R. v. Wickens, 2020 ONCJ 106

CITATION: R. v. Wickens , 2020 ONCJ 106 DATE: February 24, 2020 COURT FILE No: 18-0783-01 O N T A R I O C O U R T OF J U S T I C E B E T W E E N : HER MAJESTY THE QUEEN -AND- JAMIE WICKENS Before Justice Michael G. March Heard on February 12, 2019 and January 29, 2020 Reasons for Sentence released on February 24, 2020 James Meloche…………………………………………………….…….Counsel for the Crown Joelle Klein……………………………………...………..…………….Counsel for the Accused March, M.G., J. : Introduction 1 . The accused, Jamie Wickens (“Wickens”), on February 12, 2019 entered guilty pleas before me to the following offences:

a) possession of oxycodone for the purpose of trafficking contrary to section 5(3)(

a) of the Controlled Drugs and Substances Act (“ CDSA ”),

b) possession of fentanyl for the purpose of trafficking contrary to section 5(3)(

a) of the CDSA , and

c) possession of the proceeds of crime contrary to section 354(1) (

a) of the Criminal Code (the “ Code ”). 2 . For various reasons, but mainly due to Wickens’ personal health concerns and desire to receive treatment prior to incarceration, his sentencing was adjourned over the course of several months. 3 . On January 29, 2020, I heard counsel submissions on sentence. What follows are my reasons.

Circumstances of the Offences 4 . Wickens came to the attention of the Ontario Provincial Police (“the OPP”) following the launch of “Project Teal” – an investigation aimed at identifying individuals involved in the sale and distribution of fentanyl in Eastern Ontario. 5 . Through the use of technical data and physical observations, the OPP learned that Wickens would travel by vehicle from Toronto to Renfrew County usually on Thursdays or Fridays. He would then spend his weekend going to numerous locations in and about Renfrew County, Ottawa and Hawkesbury, as well as Gatineau, Québec. 6 .

On June 22, 2018, Justice N. Boxall granted a search warrant to the OPP permitting police to enter and seize items from residences occupied by Wickens in Toronto and Eganville, Ontario. 7 . On that same day at 11:05 a.m., while stopped at a convenience store in Eganville, Wickens was arrested on reasonable grounds for trafficking in an illegal substance. 8 . Upon transport to the OPP detachment, Wickens spontaneously uttered that he was a drug courier. He admitted to having percocet tablets and fentanyl patches for supply to other people. 9 .

Located in or about the person of Wickens upon his arrest were: a) 86 Tevo fentanyl patches (100 microgram dosages), b) 60 Tevo fentanyl patches (25 microgram dosages), c) 350 oxycodone tablets, and d) 2 grams of cocaine. 10 . Inside Wickens’ residence in Eganville, police located:

a) approximately $20,000.00 CDN in cash,

b) a Motomaster 10 ton press,

c) a BlackBerry Bold cellular phone,

d) debt lists,

e) an Infinity digital scale, and

f) drug packaging materials. 11 . Inside Wickens’ residence in Toronto, police found:

a) documentation bearing Wickens’ name in the master bedroom,

b) three suspected debt lists,

c) approximately $10,000.00 CDN in cash, d) $741.00 US, e) 43 grams of cannabis marijuana,

f) three cellular phones, and g) 14 packages of 200 mg THC gummies. Circumstances of the Offender 12 . No presentence report was prepared on behalf of Wickens. However, his counsel provided me with a sufficiently thorough, personal history. 13 . Wickens has three children aged 17, 7 and 3, for whom he is their sole financial support. The 17-year-old is presently a student at the University of Ottawa. 14 . Sadly, both of Wickens’ parents were substance abusers. Drugs were omnipresent in his childhood. 15 .

When Wickens’ father was sentenced to a period of incarceration, his mother essentially abandoned him in order to go and live with a boyfriend. 16 . For a period of time, Wickens lived with his grandmother from ages 13 to 15. He then moved out and began to traffic in drugs

himself. 17 . His counsel submitted that his family background deprived Wickens of the privilege of being taught right from wrong. 18 . Wickens has a fairly minor criminal history. On February 15, 2005, he was convicted for failing to comply with a recognizance, two counts of failing to comply with conditions of an undertaking given to a peace officer, uttering a threat and mischief under $5000 for which he received a total sentence of 30 days jail after taking into account 16 days of presentence custody. He was thereafter placed on probation for 18 months.

At the time he was sentenced, Wickens was 23 years of age. 19 . In 2016, Wickens developed an addiction to illicit drugs himself. 20 . Notwithstanding his difficult upbringing and lack of guidance, Wickens established some eight years ago his own roofing company, “Got It Roofing.” His counsel assured me, and I accept, that it is a legitimate business venture. 21 . Since his arrest on June 22, 2018 to the date submissions on sentence were heard on January 29, 2020, Wickens spent 528 days on bail. He was not charged with breaching his bail conditions. He has not engaged in further criminal activity. 22 .

Upon his arrest, he gave an inculpatory statement to the police. 23 . He expressed remorse for the offences he committed. 24 . He entered a guilty plea without ever seeking to exercise his right to a preliminary inquiry or trial. Having done so, he spared the administration of justice some considerable expense. Position of the Federal Crown 25 . The Federal Crown seeks a penitentiary sentence in the range of 6 to 7 years total. The Federal Crown points to the recent proliferation of fentanyl cases where ever increasing penitentiary terms have been meted out by Canadian courts. 26 .

There can be no doubt that the abuse of fentanyl has reached epidemic status in Canada and other countries around the world. It is a highly insidious, dangerous drug. It is extremely potent. Minute doses can cause death. 27 . Under

section 487.053 of the Code , the Federal Crown requested that Wickens submit a sample of his DNA to be maintained in future in the confidential databank of the Royal Canadian Mounted Police. Position of the Defence 28 . Defence counsel submitted that a 3 ½ year penitentiary term ought to be imposed upon Wickens. 29 . The defence sought credit for the five actual days which Wickens spent in presentence custody at the typical 1.5 multiplier rate. 30 . The defence also requested a deduction from the total sentence to be imposed for the 528 days Wickens was on bail. 31 .

The defence took no position with respect to the federal Crown’s request for a sample of Wickens’ DNA. The Law 32 . Sentencing is, of course, an individualized process. No two cases are completely the same. 33 . The purposes and principles of sentencing are set out in sections 718 to 718.3 of the Code . To the extent that they apply to Wickens’ case, I must adhere to them. 34 . Counsel provided me with a number of authorities to guide me in crafting an appropriate disposition for Wickens. Although I will not refer to all of them, I will touch upon those that I have found to be of particular assistance. 35 .

In an unreported decision of Gregson J., R. v. Curtis (2016-04-19), Her Honour reviewed many of the dangers fentanyl presents. At paragraphs 42 to 46, Her Honour commented: “The federal prosecutor provided pertinent information and statistics as provided by Dr. Karen Woodall, a forensic toxicologist with the Centre of Forensic Sciences in a number of cases where she was deemed to be an expert on fentanyl. For example, he relied on Dr. Woodall’s expert opinion in R. v.

Miller . . . where [Wilson J.] described fentanyl as a “very, very powerful opioid so it can be up to 100 times stronger than morphine and 20 times stronger than heroin, which is also another type of opioid”. Dr. Woodall explained at page 5, lines 4 to 9 that fentanyl (and oxycodone and hydromorphone) are “some of the most common - commonly abused drugs and deaths that we see from use. We do see the illicit drugs so we see deaths due to cocaine use and heroin use,

but in terms of numbers it’s actually certain prescription medications like fentanyl that account for the majority of deaths”. Mr. Miller sold an undercover officer 14 fentanyl patches for $1260. Justice Wilson noted at page 8, lines 22 to 29, “There is sufficient authority from the Ontario Court of Appeal that supports the imposition of penitentiary sentences on even addicted first offenders for the trafficking in even smaller amounts of a dangerous drug than Mr. Miller did unless there are exceptional circumstances which I find there are not in this case”. In R. v.

Mitchell , Reasons for Sentence, OCJ, April 17, 2014, Sarnia at page 1, lines 23 to 25 and page 2, lines 11 to 13, Austin J. described fentanyl as “an extremely dangerous drug that cannot be tolerated. Courts have to be part of the solution by sending a strong message”. Justice Austin then went on to say “distributing such a valuable and significant amount of fentanyl in this community makes your conduct extremely dangerous and calls for a significant penitentiary sentence”. Mr. Mitchell was given six years custody for possessing 39 fentanyl patches for the purpose of trafficking.” 36 . The offender, Ms.

Curtis, possessed only a small quantity of fentanyl-four patches. Gregson J. sentenced Ms. Curtis to 30 months imprisonment in addition to making other ancillary orders. 37 . Similarly, in R. v. Joumaa , 2018 ONSC 317 , Ratushny J. explained at paragraph 12: Part of the problem is its potency. It [fentanyl] can be 20 to 50 times more potent than heroin. A dose of a mere 2 milligrams, as small as one grain of salt, can be lethal. 38 . At paragraphs 16 and 17, Her Honour added: Additionally, fentanyl is easy to use and abuse. It doesn’t have to be injected.

In its powdered form, it is easily absorbed through the skin or by inhalation. It gives users a high, a feeling of well-being and euphoria. It is a strong central nervous system depressant that slows down the way the brain functions and slows down the respiration centres of the brain. As a person starts to suffer from a fentanyl overdose their breathing becomes slower, shallower and their body cannot react to the decrease in breathing rate, with the result that they eventually stop breathing and can die.

All of this points to fentanyl presenting a huge and potentially lethal risk to the safety of the community and, as observed in R. v. Chin

(2017) BCSC 501, at paras. 43 and 44, not only to its buyers and users but additionally, to first responders, healthcare workers, citizens using naloxone kits to reverse the drug’s effects, and to anyone else accidentally inhaling even a grain of this powder. 39 . Mr. Joumaa possessed for the purpose of trafficking 139 fentanyl pills. Ratushny J. imposed a four year period of incarceration for this offence. 40 . In R. v. Medeiros-Sousa,

(2014) O.J. No. 4515 , Nelson J. at paragraph 8 discusses the manner in which fentanyl patches can be abused. His Honour wrote: Dr. Karen Woodall, a forensic toxicologist at the Centre of Forensic Sciences, testified about the nature of drugs involved in Ms. Medeiros-Sousa’s offences. Fentanyl is an opioid and acts like morphine to provide pain relief. When in patch form, fentanyl is designed to slowly release in order to control pain over a number of days.

However, fentanyl patches can be abused by chewing, melting or otherwise consuming the contents of the patch so as to receive the immediate effect of the drug contained in the patch. Fentanyl is 10 to 20 times stronger than heroin. Misuse of even one patch of fentanyl can cause death. Dr. Woodall testified that there has been an increase of reported deaths from fentanyl; indeed, the reported deaths from fentanyl now outnumber deaths from heroin. 41 . Ms.

Medeiros-Sousa, a pharmacy assistant who stole 3164 oxycodone pills, 1727 hydromorphone pills and 58 fentanyl patches from the drugstore where she worked was sentenced by Nelson J. to a global period of imprisonment of 30 months. 42 . In an unreported decision, R. v. Mudford (OSCJ – June 3, 2016), Lofchik J. imposed a 27 month penitentiary sentence upon the offender for trafficking a single 100 microgram patch of fentanyl. 43 . In R. v. Reid, 2015 NSSC 276 , Hunt J. was dealing with an offender who abused her position of trust in the healthcare system.

She diverted drugs, over a period of years, away from their safe and proper use to the illegal market. 1731 hydromorphone tablets and 179 fentanyl patches went missing between January 2012 and June 2014. 44 . In sentencing Ms. Reid for the offence of trafficking fentanyl, Hunt J. handed down a sentence of 30 months imprisonment. The 35- year-old offender had no criminal record. 45 . She pleaded guilty. She appeared genuinely remorseful for her conduct. 46 . Hunt J. found that her prospects for rehabilitation and becoming a positive and contributing member of society were high.

He commented notably that her sentence was at the lower end of the range of what the case law typically requires.

47. In R. v. Vezina, 2017 ONCJ 775, Sopinka J. conducted an extensive review of the then recent sentencing cases involving thetrafficking of fentanyl. She identified the critical areas for consideration in determining an appropriate disposition for this type ofoffence. She held at paragraph 29: “ . . .

Typically, factors that serve to increase or decrease the applicable sentencing range include the amount of fentanyl seized, themotive for the trafficking - whether profit, addiction or both, whether the matter proceeded by way of guilty plea, the existence andnature of any prior record and the presence of weapons.” 48. Further, at paragraph 44, Her Honour cited with approval the following dicta of Justice Epstein in R. v.

Shevalier and Clark, (March16, 2017 – OCJ Kitchener), regarding the approach the judiciary ought to take in contending with the fentanyl scourge: “The cases establish in the clearest terms that the proper response by the courts to this overwhelming problem must be rooted in terms ofdenunciation and general deterrence. It must be made abundantly clear that Canadian society will not tolerate the illicit trafficking insuch a dangerous substance.

The proper response must be sentences of sufficient length to act as a deterrent to those who would seek toprofit from the misery of others and to reflect the abhorrence of the Canadian community toward such conduct.” 49. Sopinka J. concluded at paragraph 56 and 58: “In

summary, the case law reviewed reflects a wide range in sentence for possession for the purpose of trafficking in fentanyl. No setranges have been established given that the landscape is changing so rapidly. The dangers of fentanyl have become well-known, whichputs traffickers on notice that their conduct will attract significant custodial penalties . . . The case law provided by both the Crown and defence counsel recognizes that the enormity of the fentanyl crisis justifies a significantincrease in the sentencing range applicable to street level dealing in fentanyl.

To strike at the root of the crisis, sentencing must be guidedprimarily by the principles of deterrence and denunciation to make abundantly clear that our community will not tolerate the illegaldistribution of this insidious drug.” 50. Her Honour went on to impose a period of 11 years' imprisonment for the 204.5 grams of fentanyl possessed by Mr. Vezina for thepurpose of trafficking. 51. In R. v. Forget,

(2016) O.J. No. 3504 (S.C.J.), MacDonald J. had before him a 60 year old woman with an unrelated record whosetrafficking in fentanyl was entirely profit driven. 52. Absent as an aggravating factor for Ms. Forget was any breach of trust. 53. At or about the time Ms. Forget was charged, she had in her possession 159 fentanyl patches. 54. MacDonald J. sentenced Ms. Forget for having the fentanyl for purposes of trafficking to a term of three years imprisonment. Heplaced emphasis on the fact Ms. Forget had never been incarcerated before. Accordingly, restraint had to be exercised. 55.

The most binding authority upon me, of course, is the decision of the Court of Appeal for Ontario in R. v. Loor, (2017) 2017 ONCA696 , O.J. No. 4628. There the offender used a forged prescription to obtain 45 fentanyl patches. Mr. Loor was considered alow-level member of a fentanyl trafficking ring. 56. Laskin J.A. for a unanimous three-member panel of the Court of Appeal upheld the six-year penitentiary sentence imposed by thetrial judge. 57. In commenting upon the gravity of the offence committed by Mr.

Loor, Laskin J.A. stated at paragraphs 33 through 39 inclusive: “Unless used for therapeutic purposes, under proper medical supervision, fentanyl is a highly dangerous drug. Its widespread abuse,though recent, has quickly become entrenched in our country. Every day in our communities, fentanyl abuse claims the lives ofCanadians. At the sentencing hearing, the Crown filed affidavit evidence from Dr. Karen Woodall, a toxicologist at the Centre of Forensic Sciences,as well as the transcript of her evidence from another case.

The purpose of her evidence was to show the dangers of fentanyl abuse andthe serious consequences of fentanyl trafficking. Dr. Woodall has studied the effects of fentanyl and has co-authored two articles onfentanyl abuse-one on the oral abuse of fentanyl patches and another on fentanyl related deaths in Ontario. The following is a

summaryof her evidence. Fentanyl, like heroin, is an opioid. Opioids are drugs that act on the central nervous system to relieve pain. Unlike heroin, which isillegal, fentanyl is a prescription drug, which can be obtained legally for therapeutic use. Therapeutically, fentanyl is used for the management of moderate to severe chronic pain. Patches are an effective way to administerfentanyl because they are applied to the skin and provide a patient with continuous pain relief for up to three days. But fentanyl is a verypowerful drug, according to Dr. Woodall, up to 100 times more powerful than morphine and 20 times more powerful than heroin.

Because it is so potent, fentanyl is only prescribed in a patch under strict medical supervision and to those who are “opioid tolerant”, that is to those who have been taking opioids for a long time. Because fentanyl is so potent it becomes a very dangerous drug when it is not used for therapeutic reasons under medical supervision. Those who have a prescription for it and yet abuse it, or those without a prescription who buy a patch on the street or borrow one from a friend are at risk of toxicity and death. The effects of fentanyl are why people abuse it.

Fentanyl gives people a high, a feeling of well-being, of euphoria. Those who use it for a long time may become addicted. But because fentanyl depresses the central nervous system, it can slow down the way one’s brain functions, decrease one’s heart rate, and slow down one’s breathing. A person who takes enough fentanyl may eventually stop breathing and die. When abused, fentanyl patches are especially dangerous. People can abuse a fentanyl patch in many different ways.

They can inject the patch contents intravenously, cut up the contents and chew small portions at a time, inhale it, smoke it, and even make tea with it. What makes the patch particularly dangerous is the medication’s location within the patch. The medication is in a matrix, essentially buried inside the patch. To get the medication out of the patch a person has to chop it up or melt it down or heat it up. But then the person will not know how much fentanyl has been released. Its potency for an individual is thus often unpredictable. And so, Dr.

Woodall concludes, a lot of deaths have been associated with the abuse of fentanyl patches.” 58 . Further, at paragraph 50, Laskin J.A. commented: “Few fentanyl trafficking cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a range. But I think it fair to say that generally, offenders-even first offenders-who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.” The Amount of Fentanyl 59 . In total, Wickens had in his possession 146 fentanyl patches. Not to be forgotten, he was also found with 350 oxycodone tablets. 60 .

Both fentanyl and oxycodone are lethal drugs. Wickens’ sentence must take into account and reflect the principles of denunciation and deterrence. In my view, these principles are paramount. The Motive for the Trafficking 61 . I can only infer that Wickens’ motive for trafficking in fentanyl and oxycodone was to profit from its illicit sale given the sheer quantities of both drugs he possessed. He may well be an opiate addict himself, but he most certainly was looking to make a quick buck. The Mitigating Effect of a Guilty Plea 62 .

I accept Wickens’ counsel’s submission that it was always his intention from the outset to accept responsibility for his criminal conduct. By pleading guilty, Wickens spared the Crown and Court from being put to significant expense, were he to have opted instead to proceed to a preliminary inquiry and trial. 63 . Accordingly, Wickens’ guilty plea shall be treated as a mitigating factor. The Existence and Nature of any Prior Record 64 . Wickens has no prior related history of drug trafficking. His only criminal record is dated and unrelated.

It is a virtual nonfactor in determining an appropriate disposition for his current offences. The Presence of Weapons 65 . In the searches of Wickens’ person, vehicles, residences and outbuildings, no weapons were found. Credit for Restrictive Bail Conditions 66 . Wickens’ counsel asks that I credit him for the 528 days he spent on bail without further charges being laid against him. I cannot do

so. I find that his conditions of release were not particularly onerous. There was no house arrest condition to which he was subject. There was a curfew, but it was set from 9:00 p.m. to 6:00 a.m. Most productive, law abiding members of Canadian society, I venture, would find themselves at home during those nighttime hours in any event. 67 . All the while Wickens was on bail, he was able to live with his common law spouse and children. He could get up and go to work each day as he wished. His lifestyle was not overly constrained. 68 . I see no principled basis upon which to credit Wickens for time spent on bail.

Conclusion 69 . Upon consideration of all of the purposes and principles of sentencing set out in sections 718 two 718.3 of the Code , I shall impose the following upon Wickens:

a) Count 2 – possession of fentanyl for the purpose of trafficking – five years imprisonment,

b) Count 1 – possession of oxycodone for the purpose of trafficking – two years imprisonment concurrent, and

c) Count 5 – possession of the proceeds of crime – two years imprisonment concurrent. 70 . I am satisfied that the five-year total period of incarceration to which I have sentenced Wickens reflects the gravity of the crimes he has committed. It sends the appropriate message to those individuals like-minded to him that serious punishment awaits all who are found guilty of trafficking in lethal drugs. In my view, this disposition will serve to specifically deter Wickens as well from this type of conduct in future. 71 . I will not credit Wickens for his five days of presentence custody.

Given the length of the penitentiary sentence imposed, a 7.5 day reduction would have a miniscule effect on the time he will spend incarcerated. 72 . Overall, I am confident in my view that the sentence is proportionate to the seriousness of the offences Wickens committed and his degree of responsibility. 73 . While I find that on its facts, Forget is closest to this case in respect of the amount of fentanyl patches the offender possessed for purposes of trafficking, I note that Forget was a pre- Loor case. Additionally, Ms. Forget was 60; Wickens is 38. A year for Ms.

Forget at her advancing age is more precious than a year would be for Wickens at his stage of life. 74 . I have taken into account as well the principle of restraint. This is Wickens’ first drug-related offence. I find that his 528 days of living on bail without further offending is indicative of a man who is prepared to turn a corner, and to choose a new direction for himself. 75 . I can only hope that he will see fit to enroll himself in substance abuse treatment programs, which can be made available to him within a federal correctional facility. 76 .

Equally, he would be wise to pursue educational and vocational opportunities institutionally. He is a man with entrepreneurial skills. I have no doubt that he can better himself while serving his sentence. 77 . On January 29, 2020, on consent, I ordered a number of items of property discovered during the searches of Wickens’ residences to be forfeited to the Crown under s. 16(1)(

b) of the CDSA . [1] 78 . Although neither counsel raised the subject during submissions, I will impose a 10 year weapons prohibition under sections 109(1) (

c) and 109(2) (

a) of the Code , which prohibition will commence upon Wickens’ release from prison. Given the nature of Wickens’ conviction, this prohibition is mandatory. 79 . Last but not least, I shall order Wickens to provide a sample of his DNA under sections 487.04 and 487.051(3) of the Code . DATED: February 24, 2020 March, M.G., J.