R. v. Naccarato, 2017 BCSC 645

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Naccarato, 2017 BCSC 645 Date: 20170413 Docket: 165025-2 Registry: Victoria Regina v. Belinda Maria Naccarato Before: The Honourable Mr. Justice Pearlman Oral Reasons for Sentence Counsel for the Crown: H. Magnin Counsel for the Accused: M. Munro Place and Date of Hearing: Victoria, B.C. April 7, 2017 Place and Date of Judgment: Victoria, B.C. April 13, 2017 Overview [ 1 ] THE COURT: On January 17, 2017, the accused, Ms.

Belinda Naccarato, was convicted on one count of possession of heroin for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (the “ CDSA ”). [ 2 ] Ms. Naccarato committed the offence on December 18, 2014. The quantity of the controlled drug was 58.3 grams. The heroin was laced with fentanyl. [ 3 ] The Crown emphasizes the primacy of the objectives of denunciation and deterrence where the offender was a courier transporting heroin adulterated by fentanyl.

Accordingly, the Crown seeks a sentence of two years of imprisonment; a 10-year mandatory weapons prohibition under s. 109 of the Criminal Code, R.S.C., 1985, c. C-46; an order for a DNA sample under ss. 487.04 and 487.051(3) of the Criminal Code , as a result of Ms. Naccarato's commission of a secondary designated offence; forfeiture of the iPhone and BlackBerry phone seized from Ms. Naccarato as offence-related property; and the $200 victim fine surcharge payable under s. 737(2) (b)(ii) of the Criminal Code . [ 4 ] The defence submits that taking into account Ms.

Naccarato's exceptional circumstances and the circumstances of the offence, this is one of those rare cases where the Court should impose a suspended sentence with strict terms of probation. [ 5 ] The principal issue I must determine is whether Ms. Naccarato should be sentenced to incarceration or whether a suspended sentence and probation with strict conditions would constitute a fit sentence. [ 6 ] Under s. 5(3)(

a) of the CDSA , a person convicted under s. 5(2) of possession for the purpose of trafficking of heroin and fentanyl, both of which are

Schedule I drugs, is liable to imprisonment for life. [ 7 ] Because this offence was prosecuted by indictment and carries a maximum penalty of life imprisonment, a conditional sentence order is not available: see Criminal Code , s. 742.1(c). [ 8 ] None of the circumstances enumerated in s. 5(3) (

a) of the CDSA requiring a minimum sentence for possession for the purpose of trafficking apply in this case. Accordingly, there is no minimum sentence for this offence. Circumstances of the Offence [ 9 ] On December 18, 2014, Ms. Naccarato, who was then 24 years old, was the subject of police surveillance. The police followed her as she drove from her residence in Victoria, travelled by ferry from Swartz Bay to Tsawwassen, and then drove to a residence in Surrey where she parked in the driveway. Shortly after she arrived, a large Asian male came out of the residence, approached Ms.

Naccarato's vehicle, removed a brown bag from the passenger's side, and then returned to the residence. About 12 minutes later, he returned with the brown bag, placed it in Ms. Naccarato's vehicle, and then walked back to the residence. Ms. Naccarato drove away and approximately 10 minutes later was arrested by the police in New Westminster. When the police searched Ms. Naccarato's vehicle, they found a brown paper bag which contained 58.3 grams of heroin laced with fentanyl. The police also seized a white iPhone and an encrypted BlackBerry phone. [ 10 ] At trial, Ms.

Naccarato maintained that an acquaintance had prevailed upon her to transport a housewarming gift to a friend who

lived in Surrey. [ 11 ] Ms. Naccarato's acquaintance was a mid-level drug trafficker. When he gave her the package to transport to Surrey, he also provided her with an encrypted BlackBerry phone and a password for that phone. He instructed Ms. Naccarato that his friend could only be contacted via the BlackBerry phone. [ 12 ] While she was travelling to Surrey, Ms. Naccarato sent a message to the trafficker on her iPhone which demonstrated that she knew she was transporting cash to be exchanged for a controlled substance. Other messages retrieved from Ms.

Naccarato's iPhone revealed that she was in regular communication with the trafficker regarding the purchase and sale of drugs. [ 13 ] Ms. Naccarato, who at the time was addicted to crystal methamphetamine, was also a street-level drug dealer. While her addiction was a contributing factor to her participation in the drug trade, she was also motivated by financial gain. [ 14 ] Ms. Naccarato knew, when the Asian male returned to her vehicle with the brown bag, that it contained heroin.

She had no specific knowledge that the heroin contained fentanyl, but was generally aware in December 2014 that fentanyl was then being used to cut heroin. [ 15 ] In short, on December 18, 2014, Ms. Naccarato was acting as a courier for a mid-level drug trafficker. The heroin seized by the police had a street value of between $4,600 and $6,400 if sold by the ounce, and $12,000 to $15,000 if sold by the gram. [ 16 ] Ms. Naccarato had transported heroin from the mainland to Victoria for the same trafficker on at least one previous occasion.

Circumstances of the Offender [ 17 ] I turn now to the circumstances of the offender. The Court has the benefit of a pre-sentence report prepared by Probation Officer Abraham. [ 18 ] Ms. Naccarato, who is now 26 years old, was born and raised in Victoria. Her pre-sentence report indicates she had a difficult childhood, suffering physical abuse at the hands of her father. While attending elementary school, she was diagnosed with ADHD. Ms. Naccarato dropped out of school in Grade 11. [ 19 ] Apart from obtaining her certification as a personal trainer, Ms.

Naccarato has no vocational qualifications or post-secondary education. However, since leaving Victoria High School, she has held a variety of jobs in the hotel and hospitality industry, along with periods of employment as a personal trainer. For the last five years, she has worked full-time at Ali Baba Pizza. Her employer, who is aware of this offence and the related court proceedings, describes Ms. Naccarato as hardworking, compassionate, and dedicated to her future. He writes that she plans to go back to school and pursue a career in truck driving. [ 20 ] Ms.

Naccarato reported to Probation Officer Abraham that she first began experimenting with alcohol and illegal drugs at the age of 19. She experimented with marihuana, MDMA, and heroin, and developed an addiction to crystal methamphetamine. Ms. Naccarato attributes her substance abuse to past trauma. She used crystal meth for about four years, but stopped following her arrest for this offence. She has been clean for over a year. [ 21 ] Ms. Naccarato attended a 90-day residential treatment program for her addiction at Pacifica Treatment Centre from March 8, 2016, to June 6, 2016. Ms.

Angeline Vaughan, her addiction counsellor for that program, writes that Ms. Naccarato actively participated, was fully compliant, and took full responsibility for her actions during her addiction. Ms. Vaughan believes a custodial sentence would be an obstacle to Ms. Naccarato's continued progress in readjusting to healthy living in society. [ 22 ] Ms. Naccarato also participates in cognitive behavioural therapy for relapse prevention provided by the Island Health Authority.

Her counsellor reports that she attends regularly and is trying very hard to change her life and to maintain her recovery from substance addiction. In addition, Ms. Naccarato was an active participant in Narcotics Anonymous, attending sessions twice a week. Ms. Naccarato and her counsellors believe her attendance at Narcotics Anonymous and Island Health's addiction outpatient treatment programs are crucial for her recovery and to maintain her abstinence from drugs. [ 23 ] Ms.

Naccarato has no prior criminal record. [ 24 ] She is single, is not in a relationship, and has no children or other dependants. [ 25 ] A large number of Ms. Naccarato's friends, counsellors, and fellow participants in Narcotics Anonymous attended the sentencing hearing. Many provided letters of support attesting to her hard work in the counselling program she attends, both on her own behalf and in support of other recovering addicts. [ 26 ] Ms.

Naccarato's sponsor for Narcotics Anonymous writes that she has consistently and constantly expressed her remorse and that her participation in Narcotics Anonymous has made her come face to face with the people she had harmed. The accused's sponsor describes her perseverance in withstanding the temptation to revert to drug use and her dedication to the various recovery programs in which she participates. [ 27 ] Ms. Naccarato's friends, Carly Goodson, Michael Moyls, and Reza Banae, all write that she has expressed remorse and regret for her offence. [ 28 ] Although at trial Ms.

Naccarato tended to minimize her involvement in the events leading to her arrest, Probation Officer Abraham reports that she displays an understanding of her current situation and has expressed remorse for "supplying people with a substance that can ruin someone's life". [ 29 ] I have heard Ms. Naccarato express her remorse in this courtroom. I find that she has taken some responsibility for her offence,

recognizes that she made bad choices, is genuinely remorseful, and is working hard to recover from her addiction. Sentencing Principles and Objectives [ 30 ] Section 10(1) of the CDSA provides: 10

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

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [ 31 ] Under s. 718 of the Criminal Code , the sentencing objectives include the denunciation of unlawful conduct, general and specific deterrence, the separation of offenders from society where necessary, rehabilitation of offenders, the provision of reparations for harm done to victims or to the community, and the promotion of a sense of responsibility in offenders. [ 32 ] Under s. 718.1 of the Criminal Code , the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 33 ] Here, Ms.

Naccarato's offence was serious. Given the risk it posed to users, the quantity of heroin laced with fentanyl in Ms. Naccarato's possession was significant. The 58.3 grams when sold at the street level had the potential to cause substantial harm or even death to those who consumed it. [ 34 ] At the sentencing hearing, the Crown adduced various reports addressing fentanyl use in British Columbia. A document entitled, "British Columbia Drug Overdose & Alert Partnership Report", issued by the B.C.

Centre for Disease Control in September 2014, included the following: BC has experienced a recent increase in fentanyl availability and fentanyl-detected deaths. . . Fentanyl is 50-100 times more potent than morphine, which greatly increases the risk of accidental overdose . . . . . . On May 30th, 2013 in response to an increase in fentanyl-detected deaths in BC, a joint alert was issued by the Provincial Health Officer, BC Coroners Service (BCCS), healthcare and enforcement partners, warning the public of the increase in deaths and availability of fentanyl within the street drug market.

After the alert fentanyl-detected deaths declined in June and July 2013, but have since increased. In 2012 there were 15 fentanyl-detected deaths; a total of 51 fentanyl-detected deaths were identified in BC in 2013; most 2013 fentanyl- detected deaths occurred in Metro Vancouver region (15), Island (14), and Fraser (12) . . . Preliminary data from the BCCS indicates 49 fentanyl-detected deaths occurred in the first eight months of 2014 (January 1st to August 31st) . . .

In June 2014, the BCCS issued another public warning urging all [people who use drugs] to exercise extreme caution when consuming substances that may contain fentanyl. … [ 35 ] A report published by the Canadian Centre for Substance Abuse and the Canadian Community Epidemiology Network on Drug Use in August 2015 stated: Between 2009 and 2014, there were at least 655 deaths in Canada where fentanyl was determined to be a cause or a contributing cause. This represents an average of one fentanyl-implicated death every three days over this time period. This figure is likely an underestimate.

Between 2009 and 2014, there were at least 1,019 drug poisoning deaths in Canada where post-mortem toxicological screening indicated the presence of fentanyl. More than half of these deaths occurred in the latter two years, 2013 and 2014. On average, this represents almost two deaths every three days over these two years. This figure is likely an underestimate. . . . In addition to overdose mortality, other significant harms associated with fentanyl include non-fatal overdoses and substance use disorders.

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 . . . and a third in February 2015 notifying CCENDU subscribers that deaths involving fentanyl in British Columbia Alberta, and Saskatchewan had increased . . .

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 . . . [ 36 ] In R. v. Smith , 2017 BCCA 112 , (to which I will return later in these Reasons), the Court considered the nature of the public health crisis arising from the illegal traffic in fentanyl as it existed in January 2015, very shortly after the time of Ms. Naccarato's offence.

At para. 60, Harris J.A. for the majority, after reviewing the same reports that the Crown adduced in this case, held that in January 2015, the illicit trafficking in fentanyl was a serious but still emerging problem. The Court in Smith also held that since January 2015, there has been a profound and enormous escalation in both the extent of the fentanyl crisis and public awareness of it. As Harris J.A. observed at para. 63, while in 2014 fentanyl-detected deaths accounted for 25 percent of all illicit drug deaths, by 2016 the percentage had risen to 60 percent.

Further, illicit drug deaths increased from 397 in 2015, to over 600 in the first 10 months of 2016. The majority in Smith concluded that since January 2015, there has been a dramatic and qualitative change in the severity of the public health crisis and the role of fentanyl in that crisis.

[37] Here, Ms. Naccarato knew she was transporting heroin, but was not aware that the heroin had been laced with fentanyl. However, in my view, her lack of specific knowledge that the heroin contained fentanyl is not a mitigating factor. The Crown anddefence agree and I have found that at the time of the offence, Ms. Naccarato was aware that heroin could be laced with fentanyl. Ms. Naccarato was aware she was transporting an illegal drug that could be adulterated with fentanyl. Her ignorance about whether ornot the heroin contained fentanyl did nothing to ameliorate the risk of overdose to anyone who purchased the drugs. [38]

Section 718.2(

a) of the Criminal Code provides that a sentence should be increased or reduced to account for any relevantaggravating or mitigating circumstances relating to the offence or the offender. None of the aggravating circumstances specified ins. 10(2) of the CDSA apply in this case. [39] Here, the most significant aggravating circumstance is that heroin, a dangerous drug, was laced with fentanyl, an even moredangerous and destructive substance.

Fentanyl is highly potent, carries a high risk of significant harm or death by overdose, and presentsa particular hazard to naïve or unwary drug users. [40] While I have found Ms. Naccarato's crystal meth addiction was a contributing factor to this offence, I nonetheless regard herrole as a courier in bringing a dangerous drug from the mainland to Victoria as an aggravating factor. Further, at the time of her arrest,Ms. Naccarato's involvement in drug trafficking was ongoing. She had acted as a courier at least once before. [41] With respect to mitigating circumstances, Ms.

Naccarato has no prior criminal record, was only 24 years old at the time of theoffence, is remorseful, has pursued both residential treatment and ongoing counselling for her addiction, has abstained from using illicitdrugs for over a year, and has shown insight concerning both the circumstances contributing to her addiction and the consequences of heroffence. In addition, she has maintained steady employment and enjoys the support of her employer, her counsellors, her friends, and thecommunity of recovering addicts at Narcotics Anonymous. [42]

Section 718.2(

b) of the Criminal Code provides that a sentence should be similar to sentences imposed on similar offenders forsimilar offences committed in similar circumstances. Because no two offenders' cases are identical, cases must be compared andcontrasted in order to obtain fair and consistent sentencing. [43] The Crown relies on R. v. Smith; R. v. McCormick (30 January 2017), Vancouver 23320-2C and Richmond 60518-1 (B.C.P.C.);R. v. Daignault (23 November 2016), Victoria 168836-1 (B.C.P.C.); and R. v. Kha, [1995] B.C.J.

No. 2676 (C.A.) in support of itsposition that denunciation and deterrence are the paramount sentencing factors, and that having regard to the degree of responsibility ofthe offender and the impact of fentanyl on the community, a sentence of two years' incarceration is warranted. [44] The defence, citing R. v. Voong, 2015 BCCA 285; R. v. Van Der Walt, 2017 BCSC 557; R. v. Wong, 2016 BCSC 1568; and R.v. Lopez, 2016 BCSC 2543, argues that rehabilitation is a significant sentencing objective in this case, that incarceration will doMs.

Naccarato more harm than good, and that a suspended sentence with strict terms of probation will, in the particular circumstances ofthis case, satisfy the need for denunciation and deterrence. [45] Section 731(1) of the Criminal Code provides: 731

(1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of theoffence and the circumstances surrounding its commission, (

a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on theconditions prescribed in a probation order; or (

b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender complywith the conditions prescribed in a probation order. [46] An offender who fails to comply with the terms of the probation order may be convicted under s. 733.1 of the Criminal Code. [47] Under s. 732.2(5) of the Criminal Code, if an offender who is bound by a probation order is convicted of an offence, includingbreach of probation, the court may revoke a suspended sentence and impose any sentence that could have been imposed if the passing ofsentence had not been suspended. [48] In appropriate cases, terms of probation may include a condition confining the offender to her home, except for such absencefor employment or otherwise as may be approved by a probation officer.

However, as the Court of Appeal explained in R. v. M.(D.E.S.)(1993), (BC CA), 80 C.C.C. (3d) 371 (B.C.C.A.) at para. 44: It should not be thought that home confinement, if we may call it that, should readily be substituted for regular imprisonment.

Such adisposition is suitable, in our judgment, only where very special circumstances are present, such as where the accused demonstrates thathe has rehabilitated himself prior to arrest, where he is not a danger to anyone, where others are dependent upon him, and where there areno factors that make it necessary in the public interest that punishment should be by conventional imprisonment. [49] I bear in mind that a suspended sentence and probation may not be used to effectively impose a conditional sentence when, ashere, one is not available: R. v. Carrillo, 2015 BCCA 192 at para. 34. [50] In R. v.

Carrillo, the Court went on to state at para. 35: Although suspended sentences are primarily rehabilitative in nature, they can also address deterrence because an offender can bepunished for repeating his criminal conduct during the period of probation, and face serious consequences from the conviction . . . Thisfeature of suspended sentences (sometimes referred to as the “Sword of Damocles”) represents an underlying but pervasive threat to theoffender’s liberty.

[ 51 ] I turn now to the sentencing authorities relied upon by the Crown. [ 52 ] In R. v. Smith , the Crown appealed a sentence of six months' imprisonment pronounced after the 59-year-old offender pleaded guilty to one count of possession of cocaine and one count of possession of fentanyl, both for the purpose of trafficking. [ 53 ] At the time of his arrest, Mr. Smith was in possession of 2.6 grams of fentanyl and 7.4 grams of cocaine. He maintained that he thought he was in possession of heroin, rather than fentanyl. The trial judge accepted that Mr.

Smith had been unaware he was selling fentanyl, but made no express finding to that effect. Mr. Smith was a street-level trafficker whose primary motivation was to support his dependence on Tylenol 3. [ 54 ] Although Mr. Smith had no criminal record at the time of sentencing, two days after his arrest for the subject offences, he was arrested for breach of a bail term not to be in the Downtown Eastside and was found to be in possession of 15 packages of fentanyl and 45 balls of cocaine.

He subsequently pleaded guilty to possession of cocaine for the purpose of trafficking, for which he received a suspended sentence, while the charge relating to fentanyl was stayed. [ 55 ] At the time of sentencing, Mr. Smith was taking substance abuse counselling. He had expressed regret for his offence, and had taken responsibility for his criminal behaviour. [ 56 ] The sentencing judge identified a range of between six and 12 months for street-level trafficking in fentanyl, and sentenced Mr.

Smith at the low end of that range. [ 57 ] On appeal, Newbury J.A., at para. 45 of her dissenting Reasons for Judgment, stated that denunciation and deterrence must generally be given primacy in sentencing in cases involving fentanyl. She suggested a normal range beginning at 18 months' imprisonment and exceeding 36 months at the high end. Newbury J.A. would have allowed the appeal and substituted a term of imprisonment of 18 months for the six-month term imposed by the sentencing judge. Her Ladyship did not believe that Mr.

Smith's circumstances or the circumstances of the offence were exceptional or otherwise justified a sentence lower than the bottom of the normal range for street-level trafficking in fentanyl. [ 58 ] Harris J.A., writing for the majority, agreed that the Court of Appeal should identify a sentencing range for street-level dealing in fentanyl and endorsed the range of 18 to 36 months or more of imprisonment proposed by Justice Newbury. [ 59 ] At paras. 49 and 50, Harris J.A. explained why a substantially higher sentencing range was warranted for fentanyl and for other dangerous drugs such as heroin.

He said this: [49] In my opinion, these facts warrant recognizing a sentencing range for street-level dealing in fentanyl which is materially higher than the sentencing range applicable to other dangerous drugs such as heroin. The range for street-level dealing in those drugs seems to start in British Columbia at six-months’ imprisonment. As matters stand today, other dangerous drugs do not kill as frequently, accidentally, or as unpredictably as fentanyl, but the risks posed by those drugs should not be minimized even by comparison with fentanyl.

Heroin, crystal meth and cocaine can have devastating consequences. They may not kill as often as fentanyl, but very large numbers of accidental deaths are associated with their consumption (indeed the majority of accidental overdose fatalities involve a mixture of illicit drugs) and they destroy lives and wreak social havoc. The existing sentencing range for them is intended to reflect, amongst others, the sentencing principles of deterrence and denunciation.

Recognizing a different and markedly higher sentencing range for street-level dealing in fentanyl turns on the enhanced risks associated with that activity and the individual responsibility of dealers given those risks and public knowledge of them. [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. [ 60 ] As Harris J.A. explained at para. 53, fashioning a proportionate sentence requires an assessment of the circumstances of the offence at the time it was committed. [ 61 ] Continuing at para. 60, Harris J.A. held: [60] As I see the matter, as matters stood in January 2015, there may well have been good reason for a sentencing judge 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.

Cases from other jurisdictions suggesting a higher range were available as comparators. It is not clear how much of an increase in the range would have been justified at that time, though as instructed by Lacasse that would have been a matter for the sentencing judge. Equally, in my view, it would not have been an error in principle for a judge to have continued to select the same sentencing range applicable to other dangerous drugs. Illicit trafficking in fentanyl was a serious problem, but still an emerging one and knowledge about it recent.

There was considerable latitude in those circumstances open to sentencing judges to craft an appropriate response. Indeed, I have no doubt, either, that a significantly higher sentence for Mr. Smith would have been fit, but 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. [ 62 ] The Crown cited R. v.

McCormick to illustrate the high end of the sentencing range for an offender engaged in the trafficking of fentanyl. Mr. McCormick, in contrast to Ms. Naccarato, was a high-level trafficker who pleaded guilty to charges in Vancouver and Richmond involving multiple counts of possession of large quantities of fentanyl, cocaine, cannabis, and other controlled substances for the purpose of trafficking. The police seized 27,000 fentanyl pills from Mr. McCormick's vehicle, residence, and storage locker in connection with the Vancouver offences, and a further 1,000 fentanyl pills possessed by Mr. McCormick in Richmond.

The accused, unlike Ms. Naccarato, had a substantial criminal record which included convictions for conspiracy to traffic in cocaine and possession for

the purpose of trafficking. [ 63 ] Taking into account the harm caused by fentanyl to the community and the dangers posed by its potency, the Court emphasized denunciation and deterrence as the paramount principles of sentencing. In R. v. McCormick , the Court imposed a sentence of five years' imprisonment on the count charging trafficking of fentanyl. [ 64 ] In R. v. Daignault , the accused pleaded guilty to possession of fentanyl for the purposes of trafficking. The accused was found in possession of 27 flaps of heroin laced with fentanyl. Mr.

Daignault was 39 years old, he had expressed some degree of remorse, was addicted to crystal meth, but unlike Ms. Naccarato, had not taken any counselling or treatment for his addiction by the time of sentencing. Mr. Daignault's criminal record included two convictions for trafficking. [ 65 ] After taking into account the extreme danger posed by fentanyl and the highly-significant aggravating factor that the flaps seized from the accused each contained a lethal dose of fentanyl, the Court imposed a sentence of 18 months' imprisonment followed by two years' probation. [ 66 ] In R. v.

Kha , the 19-year-old appellant with two previous convictions for drug possession was convicted on two counts of conspiracy to traffic in heroin. He appealed a three-year prison sentence imposed by the trial judge. [ 67 ] The appellant, who was not a drug user, had been lured into the drug trade by an older friend, and as the courier of four ounces of heroin was the low man on the bottom rung of the conspiracy. He had taken steps to extricate himself from his criminal lifestyle. The Court of Appeal reduced Mr. Kha's sentence to two years. [ 68 ] The first of the authorities relied upon by the defence is R. v.

Voong . There, each of the four respondents pleaded guilty to trafficking drugs or possession of drugs for purpose of trafficking in dial-a-dope operations. Each was sentenced to a suspended sentence and probation. [ 69 ] The Crown argued those sentences were unfit. In three of the four cases, the Court of Appeal upheld the imposition of a suspended sentence and probation, although for two of the respondents the Court varied the terms of probation.

Each of the offenders whose suspended sentences were upheld had made significant efforts toward their own rehabilitation. [ 70 ] The Court of Appeal reiterated that general deterrence and denunciation are the main principles to consider when sentencing drug traffickers, but observed that a suspended sentence and a probation order imposing conditions for the protection of the community may have a deterrent and denunciatory effect, in addition to its rehabilitative effect. At para. 44, the Court in R. v.

Voong held that the normal range of sentence for a first offence dial-a-dope trafficker was between six to nine months' incarceration and up to 18 months in some cases, absent exceptional circumstances. [ 71 ] As the Court explained at para. 59: . . . 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 CSO sentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. [ 72 ] The defence submits that notwithstanding the Court of Appeal's recent determination of a substantially higher sentencing range for those who traffic in fentanyl, it remains open to the Court to impose a non-custodial sentence in those rare cases where the circumstances are exceptional as defined in R. v. Voong . [ 73 ] In R. v. Van Der Walt , the 28-year-old accused pleaded guilty to one count of trafficking in cocaine in a dial-a-dope operation.

She had no prior criminal record, was in poor health, and had a history of drug abuse. However, she was able to extricate herself from the drug trade before she was charged. She had the support of her family and friends. The Court was satisfied that the circumstances were exceptional. The accused had turned her life around and the protection of the public was better served by a non-custodial sentence. The Court imposed a suspended sentence and 18 months' probation. [ 74 ] Ms. Naccarato is of similar age to the offender in R. v.

Van Der Walt , is also a first-time offender, and was addicted to crystal meth at the time of her offence. However, financial gain was also a factor and she, as a courier transporting a significantly larger quantity of a more dangerous substance, bears a higher degree of moral culpability than did Ms. Van Der Walt. However, since her arrest, she, too, has made exceptional efforts toward her own rehabilitation. [ 75 ] In R. v. Wong , the 21-year-old accused pleaded guilty to one count of trafficking three grams of cocaine. Mr. Justice Johnston found that since his arrest in 2013, Mr.

Wong had made a complete change in his life. He had returned to his family, and completed high school and several training courses at BCIT. He had part-time employment and the support of his employer. The Court thought the public would be better protected by not exposing Mr. Wong to the sort of people he would meet if he went to jail. Applying R. v. Voong , the Court imposed a suspended sentence with three years' probation. [ 76 ] In R. v. Lopez , the accused, who was 21 years old at the time of the offence, was convicted of possession of 503 grams of crystal meth for the purpose of trafficking.

He was a drug courier and had been paid $1,000 to deliver a backpack of drugs to a Helijet terminal. At the time of the offence, Mr. Lopez was addicted to OxyContin. He had an unrelated criminal record consisting of a three-month conditional sentence and six months’ probation for participation in a riot, and a conditional discharge plus six months' probation for breach of an undertaking by failing to report. Madam Justice Gray imposed a suspended sentence with three years of probation on terms which included house arrest.

[ 77 ] Factors which led the Court to conclude there were exceptional circumstances warranting a non-custodial sentence included the fact that five months after the offence, Mr. Lopez, on his own initiative, began attending an addictions clinic. At the time of sentencing, he continued to attend the clinic and had been drug-free for over seven months. Mr. Lopez had a stable support system, employment, and responsibilities for children. The Court also found that he was an unsophisticated drug courier who had strayed into couriering drugs to support his addiction. Mr.

Lopez was genuinely remorseful and sought to turn his life around. [ 78 ] In R. v. Rutter , His Honour Judge Gouge sentenced the 22-year-old offender to a suspended sentence and three years' probation for trafficking in fentanyl and cocaine. During the four or five months prior to his arrest, the offender had run a full-time dial-a-dope operation. The quantity of drugs consisted of 35.5 grams of cocaine and 12 grams of fentanyl. In imposing sentence, the Court took into account the fentanyl crisis as an aggravating factor. [ 79 ] Like Ms. Naccarato, Mr.

Rutter was an addict but obtained drug treatment after his arrest and successfully completed a rehabilitation program. At the time of sentencing, he had been drug free for a year, was employed, and held in high regard by his employer. Like Ms. Naccarato, he continued to attend addiction counselling. [ 80 ] In rejecting an intermittent sentence, Judge Gouge observed that although that sentencing option would have served all of the purposes of denunciation, deterrence, and rehabilitation, prisoners who serve intermittent sentences are under pressure from other prisoners to smuggle drugs into jail (para. 26).

In light of his offence, Judge Gouge thought that Mr. Rutter would be vulnerable to that pressure. [ 81 ] I turn again to the objectives of sentencing. [ 82 ] Here, denunciation is an important consideration where Ms. Naccarato was acting as a courier, transporting heroin laced with fentanyl, and where her motive was largely financial, although her addiction was also a contributing factor. [ 83 ] In this case, specific and general deterrence are both important objectives. The purpose of specific deterrence is to deter Ms. Naccarato from any further participation in the drug trade.

Her conviction for this offence and her success to date in becoming drug-free have already gone some way toward accomplishing this objective. [ 84 ] The aim of general deterrence is to deter others from participating in the illicit drug trade. This is a particularly important factor where fentanyl is involved, given the extent of harm caused by even very small quantities of this substance. Absent extraordinary circumstances, this factor, together with denunciation, would warrant a term of imprisonment for Ms.

Naccarato. [ 85 ] Another sentencing objective is the separation of offenders from society where necessary. Since the offence, Ms. Naccarato has diligently pursued treatment and counselling for her addiction, and has abstained from the use of illicit drugs for a year. She has attended all of her court appearances. She has the support of her counsellors, employer, and friends. In my view, it is unnecessary to separate Ms. Naccarato from society in order to protect the public. [ 86 ] With respect to the objective of rehabilitation, Ms. Naccarato is a young woman with stable employment.

Since the offence, she has undertaken a residential treatment program and regular counselling. Her clinicians, counsellors, and sponsor all attest to the progress of her recovery. Ms. Naccarato also enjoys the confidence and support of her employer, her friends, and her fellow participants in Narcotics Anonymous. In short, Ms. Naccarato has made substantial progress toward her own rehabilitation. Here, rehabilitation is also a significant sentencing objective. [ 87 ] Reparation for harm done to the victim or the community may be addressed through a sentence which meets the objective of denunciation.

Other sentencing objectives, including rehabilitation, will serve to promote a sense of responsibility in Ms. Naccarato concerning the harm done to victims and the community. As I have already observed, Ms. Naccarato has taken some responsibility for her offence and has shown insight into the harm caused by her conduct. [ 88 ] In this case, there is no question that denunciation and deterrence are important sentencing objectives. Rehabilitation is also an important factor.

The issue confronting the Court here is whether a sentence which does not incorporate a significant period of incarceration will satisfy the objectives of denunciation and deterrence, and meet the principle that similar sentences should be imposed for similar offenders in similar circumstances. [ 89 ] The Crown submits that the aggravating factors in this case where Ms. Naccarato acted as a courier for the transportation of heroin laced with fentanyl call for a custodial sentence in order to give adequate effect to the objectives of denunciation and deterrence.

The Crown says a suspended sentence would fail to achieve the required denunciatory effect. [ 90 ] As a result of the public health crisis caused by unintentional overdosing, recurrent offences without exceptional circumstances involving street-level dealing in fentanyl, the Court of Appeal in R. v. Smith has identified a sentencing range beginning at 18 months' imprisonment and extending to 36 months or more. At the time Ms.

Naccarato committed her offence in December 2014, absent exceptional circumstances, the sentencing range was from six to 18 months' incarceration. [ 91 ] Some sentencing principles suggest that a sentence of incarceration may be unnecessary for Ms. Naccarato. Under s. 10 of the CDSA , which I have previously cited, the fundamental purpose of sentencing includes the maintenance of a just, peaceful, and safe society, while encouraging rehabilitation and treatment in appropriate circumstances of offenders and acknowledging the harm done to victims and to the community.

The Court is also required to consider all available sanctions, other than imprisonment, that are reasonable in the circumstances of each case. [ 92 ] The exceptional circumstances in this case include the significant and continuing efforts that Ms. Naccarato has made toward her rehabilitation. Those efforts include her successful completion of a 90-day residential treatment program and her ongoing participation in counselling and Narcotics Anonymous programs. The steps Ms. Naccarato has taken in pursuing treatment for her addiction are verified by her clinicians, counsellors, and a sponsor.

She has succeeded in remaining drug-free for a year. Ms. Naccarato has steady employment and the support of her employer. She has expressed genuine remorse for her offence and has shown awareness

for the harm caused to society by the illicit traffic in drugs, including fentanyl. Both Probation Officer Abraham and her sponsor have commented on Ms. Naccarato's insight concerning the consequences of her activity in the drug trade. [ 93 ] Ms. Naccarato benefits from the regular support she receives from her counsellors and from her participation in Narcotics Anonymous. She has succeeded thus far in removing herself from the drug trade. She has a network of supportive friends and no prior criminal record. Ms. Naccarato is an offender who has turned her life around.

A prison sentence would likely expose her to persons in the drug trade and would do more harm than good. In my view, this is one of those rare cases where the protection of the public would be better served by a non-custodial sentence. Sentence [ 94 ] Taking into account the objectives of denunciation and general and specific deterrence, but also bearing in mind the objective of rehabilitation, I conclude that the appropriate sentence for Ms. Naccarato is a suspended sentence with a three-year term of probation.

In order to satisfy the objectives and denunciation and deterrence, the terms of probation must be strict. [ 95 ] The terms of probation are as follows: • Ms. Naccarato will keep the peace and be of good behaviour. She will appear before the court when required to do so by the court. • She will notify the court or her probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. • Ms.

Naccarato will immediately report in person to the probation office at 836 Courtney Street, Victoria, B.C., and after that she will report as directed. • When first reporting to the probation officer, Ms. Naccarato shall inform him or her of her residential address and phone number. • She will not change her address or phone number without first notifying the probation officer. • Ms. Naccarato shall remain in the Province of British Columbia, unless she has received the written consent of the probation officer to go elsewhere. • For the first year of probation, Ms.

Naccarato will be confined to her residence 24 hours a day, seven days a week, except for absences for employment, counselling, and Narcotics Anonymous programs, to attend classes and exams at a post-secondary institution, medical and dental appointments, or otherwise as may be approved by her probation officer. • For the second and third years of probation, she will obey a curfew by being inside her residence between the hours of 9:00 p.m. and 6:00 a.m. each day, except as follows: (

a) with the written consent of the probation officer, but such consent is to be given only for compelling personal, family, or employment reasons; or (

b) when travelling directly to, or returning directly from, her place of employment, or while in the course of her employment. She shall provide the probation officer with written details of her employment, if requested to do so; or (

c) when travelling directly to, or returning directly from, an educational institution at which she is enrolled, or while in the course of classes or extracurricular activities approved in advance by the probation officer. • Ms. Naccarato shall not possess or consume any alcohol or any controlled substance as defined in s. 2 of the Controlled Drugs and Substances Act , except as prescribed for her by a physician. • She shall not possess any pipes, syringes, or other drug paraphernalia. • Ms.

Naccarato shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by the probation officer. [ 96 ] Ms. Naccarato, would you please stand. [ 97 ] Ms. Naccarato, I have suspended sentence and imposed the three-year term of probation on the terms I have just recited, because I have found that there are exceptional cases in this case. Otherwise, there would have been a significant jail term. Those exceptional circumstances, as I have said, include the remarkable degree of support you have in the community from both counsellors, your employer, and your friends.

It is incumbent upon you not to let them down. Ancillary Orders [ 98 ] There will also be a mandatory order prohibiting Ms. Naccarato from possession for 10 years of any of the firearms and other weapons listed in s. 109(2) of the Criminal Code . [ 99 ] I also make the order under ss. 487.04 and 487.051(3) of the Criminal Code requiring Ms. Naccarato to supply DNA samples reasonably required for the purpose of forensic DNA analysis. [ 100 ] There will also be an order for forfeiture of the iPhone and BlackBerry cellphones seized following Ms. Naccarato's arrest as offence-related property.

[ 101 ] Ms. Naccarato will also pay the victim fine surcharge of $200. [ 102 ] I will hear any submissions counsel wish to make concerning the time for payment of the surcharge. [ 103 ] Ms. Naccarato, you may sit down. [ 104 ] MR. MUNRO: Thirty days, My Lord. [ 105 ] THE COURT: The time for payment will be 30 days. [ 106 ] MR. MUNRO: Thank you. [ 107 ] THE COURT: Do counsel wish to make any submissions concerning any of the terms of probation I have outlined? [ 108 ] MR.

MUNRO: I am just wondering, My Lord, it may be captured in the permission exception in the house arrest for the first year and you may be satisfied with that. Sometimes, so, for example, there is an hour a day or something like that, that is allocated for the purposes of getting groceries, for example. If you had contemplated it already, I will leave it at that. If you want to consider that, that may be something that is worth considering. [ 109 ] THE COURT: Thank you. Ms. Magnin? [ 110 ] MS.

MAGNIN: Nothing from the Crown perspective. [ 111 ] THE COURT: I will revise the condition for the first year of the probation, so it will now read: [ 112 ] For the first year of probation, Ms. Naccarato will be confined to her residence 24 hours a day, seven days a week, except for absences for employment, counselling, and Narcotics Anonymous programs, to attend classes and exams at a post-secondary institution, medical and dental appointments, and for up to one hour a day for the purpose of purchasing groceries or other necessities, or otherwise as may be approved by her probation officer. [ 113 ] MR.

MUNRO: Thank you. I believe we need a specific date as to when she should provide the DNA by. That's going to be at the Victoria City Police Station. [ 114 ] THE SHERIFF: Yes, My Lord, I believe -- I'd have to double check, but I believe Tuesdays and Thursdays at Vic City Police. [ 115 ] MR. MUNRO: If we say by Thursday next, we will be able to capture the timeframe. [ 116 ] THE SHERIFF: And My Lord, I can confirm that with someone that's in another courtroom that has that information, if you prefer. [ 117 ] THE COURT: All right. [ 118 ] MS.

MAGNIN: My Lord, in terms of the -- given the additional exception of being out of the residence, I'm not sure whether there should be a condition to carry the order on her person when out of the residence. I have seen that condition being imposed. It permits, if she's stopped by the police, for example, to be able to ensure compliance. [ 119 ] THE COURT: Mr. Munro, do you take any position? [ 120 ] MR. MUNRO: I don't, no. [ 121 ] THE COURT: All right. That term will also be included in the probation order. [ 122 ] MS.

MAGNIN: Thank you, and I do have a copy of a forfeiture order outlining the forfeiture of the two phones and one additional item of baggies, as set out in the 5.2, and that's been -- well, it's been ordered, but it's signed by myself and my friend. [ 123 ] THE COURT: I have signed the forfeiture order, and with respect to the date for attendance to provide the DNA samples -- [ 124 ] MR. MUNRO: I apologize. I'm just addressing the DNA. [ 125 ] THE COURT: Yes. [ 126 ] MR. MUNRO: Oh, okay. To attend at Victoria City Police Station at 8:30 on Tuesday, April 18, at -- did I say 8:30?

Yes, in the morning, for the purpose of providing a DNA sample, and she will attend at that time. [ 127 ] THE COURT: Very well, the order will go on those terms. [ 128 ] MS. MAGNIN: And I apologize, My Lord. Just again, in terms of the police ability to monitor the suspended sentence, if there could -- a condition in the light of to answer the door should police come and check to ensure compliance, answer the phone, that sort of condition. [ 129 ] THE COURT: All right. The additional term then will be Ms.

Naccarato will answer the door if and when a police or probation officer attends at her residence, and will promptly respond to any telephone contact from her probation officer or a police officer. [ 130 ] MR. MUNRO: Thank you, My Lord. [ 131 ] THE COURT: Counsel, thank you again for your very careful submissions. We will adjourn now.

“PEARLMAN J.”