R. v. McLeod, 2019 ONCJ 519

CITATION: R. v. McLeod , 2019 ONCJ 519 DATE: June 19, 2019 Information No. 2811-998-17-25139-01 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. ANDREW McLEOD R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE G. WAKEFIELD on JUNE 19, 2019, at OSHAWA, Ontario APPEARANCES : P. Greenway Counsel for the Crown T. Green Counsel for Andrew McLeod WAKEFIELD, J. (Orally): THE COURT: Now, I’ve previously dealt with the co-accused, however both Andrew McLeod and Christian Rose entered guilty pleas before me to two counts each of trafficking fentanyl.

These two fentanyl counts were additional charges against both defendants which arose only after the two undercover purchases of heroin were analyzed to have an unknown amount of fentanyl in each. More specifically, the first undercover purchase was purportedly for one half gram of heroin purchased for $140. The second transaction was for one tenth of a gram for $300 which at the time, the two defendants were arrested. Upon the arrest of Mr. Rose, the involved officers also seized further 2.6 grams of heroin. At no time did the officers ask to purchase fentanyl, nor did either accused offer to sell fentanyl.

Subject to further comments, I accept that the confirmed existence of fentanyl in the heroin came as a surprise to both defendants. I have heard expert evidence that fentanyl is an insidious drug, which has killed a multitude of victims in this region and indeed across the country. It is powerfully more deadly than heroin. It is a scourge which much be deterred in the strongest possible deterrent sentences. The expert also confirmed that it was possible for sufficient fentanyl to be present in the sample to register but insufficient to cause death.

The presence of fentanyl is itself, an aggravating factor given how pernicious an effect it has in our community, but that aggravating factor is already set out in the actual charge to which these two defendants have plead guilty. Today, I proceed with the sentencing of Mr. McLeod, Mr. Rose having previously been sentenced. And having reviewed the caselaw provided by Crown and defence, I find there is a tension between the mere presence of this drug being aggravating as opposed to how much of the drug is present being the foundation of an aggravating factor.

Of course, the onus is on the Crown to prove any aggravating factors. In this case, they have proven the presence of fentanyl but not the concentration of that drug in the seized heroin. I also note that counsel for Mr. Rose, at least, attempted to gain funding authorization from legal aid to obtain a quantitative analysis of the fentanyl percentage and was denied that funding. As such, it is still unknown whether the fentanyl concentration would have been a mitigating or aggravating factor.

Clearly the trafficking of fentanyl is a serious charge which carries with it a wide sentencing range, depending on the aggravating factors. One of which, would be the actual amount of the drug trafficked. I’ve concluded that without an actual quantitative analysis, which would be available if the state invested in the necessary equipment, I should only look at the charge as being more

serious than trafficking in similar weights of the heroin, which all involved parties believed was the actual transactions, and not more aggravating fact of mere presence alone of fentanyl. I come to this conclusion partly due to it being the Crown’s onus to prove aggravating factors, such as the actual weight of the fentanyl, or at least the level of concentration of that drug within the heroin. I also take note that as a sentencing principle, our sentencing regimes seldom punishes for the potential for harm, as opposed to increased penalties for causing actual harm.

An example would be sentencing drunk drivers who have the potential to kill and may, due to their impairment, but most of whom receive the minimum sentences available. With drugs, in my view, the higher the weight, the case would suggest results in a more intrusive of sentence.

However, in parallel with sentencing drunk drivers and the public awareness of the recklessness that they demonstrate to the safety of themselves and others, it is difficult to believe that these two accused were not on some level aware of risk of fentanyl contamination in street drugs, if only from within the straight drug user communities. The difficulty for both defendants is that heroin is itself a pernicious community-destroying drug for which years of sentencing decisions have attempts to deter with heavy jail sentences.

General deterrence and denunciation are the two most important sentencing principles, even if the substances were the “less serious” heroin, without forgetting the role that the remaining sentencing principles play, especially rehabilitation. A rehabilitative criminal is the best way to protect the community from recidivism. The Crown is seeking a sentence of three to three and a half years for Mr. McLeod and takes the position that position was after realizing that there’s an unknown concentration of fentanyl. Mr.

McLeod submits a sentence of either suspended sentence or if incarceration is necessary, seven months up to two years less a day with a recommendation to serve his sentence at the Ontario Correctional Institute, given his addiction challenges. Sentencing cases for heroin are in the penitentiary range absent extraordinary mitigating factors, which is reflective of that drug’s danger to the community. Fentanyl sentencing cases, however, can actually reach double-digit penitentiary terms. Mr.

McLeod, having plead guilty, albeit not at the earliest opportunity, but still those pleas have saved further judicial resources had the matter gone to trial and he should get credit for that. Mr. Andrew McLeod is a 42-year-old man in poor health, probably as a result of being an avid user of street drugs. He is diagnosed with Hepatitis C, with consequential liver damage, resulting in decreased functionality and a series of chronic illness which on some days, impacted on his ability to participate in these legal proceedings. Despite all these medical challenges, he continues to associate with the drug subculture.

On the other hand, he does attempt to get help with his addictions. Mr. McLeod is an individual whose sentence would be better served in a facility which will hopefully assist him in breaking free of his addictions and thereby protecting our community from further criminality.

Balancing the serious nature of both heroin and fentanyl, together with the need ensure access to specialized programming, a sentence of two years less a day with a recommendation this sentence is to be served at the Ontario Correctional Institute is still a stiff sentence, but not one which sacrifices rehabilitative prospects on the altar of general deterrence and denunciation. That would be on top of any pre-sentence custody if any is otherwise applicable. That incarceration will be followed by two years probation.

This is somewhat disjointed, as the original sentencing was going to be scheduled for both accused at the same time, so just give me a moment. Everything else applies to the previous sentence I engaged with Mr. Rose. The one thing that I will endorse, subject to any contrary submissions, is the warrant of committal for Mr. McLeod will have endorsed on it a request for immediate medical attention for Hepatitis C, dental care - what is the status of Mr. McLeod’s teeth now? He was suffering from seven abscessed.... ANDREW MCLEOD: I still have four inside my mouth. I’ve had two of them removed. THE COURT: All right.

So, dental care for abscessed teeth and any necessary antibiotics for that condition. There will also be endorsed, unless there’s been any further developments that there’s concern by Mr. McLeod as to potential brain cancer; has that had any further developments? MR. GREEN: Mr. McLeod indicates no, Your Honour. THE COURT: Does he still need the CAT scan? ANDREW MCLEOD: I have them every two years. Every two years I’ve had them. I’m due for one at the end of this year. THE COURT: All right. So, all the more reason there will be endorsed a request for a CAT scan regarding a potential brain cancer on medical advice.

Does that sound appropriate? MR. GREEN: Yes, it does, Your Honour, and I don’t know if you’re finished this part of it, but I do know that he’s still a recipient of methadone treatment and I wonder if the warrant of remand can be endorsed that.... THE COURT: Doesn’t the jail require either the doctor’s note or something like that to continue that? MR. GREEN: They will contact the.... THE COURT: All right. So, the further endorsement will be for doctor’s advice, continued methadone treatment. Can I have Mr. Rose’s probation, please? Should be attached to the information. Mr.

McLeod will also be, as I said, subject to a probation order of two year’s duration. The terms are that you’ll keep the peace and be of good behaviour. Appear before the Court when required to do so. Notify the Court or probation officer in advance of any change of name or address and promptly notify the Court or probation officer of any change of employment or occupation.

You’ll report in person to a probation officer within two working days of your release from custody and after that all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision. You’ll live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance. You’ll not contact or communicate in any way, either directly or indirectly, by any physical,

electronic, or any means with Christian Rose, except for any required court attendances. Do not possess any weapons as defined by the Criminal Code , including BB gun, pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon, ammunition, explosive substance, or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person. Do not possess or consume any unlawful drugs or substances as reference in the Controlled Drugs and Substances Act except with a valid prescription in your name or those available over the counter.

You’ll attend and actively participate in all assessments, counselling, and rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer including but not limited to, substance abuse, and any counselling to assist in rehabilitation. You will sign any release of information forms as will enable to your probation to monitor your attendances and completion of any assessments, counselling, or rehabilitative programs directed. Were there any other terms of probation that Crown or defence are seeking particularized to Mr. McLeod? MR.

GREENWAY: Thank you, no, Your Honour. MR. GREEN: I don’t believe so, Your Honour. THE COURT: Mr. McLeod, you understand any breach is a new charge, which with your situation would probably not leave a judge much choice other than further incarceration. ANDREW MCLEOD: I understand. THE COURT: In addition, I think the Crown was seeking a 110 order? MR. GREENWAY: 109 Your Honour. THE COURT: That’ll be for life? MR. GREENWAY: We were seeking that. I think the co-accused got a similar order, if that assists. THE COURT: All right. So, the same as Mr. Rose? MR. GREENWAY: yes.

THE COURT: Do you have that order in front of you Madam Clerk? CLERK REGISTRAR: Court’s indulgence. THE COURT: You might be interested to know that Mr. Rose’s is blank for the first half of the 109 order as to duration and there’s only the second mandatory life that is reflected pursuant to 109(3). You might want to bring an application with respect to clarifying that. Does your notes suggest what the - actually, I might be able to assist in that regard. MR. GREENWAY: Mr. Frid’s notes simply indicate lifetime prohibition. There’s no detail beyond that, Your Honour. I apologize.

THE COURT: It was a lifetime with respect to both the first half and the second half of the 109 for Mr. Rose. You’re seeking the same for Mr. McLeod? MR. GREENWAY: On reflection, I know that this individual’s record is not, I don’t believe, as significant as Mr. Rose’s and on that basis, it may be that a 10-year prohibition would be appropriate. THE COURT: Thank you for that. Does not require a grace period, Mr. Green? MR. GREEN: No, Your Honour. THE COURT: Pursuant to

section 109 of the Criminal Code , you are prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, or explosive substance for a period beginning today and ending 10 years after release from imprisonment and you are further prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, prohibited ammunition for life. And finally, a DNA order. I’m not sure if Mr. McLeod is already on the DNA bank, this would be a primary I believe, and it’s on consent in the circumstances? MR. GREEN: Yes, Your Honour. He’s not on the DNA databank.

THE COURT: So, you provide a sample of your DNA today. The guards that take the sample should be told about your Hep C status just so they can take appropriate precautions. Does that cover off all aspects of sentencing other than what the address will be upon his release? MR. GREENWAY: We’re also seeking forfeiture of all items seized, Your Honour, and I have a draft order for Your Honour’s consideration. THE COURT: Thank you. Was there anything to be returned? MR. GREEN: I don’t believe so, Your Honour. THE COURT: Thank you. That will be on consent. And that’s now been endorsed as well. MR.

GREENWAY: Thank you, sir. THE COURT: Were there any other charges to be disposed of?

MR. GREEN: If there are, I would ask they be withdrawn if there’s any outstanding. MR. GREENWAY: If there are, by all means. THE COURT: So, noted at the request of the Crown. Stand up, sir. You’re now under sentence. It’s a very different sentence than Mr. Rose received. I’m really counting on you to take advantage of all the resources at OCI. I am making a recommendation that you serve your sentence there. It may take some time to get there. And then the final recommendation I suppose is, you said that he has broken his collarbone or shoulder? MR. GREEN: His shoulder. THE COURT: All right.

He’s not wearing a sling. ANDREW MCLEOD: Can’t wear a sling. It causes something called frozen shoulder - not sure. THE COURT: All right but it’s an actual break in one of the bones? ANDREW MCLEOD: Yeah, it’s an actual fracture in the rotator cuff. I need to get surgery. They have a specialist appointment in July, but I don’t know how that’s.... THE COURT: All right, so again, the warrant of committal should also have a warning that Mr. McLeod advises of a broken rotator cuff, just so they’re put on notice of that. ANDREW MCLEOD: Appreciate that. THE COURT: Anything further from either Crown or defence? MR.

GREENWAY: No, thank you. *********