R. v. Robertson, 2020 ONCJ 595

ONTARIO COURT OF JUSTICE CITATION: R. v. Robertson , 2020 ONCJ 595 DATE: December 16, 2020 BETWEEN: HER MAJESTY THE QUEEN — AND — JEFFREY ROBERTSON Before Justice John North Reasons for Judgment December 16, 2020 Mr. C. Greene............................................................................................ counsel for the Crown Mr. F. Shanahan................................................................................. counsel for Mr.

Robertson NORTH J.: INTRODUCTION [ 1 ] On September 18, 2020, Jeffrey Robertson pleaded guilty to possession of approximately six grams of fentanyl for the purpose of trafficking and possession of property obtained by crime over $5000. He is before the court today for sentencing. [ 2 ] As a result of the COVID-19 pandemic, this hearing was conducted by audio-conference. POSITIONS OF THE PARTIES [ 3 ] On behalf of the Crown, Mr. Greene took the position that the Court should impose a sentence of 30 months’ imprisonment, less credit for pre-sentence custody.

The Crown is also seeking a s. 109 weapons prohibition order and an order requiring Mr. Robertson to provide a DNA sample. [ 4 ] Mr. Shanahan, on behalf of Mr. Robertson, took the position that the Court should impose a sentence of 18 months’ imprisonment, less credit for pre-sentence custody. Mr. Shanahan also argued that Mr. Robertson should receive more than a 1.5 to 1 credit for pre-sentence custody. The defence is not opposed to a s. 109 order or a DNA order. CIRCUMSTANCES OF THE OFFENCES [ 5 ] On May 9, 2020, Toronto Police officers received a call about a broken-down car on Lakeshore Boulevard.

When the officers arrived at the scene, they “ran” the licence plate on a 2013 Nissan Altima and learned that the licence plate had been reported stolen. A tow truck driver told the officers that the driver of the vehicle had arranged for the car to be towed. The tow truck driver provided the officers with the phone number of the person who had requested that the car be towed. This person was later determined to be Mr. Robertson.

Further investigation revealed that the 2013 Nissan Altima had been reported stolen on April 8, 2020. [ 6 ] Police officers saw a car drive past the Altima and into a nearby Canadian Tire parking lot. It was later determined that this car was an Uber. Police officers observed Mr. Robertson get out of the Uber and enter the store. Once inside the store, Mr. Robertson purchased a jacket, a hat and a laundry hamper. He placed the jacket that he had been wearing into the laundry hamper. He put on the

new jacket and hat. He was seen leaving the store. [ 7 ] A police officer approached Mr. Robertson and told him that he was being investigated. Mr. Robertson ran away from the officer. [ 8 ] Mr. Robertson ran to a van and pulled on the driver’s side door handle. The driver of the van was able to maintain control of the door. Mr. Robertson abandoned his attempt to open the door and continued to run through the parking lot. [ 9 ] Other police officers joined the foot chase. Mr. Robertson was arrested on Leslie Street at 6:40 p.m. [ 10 ] During a search incident to arrest of Mr.

Robertson and a container that he had dropped while he was running from the police, the officers found: • 5.17 grams of purple fentanyl and .058 grams of blue fentanyl. The fentanyl was packaged in individual portions. • $9,580 in Canadian currency. • Bank cards and government identification not in Mr. Robertson’s name. BACKGROUND OF THE OFFENDER [ 11 ] Mr. Robertson is 30 years old. He has no children. Prior to his arrest, Mr. Robertson had a part-time job. [ 12 ] Mr. Robertson grew up in Toronto. He had a difficult childhood. His father was an alcoholic and abusive. Mr.

Robertson’s mother died when he was two years old. For a period of time, his grandparents raised Mr. Robertson. He later lived with his father, but as a result of conflict with his stepmother and her children, he returned to live with his grandparents when he was seven years old. [ 13 ] When he was a child, Mr. Robertson was diagnosed with dyslexia and ADHD. He left school in grade nine. [ 14 ] Mr. Robertson started using heroin and fentanyl. He has taken suboxone for his dependence on opioid drugs. [ 15 ] Mr.

Robertson is currently taking a number of medications to address his anxiety, depression, anger and ADHD. [ 16 ] In the past, Mr. Robertson participated in programs offered by the John Howard Society and other organizations. He has been involved in addiction therapy. Unfortunately, because of COVID-19, he has not been able to take any programs since he was arrested in May. [ 17 ] In an effort to lead a healthier life, he started running. His goal was to complete a marathon. He finished the Sporting Life 10 Kilometre Road Race.

Unfortunately, he was not able to run after he was in a car accident. [ 18 ] According to Mr. Robertson, his paternal grandmother was from the Qualicum Reserve on Vancouver Island. The sentencing hearing was adjourned for the purpose of obtaining a Gladue Report. However, for two reasons, Aboriginal Legal Services (ALS) was unable to prepare a Gladue Report. First, ALS was unsure about the specific nature of Mr. Robertson’s Aboriginal ancestry. Second, even if Mr. Robertson’s ancestry could be confirmed, ALS was not able to address how being an Aboriginal person had affected Mr. Robertson’s life circumstances.

A senior manager from ALS made it clear that ALS was not taking the position that Mr. Robertson was not an Aboriginal person. When ALS indicated that a Gladue Report could not be prepared, Mr. Greene told the Court that the Crown’s position that the appropriate sentence was 30 months’ imprisonment was based, in part, on the understanding that there were Gladue related issues. Quite fairly, Mr. Greene did not seek to revisit the Crown’s position regarding the length of the sentence after ALS declined to prepare a Gladue Report. [ 19 ] Over the years, Mr. Robertson participated in a number of Indigenous programs.

Before he was arrested in May, he had been attending Sagatay, which is a Native Men’s Residence in Toronto. At Sagatay, he completed a 90-day reintegration program. [ 20 ] Mr. Robertson has a long criminal record. He has been convicted of serious drug offences. [ 21 ] Mr. Robertson’s adult criminal record is set out below. 2009-11-03 (Toronto) Fail to Comply with Recognizance, section 145(3) CC 3 days intermittent & 4 days pre- sentence custody & probation 1 year 2009-12-23 (Toronto)

(1) Assault,

section 266 CC (1) 3 months & 32 days pre-sentence custody & probation 18 months & discretionary prohibition order,

section 110 CC for 10 years

(2) Fail to Comply with Recognizance, section 145(3) CC, 2 counts

(3) Fail to Comply with Disposition,

section 137 YCJ Act (2-3) 3 months & probation 18 months on each charge concurrent 2010-02-08 (Toronto)

(1) Possession of a Controlled Substance for the Purpose of Trafficking, section 5(2) CDSA (1) 5 months consecutive to sentence serving

(2) Possession of a Controlled Substance for the Purpose of Trafficking, section 5(2) CDSA (2) 7 months conditional sentence order & probation 12 months

(3) Fail to Comply with Recognizance, section 145(3) CC

(3) Suspended sentence & probation 12 months & mandatory prohibition order,

section 109 CC 2010-08-10 (Newmarket)

(1) Possession of a

Schedule II Controlled Substance, section 4(1) CDSA

(1) Suspended sentence & probation 18 months

(2) Fail to Comply with Probation,

section 733.1(1) CC (2) 1 day & 7 days presentence custody & probation 18 months concurrent 2010-12-03 Breach of Conditional Sentence Order,

section 742.6(9)(

c) CC (entry dated 2010-02-08) Order suspended 2010-12-10 (Toronto)

(1) Theft Under $5000 (1) 20 days & 24 days pre-sentence custody & probation 1 year

(2) Fail to Comply with Probation,

section 733.1(1) CC (2) 20 days concurrent 2011-03-15 (Toronto) Fail to Comply with Probation,

section 733.1(1) CC Suspended sentence & probation 18 months & 82 days pre-sentence custody 2012-12-31

(1) Possession of a Controlled Substance for the Purpose of Trafficking, section 5(2) CDSA (1) 25 months on each charge concurrent & credit for the equivalent of 11 months pre-sentence custody

(2) Break Enter & Commit (2-8) 24 months on each charge concurrent

(3) Fail to Comply with Probation Order (3 counts)

(4) Fail to Attend Court

(5) Theft Under $5000

(6) Assault with Intent to Resist Arrest

(7) Assault with a Weapon (2 counts)

(8) Fail to Comply with Recognizance 2015-11-09 (Barrie) Fail to Comply with Recognizance, section 145(3) CC 24 days intermittent & probation & credit for the equivalent of 6 days pre- sentence custody 2015-11-13 (Toronto)

(1) Fail to Comply With Recognizance, section 145(3) CC $2.50 fine

(2) Fail to Comply With Recognizance, section 145(3) CC $2.50 fine 2016-03-15 (Kitchener)

(1) Assault with Intent To Resist Arrest, section 270(1)(

B) CC (1) 1 day consecutive to sentence being served

(2) Driving While Ability Impaired, section 253(1)(

A) CC (2) $1,200 & prohibited from operating a motor vehicle for 12 months, section 259(1) CC

(3) Possession of a

Schedule II Controlled Substance, section 4(1) CDSA

(3) Probation 2 years 2019-01-24 (Toronto)

(1) Possession of a Loaded Prohibited or Restricted Firearm, section 95(1) CC (1) 6 months & probation 2 years & credit for the equivalent of 24 months pre-sentence custody & mandatory weapons prohibition,

section 109 CC

(2) Possession of Firearm or Ammunition Contrary to Prohibition Order,

section 117.01(1) CC (2) 6 months concurrent & probation 2 years & mandatory weapons prohibition,

section 109 CC GOVERNING PRINCIPLES [ 22 ] When sentencing an offender for a drug offence, a court must be guided by the purposes and principles of sentencing as set out in the Criminal Code and the Controlled Drugs and Substances Act ( CDSA ). [ 23 ] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree

of responsibility of the offender. Determining what constitutes a fit sentence requires “an examination of the specific circumstances ofboth the offender and the offence so that the ‘punishment fits the crime’”: R. v. Proulx, 2000 SCC 5 , [2000] 1 SCR 61, at para.82. [24] Sentencing is “an inherently individualized process”: R. v. M. (C.A.), (SCC), [1996] 1 SCR 500, at para 92. A sentencing judge must consider the life experiences of the person standing before them: R. v.

Ipeelee, 2012 SCC 13 , [2012] 1SCR 433, at para. 75 [25] While proportionality is the fundamental principle of sentencing, other principles must also be considered when determiningthe appropriate sentence.

A number of sentencing principles contained in s. 718.2 are implicated in this case, including: • a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender; • a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;and • all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [26] The weight to be given to the sentencing objectives set out in s. 718 of the Criminal Code will vary depending on the natureof the crime and the circumstances of the offender.

It is the responsibility of the sentencing judge to determine which objectives deservethe greatest weight, given the particular circumstances of the case: R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 SCR 206, at para.43. [27] The objectives of denunciation and deterrence will usually dominate the other objectives when an offence is particularlyserious: R. v. Hamilton and Mason (2004), (ON CA), 72 OR (3d) 1, at para. 103 (OCA). There is no dispute thatpossession of fentanyl for the purpose of trafficking is a serious offence.

General deterrence and denunciation are usually the paramountfactors when sentencing an offender who has trafficked fentanyl: R. v. Lu, 2016 ONCA 479 at para. 9; R. v. Klammer, 2016 ONSC 4038,at para. 19. RANGE OF SENTENCE [28] The Court of Appeal has not established a clear range of sentence for possession of fentanyl for the purpose of trafficking: R.v. Broderick, 2020 ONSC 7434, at para. 22. [29] In R. v. Loor, 2017 ONCA 696, the Ontario Court of Appeal considered a sentence appeal by a “low level member of a smalldrug trafficking ring.” The appellant trafficked 45 patches of fentanyl.

He had a prior conviction for trafficking. The Court of Appealupheld the six-year sentence imposed by the trial judge. While concluding that it was too early to impose a range of sentence for fentanyltrafficking, Laskin J.A. stated as follows at para. 50: “Few fentanyl trafficking cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a range.

But I think itfair to say that generally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receivesignificant penitentiary sentences.” [30] In Lu, the Court of Appeal upheld a two-and-one-half year custodial sentence for an offender who trafficked 20 fentanylpatches. GRAVITY OF THE OFFENCES [31] Given the seriousness of the offence of possession of fentanyl for the purpose of trafficking, the focus in this

section will beon that offence and not on possession of property obtained by crime. [32] Fentanyl was recently described by the Court of Appeal as a “deadly drug”: R. v. Fairbarn, 2020 ONCA 784, at para. 55. It is“one of the most highly addictive and dangerous drugs”: Lu, at para. 9. The devastating impact of fentanyl has been recognized by manycourts: R. v. Vezina, 2017 ONCJ 775, at para. 56; R. v. Fyfe, 2017 SKQB 5, at para. 58. In R. v. Olvedi, 2018 ONSC 6330, at para. 14,Peterson J. concluded that “...every day in cities across Canada, fentanyl use is resulting in overdoses and fatalities.

It is ravagingcommunities and claiming lives.” In R. v. Lee, 2018 BCCA 428, at para. 22, the British Columbia Court of Appeal stated that “fentanylis a scourge that imposes intolerable risks on society.” DEGREE OF RESPONSIBILITY OF THE OFFENDER [33] I am satisfied that there are background factors, including Mr. Robertson’s difficult childhood, that are relevant and importantin assessing his moral blameworthiness. While ALS was not able to prepare a Gladue Report, given all of the circumstances, I have notrejected the potential connection between Mr.

Robertson being an Aboriginal person and his life circumstances. In determining whatwould be a proportionate sentence, I have considered Mr. Robertson’s life circumstances and applied the principle set out in s. 718.2(e)of the Criminal Code. [34] It is also reasonable to conclude that Mr. Robertson’s difficult life experiences contributed to his opioid addiction. Addictioncan be relevant to an assessment of an offender’s moral blameworthiness. Based on this evidentiary record, the strength of theconnection between Mr. Robertson’s opioid addiction and the commission of these offences is unclear.

Given the amount of fentanyland cash seized by police, in my view, it would not be reasonable to conclude that the only reason that Mr. Robertson was sellingfentanyl was to support his addiction. While I am prepared to give some weight to Mr. Robertson’s addiction in assessing his moral

blameworthiness, by itself, it is not an extraordinary circumstance that justifies a significant reduction in the sentence: R. v. Thomas,2016 ONSC 7792, at para. 24. MITIGATING AND AGGRAVATING FACTORS Mitigating Factors [35] Mr. Robertson’s guilty plea is a mitigating factor. [36] Mr. Robertson’s difficult life experiences and addiction are also mitigating factors. Aggravating Factors [37] The nature of the drug that Mr. Robertson possessed for the purpose of trafficking is an aggravating factor. [38] Mr. Robertson’s criminal record is an aggravating factor: Regina v.

Taylor, (ON CA), [2004] 189 OAC388, at para. 39; R. v. Williams, 2018 ONSC 5409, at para. 48; R. v. Larche, 2006 SCC 56 , [2006] 2 SCR 762, at para. 28; R. v.Wright, 2010 MBCA 80, at paras. 7-16. It is aggravating because of what it says about the need for specific deterrence and thelikelihood of recidivism: Taylor, at para. 39. Mr. Robertson has previous convictions for serious drug offences. The fact that Mr.Robertson was previously convicted of a “designated substance offence” is an aggravating factor: s. 10(2)(

b) of the CDSA. Specificdeterrence is a relevant consideration in this case. LOCKDOWNS [39] A

summary of the days that Mr. Robertson was subject to lockdowns at the Toronto South Detention Centre from May 10,2020 to September 15, 2020 was filed as an exhibit. [40] This

summary indicates that up until September 15th, he was subject to 33 partial day lockdowns and one full day lockdown.All lockdowns were the result of staff shortages. During full day lockdowns, inmates are supposed to be given 30 minutes to use a phoneand/or shower. [41] Mr. Robertson takes issue with the accuracy of these records. He noted that after he was brought to the Toronto SouthDetention Centre, he was held in isolation for 17 days because of COVID-19. This is not reflected in the records.

According to Mr.Robertson, during this period he was in a cell 24 hours a day and had no access to books or television. [42] Mr. Robertson also stated that from May 25th to June 7th, he and other inmates were placed in segregation because an inmatewith COVID-19 had been admitted to the Toronto South Detection Center. [43] On December 9, 2020, the Medical Officer of Health for the City of Toronto declared a Covid-19 outbreak at the TorontoSouth Detention Centre. [44] Counsel for Mr. Robertson filed a document, based in part on Mr.

Robertson’s account of his experiences while at theToronto South Detention Centre, that summarizes when Mr. Robertson was subject to lockdowns up until December 14, 2020. According to Mr. Robertson, he has been subject to 95 full day lockdowns and 43 partial day lockdowns. [45] I accept that, as a result of lockdowns, Mr. Robertson has experienced a hardship that warrants consideration: R. v. Morgan,2020 ONCA 279, at para. 9; R. v. Reddick, 2020 ONCA 786, at para. 11. COVID-19 [46] There is no evidence that Mr.

Robertson has a health issue that would make him more susceptible or vulnerable to COVID-19. [47] As a result of COVID-19 related restrictions, I accept that the conditions of Mr. Robertson’s imprisonment will likely beharsher than they would have been prior to the pandemic: Fairbarn, at para. 57; Reddick, at para. 11. In my view, that is a relevantfactor in the determination of what would be a fit sentence: R. v. M.W., 2020 ONSC 3513, at paras. 50-52. However, this factor cannotresult in a sentence that is disproportionate to the gravity of the offences and Mr. Robertson’s moral culpability: M.W., at para. 52.

CONCLUSION [48] Mr. Robertson was in possession of a relatively large quantity of a potentially lethal drug for the purpose of trafficking. [49] The sentencing objectives of general deterrence and denunciation are important in this case. Given Mr. Robertson’s criminalrecord, specific deterrence is also a relevant sentencing objective. However, deterrence and denunciation are not the only considerationsin determining a fit sentence. I have also taken into account the objective of rehabilitation and the principles of totality and restraint. [50] In the past, Mr.

Robertson has taken some steps to address his addiction. I have considered those efforts in assessing Mr.Robertson’s rehabilitative potential. [51] I have concluded that the appropriate sentence, before taking into account credit for pre-sentence custody, is 25 months’imprisonment. [52] But for Mr. Robertson’s difficult background, his addiction and the likely impact of COVID-19 on the conditions of Mr.Robertson’s incarceration in the future, a longer term of imprisonment would have been appropriate.

[ 53 ] Mr. Robertson has served 222 days in pre-sentence custody. Given the conditions of Mr. Robertson’s pre-sentence custody, he is entitled to enhanced credit over the normal 1.5 to 1 ratio: R. v. Duncan , 2016 ONCA 754 . There is no mathematical formula to determine the length of time to be credited for harsh pre-sentence conditions. [ 54 ] In this case, I am prepared to credit Mr. Robertson’s pre-sentence custody on slightly more than a two-to-one basis. The information will be endorsed that Mr.

Robertson was given credit for serving the equivalent of 15 months of pre-sentence custody. [ 55 ] Therefore, on the possession of fentanyl for the purpose of trafficking count, Mr. Robertson will be required to serve an additional 10 months’ imprisonment. [ 56 ] Mr. Robertson will be sentenced to four months’ imprisonment for possession of property obtained by crime. This sentence will be served concurrently to the sentence for possession for the purpose of trafficking. [ 57 ] Pursuant to s. 109 of the Criminal Code , Mr.

Robertson is prohibited from possessing any firearm, including prohibited and restricted firearms, crossbows, restricted weapons, ammunition, explosive substances, and prohibited devices for life. [ 58 ] Possession of a

Schedule I substance for the purpose of trafficking is a secondary designated offence under s. 487.04 of the Criminal Code . I am satisfied that it is in the best interests of the administration of justice to make an order requiring Mr. Robertson, pursuant to s. 487.051 of the Criminal Code , to provide a suitable DNA sample. ___________________________ NORTH J. NOTE: As noted in court on the record , these written reasons are to be considered the official version. In the event of discrepancies between the oral and written versions, it is the written reasons that are to be relied upon.