



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lynch, 2022 ONCA 109

DATE: 20220207

DOCKET: C69329

Paciocco, Nordheimer and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Paul Lynch

Respondent

Sarah Egan, for the appellant

Christopher Morris, for the respondent

Heard: January 14, 2022 by video conference

On appeal from the sentence imposed by Justice Malcolm
    McLeod of the Ontario Court of Justice on April 8, 2021.

Nordheimer
    J.A.:

[1]

The Crown seeks leave to appeal the sentence of four years imposed on
    Mr. Lynch from his convictions for various drug offences, including trafficking
    in cocaine, trafficking in fentanyl, possession of cocaine for the purpose of
    trafficking, and possession of the proceeds of crime. For the following reasons,
    I would grant leave to appeal, allow the appeal, and increase the sentence to
    six years.

A.

Background

[2]

The respondent sold an undercover officer fentanyl or cocaine on six
    occasions. Prior to the completion of the seventh transaction, he was arrested
    and charged with the various drug offences I have mentioned. The respondent pleaded
    guilty to the offences. In doing so, he accepted responsibility for a total of
    965.01 grams of cocaine, 149.28 grams of MDMA and 41.37 grams of fentanyl. The
    trial judge sentenced the respondent to four years. The Crown had sought a
    sentence of ten years. The defence had sought a sentence of three years.

[3]

The trial judge gave detailed reasons for the sentence that he imposed.
    In the course of his reasons, the trial judge expressed a general dissatisfaction
    with the approach to sentencing in drug cases. He referred to statistics
    relating to the over-incarceration of individuals who commit drug offences. He
    also criticized what he perceived to be the overuse of penitentiary terms of
    imprisonment for some drug offenders.

[4]

The trial judge then went on to express other concerns with the current
    state of the law on the sentencing of persons convicted of drug offences. Among
    other things, the trial judge said:

[T]he punitive sanction of incarceration should be reserved
    for a narrowly defined category of serious offences. The extent to which we
    have ignored that instruction has created the crisis of over-incarceration
.



Mr. Lynch was convicted of serious offences for which the
    punitive sanction of incarceration is required. But in determining the
    harshness of the sentence,
it is important to pay attention to the big
    picture and acknowledge that our over-reliance on the punitive sanction of
    incarceration is rooted in the fact that we place undue weight on the
    principles of denunciation and deterrence
.



Despite the obvious inference that the punitive strategy
    applied to heroin distribution contributed to the crisis resulting from
    oxycontin distribution and then fentanyl; the criminal justice system
    determined that the same approach must be applied, with even greater rigor.



It would be contrary to principles of justice to impose a harsh
    punitive sanction on a lower level drug trafficker as if he was the
    representative of the principals of the trafficking enterprise. Harsh punitive
    sanctions are required for lower level traffickers in fentanyl, but those
    sanctions should be within the range established for low level traffickers in
    dangerous drugs.



It must be borne in mind that the fact that the OCA issued a
    blanket endorsement of the practice of punishing an offender more severely than
    he deserved is difficult to reconcile with the principles of justice and fairness.
[Emphasis added.]

[5]

The trial judge proceeded to consider the range of sentence for the
    offences that were before him. He reviewed the existing case law and concluded
    that the range of sentence for a mid-level trafficker (which he considered the
    respondent to be) dealing in fentanyl was five to eight years. He compared that
    to what he found to be the range for a mid-level trafficker dealing in cocaine,
    four to six years.

[6]

The trial judge then considered the impact that the respondents guilty
    plea should have on the ultimate sentence. He expressed the view that a guilty
    plea must be given significant weight and that it must result in a sentence
    which is significantly lower than would be imposed on a person found guilty
    after trial. The trial judge then criticized what he viewed as the practice of
    failing to give the appropriate weight to a plea of guilt. He said:

By the same token, it is hard to imagine that in such a case,
    the criminal justice system could be permitted to simply accept the plea as
    providing the opportunity to impose a harsh sentence of incarceration in the
    upper penitentiary range simply to send a message. What would the message be?
    That he was a sucker for thinking that our purpose was to promote a sense of
    responsibility in offenders, or that we were interested in restorative justice
    and mitigating the harm done to society by acting on principles of justice and
    fairness?

[7]

Finally, the trial judge noted that appellate courts have frequently
    supported sentencing judges who chose a harsh punishment as their preferred
    message, finding it to be a matter of discretion. The trial judge commented
    that this discretion must cut both ways, a result that he appeared to believe
    had not been happening.

[8]

Ultimately, the trial judge imposed a sentence of four years. He
    acknowledged that he might have chosen a sentence at the upper limit of the
    range, that is, six or seven years, but that there was no basis to think it
    would constitute a more effective message to others in the community.

B.

Issues on Appeal

[9]

The Crown seeks leave to appeal the sentence and alleges three errors committed
    by the trial judge: first, that he erred by failing to give sufficient weight
    to the principles of denunciation and deterrence; second, that he erred by
    overemphasizing the respondents guilty plea; and third, that he imposed a
    sentence that was demonstrably unfit.

C.

Analysis

[10]

In
    my view, the trial judge made fundamental errors in his reasons leading to the sentence
    he imposed. Among others, he misidentified the range of sentence for mid-level
    traffickers in cocaine and then used that erroneous range in drawing his
    comparison to the range of sentence for mid-level traffickers in fentanyl,
    thereby misapprehending the gravity of the offence. He also erred in principle
    in evaluating the respondents degree of moral blameworthiness. The trial judge
    also gave erroneous consideration to the respondents guilty plea, including by
    failing to take into account that one of the reasons underlying a range of
    sentence is that the lower end of the range has already made some effort to
    account for specific mitigating factors, such as a plea of guilt.

[11]

Before
    turning to those errors, I must comment on the general tenor and approach of
    the trial judges reasons. There is an existing debate over the appropriateness
    of judges in lower courts negatively commenting on, or criticizing, the reasons
    of higher courts. Some argue that the only appropriate place for such criticism
    is in law review articles or similar forums, but it is not appropriate in
    judicial reasons. Others argue that it is appropriate, in certain
    circumstances, for such criticisms to be included in judicial reasons, but within
    defined limits.

[12]

I
    do not propose to weigh into that debate. I will say that I can certainly
    appreciate that trial judges may, from time to time, become frustrated with a
    particular approach that is developed by appellate courts. Trial judges are on
    the front lines of the justice system and they will be the first to see if a
    particular approach is either not working or has become outdated. Measured
    expressions of that frustration may be a mechanism whereby appellate courts can
    become aware of the problem and, hopefully, correct it. After all, our approach
    to sentencing is not, and should not be, fixed in stone. Sentences may increase
    or decrease as societal and judicial knowledge and attitudes about certain
    offences change:
R. v. Parranto
, 2021 SCC 46, 463 D.L.R. (4th) 389, at
    para. 22. Trial judges are likely to be the first to become aware of such
    changes. It may also be that the expression of that frustration by trial judges
    will draw the attention of those in government who may choose to legislate a
    correction.

[13]

However,
    to the degree that a judge of a lower court considers it necessary to critically
    comment within their judicial decisions on the decisions of higher courts, it
    is important that this be done with discretion and in measured terms. Unless
    undertaken with care, criticisms by lower courts of the decisions of higher
    courts can undermine confidence in the administration of justice by needlessly denigrating
    the fairness of the law, or the authority of those who administer it. In this
    case, the trial judge, while expressing some very legitimate concerns about the
    current approach to sentencing, crossed over the line. Indeed, some of the
    comments made by the trial judge enabled the Crown to argue credibly that the
    trial judge paid lip service to the principles of denunciation and deterrence
    but ignored them in application. Given the errors in principle that I am about
    to describe, I need not pursue this ground of appeal, so I will say no more
    about it.

(1)

The trial judges specific errors

[14]

Returning
    then to the errors involved, the trial judge erred in concluding that the range
    of sentence for mid-level traffickers of cocaine is four to six years.
    Decisions of this court have established that the range for such offenders is five
    to eight years: see, for example,
R. v. Maone
, 2020 ONCA 461, at paras.
    12-13. Further, fentanyl is a more dangerous drug than is cocaine. To the
    degree that the trial judge used his comparison of these ranges to justify a
    lower sentence in this case, he erred.

[15]

To
    be clear, the trial judge initially correctly identified the sentencing range
    in this case as between six and eight years. However, he then incorrectly
    lowered that range by his erroneous comparison to what he thought was the
    comparative range for cocaine. He appears to have adopted this approach because
    of his view that all dangerous drugs should be treated the same when it comes
    to sentencing. That view itself reflects error. It is a well-established
    principle that drugs vary in the degree of danger that they represent to those
    who consume them. Consequently, the more dangerous the drug being trafficked,
    the higher the penalty that will be imposed. Fentanyl is now known to be a much
    more dangerous drug than almost any other. That reality directs that a sentence
    imposed for trafficking in fentanyl should be as long or longer than a
    corresponding sentence for trafficking in cocaine:
R. v. Olvedi
, 2021
    ONCA 518, 157 O.R. (3d) 583, at para. 56, leave to appeal to S.C.C. requested,
    39854.

[16]

Relatedly,
    the trial judge engaged in erroneous reasoning in situating the respondents moral
    blameworthiness, a key consideration in determining his degree of
    responsibility and hence a proportionate and fit sentence. First, the trial
    judge made extensive comments about the level of culpability of lower level
    traffickers in fentanyl, notwithstanding his finding that the respondent was a
    mid‑level trafficker. The comments he made about low-level traffickers
    are concerning, and clearly influenced his perception of the respondents level
    of moral blameworthiness. The trial judge suggested, for example, that in large
    part, the culpability of lower level traffickers in fentanyl were similar to
    lower level traffickers in other drugs, because they are usually the same
    people. Even if true, the fact that fentanyl traffickers may be the same
    people that traffic in other drugs has no bearing on their moral
    blameworthiness for choosing to traffic in fentanyl, a particularly dangerous
    drug. As the majority recognized in
Parranto
, at para. 70, moral
    culpability rises with the risk of serious harm the trafficker is prepared to
    expose others to.

[17]

There
    is good reason for this. The problems that dangerous drugs pose for our society
    are well known. They involve drug addiction, adverse health consequences and,
    unfortunately all too often, death. Further, drugs are often sold to already
    vulnerable people thereby exacerbating their difficult circumstances. Still
    further, there are the indirect costs to society through increased health care
    expense, increased demands on the health care system, increases in robberies or
    other forms of criminal activity, and increases in violence. Simply put, the
    greater those risks are when a particular drug is being trafficked, the greater
    the offenders culpability or moral blameworthiness for choosing to traffic in
    that drug.

[18]

The
    trial judge also erroneously downplayed the respondents role in all of these
    consequences when he said that the respondent was not the representative of
    the principals of the trafficking enterprise, who [produce] fentanyl as a
    more powerful opioid. Of course, those at the top of the supply chain deserve
    harsher sentences. But the fact that the respondent was not at the pinnacle of
    the drug dealing empire does not reduce the respondents level of moral
    blameworthiness or mean that his actions are not serious. The producers of a product
    cannot get it into the hands of the consumer if there is no one to sell and
    deliver it.

[19]

I
    also do not accept the trial judges apparent effort to diminish the moral
    blameworthiness of the respondents conduct by suggesting that his culpability
    as a drug trafficker doesnt increase because of the number of times the police
    set him up for transactions before finally making an arrest. This is not a
    situation where the police provided an irresistible opportunity to the
    respondent to do something that he would not otherwise have been inclined to
    do, as that concept is discussed in entrapment cases. Nor is it a case where
    the police simply engaged repeatedly in similar conduct to escalate the number
    of counts that could be laid. What the multiple occasions, on which he sold
    drugs to the undercover officer, served to show was that the respondent was an
    active drug dealer who was not only prepared, but able, to scale up his supply
    of drugs to meet the demands of his customer, even when the transactions
    engaged significant sums of money or included fentanyl. The initial transaction
    was for the sale of 1.55 grams of cocaine for $150. Transactions involving more
    cocaine followed. Then came the fentanyl trafficking. The last proposed
    transaction was for $12,300 of cocaine. Upon his arrest, the respondent and a
    second male were found in possession of a total of 572.29 grams of cocaine and
    149.28 grams of MDMA. The respondent ultimately took responsibility for all
    drugs sold or seized, including the drugs seized from the second male. In my
    view, rather than lessening the respondents moral blameworthiness through
    repetition, the repeated transactions, increasing in seriousness, exposed the
    scale of his drug trafficking enterprise and amplified his moral
    blameworthiness.

[20]

The
    trial judge also erred in overemphasizing the guilty plea in this case. He did
    so in at least two respects. The first is that the mitigating effect of a guilty
    plea will vary in weight from case to case:
R. v. Daya
, 2007 ONCA 693,
    229 O.A.C. 291, at para. 15. A guilty plea where there is a genuine issue for
    trial may be worthy of more weight than a guilty plea in a case where the
    outcome of a trial is evident to all concerned. Similarly, a guilty plea in a
    complicated case, where the trial may take many weeks of court time, may also
    be worthy of greater weight than one given in the context of a case where the
    trial would last a day or two. Simply put, one cannot adopt a universal
    approach to the significance of a guilty plea as a mitigating factor. There is
    no indication that the trial judge gave any regard to the circumstances
    surrounding the respondents guilty plea, which came in the face of an
    overwhelming case.

[21]

Second,
    the trial judge erred in evaluating the effect that the guilty plea should have
    on how the respondent should be sentenced relative to the sentencing range. In
    saying all of this, I recognize that simply departing from a range of sentence
    may not itself constitute an error justifying appellate intervention:
Parranto
,
    at para. 29. Appellate intervention is warranted, however, where the reason for
    the departure is an erroneous understanding of the factors leading to the
    adoption of the range or a rejection of the range as flawed. In this case, the
    trial judge committed both of these errors.

[22]

The
    trial judge failed to recognize that the range of sentence allows for the
    application of mitigating factors such as guilty pleas. That is why there is a
    range. Sentences at the lower end of the range will be justified by the
    individual mitigating factors of the case. Indeed, mitigating factors may
    justify going below the bottom end of the range. Among those mitigating factors
    is a guilty plea. However, the fact that the accused person has pleaded guilty will
    not, by itself, generally justify going below the bottom of the range,
    particularly not in a case such as this where, as the trial judge recognized, the
    respondents background and circumstances do not entitle him to exceptional
    leniency.

[23]

These
    errors infected the sentence that was imposed. They rendered the sentence an
    unfit one, given the circumstances underlying the offences. It thus falls to
    this court to determine the appropriate sentence.

(2)

The appropriate sentence

[24]

While
    the Crown asked for a ten-year sentence before the trial judge, and repeated
    that request in its factum, at the hearing the Crown reduced the request to a sentence
    of eight years. This reduction resulted, at least in part, from the recent
    decision of
Parranto
where the Supreme Court of Canada upheld ten-year
    sentences for individuals who were higher level drug dealers than the respondent
    was.

[25]

The
    Crowns requested sentence is not unreasonable in the circumstances of this
    case. Indeed, it reflects the level of sentence suggested by this court: generally,
    offenders  even first offenders  who traffic significant amounts of fentanyl
    should expect to receive significant penitentiary sentences:
R. v. Loor
,
    2017 ONCA 696, at para. 50. In fashioning an appropriate sentence, it must not
    be forgotten that the respondent was also convicted of trafficking in almost a
    kilogram of cocaine.

[26]

However,
    the Crowns requested sentence fails to give adequate consideration to the fact
    that the respondent pleaded guilty. While the trial judge and I might differ on
    the level of mitigation that should be applied for a plea of guilt in these
    circumstances, I do not quarrel with him that it is a significant mitigating
    factor. I am also cognizant of the fact that the respondent has a criminal
    record consisting of only a single entry, unrelated to drug activity. He is
    also relatively young  29 years of age at the time of the offences. Consequently,
    after accounting for these mitigating factors, I would impose a sentence of six
    years.

D.

Conclusion

[27]

The motion for leave to appeal the sentence
    is granted. The appeal is allowed. The sentence of four years is set aside,
    and, in its place, a sentence of six years is substituted. The credit of six
    months for time spent on strict bail is not challenged so the ultimate sentence
    to be served is five and one-half years.

Released: February 7, 2022 David M. Paciocco J.A.

I.V.B. Nordheimer J.A.

I agree. David M. Paciocco J.A.

I agree. Sossin J.A.


