his great-grandmother’s home. He felt the need to help support himself in high school and did that by selling cannabis. He has also, though, demonstrated that he has been able to obtain employment and do well on other occasions. He has been steadily employed since he was taken off of house arrest. He overcame the racism he experienced in school by upgrading himself and going on to college. This is not a situation where he had no other option but to pursue a life of crime. He has had some positive role models in his mother and grandparents, who worked hard to make a better life.

[71] Accordingly, his moral culpability has been decreased somewhat, but not to any great extent. It may assist, along with the other mitigating factors, in bringing him in the lower end of an acceptable range for these offences, which I have done.

[72] I agree with the Crown’s submission that the convictions for possession of a firearm without a license, and possession of a loaded firearm all relate to substantially the same event or transaction. Accordingly, the finding of guilty for count 1 should be stayed pursuant to the rule against multiple convictions.

[73] In the circumstances of this case, I find that a sentence of 2.5 years on the offence of possessing a loaded restricted firearm is appropriate.

[74] As for the charge of possessing a prohibited device, contrary to s. 92(2), I find a sentence of 18 months is appropriate for that offence. That sentence should be served concurrently with the loaded firearm offence.

[75] With respect to the drug offences, considering the particular mitigating and aggravating factors, the seriousness of the offence, and Mr. Morias’ personal culpability, I find that Mr. Morias should be sentenced to 7.5 years for the trafficking of fentanyl and 2 years for trafficking of cocaine.

[76] The general rule is that offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences: R. v. Freisen, 2020 SCC 9, para. 155.

[77] Accordingly, Mr. Morias’ sentence for the trafficking of fentanyl should be served concurrently with his sentence for the trafficking of cocaine. These two sentences, though, should be served consecutively with the firearms offence.

[78] Accordingly, the total sentence imposed is 10 years, to be reduced to 8 years to comply with the totality principle. See: R. v. C.A.M., 1996 SCC 230, [1996] 1. S.C.R. 500, at paras. 41-42. Eighteen months will be deducted from the drug trafficking offences, leaving a net sentence of 72 months. Six months will be deducted from the firearms offences, leaving a net sentence of 2 years, or 24 months.

[79] Finally, Mr. Morias asked that I consider my finding that his s. 10(b) rights were violated, to reduce his overall sentence on a global basis. On February 23, 2023, I released my decision on Mr. Morias’ application under the Charter to exclude evidence (see 2023 ONSC 1299). In that decision, I acknowledged that the Crown conceded a violation of Mr. Morias’ s. 10(b) rights by denying him his right to speak to counsel in a timely manner after his first arrest on or about 8:50 p.m. on July 11, 2019. I found no violation of his rights with respect to his arrest for the second set of charges, which were laid at approximately 3:36 a.m. on the morning of July 12, 2019. Despite the violation, which I characterized as serious, after conducting an analysis under s. 24(2) of the Charter, I determined that no evidence should be excluded.

[80] Where state misconduct relates to the circumstances of the offence or the offender, the sentencing judge may properly take the relevant facts into account in crafting a fit sentence. Where the state misconduct does not relate to the circumstances of the offence or the offender however, the accused must seek his or her remedy in another forum. A reduction of sentence could hardly constitute an appropriate remedy within the meaning of s. 24(1) of the Charter where the facts underlying the breach bear no connection to the circumstances of the offence of the offender: R. v. Nasogaluak, 2010 SCC 6, paras. 3-4; R. v. Donnelly, 2016 ONCA 988, paras. 152-153.

[81] In support of his position, Mr. Morias relies on R. v. Barreau, 2024 ONCJ 522. In that case, Mr. Barreau was denied his right to counsel. Justice Silverstein found that any sentence credit must be proportional to the impact of the breach. In this case, there was little impact. No evidence was collected during the time of the breach and there was no interrogation. The court acknowledged that Mr. Barreau probably suffered some anxiety and anguish as a result of being denied his counsel, and thus he obtained a 2-month credit to his sentence.

[82] Mr. Morias also relied on the case of R. v. Samuels, 2024 ONCA 786, 174 O.R. (3d) 161. In that case, after advising Mr. Samuels of his right to counsel, police denied his ability to speak to counsel for almost 10 hours. While the evidence was not excluded at the trial level, it was on appeal. The Court of Appeal for Ontario found the violation to be serious and that they weighed in favour of an exclusion. Mr. Morias presents this case as evidence of the seriousness of such a breach.

[83] Unfortunately, I do not find that this is a case in which the s. 10(b) violation of the Charter warrants any reduction in Mr. Morias’ global sentence. The violation occurred after the offences occurred. Mr. Morias was in the hospital due to anxiety following his arrest, not because of his inability to speak to counsel. No evidence was obtained during that time. As indicated by Nasogaluak, the facts underlying the breach bear no connection to the circumstances of the offence and the offender.

[84] Accordingly, the global sentence of 8 years, or 96 months, remains.

G. Deductions for Time Served and While on Bail

[85] Mr. Morias served 7 days of pre-trial custody. Accordingly, he is entitled for credit of 1.5 days for each day he was in custody, for an equivalent of 10 days, or one-third of a month: R. v. Summers, 2014 SCC 26. This leaves Mr. Morias with a net sentence of 95 ⅔ months.

[86] When Mr. Morias was released on July 18, 2019, he was placed on house arrest and was only allowed to leave with a surety, for medical emergencies and to visit his lawyer. The Crown concedes that these restrictions curtailed Mr. Morias’ liberty. The terms of his release were made less onerous on January 25, 2021, after 18 months and one week, and he was placed on a curfew. It was at that time that he started working in the car detailing business.

[87] I agree that time spent under restrictive bail conditions should be taken into account: R. v. Downes. I am not required to quantify a specific amount of credit, but if I do, it is often between a quarter to one third of the total time spent on bail: R. v. Beharry, 2022 ONSC 4370, para. 34.

[88] In these circumstances, I find that a Downes credit is only applicable for the period of time he was on house arrest – a period of 18 months. For that period of time, Mr. Morias seeks a credit of 6 to 8 months, approximately 33% to 44% of the time under house arrest. The Crown states it should be somewhere between 4.5 months to 6 months. I find that 5 months is an appropriate credit in these circumstances. Four months will be deducted from his sentence for the trafficking offences, leaving a net sentence of 67 ⅔ months. One month towards the firearms offences, leaving a net sentence of 23 months.

H. Conclusion

[89] After considering and weighing the sentencing principles set out in ss. 718 to 718.2 of the Code, and taking into account the aggravating and mitigating factors, the various credits, as well as the submissions of counsel, I find that the interests of justice would be served by a net sentence of 90 ⅔ months, calculated as follows:

a) The conviction for count 1 is stayed pursuant to the principles set out in Kienapple;

b) For count 2, a period of incarceration of 18 months;

c) For count 3, a period of incarceration of 23 months;

d) The sentence for counts 2 and 3 shall be served concurrently;

e) For count 5, a period of incarceration of 2 years;

f) For count 6, a period of incarceration of 67 ⅔ months, to be served concurrently with the sentence for count 5;

g) The sentences for counts 5 and 6 are to be served consecutive to the sentence for counts 2 and 3;

h) You are prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition, and explosive substance, for life, pursuant to s. 109;

i) a DNA order, with respect to the drug offences; and

j) a forfeiture order with respect to the seized firearm and ammunition.

[90] Mr. Morias has shown himself able to succeed when motivated. Accordingly, he would benefit from an opportunity to further his education while incarcerated. He should also continue with any therapy that may be available to him so that he can make better choices upon his release.

Released: May 20, 2025

Fowler Byrne