Court File and Parties

Court File No.: CR-24-90000223-0000 Date: 2025-08-07 Ontario Superior Court of Justice

Between: His Majesty the King – and – Richard Ray Smith

Counsel:

• Jacqueline Porter, for the Crown
• Elijah White, for the Defendant

Heard: March 3, 4, 5, 6, 7, 10, and June 5, 2025

Judge: J.T. Akbarali J.

Overview

[1] The defendant, Richard Smith, was charged with possession of a controlled substance (fentanyl) for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the "CDSA"). He was also charged under s. 355(b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the "Code") with possession of property or proceeds of property that was obtained or derived directly or indirectly as a result of the commission of an indictable offence contrary to s. 354(1)(a) of the Code.

[2] The trial proceeded before me without a jury. In reasons released on April 17, 2025, I found Mr. Smith not guilty of the counts with which he was charged. I found Mr. Smith guilty of the lesser included indictable offence of possession of a Schedule 1 substance, contrary to s. 4(1) of the CDSA: R. v. Smith, 2025 ONSC 2385.

Brief Factual Background

[3] Mr. Smith is a 41-year-old man with a grade 12 education. After high school graduation, he worked in warehouses. At age 24, he became a steelman, tying rebar for commercial buildings. He did that work until 2018, when he was injured when he was hit by a taxi. He has not been able to work since. He is on ODSP.

[4] There was some evidence led at trial about Mr. Smith's close relationships. He lives with his girlfriend who contributes to his financial support by paying the rent. He maintains relationships with his family members, and testified that his mother, brother, and cousin assist him with money and, in the past, when he was able to work, with employment.

[5] On December 22, 2022, during a surveillance operation conducted by police, Mr. Smith was identified as a target whom the police believed to be dealing drugs. He was arrested and found to be in possession of, among other things, a total of 12.64 g of fentanyl. At trial, Mr. Smith admitted his guilt for the lesser but included offence of possession, but advanced the theory that he possessed the fentanyl for personal use. I ultimately concluded that the Crown had not proven beyond a reasonable doubt that Mr. Smith possessed the fentanyl for purposes of trafficking.

[6] At trial I heard evidence about Mr. Smith's long-standing opioid addiction. He testified that he was addicted to heroin in 2016, before he began using fentanyl. Following the accident in which he was hit by a taxi in 2018, he required surgery which took place on June 21, 2021. After the surgery, he was given fentanyl, and quickly became addicted to it. He became a heavy fentanyl user.

[7] Mr. Smith also gave evidence at trial about his rehabilitative efforts. He joined a methadone program before his accident to attempt to break his addiction to heroin, and continued in it thereafter, to attempt to beat his fentanyl addiction. His efforts were not successful. I found that Mr. Smith continued to be addicted to fentanyl at trial. During his evidence, he expressed a desire to stop using fentanyl.

[8] I am advised that Mr. Smith has signed up for a methadone program, but there is no evidence before me to substantiate his attendance or what amount of methadone he is currently taking, if any. I am advised that he is seeking to engage in addiction counselling and programming.

[9] Mr. Smith has a criminal record. In 2005, he was convicted of failure to comply with a recognizance contrary to s. 145(3) of the Criminal Code and ordered to pay a fine of $300. In 2014, he was convicted of unauthorized possession of a prohibited or restricted weapon contrary to s. 91(2) of the Criminal Code in connection with which he was ordered to pay a fine of $150 and received a mandatory weapons prohibition in accordance with s. 109 of the Criminal Code.

[10] Following the charges that were laid in this matter, and in connection with the recognizance Mr. Smith entered into with respect to these charges, Mr. Smith was charged with failure to comply with a recognizance contrary to s. 145(5)(a) of the Criminal Code. He spent 59 days in custody in connection with that charge before he was ultimately sentenced on May 24, 2024 to 15 days of pre-sentence credit. The Crown and defence agree that Mr. Smith thus has 44 days of pre-sentence credit available to him, equivalent to 66 days once one applies the Summers credit.

Position of the Crown

[11] The Crown seeks a sentence of time served and probation for a period of 18 months, subject to the statutory conditions and a condition that he attend and participate in addiction counselling as directed, and sign releases to allow his probation officer to confirm he is attending counselling.

[12] The Crown argues that fentanyl use has significant negative impacts on our society, and general deterrence is important to signal that fentanyl possession will carry a period of imprisonment. The Crown also accepts that rehabilitation is a significant objective in this case.

Position of the Defence

[13] The defence seeks a suspended sentence without any pre-sentence custody noted, and a twelve-month period of probation with the same statutory and counselling and reporting conditions proposed by the Crown.

[14] The defence argues that the most significant sentencing objective in this case is rehabilitation. Given the length and nature of Mr. Smith's drug addiction, the defence argues that the sentence should be focused on ensuring that Mr. Smith remains in the care of a professional.

Analysis

[15] Section 718.1 of the Criminal Code sets out the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[16] The purposes of sentencing are set out in s. 718. These include denunciation, deterrence, separation of the offender from society where necessary; rehabilitation of the offenders, reparations to the victim of the crime or community, and promotion of a sense of responsibility acknowledging the harm done to victims or the community. Section 718.2(d) provides that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.

[17] Section 718.2(b) enshrines the parity principle: a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Parity is an expression of the proportionality principle.

[18] Section 718.2(a) of the Criminal Code directs judges to increase or reduce a sentence to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

Aggravating Factors

[19] The fact that Mr. Smith had a significant quantity of fentanyl in his possession, given its significant societal costs, is aggravating. As Edwards J. held in R. v. Park, 2020 ONSC 3941, at para. 12, the court can take judicial notice of the fact that fentanyl has wreaked havoc amongst those involved in the use and trafficking of opioids. A report entitled "Annual summary of opioid toxicity deaths in Toronto," filed as an exhibit on this sentencing hearing, confirms the destructive and deadly nature of fentanyl.

[20] Mr. Smith's prior criminal record is also an aggravating factor. Two of his prior convictions (only one of which pre-dates the offence date in this case) are for breaches of court orders. The fact that Mr. Smith has failed to comply with court orders on previous occasions raises concern that he may have difficulty complying with the terms of a probation order.

Mitigating Factors

[21] In this case, it is a mitigating factor that Mr. Smith was prepared to concede guilt with respect to the lesser included offence of which he was convicted: simple possession.

[22] While Mr. Smith is not a first-time offender, despite his lengthy period of opioid addiction, his criminal record does not reflect any custodial sentences prior to the date of the offence. Despite his many years of addiction to opioids, he has been able to limit his record to the two offences I described above prior to the offence in question, with about a decade in between convictions.

[23] Moreover, none of Mr. Smith's prior convictions are for drug-related offences, nor does he have any convictions for offences of violence. His drug possession and use pose a significant danger to him, but it does not appear from his record that his offending behaviour has placed other members of the public at risk, apart from the risk that fentanyl poses to the public and first responders generally.

[24] Mr. Smith's drug addiction is causally linked to the offence with respect to which he has been convicted; the fact of his addiction is a mitigating factor.

[25] The fact that Mr. Smith is pursuing addiction treatment is a mitigating factor, but its impact is attenuated because there is no evidence before me of his compliance with treatment. Moreover, Mr. Smith failed to attend twice for sentencing, which suggests that his efforts to address his addiction have not been productive over the last couple of months.

Parity

[26] The Crown has filed a sentencing table demonstrating that sentences for the indictable offence of simple possession of fentanyl range from conditional discharge at the low end to nine months imprisonment at the high end.

[27] Conditional discharges have been granted in circumstances where the defendant has no prior record, has made significant and successful efforts at rehabilitation, and in some cases, where the defendant had an offer of employment that required them to have no criminal record.

[28] Most of the other cases cited by the Crown reveal sentences of three months plus a period of probation. In some of these cases, convictions were also entered for firearms offences, and lengthier periods of imprisonment ran concurrently for those convictions. The longest period of imprisonment cited arose in R. v. Giannilos, 2016 ONSC 556, where the defendant received a sentence of nine months' imprisonment plus 12 months' probation. In that case, the defendant defrauded a pharmacist on two occasions to obtain fentanyl patches.

Objectives of Sentencing in this Case

[29] I agree with Rose J. in R. v. Abbott, 2017 ONCJ 678, at para. 13, that the risk posed by fentanyl is a public health risk for the community, not just the addict. Mr. Smith's addiction is a public health issue, albeit one arising in the context of a criminal prosecution. As in Abbott, I find that the principal objective of Mr. Smith's sentencing is to fashion "a rehabilitative order which will do as much as possible to keep him within the care of a health professional for continual care and treatment regarding his addiction." This is particularly so given Mr. Smith's previous, although unsuccessful, attempts at breaking his drug addiction.

[30] In R. v. Sharma, 2022 SCC 39, at para. 80, the Supreme Court of Canada noted that a suspended sentence is primarily a rehabilitative sentencing tool. In my view, a suspended sentence is appropriate in the circumstances, to fashion a sentence that will focus on rehabilitation. A jail sentence (even one for time served) will do nothing to keep the community safe, or to assist Mr. Smith in obtaining the supports he needs to bring his addiction under control.

[31] Mr. Smith now has a criminal record for a drug offence; the fact of the record has educative, symbolic, and deterrent effect. On the sentencing proposals of both the Crown and defence, Mr. Smith will be bound by a probation order, the breach of which is a criminal offence. The conditions proposed by the Crown and defence require Mr. Smith's participation in an addiction counselling and treatment program. Under such terms, he will be legally compelled to act in his own best interests, with criminal consequences should he fail to do so. In my view, those potential consequences have specific and general deterrent effect.

Sentence

[32] Accordingly, I suspend the passing of sentence for Mr. Smith. I place him on 18 months' probation, with the following terms:

a. Keep the peace and be of good behaviour;

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

c. Report to a probation officer within two working days, and thereafter as required by his probation officer;

d. Live at an address approved of by his probation officer;

e. Notify the probation officer in advance of any change of name or address, and promptly notify the probation officer of any change of employment or occupation;

f. Not be in the company of any individuals known to him to have a criminal record, unless approved of in advance by his probation officer;

g. Not possess any controlled substances as defined by the CDSA unless he possesses a lawful prescription;

h. Participate actively in counselling and treatment for substance abuse issues as directed by his probation officer; and

i. Sign all necessary forms and releases to allow his probation officer to ensure his compliance with addiction counselling and treatment.

J.T. Akbarali J.

Released: August 7, 2025