R. v. Cavanagh, 2023 BCSC 2309

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Cavanagh, 2023 BCSC 2309 Date: 20231208 Docket: 111350-1 Registry: Kamloops Rex v. Shawn William Carlisle, Zale Coty and Jacob Andrew Cavanagh Restriction on Publication: Pursuant to 486.5(2) C.C.C. Before: The Honourable Madam Justice Donegan Oral Reasons for Sentence Re Accused Jacob Andrew Cavanagh Counsel for the Crown: O.L. Bick Counsel for the Accused Jacob Andrew Cavanagh: I.E. Gauthier Place and Date of Trial/Hearing: Kamloops, B.C. December 8, 2023 Place and Date of Judgment: Kamloops, B.C.

December 8, 2023 [ 1 ] THE COURT: Jacob Andrew Cavanagh is before the court today to be sentenced in relation to Count 7 of this indictment, that he unlawfully possessed a controlled substance, fentanyl, for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 [ CDSA ]. [ 2 ] Counsel have presented a joint submission for my consideration. They jointly propose that a sentence of four years' imprisonment is a proportionate sentence, along with ancillary orders. [ 3 ] The law requires that I first approach a joint submission on an as-is basis.

If I am considering departing from the joint submission, I am to follow the procedure set out by the Supreme Court of Canada in R. v. Anthony-Cook , 2016 SCC 43 . I am not considering departing from the joint submission. [ 4 ] The circumstances of the offence have been set out by counsel in an Agreed Statement of Facts marked as Exhibit 1 at this hearing. The Agreed Statement of Facts will be appended to these reasons when they are reduced to writing. Circumstances of the Offence [ 5 ] By way of

summary only, Mr. Cavanagh was arrested on November 26, 2019, as he left a gardening supply shop in Kamloops called Sunshine Gardens. Found in his possession, incidental to his arrest, was six ounces of fentanyl having an approximate street value of between $15 and $18,000. Police later searched Mr. Cavanagh's residence and found, among other things, $12,400 cash, a money counter, a baton, and some cocaine. To provide context, Mr. Cavanagh's arrest that day arose out of a police investigation that began in 2017 called Project E-Petrification.

One of the project's targets was Sunshine Gardens, owned and operated by one of Mr. Cavanagh's co-accused, Mr. Coty. The other co-accused on the indictment, Mr. Carlisle, worked for Mr. Coty at Sunshine Gardens. [ 6 ] As part of their ongoing investigation, police obtained authorizations to intercept Mr. Carlisle's and Mr. Coty's communications and film some of their activities in 2019. The recordings captured Mr. Coty trafficking controlled substances to approximately a dozen different people at the back of the Sunshine Gardens store. Mr. Cavanagh was one of those people.

Between June 27, 2019, and the day he was arrested, Mr. Cavanagh attended Sunshine Gardens 21 times. Nearly each time, Mr. Cavanagh gave Mr. Coty cash and received substances in return. [ 7 ] Beginning on August 15, 2019, Mr. Coty and Mr. Cavanagh conspired to introduce their own fentanyl product into the Kamloops market. Their product was a mixture of fentanyl, carfentanil, heroin, and caffeine. Their intercepted communications over the next few months show the men discussing how Mr.

Cavanagh would prepare the product for sale, including different ways to mix the products using different ratios. [ 8 ] From the Agreed Statement of Facts, I find the parties' characterization of Mr. Cavanagh's position in this illicit enterprise as a mid-level dealer to be an accurate one. Mr. Cavanagh received the drugs from Mr. Coty. He then delivered the drugs to street-level

dealers. I reject, however, defence counsel's characterization of Mr. Cavanagh as somehow vulnerable in this scheme. Yes, he was handling the drugs. Yes, he was dealing with street-level drug dealers, but these were his choices. He made those choices for financial gain, without any consideration for the Russian roulette he was playing with the lives of the citizens of Kamloops. The facts do not support him in any way being vulnerable in this scenario. [ 9 ] I remain mindful, however, that Mr. Cavanagh is not being sentenced for conspiracy.

He is being sentenced today for possession of fentanyl for the purpose of trafficking on that one occasion. Circumstances of the Offender [ 10 ] Mr. Cavanagh's circumstances have been thoroughly set out by his counsel in submissions, and through what is commonly referred to as a Gladue report, which has been marked as Exhibit 4 in this proceeding. [ 11 ] Mr. Cavanagh is a member of the Simpcw First Nation, part of the Secwepemc First Nation. He has been negatively affected as a result of the well-recognized effects of colonization and the residential school system. Those effects are now well known.

They include dislocation, loss of culture, language, livelihood, poverty, violence, substance misuse, and incarceration. [ 12 ] Mr. Cavanagh was born with neonatal abstinence syndrome. He was addicted to crystal methamphetamine when he was born as a result of his mother's ingestion of the substance while pregnant with him. He was immediately placed in foster care and adopted by a family outside of his culture. He has been diagnosed with attention deficit hyperactivity disorder, as well as perhaps fetal alcohol spectrum disorder, although this latter diagnosis is not altogether clear from the materials. Mr.

Cavanagh had some difficulties in school. He did not graduate from Grade 12. [ 13 ] Mr. Cavanagh was 24 years old at the time of his offending. He is now 27. He has a prior criminal record, marked as Exhibit 3. His criminal record shows that Mr. Cavanagh has, from the time his adult record commenced in 2015 until 2019, been convicted of 12 offences. Among them is a 2019 conviction for possession of a scheduled substance where he received a $1,000 fine. I observe from the record that Mr. Cavanagh has not spent any significant length of time incarcerated.

He has received short, intermittent custodial sentences on two occasions in the past for failing to comply with release orders. [ 14 ] Since his arrest on these most serious charges, Mr. Cavanagh has made great strides toward his rehabilitation. He has removed himself from the negative and antisocial peer groups with whom he had been associating. He is focused on abstinence, maintaining employment, supporting his partner, and putting in place the building blocks that will be necessary for him to continue on this pro-social path when he is eventually released from custody.

He has good support from his spouse and her mother. He has support from a community member and two employers, all of whom are aware of this conviction. I accept that he is genuinely remorseful for his criminal conduct. This is demonstrated through the letter that he presented to me through his counsel, but it is a letter that he wrote himself. It is also demonstrated through his guilty plea and his, if I can put it this way, confession to his employers and other community members. Impact on the Community [ 15 ] I will say a word about impact on the community.

The profound impact fentanyl and other hard drugs has had on our community and many other communities across this province has been well-documented and has been the subject of much judicial writing. [ 16 ] Both counsel rely on R. v. Campbell , 2021 BCSC 853 , not only for Justice Ker's thorough review of the law in this area and her

summary of the appropriate sentencing range for this offence (three to 10 years – see para. 75) but for Justice Ker's findings with respect to community impact. [ 17 ] B.C. Coroner Service reports, referred to by Justice Ker, have been tendered in many other sentencing hearings. They contain data pertaining to illicit drug toxicity in communities in our province that show a simply staggering number of deaths from fentanyl overdoses. It must be remembered, however, that these figures represent only the most significant and easily identifiable negative impact illicit drugs have had on our communities.

The numbers do not reveal the suffering these deaths have caused to family members and friends. The numbers do not reveal the broader societal repercussions that flow from addictions to these substances, including poverty, unemployment, mental health instability, family instability, and additional criminality, to name a few. [ 18 ] In other words, the consequences of trafficking in drugs extends far beyond the terrible harms caused to purchasers. This was recently discussed by the Supreme Court of Canada in R. v. Parranto , 2021 SCC 46 .

The Court, at para. 87, recognized that the dangers in trafficking in hard drugs such as fentanyl has long been recognized by courts in Canada. [ 19 ] Recently, in R. v. Kim , 2022 BCSC 518 ; aff’d 2023 BCCA 313 , Justice Devlin made a number of observations about the societal harms caused by drug trafficking, in particular, fentanyl and carfentanil, at paras. 27–31: [27] Trafficking in such substances causes both direct and indirect harm to society. Distribution results directly in addiction and debilitating health effects. Increasingly, it also leads to death by overdose.

Trafficking also leads indirectly to increased crime, both from those seeking to finance their addiction and those seeking to maintain control over the lucrative drug trade. Trafficking in drugs also impacts the families of those with drug addictions, and it has serious societal costs in terms of health care and law enforcement. [28] While the harms caused by trafficking in heroin, cocaine, and methamphetamine pose a grave threat to the community, “that threat pales in comparison to the one posed by fentanyl and its analogues” ( Parranto at para. 93 ).

As Justice Moldaver (concurring) observed, “fentanyl has altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy number one” (at para. 93). As noted by the majority at para. 70 of Parranto , “the offender’s willingness to exploit at-risk populations and communities” is a factor that may inform the court’s assessment of the gravity of the offence in sentencing; “choices which demonstrate a reckless

disregard for human life increase not only the gravity of the offence but the moral culpability of the offender” ( Parranto at para. 70 ). [29] The observations in Parranto reiterate those made in various decisions in British Columbia in recent years. In R. v. Smith , 2017 BCCA 112 [ Smith ], Madam Justice Newbury, dissenting (not on this point), recognized that British Columbia has “one of the worst, if not the worst, problems of Fentanyl abuse in Canada” (para. 44).

This is demonstrated by the fact that since April 14, 2016, B.C. has been in a public state of emergency because of the opioid pandemic and the resulting surge in overdose-related deaths: see R. v. Niederhumer , 2022 BCCA 88 [ Niederhumer ] at para. 36 ; R. v. Toth , 2017 BCSC 501 [ Toth ] at para. 37 . As noted by our Court of Appeal, the staggering numbers of overdose deaths in this province are “largely attributable to fentanyl”: Niederhumer at para. 36 . [30] Despite the ongoing public awareness campaign, the fentanyl scourge – as it was described in Smith – continues to destroy lives and wreak social havoc.

According to the B.C. Coroners Service report filed as Exhibit 2 on this hearing, Illicit Drug Toxicity Deaths in BC: January 1, 2011 – December 31, 2021 (British Columbia: Ministry of Public Safety & Solicitor General, 2022), over 80% of the drug toxicity deaths in 2017 were due to fentanyl. In 2017, the year Mr.

Kim was arrested for these offences, there were a total of 1,495 illicit drug toxicity deaths, 63% of which occurred in the Fraser and Vancouver Coastal health regions. [31] As noted by the majority in Parranto , “[l]ocal conditions may enter into the assessment of the gravity of the offence” (at para. 59). Accordingly, a fit and proper sentence should be reflective of and responsive to the local conditions in this province. In particular, it must respond to B.C.’s severe and ongoing opioid epidemic. [ 20 ] I adopt Justice Devlin's observations as applicable to this case.

Legal Parameters and Principles Legislative Framework [ 21 ] Fentanyl is a

Schedule I substance under the CDSA . Under s. 5(3) of the CDSA , the maximum sentence for trafficking in such a substance is life imprisonment. This demonstrates the objective gravity with which Parliament views this offence. [ 22 ] Sections 718 to 718.2 of the Criminal Code, R.S.C. 1985, c. C-46 [ Code ] set out the fundamental principles and purposes to be considered by the court in sentencing.

Section 10 of the CDSA provides additional principles of sentencing in relation to drug offences. [ 23 ]

Section 718 of the Code provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions with reference to six objectives.

These objectives are: denunciation of unlawful conduct; deterring the offender and other persons from committing offences; separating offenders from society where necessary; assisting to rehabilitate offenders; providing reparations for harm done to victims or to the community; and promoting a sense of responsibility in offenders and acknowledging the harm done to victims or to the community.

These objectives are echoed in s. 10 of the CDSA . [ 24 ] Fundamental to all of this is s. 718.1 of the Code , which requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 sets out a number of specific principles that a court must take into consideration in sentencing. An important principle is that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender: see also Parranto at para. 11 . [ 25 ] Another important principle is parity of sentence, which requires the sentence imposed to be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: s. 718.2 (b).

I am mindful, though, not to lose sight of the individualized nature of the assessment, one that requires me to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case and the particular offender: Parranto at paras. 11-12 ; R. v. Nasagaluak , 2010 SCC 6 at para. 43 . [ 26 ] Subsection 718.2 (

c) of the Code outlines what is referred to as the totality principle, which is not applicable here. Importantly, though, subsections 718.2 (

d) and (

e) emphasize the need for restraint in the use of imprisonment. These provisions require that an offender not be deprived of liberty if less-restrictive sanctions are appropriate in the circumstances, and that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders, again with particular attention to the circumstances of Indigenous offenders. Mr.

Cavanagh is an Indigenous offender. [ 27 ] In Parranto , the Supreme Court of Canada canvassed the basic principles a judge must consider to craft an appropriate sentence for fentanyl trafficking offences. As noted in R. v. Friesen , 2020 SCC 9 , all sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and degree of responsibility of the offender: para. 30.

In Parranto , the Court emphasized that individualization is central to the proportionality assessment, therefore, in each case, “the question is always whether the sentence reflects the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of each case”: para. 12. [ 28 ] In Parranto , Moldaver J. described those who traffic in fentanyl, and in particular large-scale traffickers, as a “source of unspeakable harm”, noting that the directing minds of such operations should receive significant sentences: para. 101.

I find Moldaver J.’s concluding comments instructive: [101] Ultimately, largescale trafficking in fentanyl is a crime that preys disproportionally on the misery of others — the marginalized and those whose lives are marked by hopelessness and despair. It is a crime motivated by greed and by a callous disregard for the untold grief and suffering it leaves in its wake. Above all, it is a crime that kills — often and indiscriminately.

It follows, in my view, that what matters most is that those individuals who choose to prey on the vulnerable and profit from the misery of the Canadian public for personal gain are sentenced in accordance with the severity of the harms they have caused. Fentanyl trafficking, and largescale trafficking in particular, are a source of unspeakable harm. Accordingly, while the range of sentences currently imposed for the directing minds of largescale fentanyl operations straddles the upper single digits and lower double digits, sentencing judges should feel justified,

where circumstances warrant, in applying a higher range, consisting of mid-level double digit sentences and, in particularly aggravating circumstances, potential sentences of life imprisonment. [ 29 ] More recently, in R. v. Gill , 2022 BCCA 127 , the Court made similar observations at para. 22: [22] There is no question that the moral culpability of offenders who traffic in fentanyl and its analogue, carfentanil, is very high.

This Court has recognized that general deterrence and denunciation must feature prominently in such cases in light of the serious, unabated public health crisis caused by the street sale of drugs containing fentanyl: Mann BCCA at para. 98; R. v. Smith , 2017 BCCA 112 at paras. 4 , 48–49. As Newbury J.A. (in dissent, but not on this point) observed in Smith : [44] … British Columbia has one of the worst, if not the worst, problems of Fentanyl abuse in Canada.

This public safety emergency has prompted various media campaigns, public alerts and outreach efforts by police and social workers who are involved in seeking to contain this scourge ‒ yet Fentanyl abuse continues to claim lives every day in our communities. The danger posed by such a drug must surely inform the moral culpability of offenders who sell it on the street, and obviously increases the gravity of the offence beyond even the gravity of trafficking in drugs such as heroin and cocaine.

Application of the Principles to the Present Case [ 30 ] I turn now to an application of the relevant legal principles to the particulars of this case. I will begin with a consideration of the mitigating and aggravating factors. Mitigating Factors [ 31 ] As counsel have outlined, the mitigating factors are numerous. Mr. Cavanagh's guilty plea at a relatively early opportunity is a significant mitigating factor, as is his relatively young age, his genuine remorse, and the positive steps he has taken toward his rehabilitation since his arrest on this matter.

I also consider his difficult upbringing and the significant likelihood that the intergenerational trauma encompassed by Gladue considerations had a role to play in his being before the court. Aggravating Factors [ 32 ] I accept the Crown has proven the following aggravating factors beyond a reasonable doubt: 1. the type of drug: fentanyl is the most harmful of the

Schedule I drugs; 2. the quantity: six ounces is not an insignificant quantity. I find it is a large quantity; 3. the duration of the offender's involvement in this matter: a few months; 4. motivation for offending: Mr. Cavanagh was motivated by profit; 5. his level in the hierarchy, as I have already explained; and 6. his criminal record. Principles and Objectives of Paramount Importance [ 33 ] General and specific deterrence, denunciation, and the need for public protection are of paramount importance here, but rehabilitation cannot be overlooked in this case. Mr.

Cavanagh's prospects for rehabilitation are very good. [ 34 ] Of course, while I recognize that there is an element of restraint evident from the plea-bargaining process that now sees Mr. Cavanagh pleading guilty to one offence on the indictment, the principle of restraint nevertheless remains important in my consideration of whether this joint submission for a four-year sentence is a proportionate one. Gravity of the Offences [ 35 ] The objective and subjective gravity of this offence are both very high. Moral Blameworthiness [ 36 ] Mr.

Cavanagh's moral blameworthiness is very high as well, although I consider it slightly attenuated by his background, as I have outlined. Sentence [ 37 ] Mr. Cavanagh, I am going to ask you to please stand. [ 38 ] In the circumstances of this case and in your circumstances, I am satisfied that I should accept the joint submission presented by

counsel on an as-is basis. It is a submission negotiated by experienced counsel after significant consultation and compromise. I am satisfied it is a sentence that is in accordance with the purpose, principles, and objectives of sentencing set out in the Code and in the CDSA . It is a proportionate sentence that reflects the gravity of the offence, while not exceeding what is appropriate given your moral blameworthiness in this case.

It is a sentence that considers all aggravating and mitigating factors and is crafted to achieve the primary objectives of denunciation and deterrence, while not losing sight of rehabilitation. Although it is an individualized sentence, I think it also satisfies the principle of parity. While it is a sentence at the bottom of the range of appropriate sentences, I think it is a proportionate sentence in all of the circumstances. It is one that respects the principle of restraint as well. [ 39 ] I sentence you to a period of four years' imprisonment. You can have a seat while I impose the ancillary orders.

Ancillary Orders [ 40 ] Counsel, you did not address the victim fine surcharge. [ 41 ] CNSL I. GAUTHIER: I would suggest, given that he is going to be put in significant financial strain from not working for the next four years, I'd ask it be waived. [ 42 ] THE COURT: Any submissions? [ 43 ] CNSL O.

BICK: I take no position. [ 44 ] THE COURT: All right, on the basis then of undue hardship, I will waive the victim fine surcharge that would ordinarily be applicable in this case. [ 45 ] Pursuant to s. 109(2) of the Code , you are prohibited from possessing any firearm other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition, or explosive substance for a period of 10 years following your release.

You are also prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [ 46 ] Count 7 on the indictment is a secondary designated offence with respect to the provision of DNA. After considering the factors set out in s. 487.051(3) of the Code , I am satisfied that it is in the best interests of the administration of justice to make an order in Form 5.04 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Data Bank.

The samples will be taken from you while you are in jail and you must submit to the taking of the samples. [ 47 ] I will make a forfeiture order in the terms sought and agreed upon by counsel. [ 48 ] I will order a transcript of these reasons for sentence. [ 49 ] Pursuant to s. 743.2 of the Code , my reasons for sentence are to be forwarded to the Correctional Service of Canada. Are there any other reports that counsel would like to have forwarded to the Correctional Service of Canada? Specifically I am thinking of the Gladue report, but I will not do so without consent of Mr. Cavanagh. [ 50 ] CNSL I.

GAUTHIER: Yeah, just the Gladue report is sufficient. [ 51 ] THE COURT: Yes, he would like that included in the materials? [ 52 ] CNSL I. GAUTHIER: Yes. Yes, Justice. [ 53 ] THE COURT: These reasons for sentence and Exhibit 4, the Gladue report dated June 15, 2023, are to be forwarded. [ 54 ] I decline to make any recommendations regarding Mr. Cavanagh's classification while serving his federal sentence. He seeks to have me recommend that he take certain programs. He has indicated an interest in -- counsel, am I referring to it correctly, the Pathways program? [ 55 ] CNSL I.

GAUTHIER: That's correct, Justice. [ 56 ] THE COURT: The Pathways program. He is also asking to have me recommend that he be classified to a minimum security institution. I consider those matters to be within the purview of the Correctional Service of Canada. Enrollment in programming and classification of offenders involve considerations that are beyond my knowledge and are matters best left to the Correctional Service of Canada. [ 57 ] Anything I have overlooked, counsel? [ 58 ] CNSL O. BICK: No, thank you. Once the sentencing is complete, I will stay the conspiracy count as against Mr.

Cavanagh. [ 59 ] THE COURT: I see. [ 60 ] CNSL I. GAUTHIER: Nothing further from the defence. [ 61 ] THE COURT: I will ask the Registrar if there is anything that is unclear? [ 62 ] THE CLERK: Sorry, just to clarify, am I recording the stay of proceedings on Count 5 today or that will be -- [ 63 ] CNSL O. BICK: Today is fine.

[ 64 ] THE COURT: In respect of this accused. [ 65 ] THE CLERK: Thank you. [ 66 ] THE COURT: Correct? [ 67 ] CNSL O. BICK: Yes, that's right. [ 68 ] THE COURT: You will have to go with the sheriff now, Mr. Cavanagh. “S.A. Donegan J.” DONEGAN J. Appendix A