R v Feser, 2015 ABQB 786

Court of Queen ’ s Bench of Alberta Citation: R v Feser, 2015 ABQB 786 Date: 20151210 Docket: 131035545Q1 Registry: Calgary Between: Her Majesty the Queen - and - Jaren Wayne Feser Accused _______________________________________________________ Sentencing Reasons of the Honourable Chief Justice Neil Wittmann _______________________________________________________ Introduction [ 1 ] Jaren Wayne Feser pleaded guilty to four charges against him under the Controlled Drugs and Substances Act, SC 1996 as

amended (“the CDSA”). The charges are as paraphrased: 1. That he did, between October 2 nd , 2012 and October 9 th , 2012, unlawfully traffic in a controlled substance, namely Methylenedioxyamphetamine (MDA), contrary to section 5(1) of the CDSA; (Count 1) 2. That he, on or about October 24 th , 2012, at or near Galahad, Alberta, did unlawfully produce a controlled substance included in

Schedule III, namely Methylenedioxyamphetamine (MDA), contrary to section 7(1) of the CDSA; (Count 3) 3. That he, on or about October 24 th , 2012, at or near Galahad, Alberta, did unlawfully possess, produce or import a substance included in

Schedule VI, namely Red Phosphorus, knowing that it will be used to produce a substance in

Schedule I, namely Methamphetamine, contrary to

section 7.1(1) of the CDSA and; (Count 9) 4. That he, on October 24 th , 2012, at or near Galahad, Alberta, did unlawfully attempt to produce a controlled substance included in

Schedule I, namely Fentanyl, contrary to section 7(1) of the CDSA. (Count 11) [ 2 ] Feser was examined extensively by both his counsel and the Court in order to satisfy the Court that the provisions of section 606(1.1) , the Criminal Code had been complied with. The Court indicated it was satisfied that the

section had been complied with and accepted the guilty pleas on four counts. All references to the CDSA in these reasons are to the version in force at the time of the offence dates. Facts [ 3 ] An Agreed Statement of Facts (“AF”) was entered as Exhibit 1, dated December 2 nd , 2015 and signed by counsel for the Crown, Counsel for Feser and Jaren Feser. [ 4 ] In early October 2012, the HIV Network located in Edmonton, Alberta, began receiving suspicious letters containing white powder, resulting in an investigation by the Edmonton Police Service (“EPS”).

The HIV Network received 10 letters addressed to people around the world, including a person in Edmonton, with the return address being the HIV Network office in Edmonton. The HIV Network had not sent out the letters, which in fact contained an old logo, not in use by the HIV Network at the time. The EPS seized the ten letters and forensically examined them, maintaining continuity during the examination.

The examination of the contents of each letter revealed the same four step packaging system of a blue or green piece of paper; a white paper packet; a clear Ziploc baggie; and an inner clear Ziploc baggie containing a white powdered substance. [ 5 ] The white powdered substance was analyzed by Health Canada and was determined that all 10 letters contained the prohibited drug MDA, a

Schedule III drug under the CDSA. [ 6 ] Feser’s fingerprints were discovered either on the envelope or on the internal packaging of seven of the 10 letters. [ 7 ] The letters were processed by Canada Post based on the coding written on each envelope, but the mail processing machine could not decipher the addresses because there was insufficient space between the addressor and addressee information, resulting in the letters mistakenly being mailed back to the return addressee, namely the HIV Network. [ 8 ] As indicated, one of the addressees was from Edmonton.

That person made a voluntary statement to the EPS, that he bought what he believed to be MDMA (ecstasy) from an internet website called “The Silk Road”. He stated “The Silk Road” was a website where illegal items could be bought anonymously and that he bought 0.5g of MDMA for approximately $50 from a username or dealer named “Montel Williams” in late September, 2012. The total weight of all the MDMA contained in the 10 letters was 69.8 grams. The estimated value is $7,000. [ 9 ] Meanwhile, in September 2012, the RCMP Calgary Drug

Section was investigating Feser because the Canada Border Services Agency (“CBSA”) had seized two packages which allegedly contained chemical precursors used for the production of methamphetamine. The packages were destined for a UPS Store in Calgary. A Production Order in relation to the box number at the UPS Store was obtained. In the result, the owner of the UPS Store provided the RCMP with the rental agreement for the rental box signed by Feser. The rental agreement included a copy of Feser’s picture identification.

Thereafter, the owner cooperated with the RCMP when Feser received any packages, containers or mail at the UPS Store. Feser then came under surveillance, resulting in a general warrant being obtained by the RCMP for any package, container or mail received at the UPS Store destined for Feser’s mailbox. The warrant allowed the RCMP to inspect any package, container or mail, to determine its contents. [ 10 ] An inspection occurred on October 10 th , 2012 and a package and five containers addressed to business names registered to Feser.

The package contained 2 kilograms of N-phenethyl-4-piperidinone (“NPP”) and the containers were 5 x 20 L barrels of Benzaldehyde. Feser was observed picking up the chemicals at the UPS Store in his vehicle and was followed for approximately 300 kilometers, in the direction of Feser’s residence at Galahad, Alberta.

Feser was then stopped and arrested for possession of a substance used for producing methamphetamine. [ 11 ] Feser had filed civil claims against DHL Canada, Federal Express Canada and TNT Express Canada when they failed to deliver chemicals he ordered, namely a total of 30 kilograms of 1-phenyl-2 nitropropene and 2 kilograms of NPP. These deliveries were not made because the CBSA had intercepted and seized the chemicals. [ 12 ] It is agreed that a Health Canada expert stated that 1-phenyl-2-nitropropene is a chemical that can be used to produce the CDSA

Schedule VI Precursor MDP2P and ultimately methamphetamine. [ 13 ] On October 25 th , 2012, a search warrant was executed at Feser’s Galahad residence with the assistance of the Clandestine

Laboratory Response Team and a clandestine laboratory was discovered inside the attached garage. Lab glassware, lab equipment, Ziploc bags, filter funnels, acetone and white crystal powder was among the seized items, as well as beakers, isopropyl alcohol, to name some. In all, over 200 items were seized including little baggies of drugs packaged for distribution, on top of an autographed photo of Montel Williams and letters containing drugs ready to be mailed. [ 14 ] Also discovered was a 502g bag of GHB (4-hydroxybutanoic acid) having a value of $2,500 – $5,000. [ 15 ] MDMA is more commonly known by the name “ecstasy”, a

Schedule III drug within the CDSA at the time of the offence. It is agreed that Feser possessed all the required precursor chemicals, ingredients and lab equipment to produce MDP2P and subsequently MDMA. MDP2P is a Class A Precursor under

Schedule VI of the CDSA and is a key ingredient in producing the prohibited drug MDMA. The Health Canada expert was able to produce MDP2P and MDMA in her laboratory using the precursor chemicals and other ingredients seized from Feser’s residence. Her estimate was that Feser was capable of producing 2.1 kilograms of MDMA given the quantities of MDP2P that could be produced and the quantity of MDP2P discovered. [ 16 ] A key ingredient in the production of MDA is MMDPPA (ɑ-methyl-3, 4-methylenedioxylpropionamide).

Feser possessed all of the required precursor chemicals, ingredients and lab equipment to make MMDPPA and subsequently MDA. [ 17 ] In addition, 667.8 grams of MDA powder was seized from Feser’s residence and if sold on the “Silk Road” website for $50 per 0.5 grams, the value of the seizure would be $66,780. Again, the Health Canada expert was able to produce MDA in her laboratory using the precursor chemicals and other ingredients seized from Feser’s residence.

It was estimated that Feser was capable of producing 4.39 kilograms of MDA given the quantities of chemicals and ingredients seized. [ 18 ] Methamphetamine is a

Schedule I drug under the CDSA and Red Phosphorus is a Class A Precursor under

Schedule VI of the CDSA. The Health Canada expert concluded that one of the necessary ingredients to produce methamphetamine was not located in the Galahad residence and therefore, methamphetamine could not be produced with the chemicals and ingredients seized. [ 19 ] Fentanyl is a

Schedule I drug within the CDSA. NPP (N-phenethyl-4-piperidonone) + aniline + dry methanol + sodium borohydride produces ANPP. ANPP and NPP are key ingredients to produce fentanyl and Feser possessed all of the required precursor chemicals, ingredients and specific lab equipment necessary for that production. The Health Canada expert estimated that Feser was capable of producing 1.5 kilograms of fentanyl given the ingredient quantities.

The Health Canada expert indicated that NPP, aniline and propionic anhydride are chemicals specific to the production of fentanyl and not used in the production of MDA, MDMA, GHB or methamphetamine.

Nor was the Health Canada expert aware of any legitimate use of the chemical NPP and her opinion was that NPP is most commonly used to begin the production process for fentanyl. [ 20 ] No fentanyl was actually found at the Galahad residence but Feser admits, in the AF, that the lab equipment and possession of NPP, aniline and propionic anhydride are actions “beyond mere preparation” and thus constitute an attempt to produce fentanyl within the meaning of CDSA 7(1) and

section 24 of the Criminal Code of Canada . [ 21 ] On March 21 st , 2013, the Feser was released on his own recognizance of $20,000 with numerous conditions, some of which required him to report two times a month by telephone to a probation officer and to the RCMP detachment at Killam, Alberta and to live where approved by a probation officer.

Further, he was to have no contact or communication, either directly or indirectly, with any commercial chemical and /or supply company and was banned from going to the residence in Galahad with a one-time exception, in the company of a RCMP officer, to retrieve personal property. [ 22 ] Feser did not, between March 21 st , 2013 and July 29 th , 2013, report to his probation officer two times a month by telephone, nor did he report to the Killam RCMP. In addition, he did not reside where approved by his probation officer and was observed attending his residence in Galahad.

Between April 17 th , 2013 and July 28 th , 2013, Feser opened an account at the UPS store at Bowness Road in Calgary and ordered, through his business names, a number of chemicals, including NPP. [ 23 ] On July 30 th , 2013, a second search warrant was executed at the Galahad residence and Bills of Lading, Purity Analysis Certificates, Commercial Invoices and Certificates for Safe Transportation of Chemical Goods for a number of chemical substances, including NPP were discovered.

Feser was arrested for new provincial offences on July 29 th , 2013 and was formally arrested and charged for the breaches of the recognizance on July 31 st , 2013. [ 24 ] There has been no preliminary inquiry in this matter. Rather, Feser consented to his committal. [ 25 ] Feser has a Canadian and an American criminal record. The Canadian record is not related to the subject offences. In 2009, Feser was convicted of impaired driving in West Vancouver, BC, and received a conditional sentence and was prohibited from driving for 18 months.

In January 2014, Feser was convicted on two counts of assaulting a public officer or peace officer and sentenced to 45 days in jail and at the same time, convicted of obstructing a public officer or peace officer in the execution of their duties, for which he received a 30 day sentence. [ 26 ] On February 2 nd , 2015, Feser was convicted of dangerous driving and mischief by willfully destroying or damaging property. He received an eight month sentence, a two-year driving prohibition and an $18,000 Restitution Order. [ 27 ] Feser has a related record in the United States.

He was convicted of selling amphetamines and possession of Red Phosphorus with intent. He was sentenced to three years in prison and fined $1,500 after pleading guilty. The conviction was registered May 16 th , 2005 and he attained supervised release November 7 th , 2006. Credit for Time Served

[28] Counsel agreed that credit for time served should be calculated on the basis of 1.5:1. To today’s date, the accused will receivecredit for 1267 days incarceration from whatever sentence is imposed. This equates to 3.47 years or approximately 41 ½ months. Sentencing Submissions [29] A number of case law authorities were put forward by the Crown and the Defence. By the Defence: R v Knott 2012 SCC 42, [2012] 2 SCR 470; R v Georgiev, 2014 BCCA 246 , [2014] BCJ No 1915 (B.C. Court of Appeal); R v Hoang, [2002]OJ No 1355; R v Grace, 2007 MBQB 143; R v Patrick, 2006 ABPC 124.

By the Crown: R v Medeiros-Sousa, 2014 ONCJ No 626; R vLu, 2015 ONCJ; R v Miller, 2014 ONCJ No 4786; R v Gatfield, 2015 ONCJ; R v Phun, 1997 ABCA 344; R v Ostertag, 2000 ABCA 232;R v Patrick, supra; R v Grace, supra; R v Bamdad, 2013 BCCA 87; R v Chui, 2015 ONSC 2490; R v Li, 2009 BCCA 85; R v Chan,20087 ONCJ 271; R v Qu, 2009 ONCJ [25]. A number of other authorities were put forward by the Crown, in a

summary chart fashion:R v Sinclair, 2014 unreported; R v Mitchell, [2014] OJ No 2556; R v Enn-Liberty, [2014] OJ No 4784; R v Baks, 2015 ONCA 615; R vRowley, [2014] OJ No 2610; R v Smith, 2015 ONSC 4064; R v Brooker, [2015] OJ No 2609; R v Miller, [2014] OJ No 4786; R vSrokosz, Dec, 2014 unreported; R v McMahan & Edwards, Dec 18, 2014 unreported; R v Barr, Oct 8, 2014, unreported; R v Gatfield; R vCloutier, [2015] OJ 4783; R v Medeiros, supra; R v Lu, March 2015 OCJ; R v Barribeau, 2014 ONCJ; R v Comer, 2015 ABPC 140; R vReid, 2015 NSSC 276; R v Rak, 2015 ONCJ 543; R v Loveday, April 2, 2015 unreported; R v Wilson, January 8, 2014, unreported; R vMarchese, 2015 ONCJ 126; R v Innes, 2015 ONCJ; R v Toth-Dugaru, 2015 ONSC 480. [30] By the Court: R v Arcand, 2010 ABCA 363; R v Gouthro, 2010 ABCA 188; R v C(RW), 2005 SCC 61 , [2005] 3SCR 99.

Personal Circumstances of the Offender [31] The offender is 31 years old and comes from a middle class family. He was born in Comox, British Columbia and raised inLangley, British Columbia. He attended High School through Grade 11, had a generally good upbringing and has since completed Grade12. He has one brother and one sister. From ages 22 through 28, he worked as a drywaller. He lived in Galahad, Alberta, since attainingthe age of 27. Feser suffers from depression.

His counsel submits that his expression of remorse is his tendering of an early guilty plea.The Crown concedes that there was no preliminary hearing and that the offender’s guilty plea is “early”. Submission on Sentencing [32] The Crown has requested a global sentence of 5 to 5 ½ years, based on the AF and the criminal record of the accused and thatthis term is supported by case law. The offender’s counsel submits that time served or the equivalent of 3.47 years meets all of therequisites of sentencing, although it falls short of 5 years.

Instead, it is argued that the time served should be accompanied by a lengthyperiod of probation, perhaps 2 to 2 ½ years. In addition, the Crown seeks a DNA Order and a Firearms Prohibition Order and a ForfeitureOrder. The offender’s counsel takes no issue with the Firearms Prohibition Order or the Forfeiture Order but disputes the DNA Order,unless the Court is dealing with a primary designated offence. General Sentencing Considerations [33] The CDSA contains a specific provision as to the purpose of sentencing. It states as follows: 10.

(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this

Part isto contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, andtreatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. Circumstances to take into consideration

(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment,the court imposing sentence on the person shall consider any relevant aggravating factors including that the person (

a) in relation to the commission of the offence, (

i) carried, used or threatened to use a weapon, (ii) used or threatened to use violence, (iii) trafficked in a substance included in

Schedule I, II, III or IV or possessed such a substance for the purpose of trafficking, in or near aschool, on or near school grounds or in or near any other public place usually frequented by persons under the age of eighteen years, or (iv) trafficked in a substance included in

Schedule I, II, III or IV, or possessed such a substance for the purpose of trafficking, to a personunder the age of eighteen years; (

b) was previously convicted of a designated substance offence; or (

c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, a designatedsubstance offence.

Reasons

(3) If, under subsection (1), the court is satisfied of the existence of one or more of the aggravating factors enumerated in paragraphs (2)(

a) to (c), but decides not to sentence the person to imprisonment, the court shall give reasons for that decision. 7.1(1) No person shall possess, produce, sell or import anything knowing that it will be used to produce or traffic in a substance referred to in item 18 of

Schedule 1 or subitem 1(9) of

Schedule III.

(2) Every person who contravenes subsection (1) is guilty of an indictable offence and liable to imprisonment for a term of not more than ten years less a day. [ 34 ] The maximum sentence for trafficking or producing MDA at the time of the offences was 10 years. Similarly, the maximum penalty for possessing, producing or importing a substance used to produce a substance in

Schedule I, at the time of the offence, was 10 years less a day. [ 35 ] The maximum penalty for attempting to produce fentanyl was 14 years, at the time of the offence: section 7(2)(

a) of the CDSA, tempered by

section 463 (

a) of the Criminal Code . [ 36 ] The provisions of

section 718, 718.1 and 718.2 and other provisions of

section 718 contain a number of principles of sentencing, including the objectives and purpose of sentencing. In addition, a Court is to consider aggravating or mitigating circumstances relating to the offence or the offender, the parity principle and the totality principle. [ 37 ] In this case, the Crown has emphasized denunciation and deterrence and the separation of the offender from society.

The offender’s counsel has emphasized rehabilitation and promoting a sense of responsibility in the offender through a lengthy term of probation with conditions and the offender attending programs. [ 38 ] A review of some of the case law authority put forward in the context of drug related offences is helpful, especially the charge relating to the attempt to produce fentanyl. The Case Law (

a) The Fentanyl Cases [ 39 ] In Medeiros-Sousa , the Court accepted the evidence of an expert forensic toxicologist, Dr. Karen Woodall, about the nature of fentanyl. As accepted by the trial judge, it was stated that fentanyl was 10-20 times stronger than heroin and that misuse of a fentanyl patch, which is designed to slowly release the drug in order to control pain over a number of days, can cause death. The misuse or abuse can occur by chewing, melting or otherwise consuming the contents of the patch: para. 8. In Lu , another Ontario justice referred to R v.

Turner [2003] OJ No 685 , where the Ontario Court of Appeal said that synthetic forms of heroin, such as fentanyl, were as serious as heroin: at page 1. In another Ontario case, Miller , Dr. Woodall was referred to again with respect to a sentencing for trafficking in fentanyl. Accepting the evidence of Dr. Woodall, the trial judge stated at page 4: Abusing fentanyl then is a very dangerous thing to do, as it is also a central nervous system depressant according to Doctor Woodall and lowers and can even stop breathing which all too frequently can cause death. [ 40 ] The justice also found at page 9 that Dr.

Woodall testified “in another case at the present time in Ontario” that fatalities caused by misuse of fentanyl were increasing and now exceed those caused by heroin. That was in 2014. In Gatfield , another Ontario justice stated at page 5: We are talking about fentanyl. It is a drug which is 100 times more powerful than morphine. It is at least 20 times more powerful than heroin. It is a powerful drug, even when prescribed and used properly. It is an opioid. It is used to treat severe pain.

It is potentially destructive, addictive, and lethal. [ 41 ] In Medeiros-Sousa, the offender was a pharmacy assistant and stole a number of drugs from her employer, including 28 fentanyl patches. The judge found that, although she was not engaged as a commercial trafficker, the amount of the heroin like drug could not be characterized as a small amount: para. 24. Nelson J. emphasized that the principal sentencing objective with drug trafficking, particularly heroin trafficking, is deterrence.

The offender had no criminal record, was generally remorseful and entered a plea and was taking steps to address her addiction. She received a global sentence of 30 months. [ 42 ] In Lu, a similar sentence of 30 months was meted out for a conviction of being in possession of a substantial quantity of fentanyl for the purpose of trafficking. It was characterized as a commercial crime, without any guilty plea and no admission of responsibility. The offender had a prior conviction for a related offence.

In Miller , the offender plead guilty to a single count of trafficking in fentanyl, when he sold an undercover officer fourteen 50 micrograms of fentanyl patches for the sum of $1,260.00. He was sentenced to 33 months in a penitentiary. In Gatfield , the judge stated that trafficking in fentanyl is deserving of a penitentiary time, even for first time offenders. At page 10, the judge referred to the August 2015 Report by the Canadian Centre on Substance Abuse and noted that between 2009 and 2014, there were at least 655 deaths in Canada where fentanyl was determined to be a cause or contributing cause.

Also noted at page 11 of the judgment was that a number of deaths involving fentanyl in Canada’s four largest provinces is on the increase, across the years examined. The offender received a sentence of 30 months in a penitentiary after the judge indicated that because fentanyl was at least 20 times more powerful than heroin and it was appropriate to look at the Ontario Court of Appeal’s position in the heroin sentence cases, at least as a starting point. (

b) The Heroin Cases in Alberta

[ 43 ] In Phun , the offender was given a sentence of 4 years, based on the sale of one gram of 95% pure heroin sold by the offender to an undercover officer on two occasions. Guilty pleas were entered to the two counts. McFadyen, JA, speaking for the Court, compared heroin to cocaine and previous heroin sentencing cases. At paragraph 35, McFadyen JA stated that the starting point is five years, keeping in mind the aggravating and mitigating circumstances and the particular circumstances of the case.

The Court stated at paragraph 40 that “absent rehabilitation and the guilty plea, a fit sentence in these circumstances would have been five years imprisonment” and substituted a sentence of four years imprisonment. [ 44 ] More recently, in Ostertag , the offender was a heroin addict and sold heroin to a civilian agent, an undercover police officer. Ostertag had a prior criminal record including a guilty plea to possession of heroin in 1987 and another possession in 1998.

Speaking for a unanimous Court, Veit J stated that in Phun there was a clear starting point guideline of five years for sentencing in low level heroin trafficking: paragraph 20. The Court acknowledged this starting point again in Ostertag . A sentence of four years was meted out after considering a late guilty plea, the time spent in pre-sentence custody and a willingness to become involved in rehabilitation programs. (

c) Trafficking and Producing MDA [ 45 ] In Patrick , the offender was found guilty of the production of MDA, possession of MDA for the purpose of trafficking MDA and trafficking in MDA. Wilkins PCJ, imposed a global sentence of four years imprisonment. In so doing, he reviewed the purpose and principles of the sentencing and the parties position on the appropriate sentence. With regard to the nature of the drug MDA, he relied extensively on the decision in R v Bouaban , 2002 ABQB 128 , where Phillips J, reviewed the properties of MDA and MDMA (ecstasy) on the basis of a paper produced by Dr. Harold Kalant.

In Bouaban , Phillips J sentenced the youthful offender to a two year penitentiary term for possessing 992 MDA tablets for the purpose of trafficking. In several cases, MDA was the cause of death in assessing the potency of the drug and its abuse. Referring back to Ostertag, Wilkins PCJ referred to the comment that trafficking was a serious crime because it is a crime of calculation, planning and deliberation as opposed to a crime of opportunity: Ostertag at paragraph 20-21 ; Patrick at paragraph 20 . (

d) Clandestine Laboratory [ 46 ] In Grace , a conviction after a trial of unlawfully producing MDMA and GHB, Spivak J stated that the convictions were in relation to the operation of a clandestine laboratory. He referenced a small amount of drugs but said at paragraph 14 that they were produced in a sophisticated clandestine lab that was significant in size.

Further, he commented that production sentencing cases do not simply simply focus on the amount of drugs found but consider the context in which the production occurred including the sophistication of the operation and the magnitude with reference to potential yields ie. what ability there is to make specific quantities in arriving at a fit sentence: paragraph 14. His sentence in this case was four years imprisonment. (

e) Precursors [ 47 ] In Bamdad , there was one count of offering to traffic in MDMA and another of possession of Red Phosphorous. One of the main issues was the application of the totality principle, as well as whether the sentences for the two counts should be consecutive or concurrent. In Bamdad , the sentencing judge found that the possession of a precursor to production was distinct from the offence of trafficking.

The British Columbia Court of Appeal also commented that the sentence of three years for possession of Red Phosphorous was “that proposed by Bamdad’s counsel, albeit concurrent to the sentence on the first count”: paragraph 42. The British Columbia Court of Appeal affirmed a consecutive sentence for possession. A similar sentence for the possession of precursor chemicals was meted out in Chui , ie. three years. Criminal Code , s.726 [ 48 ] The Criminal Code ,

section 726, requires that a sentencing judge ask the offender if he or she has anything to say prior to passing sentence. Upon the Court asking Feser if he had anything to say, his counsel indicated that Feser had written something for the Court and that he wanted the Court to accept a written statement, in lieu of an oral statement. Feser’s counsel cautioned the Court that the written statement was voluminous and that it may contain some irrelevant comments. The Court agreed to accept the statement from Feser: it was marked as Exhibit 2.

Feser’s statement is handwritten, rather neatly printed, with the pages numbered in the top left hand corner. The last page is page 175. Some pages, however, are missing, for example, pages 118 -134. The Court reviewed Exhibit 2. It begins with the statement: “My name is Jaren and I am a prophet of God”. It is purportedly signed at page 174 with the same statement.

The Court tried to glean from the statement something pertaining to the personal circumstances of the offender or the offence, such as an expression of remorse, the acceptance of responsibility or a promise or plea for rehabilitation. [ 49 ] Feser’s written treatise is bereft any statements pertaining to the above concepts. [ 50 ] In Gouthro , our Court of Appeal comments on the purpose of s.726 at paragraph 40.

There, the Court indicated that s.726 is intended to receive more argument and perhaps an expression of remorse or intention or even an apology. [ 51 ] At page 116 of his statement, Feser writes the following: “A man sells heroin to teenagers. The father of one of his customers finds him and physically assaults him. The police then kidnap the father and hold him captive for a year. Every scenario during this series of unfortunate events was negative. Sellers of addictive substances shouldn’t take advantage of inexperienced or vulnerable people for prohit”.

Feser also makes a statement at page 158, referring to a number of vices, that “using drugs” along with other vices, may cause death. Analysis

[ 52 ] The leading case in Alberta on sentencing is Arcand. There, our Court of Appeal referenced the proportionality principle and secondary sentencing principles and objectives. As stated at paragraph 47, s. 718.1 mandates a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. At paragraph 57, the Court describes the meaning of “gravity of the offence” as a concept concerning the wrong doing of the offender with two components, namely the harm or likely harm to victim and the harm or likely harm to society and its values.

It is also stated at paragraph 60 that aggravating and mitigating circumstances of the offender go to either or both of the gravity of the offence and the degree of responsibility of the offender. Other principles, including parity and totality are described. It is also stressed that the sentencing process in Canada is individualized: paragraph 66. None of these principles are displaced by s.10 of the CDSA. Rehabilitation is also recognized as being an objective that relates to both the gravity of the offence and the responsibility of the offender. [ 53 ] The aggravating circumstances in this case are: 1.

The commercial nature of Feser’s clandestine laboratory and operations flowing from it. 2. The harm or potential harm done or to be inflicted on Feser’s customer drug users; 3. The scope of Feser’s operations in terms of an ability to make significant quantities of illicit drugs; 4. The breach of the terms of Feser’s release, pending the determination of the instant charges among others and significantly his purchase or attempted purchase of precursor chemicals including NPP, while on release. 5.

Feser has a related criminal record from Hawaii when he was sentenced to three years for possession of Red Phosphorous and selling amphetamines. [ 54 ] Other than the early guilty plea conceded by the Crown, I find there are no mitigating circumstances in favour of Feser. He did not express remorse at any time, nor take responsibility for his acts. Nor did he offer an apology of any sort.

While the absence of these factors is not an aggravating feature, these are factors that could have been mitigating, if present. [ 55 ] As indicated at the outset, the Crown has requested a global sentence of 5 to 5 ½ years imprisonment with credit for time served of 1267 days. Feser’s counsel suggested that time served would be appropriate, which would be tantamount to a sentence of 3.47 years, but requested a lengthy term of probation of 2 ½ years, during which Feser could access some programs. [ 56 ] The Court notes that s.732(3)(

g) indicates that an optional condition of probation may be subject to a Program Director’s acceptance of the offender, the participation in a treatment program approved by the Province, but only “if the offender agrees”. Feser’s counsel stopped short of indicating that his client agreed to any treatment or what the treatment might be. There is no evidence that he is an addict.

Indeed, all of the evidence points to his being a sober entrepreneur. [ 57 ] In Knott , Feser’s counsel referred the Court to paragraph 43 where Fish J, speaking for a unanimous Court indicated: The sentencing objectives set out by Parliament in ss.718 to 718.2 of the Criminal Code are best achieved by preserving – not curtailing – a sentencing court’s arsenal of non-custodial sentencing options.

Probation orders, where available and appropriate, serve that purpose well: They afford sentencing judges the flexibility to opt for shorter prison terms followed by community supervision, rather than the longer prison terms that they would have otherwise unnecessarily imposed to achieve the same ends. [ 58 ] The Crown is not asking for any period of probation regardless of the length of the sentence. The Court agrees. There is nothing in the materials that would suggest the probation will achieve any useful purpose in terms of rehabilitation for this offender.

Section 10 of the CDSA references only the duty of the Court to encourage rehabilitation and treatment in appropriate circumstances. I find this is not an appropriate circumstance. [ 59 ] Therefore, I am left to determine the length of the prison term to be served by Feser, according to the principles and facts articulated. In doing so, I am mindful of the potency and potential for harm to victims of fentanyl and the fact that Feser has been convicted of an attempt only.

Considering the maximum sentences for the first three charges are 10 years and for attempting to produce fentanyl 14 years, the Crown is not asking for a maximum global sentence, nor anything close to it. [ 60 ] In this case, the aggravating circumstances are significant. The fact that this offender appears to have been actively preparing to resume his business while awaiting trial on these charges, contrary to the terms of his release, is especially aggravating. So too, is the attempt to produce fentanyl for sale and profit.

The dangers of fentanyl non-medical use are extreme and exceed the dangers from heroin use. [ 61 ] Moreover, Feser appears to have landed on a business model of vertical integration. He obtains the raw materials, does the manufacturing and distribution to the final consumer. It is calculated and sophisticated. [ 62 ] Therefore considering all of the sentencing principles and facts, the gross sentence of imprisonment for Feser is 5 years on each charge, all concurrent to the others. Thus, the global sentence before deducting credit for the presentence custody is 5 years.

From this will be deducted 1267 days, for a net sentence of 558 days which I will round off to 18 ½ months. The DNA application [ 63 ] The Crown has applied for a DNA Order, pursuant to s.487.051 of the Criminal Code . When dealing with a primary designated offence upon sentencing, the Court must make an Order authorizing the taking of samples of bodily substances, reasonably required for a forensic DNA analysis. If the offence is a secondary designated offence, the Court must be satisfied that it is in the best

interests of the administration of justice to make such an Order. [ 64 ] Here, the subject offences are secondary designated offences.

Section 487.051(3) details the considerations a Court is to take into account including the offender’s criminal record, the nature of the offence, the circumstances surrounding the commission of the offences and the impact such an Order would have on the person’s privacy and security of the person. The

section also states that the Court “shall give reasons for its decision”. [ 65 ] At the sentencing hearing, the Crown asked for a DNA Order. Neither counsel could state at the hearing whether we were dealing with a primary designated offence or a secondary designated offence. Acknowledging that such an Order would be mandatory, Feser’s counsel said that he objected in the event we were dealing with a secondary designated offence. We are. The Court is left with no particular arguments either way according to the criteria referenced above. The taking of bodily substances for a DNA Order is not overly intrusive.

But, the security of the person is engaged at a high level, in terms of personal privacy and informational privacy. A DNA sample is recognized as being unique to the individual and therefore affects the highest level of private and personal information. [ 66 ] The factors I must consider include all of the factors referred to above for sentencing, as well as the impact on the offender’s privacy and security of the person. In this case, I am going to order that the offender be required to give a sample of his bodily substance for a DNA forensic analysis.

In doing so, I am mindful of C(RW) which indicates that the overarching principle in making a DNA Order is the public interest in protection of society. That protection includes, where possible, early detection, arrest and conviction of offenders. Were it not for a previous drug related criminal record and the attempt to order precursor ingredients while on release facing these charges, perhaps I would not have made the Order. But those are aggravating factors that tip the balance in favour of making the Order.

Forfeiture [ 67 ] In the AF, there are listed over two hundred items in an exhibit list, including all of the clandestine laboratory equipment, illegal drugs and precursors seized from the Galahad residence. All will be ordered forfeited, pursuant to s.16 of the CDSA on the basis that the Court is satisfied that the designated substance offences, which include all four offences, were committed in relation to the offence related property. As agreed by the Crown, there are two exceptions. One is Feser’s laptop computer, apparently an Acer and two, perhaps a desktop computer, as well as a CanRebel camera SD card.

If there is any dispute as to the items to be forfeited, counsel can return that dispute to me for clarification. Fire Arms Prohibition [ 68 ] Section 109(1) (

c) of the Criminal Code , a mandatory Order is required prohibiting Feser from possessing any firearm, cross- bow, prohibitive weapon, restricted weapon, prohibited device ammunition, prohibited ammunition, and explosive substance for a period of 10 years after his release from prison and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. Heard on the 4 th day of December, 2015. Dated at the City of Calgary, Alberta this 10 th day of December, 2015. Neil Wittmann C.J.C.Q.B.A. Appearances: Danielle Szabo for the Counsel for the Director of Public Prosecutions

Shamsher Kothari for the Offender