R. v. Brown, 2019 BCPC 313

Citation: R. v. Brown 2019 BCPC 313 Date: 20191216 File No: 247162-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Division) REGINA v. THOMAS JOSEPH LLOYD BROWN REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. P. HARRIS Counsel for the Crown: D. Peltier Counsel for the Defendant: W. Jessop Place of Hearing: Vancouver , B.C. Date of Hearing: November 13, 2019 Date of Sentence: December 16, 2019

[ 1 ] Mr. Brown pled guilty to possessing fentanyl for the purpose of trafficking. The Crown seeks a sentence in the mid-range of three to four years less time served. Counsel for Mr. Brown argues that a fit sentence is a custodial sentence of 24 months less the time that Mr. Brown has served in custody. Circumstances of the offence: [ 2 ] On February 11, 2018, the police were covertly watching the south lane of the unit block of East Hastings Street. While watching the lane the police saw Mr.

Brown enter from the east end and briefly speak with a person known to be Lindhurst. [ 3 ] Shortly after speaking with Lindhurst, Mr. Brown walked to a wall on the south side of the lane and angled his body toward the wall at which point he looked up and down the lane. Lindhurst then moved to within 5 feet of Mr. Brown and he (Lindhurst) was joined by a third unknown male who stood nearby. Then, and with his right hand, Mr. Brown reached into the front of his pants and produced a white ball that was approximately half the size of a golf ball. Mr.

Brown handed the ball to Lindhurst who then handed it to the third male. This male then turned and walked out of lane. [ 4 ] Once the third male had left, Mr. Brown turned back toward the wall reached into the front of his pants and produced another white ball. He handed this ball to Lindhurst who turned and walked out of the lane. Mr. Brown then walked to the west and out of lane. [ 5 ] The police decided to arrest Mr. Brown and they located him at East Hastings and Columbia Street. On his arrest, Mr. Brown was searched, given his Charter rights and handcuffed.

The search did not yield any contraband so the police decided to walk Mr. Brown to the jail where they could conduct a more thorough search. While walking Mr. Brown to the jail the police told him that he would be searched at the jail, but that he would be given the opportunity to produce anything that he might have hidden on his person. [ 6 ] When they reached the jail, the handcuffs were removed and Mr. Brown reached into the front of his pants and removed a ball. Within this ball were five separate packages. Subsequent analysis determined that three packages.

Each package contained 1.03 grams of fentanyl and two packages contained at total of 7.28 grams of crack cocaine. The total estimated value of the drugs seized is $450.00 for the fentanyl and between $360.00 to $440.00 for the cocaine. [ 7 ] Mr. Brown was ultimately released on a Promise To Appear, however, for various reasons he found himself back in custody. Counsel agree that Mr. Brown has spent 420 actual days in custody and that he is entitled to a credit of 630 days pre-sentence custody. MR. BROWN’S CIRCUMSTANCES [ 8 ] Mr. Brown is a 26 year old Indigenous male.

Both of his parents are from the Musqueam Reserve. His family has lived on the Reserve for generations. Mr. Brown’s parents separated when he was two years old and he remained living with his father. [ 9 ] When he was four, Mr. Brown’s father formed a new partnership. At 15 years old, Mr. Brown left his home and moved a block away to live with his stepmother’s stepson and his (Mr. Brown’

s) older half-brother. [ 10 ] The danger of Mr. Brown living on his own at a young age was amplified because, all of his family role models were regularly drinking and using drugs. In support, the pre-sentence report notes: Mr. Brown acknowledges that he was drinking large quantities of alcohol and smoking marijuana on a daily basis with his friends and cousins by the time he was 15 years old. He indicated that “everybody on the reserve drinks” and he frequently witnessed fights and violence starting at a young age. Mr.

Brown informs that his mother, maternal uncle and aunt had longstanding issue with drug addiction that resulted in overdoses and his grandmother is a heavy drinker. He adds that his father’s side of the family regularly used alcohol and marijuana.” [ 11 ] As for Mr. Brown’s mother, she suffered from chronic drug and alcohol addiction and she was not involved in raising him. When Mr. Brown was 15 years old, his mother briefly moved back to the Reserve only to return to the Downtown Eastside. The challenges faced by Mr.

Brown are documented in the Gladue Report where there writer, Daniel Holloway observed: “This report of a fractured and difficult upbringing was corroborated by comments made by Thomas’ aunt, Denice Brown. She said, “his mother worked the streets, she was on drugs and didn’t even weigh 70 lbs. My brother raised him from the age of five years and up but he [Thomas] ended up raising himself from the age of sixteen. His dad’s girlfriend made his dad chose between his family or her. He chose her and left Thomas to raise himself. Thomas lived on his own from that part onwards and he felt like nobody wanted him.

His mom was on drugs and his dad chose to live with his girlfriend.” [ 12 ] Sadly, Mr. Brown’s mother passed in 2014 owing to a drug overdose. Mr. Brown’s stepmother passed away from medical complications in 2019. Mr. Brown’s primary support is his father. [ 13 ] Mr. Brown completed his grade 9 studies and he is not interested in upgrading his employment. He has no formal work history and he makes money helping his cousin operate a fishing boat. Mr. Brown is comfortable helping out on the boat and indicates that is what he knows. [ 14 ] Mr. Brown does not suffer from any mental health issues.

As for his use of substances, Mr. Brown started drinking and smoking marijuana when he was 14 years old. He smoked marijuana daily for 10 years and he occasionally uses cocaine. As for alcohol, Mr. Brown feels that he can “self-manage” his drinking and stop when he wishes. [ 15 ] As for his adult criminal record, Mr. Brown has convictions for offences in 2011, 2014, 2015, 2017, and 2018. Mr. Brown has four drug convictions (three for possession for the purpose of trafficking and one for trafficking). It is noteworthy that Mr.

Brown was on probation for a drug offence when he committed the offence in issue and that he had been released from custody (for drug offences)

four months prior to the offence in issue. [16] Mr. Brown, accepts responsibility for his actions. He advises at the time of the offence, he was using substances daily and hewas selling drugs to maintain his lifestyle. Finally, Mr. Brown indicates he has learned from his arrest and that a similar incident will nothappen again. He resists the suggestion of counselling. [17] Sadly, Mr. Brown has little connection to his culture, heritage, community or traditions. Mr. Brown does not access Reserveservices or supports.

His father did not encourage participation in Reserve events and in fact he discouraged his son from attending theLong House. Mr. Brown’s father and close relatives did not teach Mr. Brown about First Nations languages, cultures or traditions. Mr.Brown’s father, and other close relatives have all attended Residential Schools. [18] The Gladue Report that was prepared for Mr. Brown notes that many of the systemic background factors that affect Indigenouspersons in Canada have also impacted Mr. Brown.

These include: • Alcohol and Drug abuse: past and present personal, family and community usage and exposure, • Family attendance at Residential School, • Criminal history: personal and family, • Familial dislocation from Aboriginal community through involvement to Vancouver’s Downtown Eastside, • Early death among family and friends due to substance abuse, accidents, and violence, • Family breakdown: divorce, family violence and alcohol/drug misuse, • Family involvement in the criminal justice system, • Poor quality of relationship with family due to substance misuse, • Racism: indirect through school years.

POSITION OF THE PARTIES [19] The Crown argues that a fit and appropriate sentence is a sentence in the range of three to four years less the time that Mr.Brown has served. In support, the Crown points to the circumstances of the offence, Mr. Brown’s criminal history and related sentencingdecisions. The Crown relies on: R. v. Smith, 2017 BCCA 112, R v. Forsberg (27 September 2017) 167641-2 (BCPC) and R. v. Lloyd,2019 BCCA 128 [20] The defence argues Mr Brown’s Indigenous background, his reduced moral culpability and the mitigating factors all dictate asentence of 24 months less the time that Mr. Brown has served.

In support, counsel relies on: R. v. Ipeelee, 2012 SCC 13 ,[2012] 1 S.C.R. 433. SENTENCING PRINCIPLES [21] Determining a fit and appropriate sentence requires the court to consider the purposes and principles of sentencing as articulatedin sections 718 to 718.2 of the Criminal Code and

section 10 of the Controlled Drugs and Substances Act.

Section 718 of the Criminal Code reads: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for thelaw and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [22] The primary sentencing objective for offences related to drug trafficking are denunciation and deterrence: R. v. Smith, 2017BCCA 112. Those who engage in trafficking can, absent exceptional circumstances, expect to receive a custodial sentence: R. v. Voong,2015 BCCA 285 at paragraph 1. The objective of denunciation and deterrence becomes more pressing when dealing with fentanyl. Inthis regard, the court commented in R. v.

Schneider, 2019 BCCA 310, at paragraph 10: This Court has commented on the need to keep the sentencing goals of general deterrence and denunciation paramount when sentencingoffenders involved in the trafficking of fentanyl, due to its deadly nature and the escalating crisis it presents in our communities. [23] As per

section 718.1 of the Criminal Code, a fundamental principle of sentencing is proportionality. Accordingly, the sentenceimposed must be proportionate to the seriousness of the offence and the degree of offender responsibility.

[ 24 ] In applying the principle of proportionality, I observe that the offence of possessing fentanyl for the purpose of trafficking is a serious offence. I note the depth and breadth of death and destruction that the illicit fentanyl trade has caused. I also note that the maximum penalty available for the offence in issue is life imprisonment. [ 25 ] As for Mr. Brown’s degree of moral culpability, he was not drug dependant at the time of his offence and it appears that he was selling drugs to maintain his lifestyle of “partying”. At first blush, it may appear that Mr.

Brown has a high degree of moral culpability; however, such a conclusion ignores Mr. Brown’s Indigenous background and the impact of colonialism. In this regard, Mr. Brown, his family, and his community, have suffered substance abuse, violence, low level of education, poverty, and disconnection from; culture, tradition, role models, and community. For these reasons, I conclude that Mr. Brown’s level of moral culpability is toward the low end of the spectrum. [ 26 ]

Section 718.2 of the Criminal Code sets out further principles of sentencing: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 27 ] Turning to the above, I find Mr. Brown’s criminal record aggravating. It is also aggravating that he was on probation at the time of his offence. A further aggravating feature is that Mr. Brown was trafficking fentanyl. In this regard, I am mindful that Mr.

Brown claimed that he did not know he had fentanyl, however, I am satisfied that the prolific campaign regarding fentanyl being in street drugs, makes it such that those who choose to traffic in street drugs are simply wilfully blinding themselves to the obvious; that fentanyl will be present. [ 28 ] As for mitigation, I find Mr. Brown’s guilty plea to be highly mitigating. I also find his cooperation with the police and the support that he has from his father to be mitigating. [ 29 ] As for the range of available sentences, the range for fentanyl offences is 18 months up to and possibly above 36 months: R. v.

Smith 2017 BCCA 112 . Where in the range that an individual falls is driven by many variables including but not limited to; quantities, purity, sophistication, circumstances of the offence and the circumstances of the offender. [ 30 ] The relevant portions of

section 10 of the Controlled Drugs and Substances Act reads: 10

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

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. Factors 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 … (

b) was previously convicted of a designated substance offence , as defined in subsection 2(1) of this Act, or a designated offence , as defined in subsection 2(1) of the Cannabis Act ; … ANALYSIS [ 31 ] The sentence that this court imposes must denounce and deter. Specifically, through the sentence imposed this court must communicate society’s abhorrence. Further, the court must also send a message to Mr. Brown and others that those who chose to traffic in fentanyl will, absent exceptional circumstances, receive a custodial sentence. [ 32 ] Despite the above, I note the impact that colonialism has had on Mr.

Brown. In fact, a review of his background and history strongly suggests that he was doomed to face significant struggles even before his birth. Specifically, the historical mistreatment of Indigenous persons placed Mr. Brown on the roadway to criminal involvement and even gave him a push. [ 33 ] I am mindful that sections 718.2 (

d) and (

e) of the Criminal Code mandates the least restrictive sentence that is appropriate and that particular consideration must be given to the circumstances of Aboriginal offenders. CONCLUSION [ 34 ] After considering all of the materials and submissions of counsel, I decline to impose the sentence suggested by Crown. A sentence of three to four years, although likely appropriate were it not for Mr. Brown’s Indigenous heritage, however the length disregards the importance of minimizing Mr. Brown’s separation from his family and his Reserve. As such, a lesser period of custody is warranted but it must be one that still denounces and deters.

[ 35 ] As for the sentence suggested by counsel for Mr. Brown, I find that it would not adequately denounce and deter Mr. Brown’s conduct particularly given that he had been released from custody four months earlier after having served 294 days for possession of heroin for the purpose of trafficking. [ 36 ] In my view, this court must impose a sentence that achieves the purpose of sentencing while minimizing, as much a possible Mr. Brown’s separation from the aspects of his life that connects him to his heritage. Specifically, his father, his cousins, his Reserve and his work on the fish boat.

I see this approach as a means to support his connectedness to his culture which in the long term would have a rehabilitative benefit. As such, I impose a sentence of 30 months and from this time corrections should deduct time credited of 630 days. ANCILLARY ORDERS DNA [ 37 ] Pursuant to s. 487.051(3) (

b) of the Criminal Code , DNA is a secondary order and I must consider what is in the best interests of the administration of justice. In doing so, I must look at what Mr. Brown has been convicted of, the circumstances of the offence, and his criminal history balanced against his privacy interests and his personal security. [ 38 ] When I look at the offences, Mr. Brown was convicted of possessing a fentanyl for the purpose of trafficking. I acknowledge that drug trafficking frequently involves weapons and violence and I also acknowledge Mr. Brown’s record which includes a youth conviction for robbery.

In considering the security of Mr. Brown’s person and his privacy interests, I am cognizant that the taking of a DNA sample is minimally intrusive and the results are guarded by statute. In the circumstances, it is my view that the best interests of the administration of justice outweigh Mr. Brown’s privacy and security interests and I order that a sample of his DNA be taken. WEAPONS [ 39 ] Pursuant to

section 109 of the Criminal Code , I impose a lifetime ban of the weapons set out within the section. ____________________________ The Honourable Judge R.P. Harris Provincial Court of British Columbia