



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lynn, 2019 ONCA 277

DATE: 20190408

DOCKET: C66306

Doherty, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Alan Lynn

Applicant/Appellant

Robert Sheppard, for the appellant

Jason Mitschele and Ira Glasner, for the respondent

Heard and released orally: April 4, 2019

On appeal from the sentence imposed on September 7, 2018
    by Justice Alissa K. Mitchell of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The applicant seeks leave to appeal his sentence of 26 months, less
    credit for pre-trial custody of four months, plus two years probation for
    possession of hydromorphone for the purpose of trafficking.

[2]

He submits that this sentence is excessive given the small quantity of
    drugs found in his possession, the fact that he is a drug addict, and given his
    efforts at rehabilitation. In particular, he asserts that the sentencing judge
    gave no consideration to his progress towards rehabilitation.

[3]

We do not agree with this submission.

[4]

The sentencing judge was acutely aware of the applicants addiction and
    his efforts at rehabilitation. Indeed, she had adjourned his sentencing on
    numerous occasions over the course of almost two years to give him an
    opportunity to receive treatment for his drug addiction in a residential
    treatment facility. However, the five-month residential treatment program he
    was to join did not materialize due to a conflict he had with a staff member
    shortly after his arrival. He ultimately failed to appear on the date set for
    his sentencing and the sentencing judge was required to issue a bench warrant
    for his arrest. Prior to the sentencing, the applicant confirmed that he was
    using opiates again. He also committed further offences while on bail pending
    sentence.

[5]

The applicant was trafficking in hydromorphone, a synthetic heroin
    substitute with deadly and destructive effects. Absent exceptional
    circumstances, the sale of heroin, even in small amounts by first offenders who
    are addicts, calls for a penitentiary sentence:
R. v. Farizeh
, [
1994] O.J. No. 2624 (Ont. C.A.)
,
at para. 5.

[6]

The sentencing judge gave detailed reasons for her decision. In addition
    to considering s. 10(1) of the
Controlled Drugs and Substances Act
,
    and the applicants efforts at rehabilitation, she addressed the circumstances
    of his offence, including the small quantity of drugs involved and his personal
    circumstances. She concluded that his stated desire and willingness to receive
    and participate in further addiction counselling and treatment rang hollow and
    made a finding that he did not present with exceptional circumstances. He was a
    victim because his low-level trafficking was a means to feed his drug habit,
    but he was also an offender.

[7]

She stated that the sentence imposed had to deter others and point the
    applicant in a different direction. Given his track record and desperate need
    for effective treatment, she reasonably concluded that a custodial sentence of
    26 months was warranted. She also recommended that his custodial sentence be
    served in an institution where he would receive treatment for his addiction.

[8]

The sentencing judge considered the relevant factors and applied
    appropriate principles. Moreover, she was in the best position to do so. The
    sentence was fit and we see no reason to interfere.

[9]

We note that the applicant will be parole eligible in about a week. We
    are told he has taken some rehabilitative steps. No doubt the Parole Board will
    give careful consideration to his early release on parole.

[10]

Leave
    to appeal sentence is granted, and the sentence appeal is dismissed.

Doherty
    J.A.

S.E.
    Pepall J.A.

Gary
    T. Trotter J.A.


