R v McLean, 2022 MBCA 60

Citation: R v McLean, 2022 MBCA 60 Date: 20220630 Docket: AR21-30-09552 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella Madam Justice Karen I. Simonsen BETWEEN : ) A. R. Hodge her majesty the queen ) for the Appellant ) Respondent ) J. A. Hyman and ) S. M.

Ehrmantraut - and - ) for the Respondent ) kerron blair cornel mclean ) Appeal heard: ) January 17, 2022 (Accused) Appellant ) ) Judgment delivered: ) June 30, 2022 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference. mainella JA Introduction [ 1 ] The subject matter of this appeal is a risky business—couriering “hard drugs” (i.e., substances included in

Schedule I to the Controlled Drugs and Substances Act , SC 1996, c 19 (the CDSA )). [ 2 ] The accused conveyed 220 grams of fentanyl, a highly toxic synthetic opioid (worth $20,000 to $25,000), and a 981- gram brick of cocaine (worth $45,000) in his suitcase on a flight from Vancouver, British Columbia to Winnipeg, Manitoba. During his trial in the Provincial Court, he testified that the drugs were planted without his knowledge. The trial judge disbelieved the explanation and convicted the accused of two counts of possession of a controlled substance for the purpose of trafficking (see section 5(2) of the CDSA ).

A sentence of 12 years’ imprisonment on the fentanyl offence and six years concurrent on the cocaine offence (less credit for pre-sentence custody) was imposed. [ 3 ] The accused appeals his convictions, challenging the search by police of his suitcase and the trial judge’s credibility assessment. He also seeks leave to appeal and, if granted, appeals his sentence. [ 4 ] For the following reasons, I would dismiss the conviction appeal but would allow the sentence appeal.

In my respectful view, given the relevant circumstances and the applicable range, a 12-year sentence for the fentanyl offence is demonstrably unfit. I would vary it to nine years’ imprisonment. Background [ 5 ] The backdrop here is the milieu of mid-level drug trafficking and drug couriers. [ 6 ] While not a perfect paradigm, the distinctions of street-level, mid-level and high-level trafficking highlight the drug trade’s chain of distribution beginning with the sourcing of the drug by either importation or domestic production through a series of transactions to its ultimate consumption.

Street-level trafficking refers to activities focused on the back end of the chain of distribution— direct sale to drug users. Mid-level trafficking refers to the wholesale trade where one trafficker supplies another trafficker lower down the chain of distribution. This subset commonly has many layers of entrepreneurs. Finally, there is high-level trafficking, whose

distinguishing attribute is the significant scale of the trafficking and, in particular, the quantity, purity or value of the drugs; the ability toobtain the drugs at their source; and/or the sophistication and organization of the drug operation. [7] In the drug trade, a drug courier is simply “the person who transports the drugs from one point to another” (R vOddleifson (JN), 2010 MBCA 44 at para 36). [8] In December of 2018, police commenced an investigation targeting a Winnipeg drug network believed to be suppliedby A.M. (Mr. M), a drug trafficker based in Vancouver.

Police identified the accused, another Vancouver resident, as a suspected drugcourier for Mr. M. [9] On March 15, 2019, police obtained a general warrant (see

section 487.01 of the Criminal Code (the Code)) tocovertly search the checked luggage of the accused on future air travel to Winnipeg. [10] On April 5, 2019, the accused booked a same-day Air Canada flight from Vancouver to Winnipeg. He was travellingalone. When the aircraft arrived in Winnipeg late that evening, his checked luggage was covertly searched by police after it wasunloaded from the aircraft and before it was taken to the airport’s baggage carousel. Police found the fentanyl and cocaine in thesuitcase. The drugs were left in the suitcase and it was released with the other passengers’ luggage.

Just after midnight on April 6,2019, the accused picked up the suitcase from the baggage carousel and, as he was attempting to depart the airport, was arrested. [11] The accused sought, pursuant to sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms, to exclude thedrug evidence by challenging the facial sufficiency of the information to obtain (the ITO) the general warrant. He argued that, while theITO established that Mr.

M was involved in the ongoing supply of drugs from Vancouver to Winnipeg with others, it lacked reasonablegrounds to establish that the accused was involved or that information about drug trafficking would be found in his suitcase. [12] After conducting a Garofoli review (see R v Garofoli, (SCC), [1990] 2 SCR 1421 at 1452), the trialjudge dismissed the application. He concluded that information that Mr.

M had drugs, money and a scale in his Winnipeg hotel room,where the accused visited him on February 27, 2019, when viewed in the context of other evidence of the interprovincial drug networkand expert evidence about the drug trade set out in the ITO, provided “ample grounds” such that the general warrant could have beengranted. [13] Once the drug evidence was admitted, the key issue on the trial was whether the accused had the requisite knowledge tobe in legal possession of the drugs in his suitcase (see Regina v Aiello (1978), (ON CA), 38 CCC (2d) 485 at 487-88(Ont CA), aff’d (SCC), [1979] 2 SCR 15).

His defence was that he was a “blind courier”—the drugs were placed in hisluggage in Vancouver without his consent or knowledge and he unknowingly conveyed them to Winnipeg. Crucial to the viability of thisdefence was the trial judge’s assessment of the credibility of the accused’s testimony. [14] Air travel and financial records established that, although the accused was on social assistance, he frequently travelledwhich he explained was because he worked for Mr. M as a travelling musical engineer. [15] The accused testified that, on April 4, 2019, Mr.

M directed him to attend to Winnipeg to work as a DJ on a musicperformance and to write music for an artist. On the morning of April 5, 2019, the accused took his packed suitcase to Mr. M’s soundstudio in Vancouver and left it there while he went out for breakfast. Mr. M was at the sound studio and had access to the suitcase whilethe accused was away. After his meal, the accused returned to the sound studio, collected his suitcase, went to the airport and booked aflight to Winnipeg. He said he did not place the drugs in his suitcase, did not know they were there and did not know who planted them.

His evidence was that, when he got to Winnipeg, he was going to go directly to the artist’s music studio with his suitcase, although hedid not know the name of the artist or have any contact information. He said Mr. M was going to provide him with instructions on hisarrival to Winnipeg as to where to go. [16] In lengthy reasons, the trial judge concluded that the accused had “no credible explanation” as to his travel to Winnipegor the “suspicious manner” in which the travel took place.

Given the accused had the drugs in his suitcase and the Crown’sunchallenged expert evidence as to the accused’s travel to Winnipeg having several classic hallmarks of a drug courier, the trial judgewas satisfied of the accused’s guilt on the fentanyl and cocaine offences. Conviction Appeal Issues [17] The search issue focuses on the trial judge’s decision on the Garofoli review of the general warrant. The accused alsosubmits that the trial judge’s credibility assessment was flawed because it was based on hearsay evidence and the improper drawing ofan adverse inference.

Analysis The Garofoli Review [18] Context is critical in a Garofoli review (see R v Pilbeam, 2018 MBCA 128 at para 7; and R v Kupchik, 2020 MBCA 26at paras 5-6). The ITO established that Mr. M was regularly sending large amounts of drugs to Winnipeg from Vancouver; sophisticateddealers like Mr. M often use drug couriers; the accused had a suspicious travel pattern; Mr. M and the accused were in Winnipeg at thesame time on three occasions in the prior three months; and, on February 27, 2019, after arriving in Winnipeg, the accused met withMr. M in Mr. M’s hotel room.

Later, hotel staff found what appeared to be drugs, cash and a scale in Mr. M’s hotel room. [19] The trial judge stated the correct legal principles, considered the ITO as a whole, and properly took a practical, non-technical and common-sense approach as to whether there was any basis upon which the issuing judge could be satisfied that the relevantstatutory preconditions to issue the general warrant existed (see Pilbeam at paras 6-8). I am satisfied he showed appropriate deference to

the issuing judge. His important, but limited, responsibility did not include re-weighing the facts in the ITO and second guessing the issuing judge as the accused requested him to do. [ 20 ] I have not been persuaded that the trial judge failed to apply the correct legal standard, made another error in principle, misapprehended the evidence or failed to consider relevant evidence ( ibid at para 9). Reliance on Hearsay Evidence [ 21 ] The trial commenced with an omnibus voir dire concerning the Garofoli review, as well as the admissibility of the accused’s statement to police on arrest.

It was agreed that evidence that was “properly admissible to a trial proper” led on the omnibus voir dire would apply to the trial. [ 22 ] During the omnibus voir dire , Detective Sergeant Sushnyk, the lead investigator, testified. He explained the investigation which included comparing the travel of Mr. M and the accused. He testified that, according to records obtained from car rental companies, on three occasions (January 8, January 19 and February 26 to 27, 2019), Mr. M was in Winnipeg at the same time as the accused. [ 23 ] In closing arguments, both counsel made reference to the evidence that Mr.

M and the accused were in Winnipeg three times in January and February of 2019 despite the accused testifying that he was unaware that was the case. The accused’s trial counsel (different than appellate counsel) made the submission that the evidence before the Court was that police confirmed Mr. M’s presence in Winnipeg by way of car rental documents only, not physical surveillance of Mr. M. Her submission focused not on the admissibility of the evidence, but that less weight should be afforded to it as it was not as strong as the police actually seeing Mr. M in Winnipeg.

Her submission did not address the hotel meeting on February 27, 2019 between the accused and Mr. M which was not disputed due to surveillance video. [ 24 ] In his reasons, the trial judge noted several “general observations” where, in his view, the accused failed to make “reasonable concessions” in his testimony, albeit the trial judge noted further that these points were not material to the accused’s ultimate position that “someone put drugs in his suitcase.” [ 25 ] One difficulty the trial judge noted with the accused’s testimony was that he said he had “no knowledge” that Mr.

M was in Winnipeg at the same time as he was on three occasions in January and February of 2019. The trial judge found that evidence “odd” given that the accused was supposedly working for Mr. M as a travelling musical engineer. [ 26 ] The accused concedes that it was established at the trial that he was in Winnipeg on three occasions in January and February of 2019. However, he argues that the only evidence that Mr. M was in Winnipeg at the same time was inadmissible hearsay evidence from Det. Sgt.

Sushnyk from the omnibus voir dire that was not called separately on the trial proper. [ 27 ] There are three legal principles to keep in mind to address this ground of appeal. First, as a general rule, “[e]vidence taken on a voir dire does not form part of the trial evidence unless there is an agreement to that effect” ( R v Dela Cruz , 2007 MBCA 55 at para 28 ).

Next, hearsay evidence is presumptively inadmissible unless it falls under a traditional exception to the hearsay rule, it satisfies the principled analysis or there is a considered admission as to its admissibility (see Sidney N Lederman, Alan W Bryant & Michelle K Fuerst, The Law of Evidence in Canada , 5th ed (Toronto: LexisNexis, 2018) at

section 6.62; and R v Rideout , 1999 CarswellNfld 317 at paras 28-36 (CA) , aff’d 2001 SCC 27 ). Finally, reasonable tactical choices of counsel at trial as to the admissibility of evidence will not be second guessed lightly on appeal (see R v JF , 2013 SCC 12 at para 68 ; and R v Waite , 2014 SCC 17 at para 5 ). [ 28 ] Not surprisingly, the competence of the accused’s trial counsel is not in question. It is self-evident from the transcript that she wanted to focus on what was really in dispute; Mr. M’s rental of vehicles in Winnipeg was not a contentious fact.

It is not disputed that the Crown would have had little difficulty tendering the car rental evidence, in an admissible form, if that was necessary. The accused’s trial counsel addressed the effect of this evidence by challenging the weight to be given to it in her closing arguments. In my view, she made a considered admission to admit the car rental evidence from the omnibus voir dire , although technically hearsay, to the trial proper. I see no basis to second guess that reasonable tactical choice.

Adverse Inference [ 29 ] The true purpose of the accused’s trip to Winnipeg on April 5, 2019 was a hotly contested fact given that the evidence the trial judge heard was that the accused was a person of “very limited financial means” who was “just starting out in the music business” but had a suspicious travel history. [ 30 ] The Crown described the accused’s narrative as making “no sense”.

Tendered air travel records showed that the accused made eight trips between Winnipeg and Vancouver and four trips between Toronto, Ontario and Vancouver (including one stopover in Winnipeg), in the period from November 2018 to February 2019. All of these trips were booked last minute with each leg of the trips being a one-way ticket; the accused always paid in cash or by prepaid credit cards; each trip lasted 24 hours or less; and, despite the short duration of the trips, the accused always paid extra to check luggage.

A drug expert testified that this sort of travel pattern is indicative of the possible “interprovincial transportation of illicit drugs.” [ 31 ] The trial judge rejected the accused’s evidence that the purpose of his trip to Winnipeg on April 5, 2019 was in relation to his work in the music industry.

The trial judge identified three areas of concern that materially undermined the accused’s credibility. [ 32 ] First, he found the “financial logistics” of the purported business “unlikely”; up-and-coming artists were, at the last minute, repeatedly hiring, at greater expense, an out-of-town musical engineer without any reputation when they could have easily hired

a local. The trial judge noted that the accused had told police after his arrest that he didn’t “understand” why he was always getting hired as he told them he “suck[ed]” as a musical engineer. [ 33 ] Second, the trial judge cited four “glaring inconsistencies” between the accused’s testimony and his statement to police after his arrest.

The trial judge concluded that the accused was tailoring his evidence at trial to deal with police surveillance that he was unaware of when he recounted details of his numerous trips to Winnipeg to police. [ 34 ] Third, and pertinent to this ground of appeal, the trial judge noted that there was no confirmatory evidence of the accused ever doing any musical work in Winnipeg. In his testimony, the accused said there was confirmatory evidence of his musical work on his mobile phone and laptop computer that were seized by police on his arrest, but no evidence from those devices was tendered.

The accused also testified that information about artists he worked for (“Shine, Eyes and Icy”) was available on the internet, but no such evidence was tendered; for example, to establish the artists even existed or performances he said he worked at occurred. [ 35 ] In his reasons, the trial judge stated, “I recognize there is no onus on the accused to prove anything, however, in a situation where the election is made to call evidence and that evidence appears objectively improbable, the failure to take steps to obtain readily available corroboration must be factored in to the credibility assessment.” He said it would have been a “simple matter” for the accused to produce confirmatory evidence on his seized electronic devices or the internet relating to artists that the accused referred to in his evidence or local events the accused said he worked at. [ 36 ] The accused argues that the trial judge improperly drew an adverse inference from his failure to call confirmatory evidence.

He says the trial judge’s criticism is “problematic” as the adverse inference essentially shifts the burden of proof onto the accused to support his testimony and prove his innocence (see R v Lapensee , 2009 ONCA 646 at para 45 ; R v Ellis , 2013 ONCA 9 at para 49 ; and R v Degraw , 2018 ONCA 51 at para 31 ). [ 37 ] The Crown responds in two ways. It says it is not clear that the trial judge did draw an adverse inference from the failure to call confirmatory evidence. It submits that a trier of fact is entitled to consider the lack of particular pieces of evidence in weighing the context of the whole of the case.

Alternatively, it asserts that, if the trial judge did draw an adverse inference from the failure to call confirmatory evidence, it was appropriate to do so as the information was within the unique knowledge of the accused as to which music artists and performances he worked at in Winnipeg and the evidence was readily available from either the internet or the accused’s seized electronic devices. [ 38 ] The Crown’s first submission is not persuasive. The trial judge was not merely commenting on gaps in the evidence; he drew an adverse inference from the accused’s failure to call confirmatory evidence.

I come to that conclusion based on reading his reasons in the context of the entire record. [ 39 ] In closing submissions, Crown counsel highlighted that there was no evidence that the accused ever worked as a musical engineer in Winnipeg except his testimony despite the fact that, according to the accused, confirmatory evidence of him assisting artists was readily available.

The trial judge stated to defence counsel in her closing submissions that, while it was not “incumbent” on the accused to prove anything, because he testified, the trial judge could consider the “absence of evidence” in relation to the explanation provided in the “context of assessing credibility.” [ 40 ] The Crown argued that the trial judge could use the accused’s failure to call confirmatory evidence as reason to disbelieve him, in part, on his blind courier defence. That is what the trial judge ultimately did.

The real issue on this ground of appeal is whether he erred in doing so. [ 41 ] In certain situations, an adverse inference may be drawn by a trier of fact from a party failing to call a material witness or other material evidence. The multiple dangers of this controversial practice are well-known (see the Hon S Casey Hill, David M Tanovich & Louis P Strezos, McWilliams’ Canadian Criminal Evidence , 5th ed (Toronto: Thomson Reuters, 2013) (loose-leaf updated 2022, release 2), pt VI, ch 33 at

section 33:8 (online: WL Can (date accessed 22 June 2022))).

It is important to highlight, as Hamilton JA explained in R v Locke , 2015 MBCA 73 , that “[a]dverse inferences in a criminal case are the exception rather than the rule, and are subject to many conditions” (at para 14; see also R v RMK , 2016 MBCA 63 at para 33 ). [ 42 ] Provided that the conditions of the adverse inference principle were satisfied as a matter of “ordinary logic and experience” in the assessment of the accused’s credibility ( R v Jolivet , 2000 SCC 29 at para 24 ; see also R v Huynh (DV) , 2010 MBCA 82 at paras 2-3 ), the trial judge had the discretion to draw an adverse inference from the accused’s failure to call confirmatory evidence regarding his assertion that the purpose of his trip to Winnipeg on April 5, 2019 related to the music industry. [ 43 ] The conditions for a trier of fact drawing an adverse inference in a criminal case are: 1) An adverse inference cannot be drawn as punishment for a party exercising their legal right not to call evidence, even when there is a wholly unjustified explanation for the decision. 2) Because of the dangers of drawing an adverse inference, such as potentially reversing the burden of proof, the discretion to draw an adverse inference should be exercised with great caution and mindful of the division of responsibilities between the Crown and defence. 3) An adverse inference can only be drawn when there is not a plausible explanation for the non-production of the evidence. 4) The missing evidence must be relevant to a material issue.

An adverse inference cannot be drawn as a result of matters unimportant to deciding the case or when there is already some evidence on the relevant point (even if it is of inferior quality). (See Jolivet at paras 24-26 ; Lapensee at paras 42-45 ; and R v Maxie , 2014 SKCA 103 at para 38 (iv)-(vi).) [ 44 ] If the conditions exist for the drawing of an adverse inference, whether a trier of fact will choose to do so will often be a

function of the degree of the “special access” the party has to the evidence. The more the “missing proof” lies within the “peculiarpower” of the party, the stronger the basis for drawing the adverse inference (Jolivet at para 27). [45] Precision about the nature of an adverse inference is important to keep in mind. An adverse inference is a tool toevaluate evidence, nothing more.

When an adverse inference is drawn against an accused, the trier of fact must be mindful that the legaleffect of such an inference is not proof of the guilt of the accused but, rather, the conclusion that, if the missing evidence was called, itwould be unfavourable to the defence (ibid at para 28; R v NLP, 2013 ONCA 773 at para 74; and Degraw at para 32). [46] In a situation such as the one here (the material issue in dispute at the trial turns on the assessment of the credibility ofthe accused’s testimony), the “limited use” (NLP at para 76) to which the adverse inference can be put by the trier of fact is only to assistin the evaluation of the accused’s credibility.

If drawn, the adverse inference undermines the defence evidence to which it relates (see Rv Strojny, 2019 ONCA 329 at para 42). [47] With those general principles in mind, I turn to whether the trial judge erred in drawing an adverse inference against theaccused for failing to call confirmatory evidence as to the purpose of his travel to Winnipeg. [48] I am satisfied that the trial judge proceeded with appropriate caution. I reject the accused’s submission that the trialjudge reversed the burden of proof in any way. He gave a correct self-instruction on the burden of proof, including that it never shifts.

He also clearly understood the limited use that can be made of an adverse inference. Absent something in his reasons that suggests hesubconsciously subverted what he said, he is “entitled to be taken at his word” (R v O’Brien, 2011 SCC 29 at para 18).

There is nothingin his reasons confirming he misused his discretion to draw an adverse inference, such as he was punishing the accused for his decisionnot to call confirmatory evidence or he was attaching “evidentiary significance” to the failure to call confirmatory evidence as positiveproof of guilt (Ellis at para 68). [49] There can be many reasons why a witness or other evidence is not produced so as to make inappropriate the drawing ofan adverse inference (see Jolivet at para 28).

Here, no satisfactory explanation was presented to the Court to explain the non-productionof evidence confirming the accused frequently travelled to Winnipeg to work on music-related jobs. [50] The trial judge’s finding that this confirmatory evidence should have been “readily available” was reasonably open tohim. Although the accused was in custody, he was represented by counsel and had sufficient time to make arrangements to retrievepublicly available information on the internet, such as advertising for music concerts he claimed to work on.

In fact, during the trial, headduced some publicly available social media evidence as to Mr. M’s background. Moreover, his mobile phone and laptop computer(which he said contained work-related information) were in the possession of the police and easily accessible had the accused made anyeffort to request information on them in the disclosure process.

An accused cannot choose to sit passively in the disclosure process onlyto complain later when it is too late (see R v Bramwell (1996), (BC CA), 106 CCC (3d) 365 at para 33 (BCCA), aff’d (SCC), [1996] 3 SCR 1126; and R v Dixon, (SCC), [1998] 1 SCR 244 at para 37). [51] Finally, the missing confirmatory evidence was relevant and material to the blind courier defence.

The legitimacy ofthe accused’s travel to Winnipeg was crucial to the determination of his credibility, particularly as the position of the Crown was that hisexplanation was entirely made up; it alleged that the only reason he came to Winnipeg was to deliver drugs.

The importance of themissing confirmatory evidence to decide the case distinguishes the situation here from what occurred in Lapensee. [52] In Lapensee, the evidence not called by the accused—the testimony of two witnesses as to his sobriety and productionof receipts as to his movements—was either superfluous to the evidence the trial judge in that case heard from the investigating officersor dealt with matters unimportant to the key issue of when the accused was impaired in relation to the motor vehicle collision (see paras48-51). The situation here is quite different.

Evidence confirming the fact that the accused was a travelling musical engineer was crucialto his claim that someone tampered with his suitcase while he was on legitimate travel for work by planting drugs in it. [53] In

summary, I am satisfied that the prerequisites to draw an adverse inference existed in this case. [54] According to the trial judge’s reasons, he was careful to limit his use of the adverse inference to only the first questionof the framework discussed in R v W(D), (SCC), [1991] 1 SCR 742: whether he believed the evidence of the accused. The trial judge’s reasons confirm he did not use the adverse inference drawn as positive evidence of the accused’s guilt on the fentanyland cocaine offences.

He separately analyzed whether the Crown had met its burden of proof based on the evidence which he didaccept, which was the fact the drugs were in the accused’s suitcase and his circumstances were consistent with being a drug courieraccording to the expert witness who testified at the trial. [55] As the drawing of an adverse inference is a matter of discretion absent a reversible error of fact or law, the trial judge’sdecision is entitled to deference (see Locke at para 14). I have not been persuaded that the trial judge made any such error to justifyinterference with his exercise of discretion.

Sentence Appeal Background to the Sentence [56] At the sentencing, several matters were not in dispute. First, the sentences for the two drug offences should beconcurrent (see

section 718.3(4) of the Code). Next, it was accepted that the accused had a profit motivation; although he was not“handsomely compensated,” he was living in poverty. Finally, there was general agreement on the key considerations as to theassessment of proportionality (see

section 718.1 of the Code). The gravity of the offences was significant given the harmfulness andwrongfulness of commercial trafficking in hard drugs and, in particular, fentanyl (see R v Parranto, 2021 SCC 46 at para 94). Thevolume of drugs in question and the nature of the sophistication of the operation made this an instance towards the upper end of mid-level trafficking. In terms of his degree of responsibility, the accused was a courier in a sophisticated interprovincial drug network, butwithout any “decision-making capability.”

[57] Denunciation and deterrence were the primary sentencing considerations. The Crown sought a sentence of 13 years’imprisonment on the fentanyl offence and eight years on the cocaine offence, while the accused requested seven years’ imprisonment onthe fentanyl offence and four to five years on the cocaine offence. [58] Although there was one factual dispute (as to the use of the accused’s suspicious travel history), which I will speak oflater, the key sentencing controversy was parity.

Section 718.2(

b) of the Code states: Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; [59] Manitoba is a “range jurisdiction” (Parranto at para 24) when it comes to quantitative sentencing guidance in relation totrafficking offences involving hard drugs. Ranges in cases of commercial cocaine trafficking are well-established in terms of (

i) street-level trafficking (see R v Sass; R v Zammit, 2018 MBCA 46 at para 5), (ii) mid-level trafficking (see R v Rocha, 2009 MBCA 26 at para64), and (iii) high-level trafficking (see R v Grant (IM), 2009 MBCA 9 at paras 107-8; and Oddleifson at paras 40-41). [60] As was explained in R v Burnett, 2017 MBCA 122, this sort of sentencing tool is not a “rigid tariff” to fetter thediscretion of a sentencing judge to impose an individualized sentence (at para 10; and Parranto at para 43).

Breaking down the drugtrade in this way is also not intended to create a mechanical formula (see R v Bisson, 2018 MBCA 92 at para 6). Differences betweendrug offenders are common and whether a distinction is material is best left for sentencing courts to resolve on the given facts. [61] What is important in the assessment of proportionality for a drug sentence is the “magnitude of the individual’sparticipation” in the illicit activity (Regina v Lecapoy (1974), 1974 ALTASCAD 50 , 18 CCC (2d) 496 at 500 (Alta SC (AD))). An offender’s “degree of responsibility” for the purposes of

section 718.1 of the Code is concomitant to how important a role theyplayed in the illicit activity.

The more significant the offender’s role, the greater their degree of moral culpability; the “converse is alsotrue for those less criminally implicated” (R v Smith, 2019 SKCA 100 at para 46). [62] Determining the magnitude of the individual’s participation involves weighing typical markers of moral culpability: intentional risk-taking, consequential harm of the offender’s actions and normative character of the offender’s conduct (see R v M (CA), (SCC), [1996] 1 SCR 500 at para 80; Sass at para 39; and R v Johnson, 2020 MBCA 10 at para 16). [63] Since at least the decision of R v Munilla, 1986 CarswellMan 151 (CA), this Court has accepted that a courier whosimply delivers drugs or money in order to shield another, for minimal compensation, and plays no other role, has less moral culpabilitythan traffickers who are more involved in a drug operation, such as those procuring drugs, selling drugs or performing some otherongoing trafficking-related activity.

This sentencing policy is an application of the principle of proportionality. Invariably, even if adrug courier is sympathetic, they will still pay a “heavy price” for the integral role they play in facilitating the deadly trade in hard drugsas the Court must protect society by denouncing and deterring such conduct (R v Cunningham (1996), (ON CA), 104CCC (3d) 542 at 547 (Ont CA)). [64] The expression “mere courier” was coined in Rocha to denote an offender who performs the important function ofdelivering drugs or money to protect their “boss” from being detected but does nothing more (at para 64).

The same logic applies tocustodians who only store drugs for others (see R v Jenner, 2005 MBCA 44 at para 23; and R v Le, 2018 MBCA 58 at para 4). [65] However, where the courier (or custodian) is more trusted, such that they are more involved in the operation by suchactions as discussing “sales, direct[ing] others, or exercis[ing] some measure of independent control over the transaction,” they are not tobe treated as a mere courier (or custodian) for the purposes of sentencing (Bruce A MacFarlane, Robert J Frater & Croft Michaelson,Drug Offences in Canada, 4th ed (Toronto: Thomson Reuters, 2016) vol 2 (loose-leaf release 2016-3), ch 33 at 33-18). [66] The term of art that has arisen for a sentencing court to decide, when the role of a courier or custodian is disputed, iswhether the offender had some “decision-making” authority or responsibility (Rocha at para 61; R v Ducharme, 2012 MBCA 35 at para3; R v Racca, 2015 MBCA 121 at para 18; R v Delacruz, 2017 MBCA 10 at para 5; R v Slotta, 2020 MBCA 79 at para 30; and R vLewyc-Sullivan, 2021 MBCA 92 at para 12).

Offenders who have some decision-making authority or responsibility are more morallyculpable and will receive a higher sentence even if their conduct included acting as a courier or custodian. The range of sentence forsuch highly trusted associates is a different and higher one than for a mere courier or custodian (see Rocha at para 64; Oddleifson at para40; and Delacruz at para 3). [67] Based on Rocha, the trial judge identified the range for a mere courier engaged in mid-level trafficking of cocaine asthree to six years’ imprisonment.

He concluded that the circumstances warranted a sentence on the cocaine offence at the “upper end”of that range. [68] In Slotta and R v Petrowski, 2020 MBCA 78, due to limitations with the factual records and the unsettled jurisprudence,this Court declined to provide guidance for fentanyl offences other than to say that, “based on the heightened danger and harm caused,both to the individual and to society, sentencings involving the trafficking or importation of fentanyl should be higher than thoseinvolving cocaine or heroin” (Slotta at para 3). [69] In Slotta, the 32-year-old accused pleaded guilty to importing 49 grams of fentanyl.

He was a custodian who receivedfentanyl mailed from overseas and was tasked to store it until it was picked up by his dealer. He participated in the scheme to feed hisdrug addiction. He had a prior unrelated record and poor rehabilitative prospects. An eight-year sentence was upheld. [70] In Petrowski, the 29-year-old accused was found guilty after a trial of being in possession of 51 grams of fentanyl for

the purpose of trafficking. He was an independent drug dealer. He had just received a package of fentanyl from overseas by mail which he was going to sell. He had a prior unrelated record save for one conviction for simple possession as a youth and good rehabilitative prospects. A 10-year sentence was upheld. [ 71 ] The trial judge quite properly noted that, previously, this Court had declined to set a general range for trafficking fentanyl, but had endorsed the “general approach” that sentences should be higher than what was described for mid-level cocaine trafficking in Rocha .

He said that the Crown’s 13-year submission was at “the top” of the appropriate range, but the accused’s seven- year submission was not “within” the appropriate range. He indicated that such a sentence would amount to the “free ride error.” He commented that, if a concurrent sentence was imposed for the cocaine offence, the quantum of the sentence for the fentanyl offence should be increased. [ 72 ] The trial judge said that the accused’s sentence should be tempered because of his “relative youth and positive rehabilitative prospects”; in particular, his supportive family.

The accused is a black Caribbean Canadian. He was single and 29 years old at the time of his sentencing. He had a difficult upbringing due to the separation of his parents when he was a child, having learning disabilities and encountering constant racism. He moved out of his mother’s home as a teenager and began working a series of low-skill jobs. [ 73 ] Although serious, the accused’s criminal record was dated and unrelated (see section 10(2)(

b) of the CDSA ). His longest prior sentence was 15 months’ imprisonment for assault causing bodily harm in 2010. [ 74 ] The trial judge distinguished Slotta on the basis of motivation (profit versus addiction) and the greater sophistication of the drug network in the accused’s case.

In his view, these factors merited a “greater sentence” (particularly given that the accused was also couriering almost a kilogram of cocaine). [ 75 ] The trial judge said comparing the accused’s situation to the case of Petrowski was more “challenging.” He commented that the situation in Petrowski appeared “significantly more aggravating” because that accused was the “directing mind” of the scheme; however, he said that involved an “isolated incident” unlike that of the accused in the case at bar. [ 76 ] In his consideration of the principle of parity, the trial judge concluded that the accused’s sentence should be “greater” than in Slotta (eight years) but “lesser” than in Petrowski (10 years).

Despite this conclusion, he imposed a 12-year sentence, stating that “the sentence on the fentanyl charge must be increased to reflect the second charge” (i.e., the cocaine offence). Issues and Positions of the Parties [ 77 ] The principal question is whether the trial judge’s application of the no-free-ride principle resulted in a demonstrably unfit sentence. [ 78 ] The no-free-ride principle is a component of the assessment of proportionality (see R v Lagimodiere , 2008 MBCA 137 at para 26 ).

Where concurrent sentences are imposed for multiple serious offences, in order to maintain proportionality, the sentencing judge must ensure that the length of the sentence on the most serious offence does not give an offender a free ride for any criminal conduct (see R v Wozny , 2010 MBCA 115 at para 44 ; R v Cook (N) , 2014 MBCA 29 at paras 34-35 ; R v Houle , 2016 MBCA 121 at para 16 ; R v RJ , 2017 MBCA 13 at para 13 ; and R v Maytwayashing , 2018 MBCA 36 at para 44 ).

As MacInnes JA explained in Wozny , “it is a legitimate sentencing requirement when imposing a concurrent sentence to impose a more severe penalty given multiple offences and their number than one might give for the same offence individually or as compared with a couple or a few offences” (at para 70). [ 79 ] The accused argues that a 12-year sentence for the fentanyl offence is demonstrably unfit. He says a sentence that is double the top end of the three to six-year range for couriering cocaine at the mid-level is “harsh and excessive”; particularly in light of similarly situated offenders.

In addition to the sentences in Slotta and Petrowski , he relies on R v Hudson , 2019 ONSC 290 , where an eight-year sentence was imposed after a trial for a 35-year-old mother of three children, described as a “small cog” (at para 21) who imported 323 grams of fentanyl. She had no record, had strong rehabilitative prospects and was performing the same custodian’s role as in Slotta . Unlike in Slotta , she was not motivated by an addiction.

Ultimately, her conviction was overturned on appeal without comment on the fitness of her sentence (see 2021 ONCA 772 ). [ 80 ] The Crown defends the sentence on the basis of the highly deferential standard of appellate review (see R v Friesen , 2020 SCC 9 at paras 25-26 ). It highlights that the trial judge is on the “front lines of the fentanyl problem in Manitoba.” It points out that he was provided with evidence as to the increasing trend of opioid-related overdose deaths in Manitoba and the rising instances of first responders administering naloxone to deal with opioid overdoses.

It also says the accused had high moral culpability given he was a paid repeat courier in a sophisticated mid-level interprovincial network. Was the Fentanyl Sentence Demonstrably Unfit? [ 81 ] An appellate court cannot interfere with a sentencing decision “lightly” ( Parranto at para 29 ). The issue is not whether the correct range was selected, whether the sentence imposed falls outside the correct range or whether this Court would have imposed a greater or lesser sentence.

None of those reasons justify appellate intervention (see R v Lacasse , 2015 SCC 64 at paras 11 , 51, 56-61, 67, 69; R v Suter , 2018 SCC 34 at para 25 ; Friesen at paras 37, 162 ; and Parranto at paras 29-30, 33, 36, 54 ). [ 82 ] A demonstrably unfit sentence is a “very high threshold” ( Lacasse at para 52 ).

It was described this way in Houle : “A sentence will be demonstrably unfit where it unreasonably departs from the principle of proportionality taking into account the individual circumstances of the offence and the offender and the acceptable range of sentence for similar offences committed in similar circumstances” (at para 11; see also Parranto at para 30 ).

[ 83 ] With one exception, the trial judge’s assessment of proportionality in relation to the accused’s individual circumstances is unassailable. [ 84 ] The intentional risk-taking, consequential harm and normative character of the accused’s conduct provide a basis to support the trial judge’s conclusion that the accused’s culpability was “towards the upper end of the spectrum” (see M (CA ) at para 80). [ 85 ] The accused’s intentional risk-taking was significant given he was paid a “disproportionately low” amount for couriering the drugs compared to the level of risk he assumed.

His risk-taking was aggravated by the choice to courier not one hard drug, but two. These serious crimes were not impulsive but the result of a premeditated decision motivated by profit. [ 86 ] 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 ). [ 87 ] As is commonly the case, the 220 grams of fentanyl seized here had been adulterated with a cutting agent.

According to the drug expert, the ratio is anywhere from 60 to 100 parts adulterant to one part pure fentanyl powder. A sample of the fentanyl found in the accused’s suitcase had a purity of 1.6% according to analysis by Health Canada.

If the adulterant is discounted, that means there were approximately 3.52 grams of pure fentanyl in the accused’s suitcase. [ 88 ] That amount of fentanyl sounds minimal, but a potentially lethal dose of fentanyl can be quite small (less than two milligrams, i.e., the equivalent of a grain of salt) depending on the route of administration of the drug, the opioid tolerance of the user and the susceptibility of the user to the toxicity of fentanyl given their age, weight, health, metabolic capacity and the presence of other drugs or alcohol. These variables create risks even to experienced fentanyl users.

As mentioned in Parranto , “naïve users” or the person who mixes fentanyl with alcohol or drugs faces an “extremely high” risk of overdose because there is no way they will know the potency of the fentanyl they are about to take (at para 94). [ 89 ] 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). [ 90 ] In terms of the accused’s normative conduct, I would begin by endorsing the comments of Gillese JA in R v Disher , 2020 ONCA 710 , that one challenge in imposing a sentence in a fentanyl case is identifying the quantity of fentanyl in question as the drug can be trafficked in many forms, such as patches, pills, powder or, the situation here, a pebble form resembling gravel (see para 30).

This factual question is important not only to assess proportionality, but also for a proper application of the principle of parity. [ 91 ] The facts of the two cases in Parranto are illustrative. In the case of Mr. Felix, the fentanyl was in tablet form for consumption so the number of individual doses was straightforward (2,385 individual doses) (see para 64). The situation of Mr. Parranto was different.

In his case, the fentanyl (approximately half a kilogram) was still in pure powder form and, thus, the number of possible individual doses (approximately 500,000) (see para 75) required some calculation based on expert evidence to account for adulterating the pure fentanyl. [ 92 ] One way to make sense of the quantity of fentanyl seized, to assess proportionality and to apply the parity principle is for a sentencing court to determine, based on the evidence, the total number of “individual doses” ( ibid ; see also R v Olvedi , 2021 ONCA 518 at para 45 ). [ 93 ] According to the drug expert in this case, the form of fentanyl seized here in Winnipeg is trafficked on the street by a point or one-tenth of a gram.

Each gram of the 220 grams of fentanyl would yield 10 individual doses or a total of 2,200 individual doses. Because of the low purity of the fentanyl seized, the expert was of the view that it would not be further adulterated. [ 94 ] Ultimately, the accused was couriering two hard drugs with a profit motive which increases the level of his moral culpability. Not to gloss over the potentially fatal effects of cocaine, but the dangers of fentanyl are much greater (see Petrowski at para 49 ).

As Moldaver J noted in Parranto , fentanyl plays a prominent role in the “national crisis” of accidental opioid-related deaths (at para 96). In Canada, such accidental deaths are more than five times more common than homicides (see paras 96-97). [ 95 ] The one concern I have with the trial judge’s assessment of the accused’s moral culpability is his factual finding that the accused couriering fentanyl on April 6, 2019 was not an “isolated incident.” [ 96 ] At the sentencing, the position of the Crown was that the accused was a repeat courier of drugs interprovincially.

It argued that, while the accused was not being sentenced “for other offences,” the trial judge could conclude that what occurred on April 6, 2019 was not a “one-off.” It relied on the accused’s suspicious “flight pattern history”. [ 97 ] The Crown submitted that the situation was similar to the repeat courier case of R v Smith (31 May 2017), Winnipeg CR15-01-34164 (Man QB) ( Smith Man QB ). In Smith Man QB , police covertly searched a drug courier’s luggage on her arrival and departure, finding kilograms of cocaine on arrival and large amounts of cash on departure.

The police did not interdict the drugs or money so as not to jeopardize the investigation. Police also had intercepted communications to establish the couriering. The accused was found guilty of four offences that were alleged to have occurred over an approximate 17-month period (conspiracy to traffic, trafficking, conspiracy to possess proceeds of crime and possession of proceeds of crime).

She received an eight-year sentence. [ 98 ] The accused did not accept the allegation that he was a repeat courier or that the analogy to the Smith Man QB decision was appropriate. [ 99 ] There are differences in the wording of the indictment in Smith Man QB compared to the information here. The fentanyl and cocaine counts in the information were specific to a single transaction occurring on April 6, 2019. Unlike in Smith Man QB ,

the information here had no trafficking count capturing the block of time which would include all of the accused’s suspicious air travelfrom November 2018 to February 2019, or a count alleging he was a party to a conspiracy to traffic from November 2018 up to andincluding April 6, 2019. Also, the Crown did not invoke section 725(1)(

c) of the Code at the sentencing hearing (see R v Larche, 2006SCC 56 at para 28). [100] The mere fact the accused had been convicted of the fentanyl and cocaine offences in relation to April 6, 2019 did notrelieve the Crown from the criminal burden of proof in relation to aggravating factors relevant to the sentencing objectives ofdenunciation and deterrence (see section 724(3)(

e) of the Code; and R v Angelillo, 2006 SCC 55 at paras 20, 27-32). [101] While appropriate deference is owed to the trial judge’s findings of fact, there is a distinction between an inferencedrawn reasonably and logically from established facts and impermissible conjecture and speculation (see R v Morrissey (1995), (ON CA), 97 CCC (3d) 193 at 209 (Ont CA)). [102] There is no doubt that someone travelling around Canada without the means to do so is highly suspicious; it was anappropriate reason for the trial judge to disbelieve the accused’s testimony.

However, a suspicious travel pattern alone is not sufficientproof to establish guilt of drug couriering generally or, in particular, couriering fentanyl. [103] At the trial, the Crown did call the evidence set out in the ITO that, on his visit to Winnipeg from February 26 to 27,2019, the accused went into Mr. M’s hotel room with his suitcase, met briefly with Mr. M and then exited with his suitcase. Hotel staffwent into Mr. M’s room and saw what they thought were drugs, three bundles of cash and a scale but, before police arrived, Mr. Mretrieved the items.

The hotel witnesses did not know what type of drug was observed. [104] Leaving aside the issue of whether there was sufficient evidence on the criminal standard to prove there was a controlledsubstance in the hotel room, the guilt of the accused for a CDSA offence on February 27, 2019 is not the only reasonable inference on thewhole of the evidence (see R v Villaroman, 2016 SCC 33 at para 30). The hotel room was rented by Mr. M. No one saw who Mr. Mhad dealings with other than the accused. No one saw the accused give anything to Mr. M, let alone drugs.

In short, there are otherreasonable alternative inferences on the whole of the evidence other than the accused’s guilt. [105] While the trial judge’s finding that what occurred on April 6, 2019 was not an “isolated incident,” and likely was ashrewd guess, in my respectful view, it lacks the proper evidentiary basis to be an aggravating factor on the sentence.

While the hotelincident was important to police having reasonable grounds to obtain the general warrant, there are important differences in the use ofinferences and the standard of proof in assessing the reasonableness of a search as opposed to establishing guilt (see Pilbeam at para 11). [106] Given the criminal burden of proof, there is simply too great an inferential gap on the whole of the evidence between theaccused’s suspicious travel patterns and the trial judge’s finding that the accused’s couriering of fentanyl on April 6, 2019 was not an“isolated incident”.

Noteworthy is the fact that the accused said nothing incriminating to police, to a witness or in his trial testimonyabout his prior travels to Winnipeg. There are no intercepted communications or physical evidence, such as other drug seizures, toconfirm the accused was regularly engaged in drug trafficking (see R v Luu, 2021 ONCA 311 at para 30). Finally, unlike in the case ofSmith Man QB, police did not search his luggage on any of the prior trips to confirm he was couriering drugs.

Because of public safetyconcerns associated with fentanyl, the investigation was terminated prematurely without apprehending the higher-level targets of theoperation, such as Mr. M. [107] The repeat courier finding error is not material. While that finding was used to distinguish the sentence in Petrowski, itwas not the reason the accused’s fentanyl sentence was increased.

As mentioned before, this is the only aspect of the trial judge’sassessment of proportionality in relation to the accused’s individual circumstances that cannot be reasonably supported. [108] The real difficulty with the sentence imposed arises from the fact that proportionality is not determined in a vacuum; it isassessed both on an individual basis “and by comparison with sentences imposed for similar offences committed in similarcircumstances” (Lacasse at para 53; see also Friesen at para 33; and Parranto at para 11).

Telling is whether the sentence is a“substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes” (M (CA) atpara 92) and the “reason” for such a departure (Lacasse at para 67). [109] After the accused was sentenced, the Supreme Court of Canada delivered its decision in Parranto. In the course ofallowing the Crown’s appeals, the Alberta Court of Appeal set a nine-year starting point for wholesale commercial fentanyl trafficking(see para 2). Mr. Parranto’s original 11-year sentence for fentanyl trafficking offences was varied to 14 years. Mr.

Felix’s originalseven-year sentence for fentanyl trafficking offences was varied to 10 years. The Supreme Court was unanimous (9-0) that fentanyltrafficking is, as Karakatsanis J put it in her dissent on the result, “a very serious offence” (at para 210). A majority of the Court (6-3)decided that the Court of Appeal did not err in using a starting point for wholesale commercial fentanyl trafficking as a form of appellateguidance. A different majority (7-2) concluded that the Court of Appeal did not err in increasing the sentences of Mr.

Parranto and Mr.Felix as, in each case, the original sentence was demonstrably unfit. [110] Important to understanding the discussion in Parranto is that the role of the two offenders was that of individuals whowere “very prolific and sophisticated fentanyl traffickers” (at para 207). Their role was far more serious than that of a mere courier, suchas the case of the accused. That is not to say drug couriers are not committing serious crimes; rather, it is to ensure a principledapplication of

section 718.1 of the Code in terms of ascertaining the “degree of responsibility of the offender.” [111] Based on a survey of 11 reported decisions from across Canada (including Petrowski), Brown and Martin JJ (on behalf ofthemselves and two other judges) commented that a national range of approximately “8 to 15 years” (at para 68) has arisen for thoseinvolved in the commercial wholesale trafficking of fentanyl in circumstances that would be considered to be mid-level or the beginningof high-level trafficking in Manitoba (see paras 68, 78).

A careful review of those 11 decisions confirms that none deal with the situationof a mere courier. All of the cases involved independent dealers, the directing mind of a drug network or someone performing animportant task in the trafficking activity with some decision-making authority or responsibility. [112] In his concurring opinion in Parranto, agreed to by two other judges on this point, Moldaver J was of the view that the

directing minds of large-scale fentanyl operations were currently receiving sentences in the upper single digits to lower double digits but, given the harmfulness and wrongfulness of fentanyl, it may be appropriate for sentencing judges to apply a “higher range, consisting of mid-level double digit sentences and, in particularly aggravating circumstances, potential sentences of life imprisonment” (at para 101). [ 113 ] The message delivered in Parranto is clear: absent some obvious reason that mitigates moral culpability, those who engage in commercial fentanyl trafficking at the mid or high level should receive very lengthy penitentiary sentences.

That approach accords with the fundamental purpose and principles of sentencing as set out in the Code and the CDSA . [ 114 ] Another appellate decision decided after the accused was sentenced is Olvedi . In that case, the accused played a similar custodial role like in Slotta and Hudson . Under some coercion, he received a shipment of pure fentanyl powder (499.5 grams with a value of upwards of $19 million) which amounted to just under 500,000 potential individual doses. He was receiving and holding the drugs to feed his cocaine habit.

After a trial, he received a sentence of 15 years’ imprisonment for importation and 12 years concurrent for possession for the purpose of trafficking. He was 33 years old with a minimal unrelated record and had excellent rehabilitative prospects. [ 115 ] The Ontario Court of Appeal affirmed the decision of the trial judge to use the same sentencing range historically referred to in that province for commercial importation of a large amount of high-grade heroin (12 to 17 years).

Trotter JA said it was “premature” to consider establishing a firm range for importing fentanyl despite the fact that fentanyl is a more potent drug than heroin (at para 52).

He went on to say that, although it was not necessary to say much about the sentence for possession for the purpose of trafficking, the aggravating factors of the case (the harmful effects of fentanyl and the significant amount, high purity and large value of the seizure) “justif[ied] the substantial penitentiary term that was imposed” for that offence (at para 60). [ 116 ] Finally, there is the decision of R v Lynch , 2022 ONCA 109 , where the Court of Appeal allowed the Crown’s appeal requesting that the accused’s total sentence be varied from four years to six years for trafficking offences involving fentanyl, cocaine and MDMA.

The Court stated that the Crown’s request for an eight-year sentence for mid-level trafficking in fentanyl (41.37 grams) was “not unreasonable in the circumstances” (at para 25), particularly as the accused had trafficked almost a kilogram of cocaine to undercover officers in other transactions, but the Court was of the view that the sentencing judge’s decision to place significant mitigation on the guilty pleas, lack of a related record and youth of the accused had to be given effect in the sentence as varied. [ 117 ] Post- Parranto , there is more clarity than when Petrowski and Slotta were decided to provide more definitive guidance as to quantum of sentence for mid-level fentanyl trafficking that reflects “a contemporary understanding of the gravity of the offence” ( Parranto at para 56 ; see also para 58). [ 118 ] The range of sentence for someone minimally involved in mid-level fentanyl trafficking, such as a courier or custodian without some decision-making authority or responsibility in the trafficking activity, is six to eight years’ imprisonment (leaving aside the effect of the aggravating and mitigating factors and, in the case of an Indigenous offender, a proper application of

section 718.2 (

e) of the Code ). I come to that conclusion for three reasons. [ 119 ] First, significant sentences for participating in commercial fentanyl trafficking offences are necessary to meet the fundamental purpose and principles of sentencing given the insidious nature of fentanyl (see

section 718 of the Code ; and section 10(1) of the CDSA ). In Petrowski , non-quantitative guidance was provided, recognizing that there is significantly more danger and harm to individuals and society posed by fentanyl trafficking compared to other hard drugs, such as cocaine and heroin (see para 49). [ 120 ] Second,

section 718.1 of the Code requires that the “gravity of the offence” be part of the assessment of proportionality. The “harms caused by the substance speak directly to the gravity of the offence” ( Parranto at para 58 ). Under the CDSA , the maximum punishment for trafficking all

Schedule I substances is the same: life imprisonment (see section 5(3)(a)). Therefore, as explained in Slotta , in order to recognize the greater wrongfulness and harmfulness of fentanyl, the range of sentence for trafficking in fentanyl must be higher than the comparable ranges for other hard drugs, such as the ranges for mid-level trafficking in cocaine discussed in Rocha at para 64 . [ 121 ] Third,

section 718.1 of the Code requires the “degree of responsibility of the offender” be part of the assessment of proportionality. As I have discussed, this Court has a long and well-defined jurisprudence as to assessing the role of the offender in drug cases in a principled fashion which is based “strictly [on] offence-based considerations” ( Parranto at para 47 ). Indeed, as the trial judge properly noted, the main difference why the sentence was higher in Petrowski than in Slotta , despite some similarities between the cases, is Mr.

Petrowski’s degree of responsibility was more serious; he was selling fentanyl for profit while the extent of Mr.

Slotta’s criminality was to receive and store drugs as a custodian to feed his drug habit. [ 122 ] The range of sentence for those more heavily involved in the trafficking of fentanyl than a mere courier or custodian at what, in Manitoba, would be considered mid-level trafficking is, according to Parranto , a very lengthy penitentiary term in the high single digits and will commonly be well into the double digits (leaving aside the effect of the aggravating and mitigating factors and, in the case of an Indigenous offender, a proper application of

section 718.2 (

e) of the Code ). That is consistent with what this Court said in Petrowski and Slotta .

Accordingly, those who have reduced moral culpability, such as a mere courier or custodian, should face a lesser range of sentence, but one that is still higher than the range for like offenders trafficking in other hard drugs. [ 123 ] Specific comment on the range of sentence for participation in street-level or high-level trafficking in fentanyl is a matter for another day. [ 124 ] If the appropriate range of sentence for a mid-level courier in fentanyl without some decision-making authority or responsibility is six to eight years’ imprisonment, is four years greater than that top end of the range justifiable because of the no-free- ride principle and the other circumstances relevant to the accused?

In my view, the short answer is no. [ 125 ] A 12-year sentence for mid-level fentanyl trafficking involving a mere courier has not been imposed for similar offenders in similar circumstances (see Clayton C Ruby & Sheila Nemet-Brown, Sentencing Ranges for Criminal Offences (Toronto: LexisNexis, 2021) at 197, 201-4; and Parranto at para 69 ). Such a sentence is more akin to what was imposed in Olvedi , which strikes me like

comparing apples to oranges. The sheer amount and the value of the drugs in Olvedi is more properly considered to be high-level trafficking in fentanyl. It is an entirely different and more serious situation (approximately 500,000 individual doses worth over $19 million compared to 2,200 individual doses worth $20,000 to $25,000). [ 126 ] A 12-year sentence for the accused is unduly long and is not warranted by the circumstances. Given the applicable ranges for couriering cocaine and fentanyl, the end result here amounts, in effect, to consecutive sentences for the two offences—not concurrent ones.

Even with the accused’s high moral culpability and ensuring he not receive a free ride for the cocaine offence, a 12- year sentence—particularly as the trial judge felt the principle of restraint had some relevance because of relative youth and potential ——is, in my respectful view, demonstrably unfit as it unreasonably departs from the principle of proportionality in light of all of the relevant circumstances and the applicable range. Resentencing the Accused [ 127 ] The interprovincial transportation of a hard drug is an extremely serious crime (see R v Beairsto , 2017 ABCA 225 at para 23 ).

This is particularly so when there is sophisticated organization behind the trafficking. The decision to deliver dangerous drugs across the country knowing (and not caring) that they will set off a chain reaction of human misery at their destination, simply to profit, is highly morally blameworthy conduct and may be an aggravating factor with regard to the sentence (see Parranto at para 70 ). [ 128 ] The accused is not an unintelligent or naïve person. He testified he was “very familiar” with the risks of fentanyl and has had friends die from overdosing on the drug.

Despite knowing first-hand what thousands of doses of fentanyl and cocaine could do to vulnerable people addicted to such drugs, he committed these serious crimes simply to profit. [ 129 ] In light of the trial judge’s untainted findings, I see no reason why a sentence at the top end of the six to eight-year range for mid-level fentanyl trafficking by a mere courier is not appropriate.

However, as explained in Burnett and Parranto , a sentencing range is advisory—not prescriptive; it can be departed from when necessary to achieve proportionality. [ 130 ] Couriering a kilogram of cocaine across the country would have led to a lengthy penitentiary sentence standing alone in light of Rocha .

In order not to give the accused a free ride for the kilogram of cocaine, departure upward from the range of six to eight years is appropriate (see Wozny at para 70 ). [ 131 ] But for the facts that the trial judge was prepared to exercise some restraint given the accused’s youth and rehabilitative prospects, and that there is insufficient proof to establish beyond a reasonable doubt that the accused couriered hard drugs more than once, in my view, he should have received the same sentence that was imposed in Petrowski : 10 years.

However, a “fair, fit and principled sanction”, in light of the trial judge’s untainted findings, the relevant circumstances, and the applicable sentencing principles and objectives, is a sentence of nine years’ imprisonment ( Parranto at para 10 ). Disposition [ 132 ] In the result, I would dismiss the conviction appeal, grant leave to appeal the sentence, allow the sentence appeal and vary the accused’s sentence on the fentanyl offence from 12 years to nine years’ imprisonment (less credit for pre-sentence custody as calculated by the trial judge). The remainder of the sentence remains as originally imposed.

JA I agree: JA I agree: JA