R. v. Adams, 2017 BCSC 2529

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Adams, 2017 BCSC 2529 Date: 20170510 Docket: 74188-3 Registry: Nanaimo Regina v. Garnet Wayne Adams Kiya Emily Ball - and - Docket: 77766-2 Registry: Nanaimo Regina v. Garnet Wayne Adams Anjanette Marie Du Temple Before: The Honourable Mr. Justice N. Brown (appearing by videoconference) Oral Reasons for Sentence re Accused Garnet Wayne Adams Counsel for the Crown: M.J. Down Counsel for the Accused Adams: K.D. Bradshaw Place and Dates of Trial/Hearing: Nanaimo, B.C. March 2-3, 2017 Place and Date of Judgment: Nanaimo, B.C.

May 10, 2017 [ 1 ] THE COURT: Dealing with the first matter, Garnet Wayne Adams stands for sentencing on his conviction on the following offences, all contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 [ CDSA ], following trial in October 2014 all in the City of Nanaimo, Province of British Columbia: 1. Count 1 , unlawful possession of cocaine for the purpose of trafficking; 2. Count 2 , unlawful possession of methamphetamine for the purpose of trafficking; 3. Count 3 , unlawful possession of diacetylmorphine (heroin) for the purpose of trafficking; 4.

Count 4 , unlawful possession of methamphetamine; and 5. Count 6 , having in his possession stolen property, namely a Toshiba laptop, the property of Cale Burns, of a value not in excess of $5,000, knowing that the said property was obtained by the commission in Canada of an offence punishable by indictment, contrary to s. 355 (

b) of the Criminal Code . [ 2 ] Mr. Adams also plead guilty to two offences that occurred April 15, 2016, at or near the City of Nanaimo. I will deal with those momentarily. [ 3 ] Dealing first of all with the facts relating to the 2014 matter, the details of which are more fully set out in the voir dire reasons, R. v. Adams (May 6, 2016), Nanaimo File No. 77766 (S.C.) I will not traverse all the details of the facts leading up to the arrest, searches conducted, and so on, except to note that Mr.

Adams' wallet was found to contain $1,320 cash, in various denominations consistent with drug trafficking. [ 4 ] As for controlled substances, the following were found, analyzed, and marked: in a polka-dotted purse found in the passenger foot well, 2.31 grams of heroin, 4.68 grams of methamphetamine; 17.09 grams of cocaine, and a scale. The total value of the drugs on a

street sale was about $1,300. [ 5 ] Mr. Adams also plead guilty to two offences that occurred on April 15, 2016, at or near the City of Nanaimo.

The counts for those offences are as follows: Count 1 , that “on or about the 15th day of April, 2016, at or near the City of Nanaimo, in the Province of British Columbia, [he] did unlawfully possess a controlled substance, to wit: Fentanyl, for the purpose of trafficking, contrary to s. 5(2) of the [ CDSA ] ” ; and Count 3 , that “on or about the 15th day of April, 2016, at or near the City of Nanaimo, in the Province of British Columbia, [he] did unlawfully possess a controlled substance, to wit: Methamphetamine, for the purpose of trafficking, contrary to s. 5(2) of the [ CDSA ] ” . [ 6 ] I turn now briefly to the facts related to the April 15, 2016 offence.

On that date, the police were conducting surveillance on Mr. Adams, who was on bail related to another matter. Police surveillance was prompted by information related to his activities, which eventually led to his arrest. He was a passenger in a Pontiac Sunfire driven by a Ms. Kiya Emily Ball. [ 7 ] The police saw a Sunfire in the parking lot of the Harewood Arms Pub in south Nanaimo, followed by a short meeting with a known mid-level drug dealer. The police believed the dealer was reloading Mr. Adams' drug supply. After the two vehicles left the parking lot, the police conducted a traffic stop. [ 8 ] Both Mr.

Adams and Ms. Ball were arrested for possession for the purpose of trafficking. On his arrest, an officer noted a black camera bag on Mr. Adams. To the officer, it appeared Mr. Adams was attempting to conceal it. A police search of the camera bag incidental to arrest found several baggies containing drugs. Also seized were two cellular phones, a digital drug scale, and some empty baggies. [ 9 ] An in-custody search of Mr.

Adams' person found hidden in his underwear a small bag, which later analysis confirmed was a mix of fentanyl and heroin. [ 10 ] The drugs seized on April 15, 2016, included: 1) 2.4 grams of cocaine, street value $250; 2) 24.7 grams of fentanyl, including the one gram of a mix of fentanyl and heroin found on Mr. Adams' person, street value $4,900; 3) 9.5 grams of methamphetamine, street value $470; 5) 40 pills of oxycodone, street value $220; and 6) 4 pills of Supeudol and 4 pills of an unknown substance. [ 11 ] The total street value of the drugs was approximately $5,880. [ 12 ] I will now turn to some of Mr.

Adam’s history so far as we have it. Mr. Adams' November 30, 2016 Pre-Sentence Report (“PSR”) is brief, perhaps reflecting Mr. Adams' lack of family and social support. He has lived on Vancouver Island most of his life. He stated his mother was a functional addict and that she used alcohol often. His father was also addicted to street drugs. He died from substance abuse when Mr. Adams was about eight years of age. As a child, he regularly witnessed ongoing polysubstance use and violence. [ 13 ] Mr.

Adams had some employment in his early adult years but admitted to the probation officer that substance abuse had been a problem for him for about 17 years. For over a decade, he had no stable employment. [ 14 ] He started to use alcohol and marihuana in high school, cocaine regularly when he was about 27 years old, following which his life deteriorated. His marriage broke down. He lost regular employment, ended up on the east side of Vancouver after his marriage dissolved, and while living on Hastings Street regularly engaged in his addiction. [ 15 ] Fourteen years ago, Mr.

Adams unsuccessfully tried residential treatment programs at Comox Valley Recovery Centre. According to the report, he did not follow up when he returned to the community, or take

part in any of the peer support recovery groups. He advised the parole officer he did not buy into the 12-Step Program, the prevalent model for ongoing recovery support. He had not explored other models of ongoing recovery peer support. [ 16 ] Although Mr. Adams reported periods of abstinence in his adult life, he returned to using intoxicants. Before his arrest for the 2014 offences, he stated he was using speed and heroin. He supported his drug use by selling intoxicants to others. [ 17 ] Mr. Adams reported his addictions have controlled his life for at least the last 17 years.

He stated, however, that he was willing to address the problem, expressing interest in the Comox Valley Recovery Centre or the Guthrie House programs. [ 18 ] While in remand custody, he reported he had been attending for some sessions with drug and alcohol counsellors but the probation officer noted institutional running records do not mention that involvement. [ 19 ] Counsel confirmed Mr. Adams is 46 years of age. He had no one to speak for him; his life a solitary one with no family relationships.

I note, however, evidence during the trial that he had been living with a woman with whom he had a stable marriage-like relationship. I recall she also was addicted to drugs. [ 20 ] Mr. Adams' counsel noted that he obtained his GED and had worked for a time restoring upholstery and carpet cleaning. She described him as a terrible abuser of drugs who had become involved in trafficking at the street level to support his habit. He had been out for about 10 months when he committed the October 2014 offences but had relapsed and become involved in street-level trafficking

to support his addiction. [ 21 ] As I have noted at other times during the course of hearings I have been engaged in on this case, Mr. Adams presented as a person with considerable verbal intelligence, despite his difficulties with addiction. [ 22 ] I turn now to the general principles of sentencing as set out in s. 718 of the Criminal Code and s. 10 of the CDSA . They are almost identical with some slight variation. [ 23 ] The fundamental purpose of a sentence is to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful, and safe society.

That broad purpose is achieved where the sentence contains just sanctions that reflect the sentencing objectives further set out in the section, namely denunciation, general and specific deterrence, separation of offenders where necessary, rehabilitation, reparation, promotion of a sense of responsibility in the offender, and an acknowledgment of the harm caused to the victims or, in this case, to the community. [ 24 ]

Section 718.1 sharpens the focus of s. 718 with this requirement: that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Irrespective of how much weight the judge accords to the objectives I have just stated, the sentence must respect that fundamental principle of proportionality. [ 25 ] The

section also sets out a non-exhaustive list of aggravating and mitigating circumstances; that is, facts that call for lesser or greater sentences as the case may be. [ 26 ] The principle of parity and totality calls for similar sentences for similar offences committed by similar offenders. [ 27 ]

Section 718.2 further instructs a sentencing judge to consider all the available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of Aboriginal offenders. Mr. Adams is not Aboriginal. [ 28 ] The just mentioned principle of proportionality is central to the sentencing process, not just an add-on. The sentence must not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In that sense, the principle serves a limiting or restraining function: R. v.

Nasogaluak, 2010 SCC 6 . [ 29 ] At the same time, a sentence must hold offenders responsible for their actions and properly reflect and condemn their role in the offence and the harm caused to the community. The sentence must both speak out against the offence and punish the offender. But no more than is necessary to accomplish the objectives of sentencing. Crown position on sentencing [ 30 ] Crown counsel submitted that an appropriate sentence for the October 12, 2014, offence is 18 months.

As for the more recent 2016 offence (Nanaimo Court File No. 74188), he submitted 30 months consecutive is the appropriate sentence. This would result in a global sentence of 54 months. [ 31 ] Both counsel agree Mr. Adams spent a total of 17.3 months in custody on the two offences. With the usual credit of 1.5 days for each day spent in pretrial custody, he would be entitled to a credit of 26 months. Therefore, with those calculations, Crown submits Mr. Adams' global sentence should be 28 additional months to be served. Crown submitted this accorded with the totality principle and credits Mr.

Adams with his having entered a plea of guilty on Court File 74188. [ 32 ] As for aggravating factors, Crown pointed out that the latest indictments represent the fourth and fifth times Mr. Adams has been convicted of either possession for the purpose of trafficking or for trafficking; that Mr. Adams had an outstanding matter when he committed his October 2014 offence (Court File 77766) and was on bail. Further, he was engaged in a dial-a-dope operation. The 2016 indictment (Court File 74188), also had the markings of a dial-a-dope operation. [ 33 ] Mr.

Adams' criminal record, in particular his previous convictions for trafficking in controlled substances, is an aggravating factor. It is long, showing 20 offences between August 2013 and 2015. Two of those are for possession of a controlled substance and three are for trafficking. [ 34 ] Recently, on April 13, 2015, Mr. Adams was sentenced to three months' imprisonment for trafficking in a controlled substance after he had received 12 months' credit for time spent in custody, for which he was credited nine months for pretrial custody. He was on bail at the time of that offence.

He had spent roughly 24 months of pretrial custody in jail for trafficking offences. He has been convicted of roughly 12 offences related to failing to appear or for breaches of recognizance or undertakings. He has spent approximately 65 days in custody for those offences. [ 35 ] On February 14, 2012, Mr. Adams was convicted of break and enter and commission of an indictable offence, incarcerated for eight months, including four months’ pretrial spent in jail. Fentanyl [ 36 ] I turn now to the fact that one of the controlled substances in this case that Mr. Adams trafficked in is fentanyl.

Crown counsel submitted the court has to address fentanyl's having caused significant harm and many deaths in British Columbia, in particular in the Nanaimo and central Vancouver Island areas of British Columbia. Therefore, the Crown submits, the harm to public safety calls for a sentence that will strongly denounce and deter trafficking in that substance. [ 37 ] Crown counsel pointed out fentanyl is a

Schedule I substance with a maximum sentence of life imprisonment. Counsel also

stressed that sentences vary depending on the potential danger of the drugs sold, and that trafficking in heroin should attract a highersentence than trafficking in cocaine, for example. [38] Crown counsel also submitted a sentencing judge could find that prevalence of a crime in the community calls for a fittingdenunciatory and deterrent sentence. R. v.

Lacasse, 2015 SCC 64, at paras. 90 to 93 states: [90] Although the fact that a type of crime occurs frequently in a particular region is not in itself an aggravating factor, there may becircumstances in which a judge might nonetheless consider such a fact in balancing the various sentencing objectives, including the needto denounce the unlawful conduct in question in that place and at the same time to deter anyone else from doing the same thing.

It goeswithout saying, however, that the consideration of this factor must not lead to a sentence that is demonstrably unfit. [91] The Quebec Court of Appeal has played an important role in the development of the Canadian case law on this subject. Forexample, in R. v.

Valiquette, , at paras. 48-50, it affirmed the decision of the trial judge, who had considered anupsurge in crimes involving the production of drugs in the Joliette district in order to emphasize the objectives of denunciation andgeneral deterrence in the determination of a just and reasonable sentence. [92] Similarly, the Quebec Court of Appeal found in R. v.

Nguyen, 2007 QCCA 1500, at para. 7 , that, in determining thesentence, the trial judge had been right to take into account the fact that there had been a large number of offences involving thecultivation of cannabis in certain parts of the Basses-Laurentides region, as well as the existence of a well-developed narcotics traffickingnetwork there.

In the Court of Appeal's view, the trial judge had not therefore been wrong to impose a sentence that would be harshenough to deter individuals who might be tempted by the lure of gain to commit such offences. [93] Other Canadian courts of appeal have also referred to the principle that the local situation may be one of the relevant factors toconsider in determining a just and appropriate sentence: R. v. Morrissette (1970), (SK CA), 1 C.C.C. (2d) 307 (Sask.C.A.), at p. 310; R. v. Laurila, 2010 BCCA 535, 296 B.C.A.C. 139, at para. 6; R. v. Woghiren, (Ont. C.A.), atpara. 3. [39] In R. v.

Su, 2000 BCCA 480, the sentencing judge imposed a two-year-less-a-day sentence on the operator of a grow operationbecause of his view that those types of operations were a significant concern in the community.

At para. 11, Justice Lambert writing forthe Court of Appeal said this about the occasional need to readdress sentence ranges: [11] In my opinion, the range that has been thought to have been appropriate in past cases may be superseded by new views, takinginto account and reflecting the concerns of society for the flourishing of this kind of crime. [40] In that case, as in this one, the activity was dial-a-dope drug trafficking. [41] At para. 16, Justice Braidwood for the Court of Appeal, commented on an appropriate procedure when a suggestion has beenmade that the usual and ordinary range be increased.

Justice Braidwood stated: [16] … In my opinion, the proper method of seeking that, namely to increase such a range … is for the Crown to make the necessarysubmission at the trial level and perhaps call evidence in order to justify the need for the change. [42] Justice Braidwood further noted (at para. 16) that “the Supreme Court of Canada has identified the trial court as the court offirst instance to be best grounded in the community need and evidence is best presented at the trial court level.” [43] To that end, Crown counsel in this case submitted a bundle of documents related to the "fentanyl crisis", including a ProvincialHealth Officer Notice given pursuant to the Public Health Act, S.B.C. 2008, c. 28, s. 52(2).

The April 14, 2016 bulletin gave notice thatthe “increasing availability of highly toxic, illegally produced opioid fentanyl analogues and resulting increases in people overdosing andmortality associated with the use of these substances, alone or with other illegally and legally produced opioids and other drugs, in theProvince of British Columbia, constitutes a regional event as defined by

section 51 of the Public Health Act." [44] Also included in the binder of documents related to risks to public health posed by fentanyl was a seven-page academicsummary of fentanyl research conducted by Professor Ashraf Amiani in the Harm Reduction Journal (2015) 12:54. [45] The submitted documents also included an expert report dated July 25, 2016, written by James R. Kennedy, a specialist in thearea of internal medicine, clinical pharmacology and toxicology, and a clinical Associate Professor in the Faculties of Medicine andPharmaceutical Sciences at the University of British Columbia and St.

Paul's Hospital in Vancouver. [46] Dr. Kennedy was clearly highly qualified to explain and opine on the topics that he did. In his report, he addressed the followingquestions: 1) the nature of fentanyl and what effect it has on the human body; and 2) the effects of fentanyl on the human body compared to the effects of other opioids such as heroin, oxycodone, morphine,and codeine; and its strength or potency compared to those other drugs. [47] Dr. Kennedy briefly addressed this question at p. 4 of his report briefly: Morphine is the standard to which other opioids are compared.

Heroin is about two times the potency of morphine; oxycodone is aboutequal to that of morphine; codeine is a very weak opioid (much less than one-tenth the potency of morphine); and fentanyl is about 100times the potency of morphine. [48] Dr. Kennedy further explained at p. 4 that “since fentanyl is about 100 times as potent as morphine and 50 times more potentthan heroin, it is far more likely to cause depression of breathing and sedation to the point of being unresponsive to external stimuli.” As

for the effects of respiration, he noted “[t]he respiratory depression associated with fentanyl use is much more likely to result in cessationof breathing than the other opioids”. [49] At p. 5, Dr. Kennedy further explained: A lethal dose of fentanyl is highly variable and often unpredictable.

The lethality of fentanyl relates to many factors, including lack ofrecent opioid use that gives the user some degree of tolerance to higher doses, use of other sedating drugs, lack of knowledge of a precisedose (as is the case in all non-pharmaceutical grade fentanyl used on the street) and lack of knowledge of the presence of fentanyl in asubstance that has been used. [50] Dr.

Kennedy further explained that the presence of fentanyl with another substance cannot be detected by a layperson outside ofthe laboratory setting. [p. 6] As for its addictive properties, he noted that “[f]entanyl has similar addictive potential as morphine, heroinand oxycodone.” He said, “[t]his means that the user continues to use the drug in spite of awareness of the harm it is doing to himself orherself … [and that] users who know they are taking fentanyl often accept this dangerous risk” and “these harms include respiratorydepression and death.” [51] Dr.

Kennedy explained “it is common for a drug user to think that he or she is using heroin, morphine, oxycodone,amphetamine or cocaine when in fact the drug has been mixed with fentanyl or substituted with fentanyl without the user's knowledge.”Further, he explained “fentanyl affects different people in different ways”, including how the ingestion of fentanyl can cause overdose ordeath (pp. 5-6). [52] I note in the case at bar that the fentanyl was mixed with heroin.

Unfortunately, the tolerance provided by frequent use of otheropioids such as morphine, heroin, and oxycodone, is seldom enough to provide tolerance to the dangerous effects of street use offentanyl, mostly with respect to its respiratory depression effect which can result in respiratory failure and death. [53] Dr. Kennedy further explained that the presence of fentanyl with other substances cannot be detected by a layperson outside thelaboratory setting (p. 6). [54] I will not recount further details in the report.

Crown counsel reviewed its contents during the hearing extensively and I havefurther reviewed it. [55] Also presented was 11 pages of statistics kept in the ordinary course of business by the Coroners Service of British Columbia.These statistics encompass the morbidity of the population related to illicit drug use. [56] A number of variables such as the months, years, and townships in which the deaths and the overdoses occurred are set out in aseries of tables. I will turn first briefly to the table tabulating deaths according to the year and township.

In 2007, Nanaimo suffered onlytwo deaths caused by illicit drug overdose. By 2015, this had increased to 19, an increase of 89 percent. In Vancouver, it had increasedfrom 59 in 2007 to 134 in 2015, an increase of 56 percent. In Surrey, it increased from 22 in 2007 to 76 in 2015, an increase of 76percent. [57] In most of the townships' data, the numbers gradually increased between 2007 and 2015. Some were significant increasesaround the period between 2011 and 2014.

Between 2011 and 2013, in Nanaimo, for example, there was a 70 percent increase in deathsin that period, and between 2013 and 2015, the rate of overdose deaths hovered at around 19 or 20, increasing by nine between 2015 and2016. [58] The B.C.

Coroners Service report stated at p. 2 of 11 that “Illicit fentanyl-detected deaths appear to account largely for theincrease in illicit drug overdose deaths since 2012 as the number of illicit drug overdose deaths excluding fentanyl-detected has remainedrelatively stable since 2011 (average of 293 deaths per year). [59] In Nanaimo and the central coast, therefore, fentanyl-detected deaths are accountable for the increase as evidenced in 2010, inthe increase of 79 from 2010 to 2015.

The number of Nanaimo overdose deaths increased by 89 percent between 2007 and 2015.Twenty-three of the fatalities were between 19 and 29 years of age, 26 percent between 30 and 39 years of age, and 24 percent werebetween the ages of 40 and 49. Therefore, 50 percent of the victims were between the ages of 19 and 39. [60] In total, between 2000 and 2015, the total number of overdose deaths increased by 140 percent. [61] Illicit drug overdose death rates remain very high on Vancouver Island, increasing in 2015 from 19, to 28 in 2016. Until 2012,deaths from overdoses never exceeded six.

The numbers for 2017 are incomplete, as they only encompass part of the year. If the fourfatalities are intended to be a monthly tally and then extrapolated for the whole year, Nanaimo could see 48 deaths from illicit drugoverdose for the entire year, an increase of 20. [62] It is not controversial that the increase in drug overdoses corresponds with the increased trafficking in fentanyl derivatives,sometimes combined with other opiates. [63] In R. v. Sidhu, 2009 ONCA 81 , 94 O.R. (3d) 609 (Ont.

C.A.) [Sidhu], the Ontario Court of Appeal found thesentencing judge had erred in characterizing heroin as "marginally" more dangerous than cocaine and in concluding that the sentencingrange for first offender carriers who import or first offender traffickers who import large amounts of high-grade heroin for personal gainshould be only marginally higher than the six- to eight-year range for a first offender who are carriers. [64] The court addressed the range of sentences for

Schedule I offences and also the subject of the offender's knowledge or lack of it,of what they had in possession and what impact that could have, if anything, on sentencing. [65] On the differences between

Schedule I offences on sentencing, the court stated at para. 12:

[12] … Time and again, this court and the Supreme Court of Canada have made it clear that heroin is the most pernicious of the hard drugs – it is the most addictive, the most destructive and the most dangerous.

Heroin trafficking has been described as a "despicable" crime and one that "tears at the very fabric of our society." [Internal citations omitted.] [ 66 ] On the subject of the offender's wilful blindness as a mitigating circumstance, the court disagreed with the sentencing judge's statement, treatment of the matter before, stating at para. 17: [17] … As a matter of principle and policy, we ought not to be sending a message to would-be couriers that if they wear blinders, they will receive a lower sentence than if they actually learn the nature and quantity of the substance they are importing.

In assessing degrees of moral blameworthiness, we see no meaningful distinction between the two. [ 67 ] At para. 18 of Sidhu , however, the court noted that it was not departing from the principle “that where an offender takes reasonable steps to determine the nature of the drug and is duped by his co-conspirators, this will serve as a mitigating factor.” There was no evidence of that in Mr. Adams' case. R. v . Smith, 2017 BCCA 112 [ 68 ] When the parties made their sentencing submissions, the British Columbia Court of Appeal's decision in R. v. Smith , 2017 BCCA 112 [ Smith ], was still outstanding.

I granted counsel leave to file brief written supplemental submissions after they had received a copy of the court's decision. Had it been available, some of the foregoing discussion would have been unnecessary but as I have been sitting in Nanaimo on this matter and have regularly sat here, the local circumstances are important to me, and the foregoing discussions were germane. [ 69 ] That said, it would not be productive now, therefore, to recount all the other pre- Smith cases that counsel brought to my attention earlier.

Some of those cases are canvassed in Smith . [ 70 ] In Smith , the Crown had appealed a six-month sentence for street-level trafficking in fentanyl by a first-time offender. The Crown had argued the sentencing judge had erred in principle, leading to a demonstrably unfit sentence, especially given the inherent danger of accidental death associated with consuming fentanyl. [ 71 ] The offence was committed in early 2015, but the offender was not sentenced until late 2016. [ 72 ] Justice Newbury summarized the basic facts at para. 1 of her reasons.

I will very briefly, distil from that: [1] … The offences occurred in the downtown eastside of Vancouver on January 20, 2015, when the respondent [offender] tried to sell drugs to a person who turned out to be an undercover police officer. The respondent [offender] was immediately arrested and was found to have on him [by the police] 13 flaps of Fentanyl (approximately 2.6 grams in total), 18 flaps of powdered cocaine (approximately 4.2 grams) and several rocks of crack cocaine weighing 3.2 grams in total. Mr.

Smith told the author of [his] pre-sentence report that he had not been aware he was in possession of Fentanyl, but had thought the 13 flaps contained heroin [only]. [ 73 ] As noted at para. 2, the Crown cited the dangers of fentanyl and its tragic effects on communities across Canada, arguing “the sentencing judge made errors in principle” and “he imposed an unfit sentence.” [ 74 ] The Crown submitted the mitigating factors considered by the judge in sentencing the respondent, such as the fact he was a first-time offender and had an addiction to Tylenol 3, were far outweighed by the sentencing goals of denunciation and deterrence. [ 75 ] The Crown urged the court “to establish a range of between 18 and 36 months' imprisonment for cases involving the street-level sale or distribution of Fentanyl” in order “to address the public's legitimate sense of moral outrage over the systemic distribution of a pernicious drug responsible for grievous loss of life, immense and unsustainable strain on our public health system, and devastating impacts on the safety and integrity of our communities”, (para. 2). [ 76 ] As for the offender's circumstances, Madam Justice Newbury noted Mr.

Smith was 59 at the time of sentencing. He had been bullied in high school. Wanting to work, he had dropped out after Grade 10, completed vocational training, and worked in various occupations that included working as a special native constable for the RCMP. A serious knee injury in 1983 requiring five operations led to his being prescribed Tylenol 3, on which he said he had become dependent. [ 77 ] The sentencing judge found Mr.

Smith's primary motivation for offending was to support his dependence on Tylenol 3. [ 78 ] With respect to his awareness of his being involved in the sale of fentanyl at para. 8, Justice Newbury noted what the sentencing judge had said, as follows: Mr. Smith does not deny the criminal activity for which he was charged and he says he takes full responsibility for his actions. He says he was engaged in drug dealing … to obtain additional Tylenol 3s. He states he did not realize he was involved in the sale of fentanyl until after he was charged.

He adds that if he knew everything he knows now about fentanyl, he would never have been involved.

He expresses shame and embarrassment for what he has done” [underline emphasis added in Smith .] [ 79 ] Justice Newbury further noted (at para. 8) the sentencing judge “seem[ed] to have accepted the respondent had been unaware he was selling Fentanyl, but made no express finding to that fact.” [ 80 ] Justice Newbury noted (at para. 9) that “the Crown had put into evidence at the sentencing hearing various reports dealing with illegal drug use in general, and Fentanyl use in particular, in British Columbia.” She incorporated portions of it in her reasons as follows. [ 81 ] Now, since you are probably familiar with the decision, I do not think it is essential that I incorporate paras. 9 and 10 from that

decision. I will include part of the end of para. 10: … In June 2013, CCENDU first detected and advised network members and subscribers of the appearance of and potential for harms associated with fentanyl or fentanyl analogues that were for sale in the illegal marketplace ….

This first CCENDU alert about fentanyl was followed by a second in February 2014 warning of the dangers of the increasing availability of counterfeit oxycodone tablets containing fentanyl … Data provided by Health Canada’s Drug Analysis Services indicate that seizures of fentanyl, both diverted prescription and illicitly produced combined, increased over 30 times from 29 in 2009 to 894 in 2014. [ 82 ] At para. 11, Justice Newbury refers to some later reports drawn to her attention by Justice Harris, to whose reasons I will turn momentarily.

Quoting from para. 11: [11] … [L]ater reports drew attention to increasing numbers of deaths and overdoses due to Fentanyl subsequent to January 2015. The reports quoted above demonstrate, however, that Fentanyl had emerged as a public health emergency in this province prior to the date of Mr. Smith’s offences.

In any event, the defence did not advance any argument on the “timing” issue, aside from a very casual remark by defence counsel … (not counsel on appeal) that he himself had not been aware of the crisis in 2015.” [Emphasis in original.] [ 83 ] The Crown submitted, in that case, a sentence of 18 months and proposed the appropriate range was between a suspended sentence to 36 months' imprisonment. The defence sought a suspended sentence and probation. [ 84 ] At para. 17, Justice Newbury noted the court's statement in R. v.

Herrell , 2014 BCCA 114 , that “a seller of illicit drugs ‘must be assumed to recognize an inherent risk … that the composition of the drugs may be unknown.’" [ Herrell , para. 19 . ] The sentencing judge, however, had stated “he was inclined to the view that actual ignorance might ‘lessen moral blameworthiness to some degree.’" [ Herrell , para. 27 .] [ 85 ] The sentencing judge acknowledged Mr. Smith's efforts at rehabilitation had to be acknowledged, but concluded the principles of deterrence and denunciation were the paramount considerations of the case, requiring a sentence of incarceration.

He noted it is impossible to think otherwise and that fentanyl is a pernicious drug, responsible for far too many deaths in the province.

He concluded, as noted at para. 22 of the appeal decision: [22] … Those who trade in such substances must be severely punished even if they are first-time offender[s] and even if they profess ignorance that the substances they were selling contained fentanyl. [ 86 ] In Smith , Justice Newbury commented on Sidhu , which I referred to earlier, and on the court's ruling that the offender in that case had been “wilfully blind” to the nature of the substance he was importing and could not rely on his lack of knowledge as a mitigating factor. [ 87 ] At paras. 30 and 31 of Smith , Justice Newbury commented on mistaken knowledge of the true identity of the illicit drug: [30] Although no finding was made in the case at bar that Mr.

Smith was "wilfully blind" to the fact that he was in possession of Fentanyl rather than heroin, the case law suggests that even being genuinely mistaken about the true identity of the illegal drug in one's possession does not serve as a mitigating circumstance in sentencing, provided the offender knew he or she was in possession of an illegal drug: see R. v. Giammarco [2012] O.J. No. 1053 … aff'd 2014 ONCA 242 . Here, there is no suggestion Mr. Smith did not know he was in possession of an illegal drug, albeit a different one than the drug he actually had in his possession for sale.

To the contrary, he admitted he was trafficking in illegal drugs. He adduced no evidence demonstrating that he took reasonable steps to satisfy himself of his belief that the substance found in his possession was heroin rather than Fentanyl. [31] In my view, the sentencing judge did err in suggesting that the respondent's moral blameworthiness was, or 'might be', attenuated by his alleged ignorance of what exactly he was selling. However, the error would seem to have had only a slight impact on the ultimate sentence.

Again, Lacasse instructs that an appellate court may not interfere with a trial judge's weighing of relevant factors such as moral blameworthiness, proportionality or rehabilitation unless the sentence in question is demonstrably unfit or departs markedly from sentences given in similar cases for similar offences. [ 88 ] At para. 32, Justice Newbury stated she did not believe it was appropriate for the court to find at that stage, as a matter of fact, that public awareness of the harm caused by fentanyl, etc., was at a particular level in January 2015, nor to use that “fact” to question the proportionality or fitness of the respondent's sentence. [ 89 ] After reviewing sentences imposed for trafficking in fentanyl in other jurisdictions, together with R. v.

Fyfe , 2017 SKQB 5 , and the disparity between those sentences imposed and those imposed in British Columbia for fentanyl trafficking offences, and noting that a sentence of between six and 12 months for street trafficking in heroin was generally regarded as an appropriate range per R. v. Voong , 2015 BCCA 285 , Justice Newbury observed and concluded as follows at para. 45: [45] I agree with the many judges who have stated that denunciation and deterrence must generally be given primacy in sentencing in cases involving Fentanyl.

To this end, I would suggest a normal range beginning at 18 months' imprisonment, as the Crown suggests. I would place Mr. Smith's offences at the bottom of this range, in light of the mitigating factors discussed by the court below. I do not believe it is necessary for us to specify the top of the range, although I would suggest it might well exceed 36 months, especially where the offender has a substantial record involving the sale of Fentanyl or otherwise demonstrates an indifference to the human lives he or she is putting at risk. This is a matter that can be worked out in future cases.

Obviously, the 'range' may also increase beyond 36 months, or a different range will apply, where the offender is higher up the chain of sale or distribution. [ 90 ] At para. 46, Justice Newbury stated: I do not believe the circumstances of the offence or offender were “exceptional” or otherwise justified a sentence lower than the bottom

of the normal range for trafficking in Fentanyl at the street level. Even if Mr. Smith was unaware he was in possession of Fentanyl, it appears he took no steps to ensure he was selling “only” heroin.

The onus was on him to prove mitigating factors such as this – otherwise it would be open to offenders simply to claim ignorance of what they are selling, thus placing an impossible onus on the Crown to prove knowledge on their part. [Internal citations omitted.] [ 91 ] Justice Newbury allowed the appeal and substituted a term of imprisonment of 18 months for the six-month term imposed by the sentencing judge on the two charges. [ 92 ] Justice Harris endorsed Justice Newbury's sentencing range, that is beginning at 18 months' imprisonment, and which might exceed 36 months, but he explained at para. 50 where he departed from Justice Newbury: [50] Where I

part company from my colleague is on the question whether we should defer to this sentence imposed by the sentencing judge. In my view, we should. Here the offender was not sentenced until late November 2016, but the offence was committed in January 2015. In the interim there has been a profound and enormous escalation in the extent of the fentanyl crisis and public awareness of it.

Unlike my colleague, I am not persuaded that the sentence was demonstrably unfit given the circumstances regarding fentanyl as they existed in January 2015, when the offence was committed. [ 93 ] Justice Harris then discussed some of the statistical details of deaths from drug overdoses and the growth of public knowledge, beginning “as early as May 30, 2013 [when] public health authorities in [B.C.] warned the public of the increase in deaths and the availability of fentanyl within the street drug market” (para. 56).

Justice Harris further noted (at para. 56) that “[i]n June 2014, the BC Coroners Service had issued a public warning urging all people who use drugs to exercise extreme caution when consuming substances that may contain fentanyl.” Fentanyl continued to proliferate, producing an alarming increase in the number of overdose deaths. That timeframe would encompass the time of Mr. Adams’ offences. [ 94 ] At para. 57, Justice Harris noted that he did not minimize the earlier warnings.

I noted that data published in August 2015, after the date of the offence, indicated that accidental or undetermined fentanyl-detected deaths had increased sevenfold between 2012 and 2014, and accounted for 25 percent of all illicit deaths in 2014, an increase from five percent in 2012.

I canvassed some of those same statistics briefly earlier in these reasons. [ 95 ] At para. 58, Justice Harris noted that in an August 2015 Bulletin, the Canadian Community Epidemiology Network on Drug Use (“CCENDU”), explained that the number of deaths in which fentanyl is detected likely exceeds the number of deaths in which fentanyl is indicated. [ 96 ] Justice Harris also noted the Bulletin expressed the view that “the majority of fentanyl-detected deaths in British Columbia involved mixed illicit drug overdose circumstances.” It is well-known fentanyl is much cheaper to produce than heroin and commonly used to cut into heroin, and to mix it with other opiates, and to traffic in it in that way.

Dr. Kennedy also noted this in his opinion discussed earlier in these reasons. [ 97 ] At para. 60, Justice Harris explained his reasons for dismissing the appeal. He noted that as matters stood in 2015, a sentencing judge might well have had good reason to consider imposing a sentence that “would have reflected an increased sentencing range for street-level dealing in fentanyl above that of other dangerous drugs” and used higher-range cases available from other jurisdictions for comparison.

But he also noted, “[e]qually … it would not have been an error in principle for a judge to continue to select the same sentencing range applicable to other dangerous drugs.” Justice Harris found: [60] … I am unable to conclude that the sentence that was imposed was so unreasonable given the prevailing circumstances that existed in January 2015 as to warrant appellate interference on the basis that it is demonstrably unfit as a manifestly inadequate sentence.

The threshold for appellate interference is very high, and I am not persuaded it was crossed in this case. [ 98 ] That represents the core of his reasons for dismissing the appeal. [ 99 ] The comments of Justice Harris perhaps most germane to this case are set out at paras. 61 to 65. I have considered those passages, counsel for Mr. Adams reviewed them with him and were fully apprised of them. Setting them out at this point is not helpful. [ 100 ] I am going to return now to counsel's submissions which brings us closer to where we are now in this case. [ 101 ] In her supplemental submissions, counsel for Mr.

Adams submitted that since Mr. Adams' offence occurred in April 2016, which she submitted was also before the "profound and enormous escalation and extent of the fentanyl crisis" mentioned in Smith , she also noted the B.C. Coroners Service brochure "clearly showed that there is a huge spike in illicit drug overdose deaths occurring in November 2016, almost seven months after the offence date in this case." [ 102 ] I believe counsel is referring there to the total number of overdose deaths in November 2016.

I note the increase in the total deaths between 2015 and 2016 was 44 percent. [ 103 ] Justice Harris noted a major escalation in both 2015, as well as 2016. Counsel further submitted that the sentencing range identified in Smith for fentanyl-related offences ought to apply only for offences occurring in late 2016, which counsel submitted consists with the comments of Justice Harris at para. 61 of Smith . I think I did already read in that paragraph. [ 104 ] MS. BRADSHAW: Yes, you did, My Lord. [ 105 ] THE COURT: Okay, thank you. Defence counsel further submitted Mr.

Adams would not have had the benefit of the decision of Smith . She argued this would be relevant when considering the principles of general and specific deterrence, because after the Smith decision "would be" traffickers in fentanyl are now on notice the sentencing range will normally start at 18 months' imprisonment.

[ 106 ] There is no faulting that, prospectively, from Smith , onward all traffickers are unquestionably on notice, though I agree that the court should look to the circumstances at the time of the offence which is, after all, a fundamental principle of criminal law in just about all its aspects, including sentencing, I find untenable counsel's submission that Mr. Adams had to have the knowledge of a prior deterrent sentence of an offence like this, before the court could impose a sentence that deters them and other drug traffickers from trafficking in fentanyl or in other

Schedule I drugs mixed with fentanyl. [ 107 ] As Crown aptly characterized the logical consequence of this contention, it would create a cycle in which deterrent sentences could not be imposed because a deterrent sentence had not previously been imposed. [ 108 ] Future offenders could say they had not had a deterrent warning and the sentence range would become immovable. [ 109 ] Further, I do not read Justice Harris's comments at para. 61 in the way counsel has, that before imposing a higher deterrent range of sentence, Mr.

Adams, and others like him, had to have committed the offence before the "profound and enormous escalation in the extent of the fentanyl crisis" per the comment in Smith . [ 110 ] All of Justice Harris's comments, particularly those paragraphs mentioned, have to be read as a whole in context. For example, at para. 63, he noted a picture of both a dramatic and rapid escalation in illicit drug deaths in both 2015, as well as 2016. I have already commented on the Nanaimo statistics for 2015 and 2016. [ 111 ] Justice Harris differed significantly with Justice Newbury only on whether the sentence imposed on Mr.

Smith was demonstrably unfit in light of the relevant circumstances as they existed at the time he committed the offence. He concluded those were for the sentencing judge to assess, and he could not find in the circumstances before the judge that the sentence was demonstrably unfit. [ 112 ] Counsel for Mr. Adams pointed to a table at p. 1 of the Coroners report. It showed a spike in illicit drug overdose deaths in the months of November and December 2016. This included total statistics for the whole province. She submitted the court ought to consider this spike in deaths four months after Mr.

Adams' April 2016 offence and "apply the reasoning of the majority in Smith and not apply the higher range of sentence laid down in that case." [ 113 ] The offence in Smith occurred in August 2015. I do not see Smith as authority for the proposition that a sentencing judge should impose a higher or lesser range of sentence based on patterns of transient spikes or drops from month to month in the number of overdose deaths.

I note there were also spikes in the months of December 2015 to January 2016. [ 114 ] I have commented already on statistics for Nanaimo and the fact that there was a large annual increase province wide of 147 overdoses between 2014 and 2015. Justice Harris granted it was open to the sentencing judge to impose a higher sentence, but considering the circumstances, not an error for him to do so.

In short, each case has to be decided on its own facts. [ 115 ] Justice Harris also clearly noted the increase in deaths in both 2015 and 2016, and that in November 2015 a major "know your source" public health campaign had been launched in the media, targeted at the drug-using public. [ 116 ] Considering the evidence as a whole, I find that before Mr.

Adams' April 2016 offence, the high risk of harm and death from fentanyl overdoses was quite widely circulated and known throughout the province, including Nanaimo, which between 2007 and 2015 had experienced a total of 84 drug overdose deaths, an average of seven a month, a large number considering Nanaimo's population, although fentanyl would not necessarily be implicated in all of those. [ 117 ] But, the accumulation of overdose deaths could not fail to increasingly attract attention, especially with the loss of so many young lives.

The total for central Vancouver Island in that period was 150, with an increase of 25 to 31 in the year 2015. Nanaimo's share of those deaths was about one-half. [ 118 ] In the case at bar, Mr. Adams' trafficking offence occurred on April 15, 2016. Mr. Adams both trafficked in and used illicit drugs. His common-law partner was a user. [ 119 ] From the evidence at trial, it was apparent they both associated with other drug addicts and traffickers.

One would have to be deeply secluded from the community of users and public in general not to be aware of the constant and steadily increasing number of deaths from overdoses; and in particular, of the dangers associated with fentanyl. [ 120 ] Mr. Adams did not testify he was unaware of the high risks and fatal doses associated with fentanyl. Mr. Adams was a street-level trafficker, and not a novice one, of controlled substances.

If he had been a high-level trafficker and well aware of what was being trafficked, that might have called for a higher sentence above the 16-month range in accord with existing principles. He certainly knew he was trafficking in

Schedule I controlled substances, including heroin. [ 121 ] That noted, I agree with defence counsel that the case for a Smith sentence becomes more compelling the more it falls after the dramatic and rapid escalation in illicit drug deaths in 2015 as well as 2016 that led to public alarm and intense awareness. [ 122 ] In passing, I note that whatever sentence is imposed here, it will not be precedential, because there will be no question prospectively that any trafficking offence after Smith will be subject to a sentence in the Smith range. totality principles [ 123 ] As there are two sentences to be imposed, the totality principle and aspects of the proportionality principle have to be carefully considered.

In R. v. Joseph , 2010 BCCA 525 [ Joseph ], Justice Prowse, speaking for the court, distilled the correct approach to give proper effect to the totality principle. At paras. 10 and 11, she said: [10] In addressing the issue of totality, the provisions of the Criminal Code … which are of particular relevance are ss. 718.1 and

718.2(c), which provide as follows: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. [11] The concept of totality was discussed by Chief Justice Lamer in the frequently-quoted passage from his reasons on behalf of thecourt in R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, where he stated, at para. 42: In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the"totality principle".

The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences formultiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.

As D.A.Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation tothe offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutivesentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate".

Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, supra, at pp. 44-45: The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate"just and appropriate".

A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above thenormal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushingsentence" not in keeping with his record and prospects. [124] At para. 16 of Joseph, Justice Prowse referred to R. v. Li, 2009 BCCA 85 at para. 28, and to its recommended approach forsentencing multiple offenders: Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences.

The first stage is to determine theappropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent. Ifconsecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totalityprinciple. If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjustedin order to arrive at an appropriate global sentence. See R. v.

P.P.H., 2003 BCCA 591. [125] As explained earlier in these reasons, Crown counsel is seeking an 18-month sentence of imprisonment for the 2014 matter thatproceeded to trial, and a 36-month consecutive sentence on the 2016 indictment with a fentanyl count. This would result in an aggregatesentence of 54 months, as counsel have numerically agreed, Mr. Adams having spent a total of 17.3 months in custody on the twooffences. If given the usual credit of 1.5 days for each day spent in pretrial custody, he would be entitled to 26 months of credit. [126] Therefore, with those calculations, Mr.

Adams' global sentence would be an additional 28 months. [127] Defence counsel argued that the most serious of the offences being the fentanyl count, a sentence of 54 months is substantiallyhigher than the upper end of the new sentencing range of 18 to 36 months laid down in Smith. [128] Though counsel did acknowledge the Court of Appeal contemplated a sentence for a fentanyl offence could be higher than 36months, she advanced the following reasons why a sentence at the upper range of 36 months was not warranted for Mr. Adams: (

a) there is no previous conviction involving fentanyl; (

b) there is no evidence to show an indifference to the human lives he is putting at risk: he was engaged at a street-level trafficking,not higher up the chain of sale or distribution; and (

c) the aggregate sentence of 54 months would be substantially above the normal sentence Mr. Adams received for the most seriouscount. [129] Accordingly, counsel submitted the aggregate sentence sought by Crown is not just and appropriate and offends the totalityprinciple. [130] Defence counsel proposed a sentence for the fentanyl count of two years' imprisonment, 24 months, submitting this sentencefalls within the new range set out in Smith and takes into consideration Mr. Adams' previous convictions.

Counsel submitted that whentaking into account the totality principle, the sentence on the trial matter, in other words the October 2014 offence, should be adjusted toensure that the aggregate sentence is not unduly harsh. [131] Counsel further submitted an aggregate sentence of 36 to 48 months, taking into account the totality principle, would still be asignificant sentence for Mr. Adams for both cases, even considering his previous convictions. [132] Counsel also referred to the parity principle. She reminded the court that I had sentenced Ms.

Du Temple to 12 months'imprisonment after taking into account the impressive steps she had taken towards rehabilitation and the level of success she hadachieved. She submitted, given the parties were equally culpable, however, that a sentence of 12 months for the October 12 matter isappropriate on the grounds of parity, and also when considering the totality principle. [133] Were I to agree with this submission and impose a sentence of two years on the fentanyl count, Mr. Adams would receive anaggregate sentence of 36 months, less 26 months' credit for pretrial time, leaving 10 months additional to serve.

[ 134 ] Dealing first with the 2014 offence, I found as a fact that Ms. Du Temple and Mr. Adams were equally partnered in the October 2014 dial-a-dope operation. To that extent, they were equally culpable with respect to those drug trafficking offences. Ms. Du Temple said in her police statement that she was dope sick from her heroin addiction at the time. She had no cash in her possession.

Her trafficking activities at the time, somewhat brought to light by text messages on her cell phone, appeared to be haphazard, minimally profitable, and for the purpose of supporting her addiction. [ 135 ] Her rehabilitation efforts since her conviction were commendable. They encompassed her successful completion of a heavy equipment operator course that qualified her for potential employment, enough so that a prospective employer was willing to employ her. [ 136 ] Mr. Adams has never really applied himself to rehabilitation and has not completed those courses he did participate in.

In fairness to him, however, he has been incarcerated since his arrest and opportunities to pursue rehabilitation are accordingly constrained. [ 137 ] He was convicted of the additional count of being in possession of stolen property with a value of under $5,000. [ 138 ] I find a sentence of 14 months on the 2014 offence would give voice to the parity principle and recognition of the differences between him and Ms. Du Temple, including his conviction on the theft matter. [ 139 ] Given Mr.

Adams' criminal record with his previous convictions for trafficking and possession for the purpose of trafficking, the fact he has twice now been convicted of street-level trafficking, a dial-a-dope operation that included

Schedule I controlled substances, heroin, cocaine, plus, now, fentanyl, the Crown's sentencing position has merit but I find an aggregate sentence of 56 months, composed of 18 months for the 2014 offence and 36 months successive for the 2016 fentanyl count, more than necessary to ensure the compelling sentencing objectives of deterrence, general and specific.

The aggregate of Crown's proposed sentence would be just four months short of five years. [ 140 ] The sentence must speak to the pernicious harm trafficking in fentanyl in any of its guises has caused the community, severe enough to deter dial-a-dope trafficking in general, and trafficking in fentanyl or any controlled substance that may be mixed with it in particular; but, again, no more than is proportionately called for to accomplish that sentence purpose. [ 141 ] An aggregate sentence of 38 months, composed of 14 months in total for the 2014 offences, two months for Count 6, possession of stolen property with a value under $5,000, and 12 months for the trafficking offences, with 24 months' consecutive for the 2016 fentanyl offence, equalling three years and two months, is a significant term of incarceration, and if imposed for the fentanyl count only, would be at the higher end of the Smith range of sentences. [ 142 ] I find an aggregate sentence of 38 months for all the offences is proportional, accords with both the parity principle, and the totality principle, and is just and appropriate. [ 143 ] Counsel agree Mr.

Adams spent a total of 17.3 months in custody on the two offences. As I stated earlier, if given the usual credit of 1.5 days for each day spent in pretrial custody, he would be entitled to 26 months' credit. Therefore, with those calculations, Mr. Adams would be required to serve an additional 12 months. [JUDGE’S NOTE: After my noting some adjustment would be required for additional time spent, discussions with counsel and further submissions ensued.] [ 144 ] THE COURT: An additional – an additional 12 months, yes, that is what it was.

All right, any other submissions you wish to make with respect to sentencing? [ 145 ] MS. BRADSHAW: May we address the time – the calculation that Mr. Gibson and I did was basically as of March the 1st, the first day that we did it, so – [ 146 ] THE COURT: Yes. [ 147 ] MS. BRADSHAW: But since then, so there's been another 69 actual days which is – could be considered 103, so another say 3.4 months, I think it would be, because we're doing it in months, so – [ 148 ] THE COURT: I think it should be in months to be consistent. [ 149 ] MS.

BRADSHAW: Yes. [ 150 ] THE COURT: I will stand down and give my voice a bit of a rest. (PROCEEDINGS ADJOURNED AND RECONVENED) [ 151 ] THE COURT: All right, thank you. [ 152 ] MS. BRADSHAW: Yes, My Lord, in terms of the credit, we were back on March the 1st, and so there's an extra 69 actual days, which is the equivalent, I know we're doing months, of 29 months and 13 days, I don't know if we can do it like that, or is that – [ 153 ] THE COURT: Twenty-nine – [ 154 ] MS. BRADSHAW: Is that like 29 and a half months, essentially or I guess – [ 155 ] THE COURT: That is pretty close to – counsel, go ahead. [ 156 ] MS.

BRADSHAW: Yes, so and then – if for the – for the clerk, for the 77766 2014 indictment, Your Lordship could, for the 14-month – did you want that split to 12 and then two on the PSP?

[ 157 ] THE COURT: No, I was just going to do an aggregate, just the total, come off the total. [ 158 ] MS. BRADSHAW: Okay. [ 159 ] THE COURT: So 38 months less – [ 160 ] MS. BRADSHAW: Twenty-nine months and 13 days, or 29 and a half months. [ 161 ] THE COURT: Okay, that is kind of awkward doing it that way, but – [ 162 ] MS. BRADSHAW: Yes, I know. [ 163 ] THE COURT: – I think I have some discretion here to round it off to 30 months. [ 164 ] MS.

BRADSHAW: Okay, thank you, My Lord. [ 165 ] THE COURT: Crown may have something to say about that, but I – it seems to me that is just – we are talking about 13 days, he has been in custody quite a while. [ 166 ] MS. BRADSHAW: Yes, thank you. [ 167 ] MS. DOWN: I have no submissions, My Lord, on that issue. [ 168 ] THE COURT: All right. [ 169 ] MS. DOWN: My Lord – [ 170 ] THE CLERK: Excuse me, My Lord, this is the clerk speaking. Is that broken down between the two files, or would that be a global sentence and then with the time credit? [ 171 ] THE COURT: That is right.

It is a global sentence, I called it an aggregate sentence, but it is a global sentence, 38 months. [ 172 ] THE CLERK: Yes. [ 173 ] THE COURT: Minus credit of 30 months for time served. [ 174 ] THE CLERK: Yes. [ 175 ] THE COURT: Which leaves him eight months to serve. [ 176 ] THE CLERK: Globally, yes, thank you. [ 177 ] THE COURT: Yes. [ 178 ] MS. BRADSHAW: Thank you, My Lord. Sentence and time to be served recalculation [ 179 ] THE COURT: It is just that I do not want to break down the sentences, especially when they involve quite different sets of circumstances, quite specific sentences for specific matters.

The global sentence, is what is important for the record. To be clear, the sentence is, 38 months’ global sentence, less credit for time served of 30 months, leaving, then, eight, additional months to be served. [ 180 ] THE CLERK: Thank you, My Lord. [ 181 ] MS. DOWN: My Lord, before you leave, could I speak to ancillary orders, please? [ 182 ] THE COURT: Yes, go right ahead. [ 183 ] THE COURT: Just to confirm the ancillary relief again, briefly. There will be ancillary orders for providing a DNA sample; in the circumstances, that is appropriate.

There shall also be a s. 109 lifetime prohibition of possession of weapons. forfeiture [ 184 ] As far as forfeiture is concerned, dealing with first of all 77766, confirming what has been stated, for the final clarity of the record. The exhibit flowchart has been marked as Exhibit 1 for the purpose of sentencing. The items in it [after submissions of Ms. Down] and identified as: 1, 2, 3, 5, 7, 9, 10, 12, 19, and 24 to 28 are forfeit. Item 21 is not forfeit. [ 185 ] Turning now to 74188, the items there, and you can correct me if my note is not accurate.

The exhibit flowchart in that case is also marked as an exhibit, Exhibit 2, and the items on the exhibit flowchart at: 2, 3, 3A, 3B, C, D, E, and G, and jumping to 7, 8, 9, 10, 11 and 12 are forfeit. [ 186 ] THE CLERK: Yes, it is, My Lord.

[ 187 ] THE COURT: Okay. [ 188 ] MS. BRADSHAW: My Lord, I am just – [ 189 ] THE COURT: All right, so – [ 190 ] MS. BRADSHAW: I am just concerned that we had other exhibits on the sentencing, like the PSR, I am sure those were exhibits and – [ 191 ] THE COURT: If they are not exhibits – [ 192 ] MS. BRADSHAW: So we can – [ 193 ] THE COURT: I think the PSR was marked in the sentencing submissions. [ 194 ] MS.

DOWN: My Lord, if it would make it easier, we could call them Exhibit A and B on sentencing, and then we wouldn't have to worry about any numbers that may have already existed. exhibit modifications & IDENTiFICATIONS ( FOLLOWING DISCUSSIONS WITH COUNSEL ) [ 195 ] THE COURT: Instead of being marked as Exhibits 1 and 2, for identification purposes, the 77766 exhibit flowchart will be marked as Exhibit A in the sentencings and the 74188 flowchart will be marked as Exhibit B in the sentencings. [ 196 ] THE CLERK: Thank you. [ 197 ] MS.

DOWN: Thank you, My Lord. [ 198 ] THE COURT: So that should address any concerns about the exhibit numbering. [ 199 ] MS. BRADSHAW: Yes, thank you, My Lord. [ 200 ] THE COURT: Okay, thank you both. stays [ 201 ] THE CLERK: And My Lord, there needs to be some stays. [ 202 ] MS. DOWN: Yes, My Lord, the Crown enters a stay of proceedings on File 77766 on Counts 2, 4, and 5. [Corrected to File 74188.] [ 203 ] THE COURT: Courts 2, 4, and 5, indictment 74188, the Crown has entered a stay. [ 204 ] MS. BRADSHAW: Did we address the victim fine surcharge, My Lord?

I don't know if – [ 205 ] THE COURT: No, we did not. [ 206 ] MS. BRADSHAW: – you are amenable to the – some courts allow – ask for the money to be paid forth with and in lieu do concurrent time or just paid by the regulations, whichever Your Lordship is comfortable with, obviously. [ 207 ] THE COURT: I do not know if Mr. Adams has any – there is no – was the money forfeit from the 2014 offence, the money that was in his wallet? [ 208 ] MS. BRADSHAW: Everything was forfeited, yes, the money, yes. [ 209 ] THE COURT: The victim surcharge will be pursuant to the regulations. [ 210 ] MS.

BRADSHAW: Thank you, My Lord. “N. Brown J.”