A Jamaican permanent resident who pleaded guilty to selling fentanyl could face deportation after an Ontario judge ruled against giving a lenient sentence based on his immigration status.
An Ontario judge refused to grant a lenient sentence to a Jamaican permanent resident who pleaded guilty to selling fentanyl simply because of his immigration status, meaning the man could be deported after he serves a two-year sentence for the crime.
Hopeton McFarlane, a permanent resident originally from Jamaica, was given a two-year sentence last Wednesday for possessing fentanyl for the purposes of selling it in Hamilton, Ontario, in 2024.
Unlike many other judges in Canada, Justice J.P.P. Fiorucci acknowledged the immigration consequences that could follow the sentence, but, given the seriousness of fentanyl trafficking and other factors, decided against giving the man a reduction to his criminal sentence to avoid deportation.
In a decision released Wednesday by the Ontario Court of Justice, Fiorucci noted several factors that led him to give McFarlane a two-year sentence followed by three years probation for fentanyl trafficking.
According to the court documents, on July 2, 2024, at approximately 9:59 a.m., police officers were conducting proactive foot patrol in the area of 70 James Street South in the City of Hamilton when they witnessed McFarlane kneeling beside a “working digital scale on which fentanyl was visible”.
Police believed McFarlane was in the middle of a drug transaction when he was caught.
“A search incidental to arrest revealed additional fentanyl and $760 in cash in Mr. McFarlane’s pocket,” the ruling states. “In total, police seized 8.44 grams of fentanyl and fentanyl residue from the digital scale.”
According to the report, when McFarlane admitted to trafficking the substance, he also said he sold the drugs because of “financial difficulties,” which led to Fiorucci ruling that McFarlane had an increased level of moral culpability due to his drug dealing not being primarily influenced by his own addiction to fentanyl.
The judge noted that fentanyl is a particularly heinous and dangerous drug and that the Ontario Court of Appeal has noted that selling the drug knowingly, as was the case with McFarlane, carries with it a higher standard of moral culpability than other drugs, as it imposes increased levels of risk on users.
“He admitted that he trafficked because of his financial circumstances. While there is no evidence concerning the duration or scope of his trafficking activities, the evidence clearly establishes that he knowingly possessed fentanyl for the purpose of sale and profit, even if the profits were modest,” Fiorucci stated in the decision. “This was not a situation involving the sharing of drugs among friends or trafficking undertaken in a non-commercial addict-to-addict context.”
Fiorucci acknowledged that giving McFarlane a sentence of six months or more “may result” in “admissibility proceedings,” but that collateral immigration consequences cannot be permitted to “dominate or skew the sentencing process and that sentencing judges must not impose artificial sentences designed to circumvent Parliament’s immigration regime.”
“The authorities uniformly establish that immigration consequences cannot justify a sentence that is otherwise disproportionate. The sentence imposed must remain proportionate to the gravity of the offence and the degree of responsibility of the offender,” Fiorucci ruled.
“I am concerned about the immigration consequences that may result from the sentence imposed on Mr. McFarlane,” Fiorucci continued. “However, having regard to the seriousness of the offence and Mr. McFarlane’s degree of responsibility, I am satisfied that a penitentiary sentence is required notwithstanding those immigration consequences.”
McFarlane’s sentence was, however, mitigated due to his rehabilitation post-arrest, including getting off fentanyl, attaining employed and becoming a more involved father, as well as the fact that he was relatively “youthful” at the age of 26 at the time of the offence and had no prior criminal record.
Along with McFarlane’s two-year prison sentence and three-year probation period after his release, Fiorucci made a DNA order and banned McFarlane from possessing firearms under s. 109 of the Criminal Code.
