R v Hurdon, 2023 MBPC 1

CITATION: R v Hurdon, 2023 MBPC 1 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: His Majesty the King ) S. Sisson ) for the Crown ) and ) ) ) Mark David Hurdon ) W. Marks ) for the Accused Accused ) ) ) Reasons for Decision: ) Delivered: February 9, 2023 DEVINE, P.J. INTRODUCTION [ 1 ] I found Mark Hurdon guilty of possessing 8.37 grams of fentanyl for the purpose of trafficking, and possessing just over $1,500 as proceeds of that crime, after a trial ( R v Hurdon , 2022 MBPC 7 ).

I also convicted him of possessing a small quantity of methamphetamine, and of failure to attend court, the latter to which he pleaded guilty at the time of the sentencing hearing. This is my decision with respect to the sentence Mr. Hurdon will receive. [ 2 ] This decision is the product of attempting to reconcile two distinct foci on sentencing. The Crown focussed primarily on the offence of trafficking in a dangerous opiate and the harm it causes. The defence focussed primarily on the need for rehabilitating the offender as the best guarantee of deterring future crime by him.

Both arguments and materials were compelling. [ 3 ] Ultimately, the need for public protection from the extreme harm and dangers of trafficking in fentanyl has tipped the scales to imposing a penitentiary sentence. [ 4 ] The Crown is seeking a penitentiary sentence of six years in this case: five years and nine months on the possession for the purpose of trafficking charge, 18 months concurrent on the possession of proceeds of crime, 15 days concurrent on the possession of methamphetamine and 90 days consecutive on the breach of his release order.

The defence is seeking a three-year suspended sentence with strict conditions of probation, the most important of which, that Mr. Hurdon continue to reside and work at the Adult and Teen Challenge (ATC) Program in Denare Beach, Saskatchewan. [ 5 ] Sentences for trafficking in fentanyl are strict. In order to accede to the argument of the defence that Mr. Hurdon be sentenced to continue in the community, I would have had to find the circumstances of his case exceptional. I do not. FACTS [ 6 ] On June 25, 2020, Winnipeg Police pulled over a stolen vehicle driven by Mr. Hurdon.

He was carrying 8.37 grams of rock fentanyl along with $1,575 in Canadian currency and two cell phones, and .09 grams of methamphetamine tucked into a small bag. The fentanyl represented 83 doses, whereas the methamphetamine was a single dose. I determined after trial that the purpose for which Mr. Hurdon was carrying the fentanyl was trafficking, based on the quantity, the absence of drug paraphernalia and intoxication, the manner in which it was carried, along with the cell phones and the denominations of cash, and a determination that the amount of money in his possession was proceeds of drug trafficking. Mr.

Hurdon was acquitted on the charge involving the stolen vehicle. [ 7 ] At the sentencing hearing, Mr. Hurdon admitted remorsefully that he was selling fentanyl to support his long-term addiction.

SENTENCING OFFENCES UNDER THE CONTROLLED DRUGS AND SUBSTANCES ACT: ITS PURPOSE, GUIDINGPRINCIPLES AND OBJECTIVES [8] Any sentencing decision must be understood within the context of the purpose of sentencing.

When sentencing drug offences,one must have reference not only to the Criminal Code but also to the Controlled Drugs and Substances Act (CDSA). [9] The fundamental purpose of sentencing as set out in Criminal Code is “to protect society and to contribute, along with crimeprevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society” (s. 718). [10] The fundamental purpose of sentencing under the CDSA is similar to the purpose of sentencing under the Criminal Code, savefor one important difference.

Section 10 of the CDSA includes in its fundamental purpose encouraging rehabilitation, and in appropriatecircumstances, treatment, as follows: 10.

(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this

Part isto contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, andtreatment in appropriate circumstances. (Emphasis added.) [11] Unlike

section 718 of the Criminal Code,

section 10 of the CDSA does not enumerate the “objectives” of sentencing sanctionsused to accomplish the fundamental purpose of sentencing. It is clear however, that the sentencing of offences under the CDSA followsthe same structure and analysis as the sentencing of Criminal Code offences, considering the same overarching objectives andfundamental principle of proportionality and other sentencing principles enumerated in

section 718.2 of the Criminal Code. [12] The case of R v Parranto, 2021 SCC 46, involved the sentencing of two offenders engaged in the wholesale trafficking offentanyl. They were both sentenced in Alberta, whose Court of Appeal employs starting point sentences. The issue of whether appellatecourts should be allowed to set starting points or ranges was answered in the affirmative by the Supreme Court. The majority also stated: . . . When conducting an individualized analysis, sentencing judges are expected to account for other relevant sentencing objectives,including rehabilitation and restraint.

Indeed, this Court has held that the 1996 sentencing reforms were intended to both ensure courtsconsider restorative justice principles and to address the problem of over-incarceration in Canada (Gladue , at para. 57; Proulx , at paras.16-20). Sentencing judges have discretion over which objectives to prioritize (Nasogaluak , at para. 43; Lacasse , at para. 54) and maychoose to weigh rehabilitation and other objectives more heavily than “built-in” objectives like denunciation and deterrence.

Appellatecourts should not lose sight of these principles — nor the deferential standard of review — when reviewing sentences that depart from astarting point or range. (at para 45) [13] The overarching principle in sentencing is that the sentence is proportional to the seriousness of the offence and the moralculpability of the offender.

PROPORTIONALITY [14] In R v Nasogaluak, 2010 SCC 6, Justice LeBel explained what proportionality means in the context of sentencing, as follows: For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and thegravity of the offence. In this sense, the principle serves a limiting or restraining function.

However, the rights-based, protective angle ofproportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure thatoffenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and theharm they caused (R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500 (S.C.C.), at para. 81; Reference re s. 94(2) of the MotorVehicle Act (British Columbia), (SCC), [1985] 2 S.C.R. 486 (S.C.C.), at pp. 533-34, per Wilson J., concurring).Understood in this latter sense, sentencing is a form of judicial and social censure (J.V. Roberts and D.P. Cole, "Introduction toSentencing and Parole", in Roberts and Cole, eds., Making Sense of Sentencing (1999), 3, at p. 10).

Whatever the rationale forproportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by theprinciple that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives onproportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft asentence that is tailored to the nature of the offence and the circumstances of the offender. . . (at paras 42-43) (Emphasis in original.) THE OFFENCE: POSSESSION OF FENTANYL FOR THE PURPOSE OF TRAFFICKING [15] There is no question that possessing fentanyl for the purpose of trafficking is extremely serious and harmful.

Patrol SergeantHourd, whose expert evidence was accepted at trial about the pricing, packaging and distribution of fentanyl, testified that the amount offentanyl seized in this case was consistent with mid-level street trafficking. [16] In R v Petrowski, 2020 MBCA 78 and the companion case of R v Slotta, 2020 MBCA 79, the Crown argued that the Court ofAppeal should establish sentencing ranges for trafficking in fentanyl higher than the ranges the Court previously set in R v Rocha, 2009MBCA 26 for trafficking in

Schedule I substances. In Petrowski, the Crown asked the Court of Appeal to increase the range to 8 to 12years when the substance is fentanyl. The Court of Appeal declined to set a range, stating that it was premature to do so; at the time noother appellate court had established a range for mid-level trafficking in fentanyl (See Petrowski at paras 31 – 35). [17] Despite that, the Court of Appeal agreed that “it is important for courts to impose sentences that protect the public” (Petrowskiat para 36) and, . . the developing sentencing jurisprudence regarding the trafficking of fentanyl emphasises the significant danger and harm that it poses

to society and endeavours to reflect it in the sentences imposed. (at para 37) [ 18 ] Subsequently, in the decision of R v McLean , 2022 MBCA 60 , the Manitoba Court of Appeal established that the range for someone minimally involved in mid-level fentanyl trafficking, such as a courier or custodian without decision-making or responsibility, would be six to eight years of imprisonment (see para 118).

The Court left the range for street-level trafficking “for another day” (at para 123). [ 19 ] As in this case, the Crown in McLean provided evidence as to the number of fentanyl overdose deaths in Manitoba and the rising instances of naloxone administration by first responders (see para 80). [ 20 ] In Rocha , the Manitoba Court of Appeal set the range for a courier trafficking in cocaine without decision-making authority at three to six years (see para 64). [ 21 ] Absent exceptional circumstances, it is clear that the Manitoba Court of Appeal endorses “lengthy prison sentences” for trafficking in

Schedule I substances ( Petrowski at para 39 ). [ 22 ] In Petrowski , the Court of Appeal considered evidence about the particular harm of fentanyl and noted that similar evidence has been filed in fentanyl cases in British Columbia, Saskatchewan and Ontario.

Because of fentanyl’s potency (80 to 100 times more potent than morphine, and 25 to 50 times more potent than pharmaceutical grade (90% pure) heroin) and the difficulty in blending it evenly with cutting agents, users are more likely to hit “hot spots” in the fentanyl they buy, increasing the likelihood of overdose and death (paras 43 and 45). [ 23 ] At the time Petrowski was decided, the Court of Appeal did not have any statistics before it regarding the number of deaths, overdoses or harm resulting from overdoses caused by fentanyl in Manitoba.

At this sentencing, the Crown filed information with those statistics. Between January and June, 2022, the office of the Chief Medical Examiner in Manitoba reported between 17 and 21 fentanyl deaths monthly, although there was carfentanil involved in several cases as well. If the cases involving carfentanil are removed, there were still between 11 and 19 fentanyl deaths monthly.

The month of June had 11 deaths involving only fentanyl; the other months had between 14 and 19 fentanyl deaths per month. [ 24 ] The Crown also filed a report from the Winnipeg Fire Paramedic Service, which included a report of naloxone treatment (for opioid overdoses) provided between January 2015 and November 2021. During the period in which Mr.

Hurdon was engaged in fentanyl trafficking, June 2020, there was a spike in the administration of naloxone. [ 25 ] The Crown is now seeking a range of four to six years for street-level trafficking in fentanyl. [ 26 ] The Manitoba Provincial Court has seen many cases involving the trafficking in fentanyl, and judges in this court see daily the direct and indirect harm that this drug and other

Schedule I drugs have caused in the community. Judge Killeen trenchantly stated in R v Lander (1 November 2018) Winnipeg (Man.ProvCt): The third great loser in all of this is society, because the crime that’s associated with drug use is something that we see in this Court almost every single day of the week. Indeed, if I was to walk around the court rooms of the Provincial Court on any day, it would be hard to imagine that there wouldn’t be a case involving crimes committed by those who were addicted to a drug, particularly with respect to methamphetamine, but also with other drugs.

We see on a regular basis those who are reduced to the point where they have stolen everything they can steal from their family, they have defrauded every family member that they can defraud, they have abased themselves in every way possible, and ultimately are committing criminal acts; sometimes by involvement in the sex trade, often by involvement in theft, sometimes by involvement in far more substantial and dangerous crimes such as robbery; all for the purpose of feeding a habit. (at page 4) [ 27 ] The user who becomes an addict, and the addict who decides to sell deadly drugs to others to support their habit causes these serious, deadly consequences in our communities.

The new addicts often turn to the sex trade, robbery, theft and exploitation of their families to support their habit ( Lander at page 11). This chain of addiction and trafficking twists and squeezes out the health in our communities, leaving behind broken hearts, broken families, broken dreams and broken communities. [ 28 ] The other part of the proportionality analysis requires that I consider the degree of moral culpability Mr. Hurdon possessed in committing these offences.

ASSESSING THE ACCUSED’S MORAL CULPABILITY [ 29 ] In assessing proportionality for a drug trafficking sentence, it is important to consider the “magnitude of the individual’s participation” ( McLean at para 61 ). In this case, it is conceded by the Crown that Mr. Hurdon was engaged in street-level trafficking, without authority. He played no other role in a trafficking operation. There is no evidence of him having any decision-making authority or responsibility.

This case is therefore distinguished from Parranto and McLean , which both involved the wholesale trafficking in fentanyl, nor is it within the six to eight-year range the Court of Appeal set for mid-level trafficking. [ 30 ] Mr. Hurdon had in his possession the equivalent of 83 doses, which I found at trial, exceeded that which is possessed for personal use. At sentencing, Mr. Hurdon admitted that he was also selling fentanyl to support his habit. [ 31 ] The Crown argued that the amount of money he possessed upon arrest is also an indication that there was at least some profit involved.

I recognize that $1,575 is a significant sum and there may have been some profit motive, if not great. [ 32 ] Nonetheless, the typical markers of moral culpability point to a high level of moral culpability ( See R v Johnson , 2020 MBCA 10 at paras 16 – 20 ).

[ 33 ] Mr. Hurdon engaged in intentional risk-taking behaviour. As Judge Mason stated in the Alberta trial level decision of R v Frazer , 2017 ABPC 116 , “Trafficking in fentanyl is almost the equivalent of putting multiple bullets in the chambers of a revolver and playing Russian roulette” (at para 11). Mr. Hurdon had himself experienced three overdoses. His mother died from an opioid overdose. He knew intimately the dangers of consuming the drug. [ 34 ] The consequential harm of fentanyl is now well-known. The number of fentanyl deaths in Manitoba is shocking.

As Justice Moldaver noted in his concurring judgement in Parranto , the number of deaths caused by fentanyl overdoses vastly exceeds the number of homicides in Canada: The scale of fentanyl’s devastating impact becomes even more apparent when one considers that, between 2016 and 2020, there were approximately 3,400 homicides across Canada, a number far below the number of fentanyl-related deaths (Statistics Canada, Table 35- 10-0069-01 — Number of homicide victims, by method used to commit the homicide , July 27, 2021 (online)).

This disparity makes clear that, in a very real way, those individuals responsible for the largescale distribution of fentanyl within our communities are a source of far greater harm than even those responsible for the most violent of crimes (at para 97). [ 35 ] In paragraphs 86 and 89 of McLean , Justice Mainella stated: The consequential harm of trafficking in fentanyl is axiomatic. The comparative dangers of fentanyl in light of the science are discussed comprehensively by Cameron JA in Petrowski and I rely on her observations (see paras 43-49; see also Parranto at paras 93-98 ). . .

Trafficking in fentanyl is a reckless and inordinately dangerous activity; the crime “not only destroy[s] lives, but [undermines] the very foundations of our society” ( ibid at para 98). The grim statistics of increasing opioid overdoses in Manitoba make clear that fentanyl trafficking must be dealt with severely by Manitoba courts “to reflect and be responsive to the local conditions” (at para 59). [ 36 ] The normative character of Mr. Hurdon’s conduct, that is, making a deliberate decision to support his habit by selling a highly addictive and often fatal drug, seriously violates societal values.

The dire consequences of street-level drug use in Manitoba is palpable, especially in the City of Winnipeg, where Mr. Hurdon was selling. [ 37 ] Although it is not unusual for drug addicts to support their habit by drug trafficking, it cannot be confused with somehow characterizing the behaviour as “normal” or divorcing it from an assessment of the consequential harm and intentional risk taking behaviour.

Chief Justice Chartier stated the following in Johnson : In the end, a fair reading of the sentencing judge's reasons shows that he did not properly consider the intentional risk-taking and consequential harm factors in his moral culpability assessment. I am of the view that the reduced moral blameworthiness of the accused arising from his normative character (i.e., his motivation to commit the offence was to feed an addiction) is counterbalanced by his intentional risk-taking and the consequential harm of his actions.

Simply put, there is nothing about the circumstances that reduced his moral blameworthiness to the level of "exceptional" (at para 20). [ 38 ] A Pre-sentence Report (PSR) was filed in this matter and provides additional background information about Mr. Hurdon. He is 32 years old and the youngest of three boys. He was born in Winnipeg, but raised mainly by his father in Thunder Bay, Ontario, because his parents separated when he was two years old, and his father assumed custody of him. He has no memory of his mother. She died from a methadone overdose when Mr.

Hurdon was six years of age. [ 39 ] He otherwise reported having a positive, happy childhood with his father, brothers and paternal grandparents. His father ensured that the boys had an opportunity to be involved in sports and family trips. Mr. Hurdon was heavily involved in hockey as a child and young person with the support of his father. Mr. Hurdon attended therapy as a child to deal with the loss of his mother. [ 40 ] He was estranged from his father for about 10 years because of his criminal involvement.

His father tried to help him numerous times by enrolling him in drug rehabilitation programs in Manitoba, Saskatchewan and Ontario. He has been to residential treatment at least seven times in the past. [ 41 ] This is his longest period of sobriety since 2012. [ 42 ] He has spent almost all his teen and adult life in treatment facilities or jail.

His criminal lifestyle is deeply ingrained. [ 43 ] According to the PSR, he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) as a child, and Post-Traumatic Stress Disorder (PTSD) as a result of being the victim of a violent kidnapping and torture. [ 44 ] His substance abuse started as a young teen and affected his education. He has never had a significant connection to the workforce, his last job being in 2013 as a line cook in a restaurant chain. [ 45 ] Mr.

Hurdon’s criminal activity has been unabated, even after he was charged with these offences. [ 46 ] He was arrested on these charges on June 25, 2020, about three weeks after his release from jail, having served sentences for two different convictions in 2020. On March 17, 2020, he was sentenced to approximately seven months in custody for two counts of identity fraud, three counts of possession of property obtained by crime, two counts of release order violations and one probation order violation.

On April 15, 2020, he was sentenced to over one year in custody (some of it served pre-sentence) for possession of an unauthorized firearm (s. 92) and possession of a firearm or ammunition contrary to a firearms prohibition order.

[ 47 ] He was released from custody after serving those sentences on June 2, 2020. [ 48 ] Twenty-three days later on June 25, 2020, he was arrested on these offences and held in custody until July 23, 2020, when he was released on bail with a surety. [ 49 ] On August 7, 2020 his surety rendered; on August 20, 2020 he was required to attend court and failed to do so.

He was at warrant status for several months until he was arrested on January 10, 2021. [ 50 ] He committed a host of new charges while he was evading police on the warrant. [ 51 ] While he has been awaiting trial and sentencing on these charges, he was sentenced several more times, for offences that both pre-dated and post-dated this offence. On December 3, 2020, he was sentenced to four months of custody for several charges arising out of Airdrie, Alberta: four counts of possession of property obtained by crime and two counts of procuring to make an identity document.

In 2021 and 2022 he was sentenced several more times in Winnipeg. On February 23, 2021, he was sentenced to 30 days jail and two years of probation for two breaches of a probation order. On February 25, 2021, he received a suspended sentence and two years of probation for possession of a weapon, identity fraud and possession of an identity document. On June 8, 2022 he received the two years less a day Conditional Sentence Order (CSO) for dangerous operation of a conveyance and flight from police. [ 52 ] As of the sentencing hearing date, Mr. Hurdon had 20 months remaining on that CSO. [ 53 ] Mr.

Hurdon has 69 previous convictions. He has a previous conviction for possession for the purpose of trafficking a

Schedule I substance, that being methamphetamine, in 2018, for which he received a sentence of approximately 17 months in jail followed by one year of probation. [ 54 ] He was arrested for this trafficking offence 18 months later. [ 55 ] At the trial, I found that Mr. Hurdon was not a credible witness, based on his inconsistent and implausible evidence and his history of dishonesty. At trial he denied ever selling drugs to support his addiction and testified in some detail about the various fraudulent schemes he undertook to make money.

He collected the Canada Emergency Response Benefit (CERB) while he was in custody and came out of jail cashing the CERB cheques. His criminal record includes 37 convictions for crimes of dishonesty , including several fraud convictions, credit card theft, uttering, using or exporting counterfeit money, possession of a stolen credit card, thefts, personation, false pretences, identity fraud, several counts of possession of property obtained by crime, possession of fake identification, and procuring to make identity documents. [ 56 ] Mr.

Hurdon was given a second opportunity to serve some of his pre-sentence time in the community when he was released to the ATC Program in Denare Beach, Saskatchewan on March 13, 2021. He has been there for approximately 23 months. [ 57 ] Mr. Hurdon has done very well in the program by all accounts. He graduated from the program on April 23, 2022, after applying himself fully in the course work which is at least 12 hours per week, as well as individualized personal studies, also approximately 12 hours per week. Since that time he has been in the 3rd Phase Program to continue foundation-building and studies.

He has also been accepted as a candidate for the Surge program, which is a staff training program. The director of the program, Allen Lagore, attended the sentencing hearing and confirmed that although men who are facing potential incarceration are not usually considered as Surge candidates, Mr. Hurdon has been an exception due to his hard work, progress and apparent sincerity. Both the 3rd Phase program and the Surge program have a curfew and strict rules. Cell phones, laptops and any device with Wi-Fi capabilities are prohibited, as are any type of weapons. Substances, even tobacco, are not permitted.

Breaches of anything in the program or program rules are categorized into four levels of offences and offenders are given consequences for any offences, ultimately being removed from the program for a fourth-level offence. [ 58 ] Mr. Hurdon is a senior student and assists in the work detail of the program. [ 59 ] Mr. Hurdon has a lot of support from his family and this program.

The defence filed several letters of support from his grandparents, the ATC program participants, teachers and directors, a Winnipeg doctor that he has weekly phone contact with for several months and a pastor whose church the participants from Denare Beach attend. [ 60 ] The director and one of the staff of the ATC Program travelled to Winnipeg from Denare Beach, Saskatchewan to support Mr. Hurdon and attended his sentencing hearing. [ 61 ] The work he has done in this program is impressive. [ 62 ] However, when I balance those circumstances with the seriousness of the fentanyl offence and Mr.

Hurdon’s high level of moral culpability in committing it, I am satisfied that a prison sentence is warranted. [ 63 ] Ultimately, proportionality cannot be determined in a vacuum. It must be assessed on an individual basis and by comparison with sentences imposed in similar circumstances by similar offenders, which I have considered in light of the cases filed by counsel. PARITY IN SENTENCING [ 64 ] The defence filed cases in support of his argument for exceptional circumstances, which I have rejected in this case. The cases are all distinguishable from Mr.

Hurdon’s case in significant ways. [ 65 ] In R v Tran (A) , 2015 MBCA 120 , the Court reiterated that a finding of “exceptional circumstances” invariably involves the presence of multiple mitigating factors. The offender was a 19-year-old university student with no criminal record who was selling

drugs to pay for his tuition. The PSR writer assessed him as a very low risk to reoffend. He was out in the community for four and one half years prior to sentencing, working, and had the support of his employer. He received a CSO of two years less a day [ 66 ] In R v Schneider , 2019 BCCA 310 , the accused was homeless and had been a life-long drug addict due to child sexual abuse. He sold $20 worth of heroin containing fentanyl to a police officer. It was not clear he was even aware the heroin contained fentanyl.

He was found to have very low moral blameworthiness and for the first time in his life was starting to reckon with and understand his addiction. He had been in jail, in school and then 17 months in a recovery house prior to sentencing, noted as one of the top 100 of over 20,000 who had gone through that recovery program. He was sentenced to 36 months of probation. [ 67 ] In R v Tarnowski , 2010 MBQB 218 , the substance involved was methamphetamine and it was a social trafficking case, that is, the offender was giving the drug away. Moreover, he was HIV positive and a low risk to reoffend.

He nonetheless received a jail sentence comprised of a two-year less a day CSO. [ 68 ] The case of R v Klassen , (28 July 2022) Winnipeg (Man.Prov.Ct.), involved non-drug offences. There were significant Gladue factors, the offender got his children back during pre-sentence remand time, was succeeding in a non-structured environment, financially supporting his parents, getting drug testing and was very involved in the community.

His sentence was suspended and he was placed on probation for two years. [ 69 ] In R v Naccarato , 2017 BCSC 645 , the 22-year-old offender was couriering 58 grams of heroin unknowingly laced with fentanyl. She did not have a criminal record. She had experienced a difficult, abusive childhood. She was working up to the time of the offence. She was given a suspended sentence by way of a three-year probation order. [ 70 ] In R v Zachar , 2018 ONCJ 631 , the 18-year-old offender had a single youth conviction for simple possession of drugs. She was found with 23 grams of heroin and 26 grams of cocaine.

She was working at two jobs at the time of the sentencing and had re- engaged in education. Ms. Zachar’s sentence was suspended and she was placed on probation for a period of two years. [ 71 ] Mr. Hurdon is a mature offender, with a lengthy and serious criminal record, demonstrated criminal dishonesty for decades, previous drug trafficking, and trafficking in a significant quantity of fentanyl. The circumstances of the offence and the offender are not remotely similar to any of the cases filed by the defence. Moreover, he is not eligible to be sentenced to a CSO, because he is currently serving one.

I am also not satisfied, even if a two-year less a day sentence was available, that he would not represent a significant risk to the safety of the public. His pre-sentence time has been spent in a very structured environment. [ 72 ] The Crown filed several cases from Manitoba which, they argued are more similar to that of Mr. Hurdon, and which support their position for a five-year nine-month penitentiary sentence. [ 73 ] In R v Antczak , 2021 MBCA 39 , the 20-year-old accused sold .81 grams of fentanyl to an undercover police officer.

He had a lengthy youth record and drug addiction; he was selling to support his habit. He was sentenced to three years in prison. [ 74 ] In R v Muswagon , (21 November 2017) Winnipeg (Man.Prov.Ct.), the accused sold 18 fentanyl pills she believed to be Percocet. She had a previous conviction for trafficking for which she received a sentence of three and one half years. There were significant Gladue factors and she was taking positive rehabilitative steps.

She was sentenced to four years. [ 75 ] In R v Cyr , (21 February 2018) Winnipeg (Man.Prov.Ct.), the offender had been an addict for 20 years, had experienced several overdoses, had no employment history, but a supportive family, and was selling to support his habit. He continued to sell even after a previous conviction for possession for the purpose of trafficking for which he received a two-year sentence. He was found in possession of 25 blotters of carfentanil for the purpose of trafficking.

A sentence of five and one half years was imposed. [ 76 ] In Lander , the 42-year-old offender was found to be in possession of 23 fentanyl pills for the purpose of trafficking. He had been an addict since the age of 15. He had a serious criminal record and had received three penitentiary sentences in the past. At the time of the offence he was on a CSO. At the time of sentencing he was in the Winding River Therapeutic Community at Headingley Correctional Centre, a very rigorous in-custody rehabilitation program that has benefitted many inmates.

A sentence of five and one half years was imposed. [ 77 ] In R v Bruce , (2 November 2021) Winnipeg (Man.Prov.Ct.), the 38-year-old offender had a lengthy record which included a 15-month sentence for possession of 6.9 grams of fentanyl for the purpose of trafficking. He had tried rehabilitation several times in the past. He also had convictions that post-dated his arrest on the current charge. A sentence of five years was imposed. [ 78 ] The circumstances of Mr.

Hurdon’s offence are arguably more serious than most of these cases, and his degree of moral culpability was high, given his age, record, and history of dishonesty. What mitigates the otherwise lengthy sentence is the unabated almost two-year rehabilitative stint in the therapeutic community of ATC in Saskatchewan. AGGRAVATING AND MITIGATING CIRCUMSTANCES [ 79 ] Mr. Hurdon was previously convicted for possession for the purpose of trafficking, in methamphetamine, in 2018 and was sentenced to a period of approximately one and a half years in jail.

The previous conviction is an aggravating circumstance in section 10(2) of the CDSA . None of the other statutorily aggravating circumstances set out in section 10(2) of the CDSA are present in this case. There were no weapons involved, there is no suggestion of trafficking near a school or to young people under the age of 18, nor with their assistance [ 80 ] It is aggravating that Mr.

Hurdon committed this offence only 23 days after he had been released from jail. [ 81 ] It is aggravating that while he was on release for this offence he failed to attend court and then, on warrant status, committed several other offences.

[82] The nature of the substance that he trafficked, fentanyl, is aggravating, as I discussed at length earlier in this decision. [83] There are some mitigating circumstances as well. Mr. Hurdon expressed remorse and a great deal of insight into the offenceand his offending behaviour at the time of sentencing. [84] He has significant support from his father and brother, and the ATC Program. His brother and father attended the sentencinghearing. His father also attended the trial.

The Director of the ATC Program in Denare Beach, Saskatchewan also attended, as did oneof graduates of the program, who is now employed by the program as a teacher’s aid and supervisor of the roofing and carpentry workdetail team, Matthew Pare. EXCEPTIONAL CIRCUMSTANCES [85] Defence is asking that I suspend sentence for a period of three years, with a probation order that contains rehabilitative andprotective conditions. Recognizing that the offence of possession for the purpose of trafficking in fentanyl carries with it a penitentiarysentence, the defence argued that Mr.

Hurdon’s circumstances are exceptional, thus taking an appropriate sentence for him outside theusual range and precluding the need for jail. The Crown argued that Mr.

Hurdon’s circumstances are not “exceptional” within themeaning of the law set out by the Manitoba Court of Appeal in several cases, notably R v Burnett, 2017 MBCA 122; R v McIvor, 2019MBCA 34; R v Barker, 2019 MBCA 86; and, Johnson at paras 21 to 24. [86] While there is no magic formula for determination of a case involving “exceptional circumstances”, Justice Mainella providedsome guidance in Burnett, that either there is something exceptional about the way in which the offence occurred, or the circumstancesof the offender are exceptional, or there is a combination of both (at para 28). [87] There is nothing unique about the circumstances of this offence. [88] Turning to whether the offender’s circumstances are exceptional, I agree that Mr.

Hurdon’s rehabilitative efforts have beensignificant. The defence pointed out that Mr. Hurdon has requested to stay in residential treatment, which is a unique circumstance in thecase law; he has not sought to vary his release order to leave the program and he intends to stay in the program, as a staff person. Community service work is part of the program at ATC. He cannot speak to members of the opposite sex.

The defence argued that Mr.Hurdon has climbed a mountain, in terms of turning his life around, and there is nothing more he could do to satisfy the “exceptionalcircumstances” principle. [89] I also note however, that Mr. Hurdon was previously involved in the ATC Program in 2012, and had previously completed thefirst phase of the program and then entered the Surge program.

It is therefore very concerning that subsequently, he graduated from thatprogram and from simply using drugs, to selling them, in 2018 and in the present case. [90] It is important to step back from considering this as an application process for a non-custodial sentence where an offender hasto prove his rehabilitation efforts are “exceptional”. [91] I have considered the totality of the circumstances: the offence, the historical circumstances of the offender, his recent efforts,and the likelihood of him not returning to a life of crime. [92] Mr. Hurdon’s life of dishonesty has been ingrained and entrenched.

Thirty-seven convictions for crimes of dishonestydissuades me from having trust that “this is it”. There are not multiple mitigating factors in this case; only one, his residency within afaith-based rehabilitative program.

He is apparently working hard in this rehabilitative program. [93] Considering the crime, the circumstances of the crime, the numerous failed attempts at rehabilitation in the past and Mr.Hurdon’s proven inability to be honest during his entire life since his teens, it would not be appropriate to sentence him to a communitybased disposition. [94] His personal circumstances do not take fentanyl trafficking offence outside the norm. [95] It is essential that the offender have some prospects for rehabilitation in order for a restorative sentence to be considered.

Thatis doubly so when the offender is seeking a non-custodial sentence for an offence where imprisonment is the norm. [96] In that regard, Mr. Hurdon has for 23 months demonstrated very positive prospects, but they must be tempered by 13 years ofconvictions for dishonest criminal offences and his decades-long drug addiction and his default mode of dishonesty. [97] Moreover, the fundamental purpose of sentencing and the sentencing objectives in this case preclude a community-baseddisposition for Mr.

Hurdon. [98] Justice Mainella concluded in Burnett (at para 34) that: Proportionality is a much wider inquiry than simply looking at an individual’s circumstances and the effect of a sentence on him or her(see Lacasse at paras 53-54; and R v Ipeelee, 2012 SCC 13 at paras 36-39).

When punitive aspects, such as denunciation and generaldeterrence, are paramount because of the seriousness of the offence, coupled with a high degree of moral blameworthiness of theoffender, as is the case here, “they cannot shift the emphasis to restorative objectives and rehabilitation” (R v Golden, 2009 MBCA 107at para 111 per Freedman JA; see also R v Hamilton (2004), (ON CA), 186 CCC (3d) 129 at para 103 (Ont CA)). [99] The situation before me is just that: a very serious offence, coupled with a high degree of moral blameworthiness of theoffender, such that I cannot simply look at the effect of a prison sentence on Mr.

Hurdon and shift the emphasis of this sentencing torestorative objectives and rehabilitation. [100] Although Mr. Hurdon is on a good path now, and has learned and grown enormously over the past 23 months that he has been in

Denare Beach, sentencing is not concerned solely with the rehabilitation and reintegration of the individual offender. The protection of society requires that a strong message of denunciation be sent to anyone who considers trafficking in fentanyl to support their habit, or worse, to make money by risking the deaths of other Manitobans. [ 101 ] We live in a province with a dark underbelly of trauma, where thousands of disenfranchised people barely survive on the streets. Dealers in fentanyl depend on their misery to support their own lives.

It is a horrible crime committed by offenders reckless or wilfully blind to the risk of death they are peddling. SENTENCE [ 102 ] In returning to the Supreme Court’s direction in Nasogaluak about the central role and meaning of proportionality in sentencing, I believe a significant penitentiary sentence is fit and appropriate. The rights-based protective angle of proportionality is thereby counterbalanced with the need to ensure that Mr.

Hurdon is held responsible for his actions and that the sentence properly reflects and condemns his role in the offence and the harm that fentanyl causes ( Nasogaluak at para 42 ). [ 103 ] I do however, take into consideration the important work Mr. Hurdon has done in the past 23 months, and will reduce the length of time I would otherwise send him to the penitentiary.

In this regard, I have taken into account the Supreme Court of Canada’s direction in Parranto (which involved fentanyl trafficking) that sentencing judges must account for rehabilitation and restraint and not lose sight of restorative justice principles even when denunciation and deterrence are the primary sentencing objectives ( Parranto at para 45 ). [ 104 ] At the sentencing hearing, the Crown asked Mr. Legare from ATC if the program would continue to work with and support Mr. Hurdon in the penitentiary. They said they would. [ 105 ] I hope that by now Mr.

Hurdon has learned and internalized enough through the ATC Program and has experienced sufficient spiritual and personal growth to make his time in the penitentiary bearable and productive in terms of him being able to provide hope and help to others, while his own strength grows. [ 106 ] Mr. Hurdon is still young. It is my hope that he will emerge from prison strong and hopeful. [ 107 ] The total sentence will be three years and six months. That is the sentence on the possession for the purpose of trafficking offence. The sentence for the possession of proceeds of crime will be one year concurrent.

The sentence on the on the possession of methamphetamine will be 15 days concurrent and the sentence for his failure to attend court is 60 days consecutive. In reviewing the matter for totality, I will make the 60 days concurrent rather than consecutive. [ 108 ] This sentence is below the four to six-year range the Crown is seeking for street-level trafficking in fentanyl. That is only because of the rehabilitative and hopefully deterrent steps taken by Mr. Hurdon. The sentence must reflect the efforts and effect of the past two years . The sentence would be much higher, but for Mr.

Hurdon’s hard work for almost two years in ATC, which has been rigorous, has constrained his liberty, has required random drug testing, and is the longest time that he has been drug-free since adolescence. He has begun the process of creating a pro-social and useful life.

Only when balanced with these circumstances is a three- year and six-month custodial sentence properly reflective of his moral blameworthiness and the gravity of the offence, including the harm to the victims, and only in those circumstances can it give effect to the objectives of denunciation, general and specific deterrence, rehabilitation, and acknowledgement of the harm done to the victims and the community. The length of the jail sentence is restrained but significant enough to ensure Mr.

Hurdon is held responsible for his actions and it condemns his role in the offence and the harm caused to the victims. [ 109 ] Subtracted from the three-year and six-month sentence is the pre-sentence custody time Mr.

Hurdon served on these charges before his release to the ATC Program, 126 days (84 days enhanced at a rate of 1.5 times for every day served). [ 110 ] The following ancillary orders are made: - Forfeiture of the items seized at the time of his arrest; - S. 109 lifetime weapons prohibition on the possession for the purpose of trafficking offence; - S. 487.051(1) DNA order on the possession for the purpose of trafficking offence, which is a secondary designated offence. The sample is to be taken while in custody. [ 111 ] The victim surcharge is waived, as Mr. Hurdon will be in custody for a considerable time.

Original Signed by Judge Devine DEVINE, P.J.