R. v. Kerr, 2013 BCSC 1193

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Kerr, 2013 BCSC 1193 Date: 20130510 Docket: 29939-2 Registry: Terrace Regina v. Rodney Darrel Kerr Before: The Honourable Mr. Justice N. Brown Oral Reasons for Sentence Counsel for Crown: A.E.A. Penner Counsel for Defence: K.W. Anderson Place and Date of Trial/Hearing: Terrace, B.C. May 10, 2013 Place and Date of Judgment: Terrace, B.C.

May 10, 2013 [ 1 ] THE COURT: Rodney Darrel Kerr stands convicted that on or about the 10th day of December 2010, at or near the City of Terrace, in the Province of British Columbia, he did unlawfully have in his possession a controlled substance, to wit: Cocaine, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. [ 2 ] This matter went before a jury, and that was the verdict of the jury. [ 3 ] The Crown submits a fit sentence is in the range of 12 months; counsel for the defendant submits a fit custodial sentence is in the range of nine to 12 months but asks the court to consider a non-custodial sentence.

I am left in no doubt that a non-custodial sentence is not a fit sentence, considering the nature of the offence and Mr. Kerr's criminal record, which encompasses extends to 1979 and includes five theft-related convictions. The most recent was in 2011. [ 4 ] Counsel for Mr. Kerr suggests these convictions relate to Mr. Kerr supporting his addiction to cocaine. But I note Mr. Kerr’s testimony about his work as an equipment servicer and other employments and the skills he gained and income he earned from them. I accept, however, that his criminal record of theft partially relates to his addiction. [ 5 ] Mr.

Kerr is 52, born and raised in the Smithers area. He worked for a good number of years. His history includes 10 years' work for the City of Terrace. I understand he became addicted to cocaine in his mid-twenties; he went off it for 15 years; he became addicted to it again about the time he separated from his wife and his mother died. This adversely affected his emotional state. [ 6 ] Mr. Kerr is still addicted. It was apparent from his appearance. During this sentencing hearing today, he looked somewhat better than during the trial. He looks considerably older than 52.

From his comments and demeanour at times during the trial, I infer he likely abuses other substances. He appeared to struggle to stay awake at times. [ 7 ] In the two and a half years since these charges were laid, Mr. Kerr has not rehabilitated or sought addiction counselling. His local associations are unsavoury. At trial, the evidence showed he had a role in drug-dealing operation centred in a local house. In late November 2009, it had changed into a dial-a-dope operation. The house remained the cache for that operation and some drugs were still sold from it. The apparent head of the operation, a Mr.

Noel New (phonetic), is evidently well known to police as a drug dealer; as were several other persons identified at the trial through surveillance and from other information obtained by the police from informants; but the operation centred on Mr. New. [ 8 ] Mr. Kerr describes Mr. New as a lifelong friend. He lived with him at the time of an earlier police investigation that eventually led to the discovery of drugs in a house shared by Mr. New and Mr. Kerr. I have no evidence of any disposition of that, but Mr. Kerr was present at the time.

No drugs were found on his person however and he was not charged with an offence. [ 9 ] Police officers described the challenges of policing a dial-a-dope operation in a small town like Terrace. Unmarked vehicles, for example, are soon recognized: Compared to larger places, Terrace has few streets to drive on and undercover officers and undercover vehicles are soon recognized for what they are. When a prospective buyer calls a dial-a-dope operation and the seller does not recognize the caller, they will demand a reference before they agree to deliver any drugs. [ 10 ] Four experienced police officers testified.

Mr. Kerr is known to them as a person involved with Mr. New and the other individuals that they identified as drug dealers also personally known to the officers. The officers described an aborted attempt to place an order at a local number they knew from their investigations to be a dial-a-dope operation headed by Mr. New.

[ 11 ] On December 3, 2010, the officers received information from an informant viewed as reliable. The informant told them Mr. Kerr was driving around Terrace on his bicycle with a large quantity of drugs on him. [ 12 ] Either 600 metres east or west, (I am not sure which) from the Straume Avenue residence, where the dial-a-dope operation was centred, the officers came across two men known to them. One of them was searched and found with cocaine in their possession. The men told the officers they had purchased the drugs from “a white guy on a bike”. Since Mr.

Kerr was the only person among the group involved in the dial-a-dope operation who the officers knew rode a bike, they inferred that was the rider. They knew Mr. Kerr as he did not have a driver's licence and he had been observed by them riding a bicycle previously. They went looking for him. They could not find him. [ 13 ] Later, one of the officers called a number they believed to be the dial-a-dope number. They spoke to a Mr. Robb, whose voice the officer placing the call recognized. The seller asked for a reference.

Without one, the seller did not deliver and they abandoned that attempt to get drugs delivered to their location. [ 14 ] Later, December 10, 2010, they decided to try again. One of the officers phoned the dial-a-dope operation number. The officers described the ruse they presented over the phone, which proved successful. I will not detail that here. Within minutes, they arrested the person making the delivery, Mr. Kerr.

He arrived at the agreed meeting place within the six to seven minutes the seller on the phone had assured the officer the drugs would arrive. [ 15 ] So, approaching midnight on a cold clear December night, Mr. Kerr came to the designated meeting place, stood right by the officer, within his personal space, and the officers then and there arrested Mr. Kerr. The officers observed no one else in the in the area at the time; and after searching him, found in his possession the .9 grams of cocaine they had ordered. [ 16 ] Mr.

Kerr testified, seeking to convince the jury that at the time of the offence he had been on his way to meet a woman at a nearby park. He testified, in effect, that he just happened to be at the location of his arrest, at that exact time expected by the officers for delivery, as Mr. Robb had assured the officers. In effect, Mr. Kerr’s presence at that time with the exact quantity of drugs the officers had ordered in his possession was a mere coincidence. Possession had been admitted. The only issue was whether Mr.

Kerr possessed them for the purpose of trafficking. [ 17 ] The jury concluded the Crown had proven Mr. Kerr possessed the drugs for the purpose of trafficking beyond a reasonable doubt. [ 18 ] I infer from the evidence that Mr. Kerr had been involved in drug dealings with Mr. New and others involved for a fairly long time. He was not at the top of the hierarchy, but was enmeshed in the operation through his friendship with Mr. New and his related activities. I accept he sometimes performed occasional handyman or repair services for Mr. New, but the evidence strongly indicates that for Mr.

Kerr his involvement was not a one-of-a-kind one. [ 19 ] Counsel referred me to a number of authorities which I have reviewed. I have heard a number of these cases in other parts of the province as other judges of this court often do. [ 20 ] The Court of Appeal and trial judges sitting throughout the province have commented on the insidious and destructive nature of dial-a-dope operations. They ease access to drugs that previously required addicts to drive to a known drug-selling location. Such operations introduce young people to drugs and spread the incidence of addiction.

They sunder family relationships and fray the bonds that link a healthy community. They increase the spread of drug addiction and the personal suffering it causes. Dial-a-dope operations are nothing less than an evil, destructive scourge in our communities. Numerous judges have as much in various ways. [ 21 ] The following authorities were provided by counsel. [ 22 ] Submitted by the Crown were the following two cases: ▪ R. v. Barrick , 2012 BCCA 83 ; and ▪ R. v. Tran , 2007 BCCA 613 . [ 23 ] Submitted by counsel for the defence were the following two cases: ▪ R. v. Heidari , 2013 BCSC 252 ; and ▪ R. v.

Monavari , 2012 BCSC 1890 . [ 24 ] Therefore, deterrence, both general and specific, is the primary focus, but not intended to be entirely at the expense of rehabilitation. In some instances, a custodial sentence is a far more faithful servant of the offender’s need for rehabilitation than is a non- custodial sentence offering. In some instances, a custodial sentence becomes the offender's only realistic chance of overcoming their addiction. [ 25 ] I note that despite facing these charges for the two and one-half years, Mr. Kerr has taken no steps in the direction of counselling.

In my view, a non-custodial sentence would see Mr. Kerr continue on as before with the same unsavoury influences and friendships, the same addiction triggers, and the same socially destructive behaviours he has engaged in, such as theft. I note the history of thefts. [ 26 ] A non-custodial sentences would be a fit option when, for example, the offender is a young person involved in the lowest level of the dial-a-dope operation. Mr. Kerr's involvement with people known to the police as long-time drug dealers is much longer. Mr. Kerr is 52. He has a fairly lengthy criminal record.

[ 27 ] I find a non-custodial sentence is not in Mr. Kerr's best interests. [ 28 ] In my view, a custodial sentence could well save Mr. Kerr’s life. [ 29 ] Further, a non-custodial sentence is contrary to the interests of the community. There is a strong likelihood his presence in the community will expose it to a person who will resume his former anti-social patterns. [ 30 ] In my estimation, a custodial sentence would serve a dual purpose: deterrence, general and specific, and better serve Mr. Kerr's rehabilitation.

From what I have seen and heard in this case, this is clear and obvious. [ 31 ] I appreciate that drug use occurs in prison. But well established drug addiction programs and counselling programs are available to offenders. Given Mr. Kerr has not seen fit to take advantage of programs when he has not been in custody, I find it far more likely he will receive the benefit of counselling and drug addiction preventative programs in an institutional setting. [ 32 ] I have considered all the principles of sentencing.

I will not recite them here in the interests of time. [ 33 ] The question is, then, what is a fit custodial sentence? [ 34 ] I take notice of the widely held view on deterrence that of the tools available to deter crime, apart from social initiatives within the community, the most effective are ample presence of police on the streets and a high likelihood of detection and apprehension. [ 35 ] A significant sentence is a more significant deterrent in some cases than it is in others. Noteworthy here are the challenges that dial-a-dope operations pose to communities like Terrace, Hazelton, Singleton, and so on.

When, as a result of investigative efforts of law enforcement, the Crown secures a conviction for possession for the purposes of trafficking through a dial-a-dope operation in a smaller community, this increases the deterrent value of a custodial sentence. [ 36 ] This calls for a sentence that will deter others in the community from becoming involved in a dial-a-dope operation at the lower level. A sentence imposed on a dealer at the bottom end of the hierarchy can dry up the supply people willing to chance working as low- level operator if they know they are likely to face a jail sentence if convicted.

Low level sellers are essential to successful operation of a dial-a-dope operation. [ 37 ] Therefore, in my view, while the fact Mr. Kerr is a low-level operator is a somewhat mitigating factor, after making allowance for factors such as addiction, and other relevant factors, being a low level operator should not unduly get in the way of what needs to be the sending of a clear message to the community: If you participate in a dial-a-dope operation at any level, including the lowest level, you are going to receive a significant jail term.

Of course, if the offender is addicted to the drug they are selling and have become involved to fund their addiction, in whole or in part, that is a mitigating factor. In this regard, I note the officer's evidence that nearly all low-level operators are addicted. If the offender's addiction is given undue weight that may effectively prevent the imposition of the deterrent sentence the circumstances call for. And as noted, the availability of institutional rehabilitation programs should be considered. [ 38 ] I note Mr. Kerr's long-time connection with Mr. New.

Considering all the evidence heard, I find his perspectives have come to form into what I would call a kind of criminal mindset. [ 39 ] Mr. Kerr's sentence should be sufficiently lengthy to allow his rehabilitation to take root. Nine months is insufficient; 12 months, perhaps, adequate.

But there is an equal chance this would not be sufficiently lengthy to see permanent change and establish general and specific deterrence. [ 40 ] A sentence should not exceed what is necessary to accomplish the objectives of sentence, which in this case is first, to send a strong message that if a person is inclined to participate in a dial-a-dope operation in Terrace, even at a low level, even if there is some element of addiction, you are likely to receive a significant jail sentence; a sentence , also, sufficiently lengthy to give Mr.

Kerr his best chance – given his history, in my view, the best he will ever see – to free himself of addiction. [ 41 ] Considering all the circumstances, including Mr. Kerr's previous record, the evidence that I have heard an alluded to, and the principles of sentencing as set out in s. 718 of the Canadian Criminal Code , R.S.C. 1985, c. C-46 [ Criminal Code ], I impose a sentence of 14 months and two years of probation. [ 42 ] I turn now to the terms for probation. [ 43 ] Mr.

Kerr, I forgot to ask you if you wanted to say anything before I impose sentence, would you like to say anything now? [ 44 ] THE ACCUSED: Yeah. I believe it wasn't totally effectively taken care of because I wasn't allowed to -- the witness that was willing to step forward to say they -- they did the phone call, Mr. Hugh Robb, wasn't allowed to stand on the court and be a witness. He -- he was the one that was doing the delivery. You also wouldn't allow me to step forward and say that the person, the jury that knew me from a past hunting trip, had bad -- bad feelings towards me from that.

You would not let me say that, and that that person was allowed to make -- be a part of the jury is not real -- [ 45 ] THE COURT: Do you have anything to say on the -- [ 46 ] THE ACCUSED: -- like, normally in a court case, that should be tossed from court. [ 47 ] THE COURT: Do you have anything to say with respect to the sentence? That is what I was asking you about? [ 48 ] THE ACCUSED: With respect to the sentence? [ 49 ] THE COURT: Yes.

[ 50 ] THE ACCUSED: I believe it was excessive. [ 51 ] THE COURT: All right. Thank you, sir. Is there anything further you wanted to add? [ 52 ] THE ACCUSED: No, I don't want to -- [ 53 ] THE COURT: All right. Thank you. [ 54 ] THE ACCUSED: I do need to speak to my lawyer for a moment to write some things down so he can pass it on to my family. [ 55 ] THE COURT: That's fine. Mr. Anderson can speak to the sheriff on that. [ 56 ] So I am just going to turn to the terms for probation.

First of all, before I turn to those, I want to hear any submissions of counsel on what they suggest are appropriate terms for probation. [ 57 ] MS. PENNER: The statutory ones and then also that he not have anything to do with the five people: Noel New, Hugh Robb, Anna Olson, Joseph Keeler, Henry Hayden -- [ 58 ] THE COURT: All right. [ 59 ] MS. PENNER: -- for the time. [ 60 ] THE COURT: Mr. Anderson, do you have anything you want to add? [ 61 ] MR.

ANDERSON: I understand where my friend is coming from and that, I just -- but My Lord, you've heard evidence also with respect to his lifelong friendship with Noel New. I'm not just too sure -- I really don't have too much more to say about that.

I don't know if it's realistic that he will have no association with him over the two years of the probationary term. [ 62 ] THE COURT: Well, that is one of the problems, whether it is not realistic enough that -- sufficiently realistic and he is going to end up in breach of his terms of probation because it is not possible to -- anyway, I will think about that for a moment. [ 63 ] I am going to impose the statutory conditions, the usual ones, first of all, that upon your release, you must report in person to the probation office at 102, 2918 South Eby Street, Terrace, B.C., within 24 hours and then in the manner directed by your probation officer.

I am going to make it within 72 hours of your release from custody. [ 64 ] You are to inform your probation officer of your address upon your release and of any change in your address (Condition 8) immediately and as often as such change occurs and not to change it without the prior written permission of your probation officer. [ 65 ] For the first three months after your release, you are not to have any contact, direct or indirect, with the following individuals: Noel New, Hugh Robb, Joseph Keeler, Anna Olson, and Henry Hayden.

After that period of time, with the permission of your probation officer, you may have contact with them and are to advise your probation officer of the time and place and circumstances of your having met them.

Thereafter, you shall have such contact with them as your probation officer directs. [ 66 ] You are not to consume any controlled substances or any drugs without a proper medical prescription at any time during the period of your probation. [ 67 ] You are not to consume alcohol during the period of your probation. [ 68 ] You are to seek counselling and treatment at the direction of your probation officer. [ 69 ] You are to seek and secure employment at the direction of your probation officer. [ 70 ] All right. Anything further? [ 71 ] MS. PENNER: Mr. Kerr had on him at the time of his arrest $171.

That is either to be forfeited or returned to him. [ 72 ] THE COURT: Any submissions, Mr. Anderson? [ 73 ] MR. ANDERSON: Well, yes, My Lord, just very briefly, that my friend did raise this issue earlier this afternoon, and my only expression to her was that Mr. Kerr was not able to actually deliver those drugs so the money he had on him wasn't for the delivery of those drugs, and My Lord, of course you've heard the evidence, so I'm not sure what to -- really to do with that. [ 74 ] THE COURT: Well, I am also mindful of Constable Richard's evidence.

I am also concerned about having funds available to purchase drugs. I am trying to think of some trust arrangement where it could be held in trust, but I do not see any -- would you be willing to hold the funds in trust? [ 75 ] MR. ANDERSON: Just very quickly, I think I would be prepared to do that, if that's -- [ 76 ] THE COURT: And then you could release it -- [ 77 ] MR. ANDERSON: When my client is released. [ 78 ] THE COURT: When he is released. [ 79 ] MR. ANDERSON: Yes, My Lord, I'd be prepared to do that.

[ 80 ] THE COURT: Is that acceptable to Crown? [ 81 ] MS. PENNER: Yes, it is. [ 82 ] THE COURT: All right. The monies in question will be put in Mr. Anderson's care, in trust, and he can release it to Mr. Kerr upon his release. [ 83 ] All right. Mr. Kerr, I really think this is going to be a lifesaver for you. I think if you carried on in your current path, you could very well be dead within a couple of years, from what I have seen and heard.

This sentence is directed, as I said, both to deter others from engaging in the activities you engaged in, but also with a view to giving you a chance to get free of your drug addiction, to get some help, to get some routines, and to get away from the associations that you have been engaged in that you have, your friendships and all the people that you have been engaged in drug dealing with. If you carry on as you are, you are never going to extricate yourself from that. You told me about your work history and all the things you accomplished. You have a daughter.

Sometimes, you hear from people who have gone to jail and come out and said that it saved their life; it turned their life around. It does not have to be seen in purely negative terms. To me, you are going to come out of that a better person, a better man, a healthier man, and be able to start in a new life. So that is one of the things I had in mind in considering your sentence. I think if you put your heart, mind, and soul into it, your very best, a positive attitude, and take advantage of everything that is there, you will come out a much healthier person than you went in. [ 84 ] All right. Thank you. “N.

Brown J.”