R. v. Milliken, 2020 BCPC 266

Citation: R. v. Milliken 2020 BCPC 266 Date: 20201105 File No: 233769-3-C, 233769-5-A Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. LONNIE LANCE MILLIKEN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. SUTHERLAND Counsel for the Crown: T. Lattimer Counsel for the Defendant: L. Fumano Place of Hearing: Vancouver , B.C. Date of Hearing: November 5, 2020 Date of Judgment: November 5, 2020 [ 1 ] THE COURT : By way of introduction. Mr. Milliken was convicted in 2018 at the conclusion of a trial of one count of

possession of carfentanil for the purpose of trafficking, possession of methamphetamine for the purpose of trafficking, and possession of a weapon for a purpose dangerous to the public, being a baton. He absconded after his convictions but before sentencing in 2018. He has pled guilty to failing to appear on April 1, 2019, relating to his absconding. He is now before me for sentencing on all of these outstanding charges. [ 2 ] The drug offences took place in November 2016, the same year a public health emergency was declared regarding overdose deaths relating to fentanyl.

Carfentanil is an analog of fentanyl that is one hundred percent, it is estimated, more potent than fentanyl. It is largely the potency of this substance and its contribution to the overdose death crisis in British Columbia that informs the Crown's position of a four and a half to five year sentence for this offence for Mr. Milliken.

The Crown also advances as appropriate sentences six to eight months jail for possession for the purpose of trafficking in methamphetamine and a five month jail sentence for possession of a weapon for a purpose dangerous to the public. [ 3 ] The defence, on the other hand, argues for a suspended sentence and probation. The defence argues that Mr. Milliken's case is exceptional because he is doing well in recovery, and it would be best not to break the positive prosocial momentum he has gained.

Because reaching an appropriate sentence involves a consideration of the facts of the case, the circumstances of the offender, and principles and objectives of sentencing in the Criminal Code , I will turn to those considerations now. [ 4 ] In the early morning hours of November 1, 2016, Mr. Milliken came to the attention of members of the Vancouver Police Department. He was ultimately arrested and searched. From Mr. Milliken's right jacket pocket $827 in Canadian currency was seized.

From his right upper jacket pocket a cigarette package containing six small blue baggies of carfentanil, weighing between 1.10 grams and 1.12 grams were seized. In his right front shirt pocket was a black coin purse containing small baggies of carfentanil, weighing on average .17 grams to .18 grams, and an additional baggie of carfentanil, weighing .36 of a gram was also found. In total, there were 19 baggies of carfentanil, weighing 9.15 grams including the packaging. Inside Mr.

Milliken's left inside jacket pocket was seized a red personal survival kit bag that contained in total 40 baggies of methamphetamine, weighing a total of 19.12 grams including the packaging. Also in his jeans pocket was seized a black collapsible baton. That is the weapon noted in Count 3, the possession of a weapon for a purpose dangerous to the public. [ 5 ] Mr. Milliken's convictions, as mentioned, were entered in 2018. A Presentence Report was prepared that Mr. Milliken participated in. On April 1, 2019, Mr. Milliken did not attend court and a warrant was issued for his arrest for failing to do so.

He remained at large for about eight and a half months until December 23, 2019, when he was arrested. He was released on bail February 6, 2020, on conditions that he participate in the electronic monitoring program and that he attend Reaching Out Recovery House and that he reside there. He has been out on bail now for approximately nine months. [ 6 ] Mr. Milliken is, I believe, 54. Is that correct, Mr. Milliken? He is single. He has an adult son whom he is not in contact with. He is a high school graduate. He took post-secondary courses in accounting. He last worked in 1999 in the forestry sector.

He is living off a pension, but he also supplemented his income through dealing drugs. [ 7 ] The Presentence Report was prepared December 7, 2018. An update to that Presentence Report was prepared September 24, 2020. The original Presentence Report states that Mr. Milliken claimed that he had been dealing drugs from 2007, which corresponds with him moving to the Downtown Eastside of Vancouver, to 2016 that corresponds with his arrest on the current charges. The update to the Presentence Report notes that Mr.

Milliken claims that he sold drugs from 2012 to 2016; in other words, about half the time that was originally claimed in the initial Presentence Report. This does introduce the question of whether Mr. Milliken is minimizing his criminal activity, but regardless of which version is accurate he was dealing drugs undetected for a number of years. [ 8 ] In terms of his own drug use, the statements in the Presentence Report are unclear. In particular, it is noted in the original Presentence Report that Mr. Milliken first tried marihuana at 16, but did not experiment with drugs again until 2007 when he was 41.

He took a liking in particular to crack cocaine which he used for two years, according to the Presentence Report. The update to the Presentence Report claims that his drug of choice was crystal methamphetamine which he used for approximately four years. Furthermore, that he said he was using the substance daily prior to his arrest on December 23, which would be while he was at large with the outstanding warrant. Mr. Milliken claims that he has abstained however from illicit drugs since being released on bail in February of this year.

He also claims that at the time of the offences on November 1, 2016, that he was using alcohol and drugs and he was selling drugs, in part, to support his own substance use. That was contained in the update to the Presentence Report but was not mentioned in the original Presentence Report. [ 9 ] Mr. Milliken has a criminal record that spans from 1984 to 2005 and comprises 14 convictions. His convictions are for property offences, there are violent offences, breach of court orders and an impaired driving offence. The offences for which I am sentencing him today are his first drug offences.

His last conviction was 15 years ago, but that is not the last time he committed a criminal offence as his drug dealing indicates. [ 10 ] Since his release on February 6, 2020, after having been taken into custody on the outstanding warrant for absconding while awaiting sentence, Mr. Milliken has devoted himself to his rehabilitation.

His current bail supervisor says he has been compliant with the electronic supervision and has not incurred any breaches or new charges since his release. [ 11 ] Stan Mingo, a registered substance abuse and family counsellor with the Reaching Out Supportive Recovery facility at which Mr. Milliken resides says that Mr. Milliken is doing very well since he started living there, and in fact, that Mr. Milliken is a positive role model. Firstly, Mr. Milliken has been compliant with the rules and regulations of the Reaching Out Recovery House facility, and he is a valued resident, both by staff and other residents.

He is a positive role model according to Mr. Mingo, who does what is asked of him and then more. Mr. Mingo notes that Mr. Milliken is his, "go to guy in the house" and that he is a leader for the younger residents in the house as well. Further, Mr. Milliken apparently attends daily online meetings for support, including Narcotics Anonymous, Alcoholics Anonymous, Co-dependence Anonymous, and he also participates in three in-house meetings per week, as well as a Crime Addicts Anonymous meeting once per week. As stated, Mr. Mingo summarizes by stating that Mr.

Milliken has done very well there, and that he is welcome to stay as long as he likes. Mr. Milliken would like to stay, and indeed, that is his plan if he remains out of custody.

[ 12 ] Mr. Milliken in a statement to the court stated that he could not live with himself if he went back to his previous life as a drug dealer and a drug user, and that he is motivated and committed to continuing along his rehabilitation. [ 13 ] In terms of the circumstances of the offence, sections 718 to 718.2 of the Criminal Code sets out the objectives and principles of sentencing. The fundamental principle of sentencing, though, is proportionality. A proportionate sentence is one that is proportionate to the gravity of the offence and the degree of responsibility of the offender.

The gravity of the offence in this case requires a consideration of the substance, carfentanil, and the social circumstances and the public knowledge regarding its use and distribution at the time that Mr. Milliken possessed it for the purpose of trafficking. [ 14 ] The information regarding carfentanil before the court was contained in a report dated November 20, 2017, that was prepared by the Chief Toxicologist with the Office of the Chief Medical Examiner for the Province of Alberta. That report notes that carfentanil is a synthetic opioid that is an analogue to fentanyl.

It has no legitimate use in human medicine due to its high potency. Rather, it is used more as an analgesic with respect to large animals. Fentanyl is 25 to 50 times more potent than pure heroin. Carfentanil is believed to be a hundred times more potent than fentanyl. A lethal dose of an opioid is dependent on a number of contingencies, but it has been estimated by the European Monitoring Centre for Drugs and Drug Addiction that a lethal dose of fentanyl is on average about two milligrams. By analogy, a lethal dose of carfentanil is .02 milligrams. One gram equals one thousand milligrams. Mr.

Milliken possessed a little over nine grams, with packaging, of carfentanil in 19 baggies, weighing between .17 of a gram and 1.12 of a gram. [ 15 ] I agree with the Crown's characterization that each baggie was analogous to a bullet in the chamber of a gun. Carfentanil is, and was in November 2016, so powerful that its distribution poses intolerable risks of accidental overdose deaths. Even tiny amounts mixed with other drugs may be fatal, and it is impossible for the user to know whether the drugs they purchased contain carfentanil, and if so, how much.

The danger of distributing carfentanil to users is enormous. [ 16 ] According to a February 2019 report from the B.C. Coroners Service, the vast proportion of illicit drug overdose deaths, starting in 2016, in terms of the data before me, starting in 2016, involved illicit fentanyl, either alone or in combination with other drugs. By the time of Mr. Milliken's offending fentanyl-related deaths were rapidly and steeply increasing in Vancouver. There was a broad public awareness of the evils of fentanyl and a spike in the overdose death toll from it. Indeed, in April 2016, roughly seven months before Mr.

Milliken's offending, there had been a public Provincial Health Emergency declared by Provincial Health Authorities as a result of the spike in overdose deaths from fentanyl. To summarize, the role of fentanyl and its derivatives like carfentanil in overdose deaths was clear and known by the time Mr. Milliken possessed the carfentanil for the purpose of trafficking. [ 17 ] Whether or not Mr. Milliken knew he possessed carfentanil to traffic is a non-issue in the present case.

The law states that ignorance by a trafficker in the exact composition of drugs is generally not a mitigating circumstance; rather, the seller, or in this case, the possessor for the purpose of trafficking, intentionally assumes the risk that the synthetic opioid may contain unknown harmful compounds than what it is held out as being. [ 18 ] In

summary, the moral culpability of offenders who traffic in fentanyl and its analogues, like carfentanil, or who possess it for the purpose of trafficking is very high. Fentanyl abuse continues to claim lives in British Columbia daily. The public desperately needs protection from this type of offence, and so general deterrence and denunciation do require emphasis, and for Mr. Milliken specific deterrence, as well, given his history of drug trafficking. That said, I cannot ignore his rehabilitation. [ 19 ] Mr.

Milliken has expressed what I conclude to be genuine remorse for his offending, and his performance at Reaching Out Recovery House demonstrates a sincere commitment to his rehabilitation. Crown counsel argued that his rehabilitation is mitigated by the fact he absconded; that it occurred while he was at large after having absconded and consequently he should not be rewarded for flouting the law and acting in defiance of the justice system for eight and a half months by being AWOL. Furthermore, that this is a reflection on his lack of willingness to be accountable for his offending. [ 20 ] In reality, Mr.

Milliken's rehabilitation was not made possible by his absconding; rather, he apparently stopped selling drugs after his arrest, although he may have kept using. But the significant rehabilitative progress that he made was once he started living at Reaching Out Supportive Recovery.

He was on bail awaiting sentencing at the time and has remained so, not AWOL. [ 21 ] I wish to make clear that the Crown quite properly is not asking the court to use his absconding as an aggravating factor in sentencing him on the drug and weapons offences, just that it should reduce any reduction in his sentence based on claims of remorse and accountability. [ 22 ] Mr. Milliken will receive an independent sentence for absconding due to his guilty plea to the separate failure to appear charge.

Because his rehabilitation took place and is taking place while on bail, not while AWOL, I give him full credit for his rehabilitation, and by doing so it does not run contrary to any other sentencing principle or policy principle. Therefore, I decline to discount the impact of his rehabilitative progress on the appropriate sentence. [ 23 ] In aggravation with respect to Mr. Milliken's offences is the nature of the substance as I have described. Further, he had been dealing drugs for years.

The amount of drugs that he had were still street level, but given the potency that was still lethal, and relatively speaking, given the lethality of the drug he had a significant quantity on him. In mitigation, he is remorseful and his rehabilitative prospects based on his performance to date I see as being quite good. [ 24 ] Crown counsel has provided numerous cases purportedly in support of its sentencing position of a four and a half to five year sentence.

Not surprisingly, they are distinguishable in one form or another, often relating to accused with more aggravated criminal records, including multiple drug convictions. They do establish, though, as I have mentioned earlier, that the moral culpability for an accused who traffics in fentanyl and its analogue is high. [ 25 ] The two most significant cases provided by the Crown are R. v. Smith and R. v. Mann . R. v. Smith sets a generally applicable range for a first offender trafficking in fentanyl at a street level of 18 months to 36 months; in other words, a year and a half to three years.

Although 36 months is not a cap, rather the sentence may exceed it in certain circumstances; indeed, the Crown is suggesting that it ought to be exceeded here.

[26] In R. v. Mann, a five year sentence was handed down for trafficking in carfentanil and two counts of possession of carfentanil forthe purpose of trafficking. Additionally, the two accused in Mann received four year sentences for trafficking in fentanyl and possessionof fentanyl for the purpose of trafficking. Neither accused in Mann had a criminal record. They were first time offenders and they pledguilty. However, aggravating the circumstances, the accused in Mann were mixing and packaging the drugs for street level distribution. They knew that they were dealing in fentanyl.

The doses that they made up were crudely measured and mixed and potentially lethalconcentrations of fentanyl were contained in the baggies they had prepared for distribution. They were unaware that carfentanil was inthe product, and their method of distribution was a dial-a-dope operation, albeit small and unsophisticated. [27] In Mann, the Court of Appeal affirmed the five year sentences and noted that the -- they endorsed the trial judge's conclusionthat the sentence needed to be greater than the three year period referred to in R. v.

Smith because the accused in Mann were more thanstreet level dealers, as evidenced by their mid-level trafficking activities and their conduct displayed an indifference to human life, basedon the rudimentary manner in which they were mixing the drugs and the high concentrations of fentanyl in the portions that they hadportioned out. Many of the aggravating features justifying the five year sentence in Mann are not present here. Similarly, the casesprovided justifying a four year sentence or where a four year sentence was imposed are also easily distinguishable. [28] In R. v.

Tomsic [phonetic], it was a joint submission among counsel for a four year sentence. In R. v. Byrne, the accused had sixprevious possession for the purpose of trafficking convictions, including a one year jail sentence, and Mr. Byrne was involved indistributing the fentanyl and carfentanil through a dial-a-dope operation. [29] While Mr. Milliken did deal drugs, undetected for a number of years, he did not have the benefit of the corrective andrehabilitative sentencing measures associated with a criminal conviction and sentence. Offending in the face of those measures, in myview, is more aggravated.

In my view, the case law considered in the context of Mr. Milliken's circumstances and the circumstances ofthe offences merits a sentence below the range submitted by the Crown of four and a half to five years on the possession for the purposeof trafficking in carfentanil. [30] With respect to the defence position of a suspended sentence, if the only sentencing consideration and objective was thereformation and rehabilitation of the offender I may be more persuaded. But societal attitudes towards the distribution of fentanyl amidstthe well-known destruction it causes are severe.

Sentencing concerns not just the reformation interests of an accused but also the publicand society at large and the more local community in which the offending takes place. Sentencing is an individualized process, butsentencing an individual is directly connected to the needs of society. Defence counsel argues that the accused's rehabilitative progressamounts to exceptional circumstances requiring the court to emphasize and give paramountcy to rehabilitation as a sentencing objective. This would therefore justify the non-custodial suspended sentence to continue Mr.

Milliken's rehabilitative path that he is on. [31] I acknowledge that I have the discretion to give paramountcy to rehabilitation. Mr. Milliken's rehabilitation commitment andprogress is commendable and possibly exceptional, but I cannot characterize it as so exceptional to justify a suspended sentence for thecommission of such a serious crime. [32] In R. v. Voong, 2015 BCCA 285 , 2015 B.C.C.A. 285, at paragraph 59, a non-exhaustive list of exceptionalcircumstances was mentioned which may, in combination in rare cases, support a suspended sentence for a dial-a-dope operationinvolving hard drugs.

Among those circumstances listed in Voong were the absence of a criminal record, significant steps atrehabilitation for the drug addict, gainful employment, remorse, an acknowledgement of harm done to society; in other words,circumstances above and beyond the norm. The court then went on to summarize in saying, quote, "There must be something that wouldlead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public wassubsequently better served by a non-custodial sentence." [33] Here, Mr.

Milliken is not a youthful first offender, typical in most of the cases provided by defence counsel supporting a non-custodial sentence. I am also not entirely clear on the extent of any addiction that he had at the time of offending given the confusingcomments in the Presentence Report which were purportedly based on information provided by Mr. Milliken himself. I also wonderabout the discrepancy in his account of how long he had been dealing drugs for. It is clear, though, that his rehabilitation has been verypositive. Currently he appears to be drug-free.

He has insight into the harm caused to the community by his offending. He has beengiving back through his work with Reaching Out Recovery Society in a meaningful way to the vulnerable people whose addictions heexploited in selling them drugs. [34] In conclusion, the serious circumstances of the offence and Mr. Milliken's degree of responsibility for it requires a significant jailsentence, when considered in the context of the objectives and principles of sentencing in s. 718 to 718.2 of the Criminal Code.

Thesentence must be long enough to achieve the societal needs for general deterrence and denunciation of this type of offence, and specificdeterrence when it comes to Mr. Milliken. But the sentence should not be long enough to eliminate hope that Mr. Milliken has, hismotivation, the positive momentum he has towards his rehabilitation, and it should not make the feelings of success and meaning that hecurrently has in his life a distant memory that he can barely conjure up.

In other words, the sentence must not eliminate his hope and hisincentives to commit to his rehabilitation. [35] In conclusion -- just stand up, Mr. Milliken. I note that Mr. Milliken has served already 45 days in custody which with enhancedcredit amounts to 68 days. With respect to Count 1, the possession of carfentanil for the purpose of trafficking, I find the appropriatesentence to be two years' jail.

I am going to credit you with 39 days' time served, leaving a sentence converted into days of 691 days; inother words, a year and 11 months approximately. [36] With respect to the possession of methamphetamine for the purpose of trafficking, I have not commented on that offence up tothis point, but methamphetamine is a dangerous drug. It may not kill as frequently or as accidentally or unpredictably as fentanyl orcarfentanil, but it still destroys lives and reeks social havoc, as you well know, being a consumer of it.

I find the appropriate sentence forpossession of the methamphetamine for the purpose of trafficking to be eight months' jail. It will be served concurrent with yoursentence for the carfentanil, so at the same time, it is not in addition. [37] With respect to possession of the weapon for a purpose dangerous, there are no previous weapons offences on Mr. Milliken's

record. It was passively possessed when it was found. It was not used in a threatening or menacing manner at the time, although it is admitted it was possessed for a purpose dangerous. The appropriate sentence is three months' jail. That will run concurrent as well. [ 38 ] With respect to DNA, you will be required to provide a sample of your DNA. That will be done while you are in custody. That relates to Count 1, the possession of carfentanil for the purpose of trafficking, which is a secondary designated offence.

With respect to Counts 1 and 2, which are the possession for the purpose of trafficking offences, there is a mandatory ten year prohibition with respect to the possession of weapons and consequently for a period of ten years you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance. [ 39 ] With respect to the failure to appear, I find the appropriate sentence to be 30 days' jail and I credit you with 29 days' time served leaving a sentence of one day.

That one day sentence can be served -- well, I will just leave it as a sentence of one day. It will not run concurrent with your other matters just given it is a completely separate matter. [ 40 ] That is your sentence. As you can see, Mr. Milliken, it is considerably lower than what was being asked for, and in fact, if the range is 18 to 36 months, generally speaking, you are still on the lower part of that range. And I can tell you what placed you there was your rehabilitative efforts over the last number of months.

And so I would really encourage you to keep motivated, keep your eye on the prize as they say, and you will get through this, and you will get through it and come out the other side. All right. Thank you. Anything further? [ 41 ] MR. LATTIMER: Just -- I take it that this forfeiture order was signed at the previous -- I believe the 28th of September. [ 42 ] THE COURT: That is what my note indicates. [ 43 ] MR. LATTIMER: Thank you, Your Honour. Nothing further from the Crown. [ 44 ] MR. FUMANO: Nothing further from the defence, Your Honour. [ 45 ] THE COURT: All right. Good luck, Mr. Milliken. (REASONS CONCLUDED)