R. v. Miller, 2017 BCSC 1692

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Miller, 2017 BCSC 1692 Date: 20170731 Docket: 65679-2 Registry: Chilliwack Regina v. Ryan Kirk Miller Before: The Honourable Madam Justice Murray Oral Reasons for Sentence Counsel for the Crown: S.J.K. Gill Counsel for the Defence: D.J. Gable Place and Date of Hearing: Chilliwack, B.C. July 31, 2017 Place and Date of Judgment: Chilliwack, B.C. July 31, 2017 [ 1 ] THE COURT: On April 27 of this year, after a three-day trial, I found Mr.

Miller guilty of possession of cocaine for the purpose of trafficking, and possession of a prohibited weapon, a stun gun or a Taser. [ 2 ] The circumstances briefly are as follows: • Police conducted surveillance of Mr. Miller on October 3 and 4, 2013. • Over those two days, he was observed driving from place to place- apartment buildings, dead ends, parking lots, parks, and having short meetings with various people. • On a number of occasions he was seen making hand-to-hand transactions. • Just before he was arrested on October 4, 2013, Mr. Miller was observed stopping beside a man who was walking down a road.

The man got into his van. Mr. Miller drove a very short distance, then the man got out. Police stopped the man after he left the van and found three packages of crack cocaine in his pants pocket. [ 3 ] In the van was found: 1. a functioning Taser in a slot on the dashboard within reach of Mr. Miller, the driver; 2. two cellphones- a Motorola that was found on the driver's seat and a Samsung was located in the centre console with its battery out; 3. a man purse with a folding knife attached to the outside. In a

section of the man purse was $170 in cash, and in a wallet that was found inside the purse was over $900. Three pieces of identification, all in the name of Mr. Miller and bearing his likeness, were inside; and 4. score sheets and telephone lists were found in a toolbox that was in the back of the van beside Mr. Miller's child’s bicycle. [ 4 ] Between 1621 hours and 1744 hours following Mr. Miller's arrest, an officer answered three calls on the Motorola cellphone that was on the driver's seat.

Each time the officer answered he said something to the effect of, “What do you need?” The first caller wanted a “full ball”. The second caller needed “two Qs”, and wanted to meet in the “BK parking lot”. The third caller seemed agitated and said, “Hey, I need what I ordered. When are you going to meet me?” An expert that testified at the trial gave evidence that all of those calls had to do with drug trafficking. [ 5 ] Mr. Miller's apartment was searched. In it was found a baggy with powder cocaine, a Nike shoe box with drug packaging paraphernalia including a scale, baggies, razor blades, straws and a felt pen.

There was also a small amount of cocaine in powder form in the box. [ 6 ] On top of the refrigerator was a rental inspection form, indicating that the accused had moved into that apartment September 15, 2013. In addition, the suite was filled with clothes and other items that indicated that three people lived there, that being Mr. Miller, his then common-law wife, and his young son, who I believe was three at the time.

[ 7 ] There are many aggravating circumstances on this sentencing. 1. It is a dial-a-dope operation. Our courts have clearly stated that that is an aggravating factor for a number of reasons. Firstly, dial-a-dope operations involve planning. They are businesses. Dial-a-dope traffickers make it easy for drug users to get drugs. 2. Mr. Miller was involved in trafficking a hard drug, crack cocaine which is a very addictive substance. It is destructive and life- shattering. Drug traffickers like Mr. Miller are responsible, in my view, for putting drugs in the hands of the drug users.

That makes them responsible for the shattered lives of the drug addicts. 3. Drug trafficking is a huge problem. It is at the centre of most of the extreme violence that is taking place on our streets every day. Courts have a responsibility to play a role in having a message sent out to people involved in the drug trade, and the only way we can do that is to impose harsh sentences on those involved. 4. Mr. Miller had not only the Taser, that was operational and in plain view and within his arm’s reach in the van, he also had a knife attached to the outside of his man purse.

The only reasonable inference is that he was willing – he was definitely able and he was willing to resort to violence. 5. The most aggravating factor of all is that Mr. Miller was trafficking drugs with his then very young, I believe three-year-old son at his side. That young boy was not only in the van during most of the observations made by the police, but was also out of the car with Mr. Miller while he met with some of the people. 6. Mr. Miller committed further offences while this matter was outstanding. He committed a possession of stolen property.

The offence date of that offence is December 1, 2016, and he also was charged with possession of marihuana, the offence date being February 7 of this year. He was sentenced on both charges on March 31st of this year. For the possession of stolen property he received a sentence of one day, plus 18 months' probation, and on the possession of a controlled substance he received a sentence of one day. These sentences of one day were imposed after Mr. Miller was credited with time served. I am advised that Mr.

Miller was in custody from February 7 to March 31, so a period of almost two months. [ 8 ] There are some mitigating factors on this sentencing as well: 1. Mr. Miller is a drug addict. He is addicted to crack cocaine. He testified at trial that he has been addicted to drugs for approximately 20 years. Some courts consider that a mitigating factor. Quite frankly, I am not sure that it is one. It certainly does not excuse Mr. Miller's actions. In fact, in some ways it makes it worse, as he himself knows all too well how debilitating and life-shattering drug addictions are.

By selling drugs to others he is actually perpetuating his very own addiction. However, it is seen as mitigating that the trafficking is to finance the addict's addiction rather than strictly for financial gain. 2. It was evident from his condition in court that Mr. Miller is still suffering from a serious addiction. Throughout the three-day trial he continually nodded off, was often late, and disappeared after lunch. When he testified, his evidence was vague and jumbled and his thoughts disorganized. 3. Mr. Miller is now employed. He was employed on June 26 on an on-call basis as a carpenter.

He filed a letter from a man by the name of Michael O'Neill stating that Mr. Miller is a hard-working reliable member of the job team and has proven himself an asset to the company. Mr. Miller advises that he has worked five or six days since the end of June. 4. Mr. Miller completed the basic skills at Surrey Addiction Services. He filed a certificate to that effect stating that he completed four one-and-a-half hour sessions. The certificate is undated, but Mr. Miller advises that it is from May 2017. [ 9 ] There was a presentence report completed July 25 of this year.

I think it should be filed as an exhibit. [ 10 ] Do you have a copy in the file? [ 11 ] THE CLERK: Yes, I do. [ 12 ] THE COURT: It should be filed as the next exhibit on this sentencing. [ 13 ] THE CLERK: Yes, My Lady. [ 14 ] THE COURT: That report causes me concern for a number of reasons. 1. First, Mr. Miller claims that he has not used drugs for three months. That would mean that immediately after the trial he stopped. Given the severity of the problem at that time – and I saw it – I am skeptical. 2. At the time of the trial it is uncertain whether he was living at a recovery house.

It looks like he was, from the presentence report, but Mr. Miller's girlfriend said that they moved in right after the trial. Whatever the case, again, given what I observed over the course of the trial, Mr. Miller was clearly not engaged in any way in any form of recovery. 3. Mr. Miller's performance at the recovery house as reported in the presentence report was less than glowing. The manager of the recovery house reported to the writer of the presentence report that, while at the house, Mr. Miller was involved in altercations with other residents and did not attend any programs or meetings.

The manager suspected that Mr. Miller was using. When he asked him to take a drug test Mr. Miller refused and then moved out of the house. According to that manager, Mr. Miller and his girlfriend were very loud and abusive towards each other while they were living there. They stole things when they left. Needless to say, according to that manager, they are not welcome back. However, contrary to that report Mr. Miller filed a letter from another person who says that he is the manager of that same recovery house. It is completely opposite, in that it is positive. It says the following:

I am aware that Ryan is very active in his sobriety and has no issues with relapse or concerning behaviour throughout the entirety of this program. He is an asset to our household and is seeking excellent outside community life skills programs and activities. I can personally attest to his pro-active attitude, commitment, determination and positive participation in all aspects of our program. 4. Mr. Miller's views regarding counselling were mentioned several times in the presentence report. As a result of the remarks, it appears to me that probation and community-based dispositions are not an option.

The comments include the following: He has a poor attitude towards community supervision and sees it as “just another way to keep you in the system”. Mr. Miller has not been reporting, as directed, on his current probation order. The writer of the presentence report notes that Mr. Miller tends to drop in with his girlfriend. According to the presentence report, Mr. Miller, when he does drop in, is at times polite and cooperative and at other times argumentative and uncooperative. He told his probation officer that he should not be answerable to anyone, and I note, these comments are recent.

They are about recent behaviour. He has just been on probation since March 31 Finally, Mr. Miller questions whether he would benefit from counselling. He is not convinced that counselling would be of any benefit to him. 5. The presentence report addresses the fact that Mr. Miller is a full status member of the Liard First Nation, whose traditional territory is in the Yukon. Mr. Miller reported to the probation officer that he does not feel very connected to his indigenous roots, but he likes to keep in touch regarding land claims affecting his family.

Having said that, he also told the probation officer that he tries to keep in touch with elders to fuel his spiritual side and is interested in culturally specific counselling. [ 15 ] Regarding the appropriate sentence, the paramount considerations on this sentencing are deterrence, both general and specific, and denunciation. The sentence that I impose must send a message, not only to Mr.

Miller, but to like-minded individuals, that there will be serious consequences if you are caught dealing drugs. [ 16 ] Our Court of Appeal has made clear that the sentence for dial-a-dope offences is jail, save exceptional circumstances. In R. v. Voong , 2015 BCCA 285 , our Court of Appeal addressed the appropriate range of sentence for dial-a-dope offences. Voong involved four separate sentencing decisions in which a suspended sentence was imposed.

The Crown appealed each of these sentences. [ 17 ] In its decision, our Court of Appeal reaffirmed the seriousness of dial-a-dope operations, and stated this with respect to sentencing for those offences at para. 59: In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug seller, will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non- custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that [Conditional Sentence Order] sentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. [ 18 ] Considering all of the circumstances of this case and the circumstances of Mr. Miller, including his indigenous roots and his difficult childhood, I do not find that exceptional circumstances exist. This is not a case where I am convinced that Mr. Miller has truly turned his life around and that protection of the public is better served by a non-custodial sentence. I have no confidence whatsoever that Mr.

Miller is ready or willing to report to a probation officer as directed, let alone to embark on a meaningful course of counselling. [ 19 ] As a result, the only way to address the principles of sentencing is to impose a period of incarceration. [ 20 ] Stand up, please, Mr. Miller. [ 21 ] I sentence you to six months in jail. In addition, I am going to make a s. 109 order for ten years. I am also going to make an order that a sample be taken for DNA analysis, and finally there is a victim fine surcharge. [ 22 ] Can you help me, Madam Crown? [ 23 ] MS.

GILL: Yes, it is -- since the Crown proceeded indictably, it is $200 per count. [ 24 ] THE COURT: Thank you. A victim fine surcharge of $200. This is an exhibit, Madam Registrar. Anything further, counsel? [ 25 ] MS. GILL: And My Lady, the forfeiture order? [ 26 ] THE COURT: Oh, and forfeiture. Yes, thank you. [ 27 ] I order forfeiture of the drugs and the weapons and the money seized. The photo of Mr. Miller and his son can be returned to him by Mr. Gable. “The Honourable Madam Justice Murray”