R. v. Kirk, 2023 BCSC 301

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Kirk, 2023 BCSC 301 Date: 20230208 Docket: 82821-2 Registry: Nanaimo Rex v. Chad Michael Kirk Publication Restrictions: Pursuant to s. 486.5(2) of the Criminal Code , any information which could identify a justice system participant shall not be published in any document or broadcast or transmitted in any way. Before: The Honourable Mr. Justice Baird Oral Reasons for Sentence Counsel for the Crown: C. Gibson Counsel for the Offender: D. Melville Place and Date of Hearing: Nanaimo, B.C. January 20, 2023 Place and Date of Judgment: Nanaimo, B.C.

February 8, 2023 INTRODUCTION [ 1 ] On June 23, 2022, I found Chad Michael Kirk guilty of three counts of possession of narcotics for the purpose of trafficking in fentanyl, cocaine, and methamphetamine, respectively. The allegations date back to April 13, 2018, almost five years ago. [ 2 ] My reasons for conviction are indexed at 2022 BCSC 2312 . For present purposes, it will be enough for me to say that I found Mr.

Kirk was an active participant in a mid-level narcotics distribution enterprise that dealt with significant amounts of fentanyl and other substances and was generating thousands of dollars a day in revenues at the time of his arrest. I determined, in effect, that he was the shipper/receiver of a de facto drug depot, and that he was a willing employee in a high-volume wholesale drug trade to street-level dial-a- dopers. [ 3 ] Mr. Kirk, who himself has a substance use disorder, is a 38-year-old Nanaimo resident with no previous criminal history.

I accept that he became involved in the drug trade not only to pay his bills, but to support his own substance use. His criminal offending ended abruptly after his long-ago arrest. His pattern of abusing substances has also stopped. He has expressed repeated and apparently sincere remorse for his dangerous and profoundly anti-social misconduct. According to a pre-sentence psychiatric assessment, he poses a low to low-moderate risk to re-offend. His risk is likely to remain in the low range if he abstains from the abuse of substances.

I am satisfied on all of the evidence that he poses no present danger to the public and there is no need for specific deterrence. [ 4 ] Nevertheless, and perfectly understandably, the Crown is seeking a penitentiary sentence of four years. There is no doubt that this submission falls within the established range for so-called “mid-level” distributors of fentanyl: see, for example, R. v. Davies , 2019 BCCA 359 at para. 15 ; and R. v. Emery , 2019 BCSC 1789 at para. 70 . There is similarly no doubt that the governing principles of sentencing in cases such as this are those of denunciation and deterrence: R. v.

Smith , 2017 BCCA 112 at para. 49 . We all know by now about the misery and widespread carnage caused by fentanyl trafficking. It is a commerce that blights and destroys lives in all communities across our province. [ 5 ] Counsel for Mr. Kirk does not dispute this reality and agrees that a jail sentence is required here, but he submits that a more nuanced approach to punishment would be in the overall best interests of society. He says, essentially, that Mr.

Kirk has already been deterred, that he is not a hardened criminal, that he is unlikely to reoffend, and he poses no threat to society necessitating his separation from the rest of us. He says that, in the present case, the inclination to short-term retribution should yield, to a degree at least, to a common-sense recognition of the importance of long-term individual rehabilitation. [ 6 ] The defence submits, in short, that a conditional sentence order (“CSO”) with appropriately punitive and restrictive terms,

combined with a lengthy period of probation incorporating terms of a similar nature, but emphasising, in addition, the principle of rehabilitation to an extent unlikely to be achieved by committing this 38-year-old first-time offender to the penitentiary system, is the best and most balanced way to achieve the overall objective of sentencing, which is, of course, the long-term protection of the public and the maintenance of a safe and peaceful society. THE OFFENDER [ 7 ] The pre-sentence and psychological reports prepared for this sentencing confirm that Mr.

Kirk is currently 38-years-old, and that he was 34 at the time of his arrest. He has no prior criminal record. He was born in Vancouver and has one younger brother with whom he has never had a close relationship and to whom he has not much spoken since the present charges were laid. The family moved to Vancouver Island when Mr. Kirk was five or six years old. He describes his childhood as a happy one, free of any abuse or neglect. [ 8 ] He completed high school but has not attended post-secondary education.

He has been consistently employed at various jobs through the years and has tickets to operate heavy equipment. Following his arrest, Mr. Kirk was employed by a friend who described him as a reliable worker who shows up on time and works independently and efficiently. He is currently off work and collecting social assistance due to his declining mental health as his sentencing approaches, but his friend says that Mr. Kirk will always have an employment position with his company when he is ready. [ 9 ] Mr.

Kirk reportedly started using substances when he was 18 or 19, drinking alcohol and using cocaine on the weekends. Eventually, this led to daily substance use with crack cocaine and methamphetamine being his narcotics of choice. He attended treatment once for his drug use, but started using heavily again before he committed the present offences. He has not used substances since his arrest, except for a couple of brief relapses which he said were related to the stress and anxiety of his present situation. [ 10 ] Mr. Kirk has always maintained a stable residence. He is currently living with his parents.

They are supportive of him and have assured the Court that he can continue to live with them if a community-based disposition is imposed. Other than feeling depressed when a friend passed away in 2012 from an overdose after leaving his house, Mr. Kirk described his general mood prior to his arrest as good. The post-offence psychological assessment reports that he has experienced passive suicidal ideation with no specific intent, primarily as a result of the court process. [ 11 ] Mr. Kirk has received death threats related to his offences and rarely leaves his house.

When he does, he feels anxious and unsafe, so he wears sunglasses and a hood and does not engage with other people. He reports that many of his friends and family have distanced themselves from him since his arrest. He was in an on-again, off-again relationship that has recently ended. The report writers agree that he shows sincere remorse and takes responsibility for his actions. He has indicated that he would rather die by suicide than go to jail. [ 12 ] The psychological report indicates that Mr.

Kirk qualifies for DSM-5-TR diagnoses of: • Major Depressive Disorder, single episode, current severity moderate, with anxious distress; • Stimulant Use Disorder, current severity mild to moderate; and • Opioid Use Disorder, current severity mild to moderate, on maintenance therapy. Mr. Kirk, like many of his customers, got himself addicted to opioids somewhere along the way, and he is in maintenance therapy for that.

He is rated, as I have said, as posing a low-moderate risk for general recidivism and will likely remain in the low range if he abstains from substances, avoids peers involved in criminal activity, and takes his psychiatric medication. SENTENCING PRINCIPLES [ 13 ] Pursuant to s. 718 of the Criminal Code , the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 14 ] According to s. 718.1 and 718.2 of the Code , a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; it should be increased or reduced to account for any relevant aggravating or mitigating factors related to the offence or the offender; and it should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 15 ] This last principle, often called the parity principle, is an important consideration. That said, sentencing is an individualised

process and each case falls to be decided on its own facts and the circumstances of each offender. [ 16 ] Sentencing ranges set out in precedent cases are not grids or straight-jackets, merely guidelines. In appropriate circumstances, below-range sentences are sometimes imposed for narcotics offences of the type and quality under consideration here. The objective in every case is to impose a just, fit, and proportionate sentence for the individual offender before the court. I must bear in mind, as well, the statutory admonition to restraint contained in s. 718.2 (

e) of the Criminal Code , namely, that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders”. [ 17 ] Owing to a recent legislative change, a conditional sentence is once again statutorily available for the offences at bar. Parliament has made a considered decision, in other words, to restore this sentencing option for offenders like Mr. Kirk.

The prerequisites are that I must impose a sentence of less than two years; I must be satisfied that service of the sentence in the community would not endanger the safety of the community; and, I must be satisfied that such a sentence would be consistent with the fundamental purpose and principles of sentencing contained in ss. 718-718.2 of the Code . [ 18 ] My consideration of Mr. Kirk's submission that he should qualify for the imposition of a conditional sentence requires a review of the most important decision ever rendered on the subject, R. v.

Proulx , 2000 SCC 5 , the principles of which were recently summarised as follows by this Court in R. v. Colligan , 2020 BCSC 1139 at para. 53 : 1. CSOs were introduced to address the problem of over-incarceration in Canada by reducing reliance on incarceration as a sanction and increasing the use of restorative justice principles; 2. CSOs must be distinguished from probation. While probation is primarily a rehabilitative tool, CSOs have both punitive and rehabilitative aspects; 3. Generally, CSOs should include punitive terms that restrict an offender’s liberty, such as house arrest; 4.

Unless the Code excludes a CSO as a sentencing option, there should be no presumptions for or against the use of a CSO in relation to any specific offence; 5. A sentencing judge is not required to first impose a prison term of fixed duration and then consider if it can be served in the community. Rather, the sentencing judge should reject a penitentiary term and probation measures as inappropriate and then consider whether the remaining option of imprisonment of less than two years could be appropriately served in the community; 6.

A CSO need not be of the same duration as the sentence of incarceration that would otherwise have been imposed. All that is required is that the CSO is a fit sentence; 7. The requirement that the sentencing judge be satisfied that the safety of the community would not be endangered by the offender serving their sentence in the community is a condition precedent to the imposition of a CSO; 8.

In making this threshold determination, the sentencing judge should consider the risk posed by the specific offender and not the broader risk of whether a CSO would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law; 9. A CSO can provide significant denunciation and deterrence. Generally, the more serious the offence, the longer and more onerous the CSO should be; 10. In some cases, the need for denunciation or deterrence may be so pressing that incarceration will be necessary; 11.

Generally, a CSO will be better than incarceration at achieving restorative objectives, such as rehabilitation, reparations and promoting a sense of responsibility in offenders; 12. Where a combination of both punitive and restorative objectives may be achieved, a CSO will likely be more appropriate than incarceration; and 13. A CSO may be imposed even though there are aggravating circumstances that increase the need for denunciation and deterrence. [ 19 ] I would note, as well, the Court of Appeal's decision in R. v.

Voong , 2015 BCCA 285 , especially at para. 43 , in which it was noted that the public is protected when a former criminal is rehabilitated and deterred from committing more crimes, and that a probationary term, including a condition of home confinement, may have a deterrent and denunciatory as well as a rehabilitative effect. DISCUSSION [ 20 ] Mr. Kirk has been convicted of serious offences. His moral culpability for having committed them is high.

People who commit similar offences in similar circumstances are routinely handed penitentiary sentences of the magnitude sought by the Crown. [ 21 ] I will repeat my earlier assertion, made in the course of submissions, that if this trial had been launched and concluded within a period of time that I consider to be reasonable, I would have imposed a three to four-year sentence without much compunction or hesitation. [ 22 ] The reality in this case, however, is that I have before me a first-time offender who never once came to the attention of police in any of his first 34 years, and who, in the almost five years after his arrest on these charges, has not returned to a criminal lifestyle and looks very unlikely to do so.

The Crown does not dispute that Mr. Kirk is genuinely and profoundly remorseful, has conceded that

specific deterrence is not required, and has not suggested that Mr. Kirk's incarceration is necessary for the protection of the public. Iaccept the conclusion in the psychological report, furthermore, that he represents a low risk to re-offend. [23] I am entitled to consider any delay in proceedings that is not attributable to the offender as a moderate or even significantmitigating factor: R. v. Nasogaluak, 2010 SCC 6 at para. 54; R. v. Kreutziger, 2005 BCCA 231 at para. 21; R. v. Chen, 2021 BCSC 697at para. 100.

Some of the delay is attributable to the offender changing counsel, but a second trial date scheduled in June 2021 wasdelayed because the Crown produced thousands of pages of documentary disclosure on the very eve of trial. [24] Because of these combined factors, I would not impose a four-year penitentiary term. A sentence of this length would no longerbe fit and would in fact be “counterproductive”: Kreutziger at paras. 21, 26. It may be that a three-year penitentiary sentence would beuncontroversial, but if so, in my view such a sentence is eligible for a realistic measuring of the s. 718.2(

e) restraint principle, requiringconsideration of reasonable alternatives to it. This follows Parliament's clear and recently reiterated mandate to the judiciary to reduce theuse of incarceration as a sanction to the extent that it is consistent with public safety and the principles of sentencing overall. [25] In this connection, I have no doubt that Mr. Kirk would be a model prisoner.

Given the absence of previous convictions, his well-launched recovery from his substance use disorder, his work skills and positive employment prospects, and his low-risk to re-offend, hewould likely be granted statutory release after two years. No probationary supervision beyond warrant expiry would be legally possible ifI imposed such a sentence. That being so, in my view, and I have taken a lot of time thinking about it, a far better alternative not only forMr.

Kirk but for the rest of us, would be to keep him out of the penitentiary system altogether, for the good and simple reason that in apenitentiary setting his present promising course of rehabilitation will be imperilled and may well be defeated. I think it entirely possibleand even likely that he would emerge from a penitentiary sentence a far greater risk to re-offend than at present. [26] It follows that I reject the propriety of a penitentiary sentence in this case. I have decided, instead, to impose a CSO of two yearsless one day followed by a three-year probation order.

Both orders will be freighted with conditions that are, by turns, restrictive,deterrent, and rehabilitative. Such a sanction, which will see Mr. Kirk under the supervision of this court for five years, is, in myconsidered view, a reasonable alternative to institutional incarceration in all of the circumstances.

It will be the equal if not the better of athree-year conventional prison sentence when it comes to denunciation and deterrence, and it will be more effective than such a sentenceat achieving the restorative objectives of rehabilitation, reparations to the community, promotion of a sense of responsibility in theoffender, and acknowledgment of the harm done to victims and to the community. [27] In R. v.

Ellis, 2022 BCCA 278 at para. 118, the Court of Appeal made clear that exceptional circumstances are not required tojustify a departure from a sentencing range, including a sentence that is substantially below the bottom of the range, or even non-custodial. The task of the sentencing judge is ultimately to fashion a fit and proportionate sentence: Ellis at para. 118. At para. 171 of thesame decision, the Court referred to R. v.

Preston (1990), (BC CA), 47 B.C.L.R. (2d) 273, in which a five-memberdivision of the Court of Appeal decided that, in the case of a non-violent substance user: When the benefit to be derived to society as a whole, as a result of the successful rehabilitation of a [person who suffers from a substanceuse disorder], is balanced against the ultimate futility of the short-term protection which the community enjoys from a sentence ofincarceration … it is right to conclude that the principle of deterrence should yield to any reasonable chance of rehabilitation which mayshow itself to the court imposing sentence.

To give the offender a chance to successfully overcome his or her addiction, in suchcircumstances, is to risk little more than the possibility of failure, with the result that the cycle of addiction leading to crime leading toincarceration will resume, something that is inevitable, in any event, if the chance is not taken. On the other hand, as has already beenpointed out, if the effort succeeds the result is fundamentally worthwhile to society as a whole. [Emphasis in Ellis] [28] These comments have resonance here. Mr. Kirk stopped consuming crack cocaine after his arrest in 2018.

He has not reoffended.He has stayed away from crystal methamphetamine except for two brief relapses. He has taken suboxone treatment to wean himself offfentanyl and no longer uses it. He has not consumed alcohol for five years. In my view, given his lengthy history of substance abuse, hisgeneral abstinence and durable recovery is a significant achievement. [29] To rate his progress as “exceptional” is not required. What matters, instead, is that Mr. Kirk is not a danger to society, he isunlikely to re-offend if he stays away from substances, and he does not require specific deterrence.

In my view, the public interest isclearly best served by his continued rehabilitation and recovery, and the sanction that I am about to impose will be the best guarantee ofthat result while also punishing him, denouncing his misconduct, and deterring others. DISPOSITION [30] Stand up, Mr. Kirk, please. [31] I hereby impose concurrent jail sentences of two years less one day on each of the three counts upon which I have enteredconvictions against you, followed by three years of probation. The jail sentences are to be served conditionally in the community inaccordance with s. 742.1 of the Criminal Code.

The conditions of this CSO are as follows: 1. You must keep the peace and be of good behaviour. That means you are not to commit any offences of any type or descriptionwhatsoever during the currency of this CSO. 2. You must appear before this court when required to do so by the court. These are words that are often spoken, but not acted upon.I am telling you right now, Mr. Kirk, I am taking an interest in you personally, because, in a way, I am taking a chance on you. I mayvery well order you to appear in front of me from time to time to gauge your progress. 3.

You must notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly

notify the court or your conditional sentence supervisor of any change in employment or occupation. 4. You must remain in British Columbia unless you have the written permission from the court or your conditional sentence supervisor to leave the province. 5. You must not have any contact directly or indirectly with Nathan John Robert Mazerall or Isaac Colin Francis McCormick. 6. You must report by telephone to a conditional sentence supervisor by 3:00 p.m. on February 9, 2023.

If the office is closed, you must continue calling daily during regular business hours until you have spoken to a supervisor and received further directions about reporting. 7. When first reporting to your conditional sentence supervisor, you must provide them with the address where you live and your telephone number. 8. For the entirety of your conditional sentence, you must obey a house arrest condition 24 hours per day, seven days per week. This is the kind of retributive and punitive condition that the court was talking about in Proulx . 9.

You must present yourself immediately at the door of your residence or answer the telephone when any peace officer or conditional sentence supervisor attends or calls to check on you during the house arrest. 10. You may be away from your residence during house arrest hours with the prior written permission of your conditional sentence supervisor. Such permission is to be given only for employment or other compelling reasons. You must carry the permission, which can be in electronic format, with you when you are outside your residence. 11.

You may also be away from your residence during the house arrest while at or going directly to or returning directly from a healthcare facility because of a medical emergency. If asked, you must provide your conditional sentence supervisor or a peace officer with proof of your attendance at that facility. 12. You must not possess or consume alcohol, drugs, or any other intoxicating substances without a medical prescription. You would not be allowed to take drink or substances in jail, Mr. Kirk, so you are not doing it during this conditional sentence order, either. 13.

You must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden, or any other business from which minors are prohibited at any time by the terms of a liquor licence. 14. You must provide, for the purpose of analysis, a sample of a bodily substance on the demand of a peace officer or a conditional sentence supervisor at the place and time and on the day specified by the person making the demand if that person has reasonable grounds to suspect that you have consumed drugs, alcohol, or other intoxicating substances. 15.

You are not to possess any weapons, including a knife, except for the purpose of cooking or employment. 16. You must attend, participate in, and complete any intake, assessment, counselling, or education program directed by your conditional sentence supervisor. This may include, but is not limited to, counselling or programming for: (

a) alcohol or drug use; or (

b) residential treatment. 17. Having consented in court, you must attend Adult Forensics for the purpose of intake and assessment. [ 32 ] Mr. Kirk, if you breach any term of this CSO, you may be prosecuted for it, and the result may be your incarceration in an institution for some or all of the unexpired portion of your sentence. If any such breach has to do with drugs or drug trafficking, I do not mind telling you that overlaid on that sentence may very well come a lengthy penitentiary sentence to be served consecutively.

Do you understand? [ 33 ] THE ACCUSED: Absolutely, yes, Your Honour. [ 34 ] THE COURT: So today is the day. [ 35 ] THE ACCUSED: Yes. [ 36 ] THE COURT: This has got to be it. This is the departure point. You either straighten up now or you spend years of the remainder of your life in jail. Now is the time. I am giving you a chance. Take it. [ 37 ] Upon the completion of your CSO, you will be bound by an order of probation of three years' duration. The terms and conditions of your probation order are as follows: 1. You must keep the peace and be of good behaviour. 2.

You must appear before the court when required to do so by the court. 3. You must report to your probation officer as directed. 4. You must notify the court or your probation officer in advance of any change of name or address. 5. You must not have any contact directly or indirectly with Nathan John Robert Mazerall or Isaac Colin Francis McCormick. 6. You must obey a curfew between 9:00 p.m. and 6:00 a.m. daily, seven days per week. Referring once again to Voong , this is an ongoing punitive, denunciatory and deterrent element of the sentence. During your probationary term, in other words, your liberty will

continue to be limited to punish you for your profoundly negative and criminal misconduct. 7. You must present yourself immediately at the door of your residence or answer the telephone when any peace officer or probation officer attends or calls to check on you during the curfew hours. 8. You may be away from your residence during curfew hours with the prior written permission of your probation officer. Such permission is to be given only for employment or other compelling reasons. You must carry the permission, which can be in electronic format, with you when you are outside your residence. 9.

You may also be away from your residence during the house arrest while at, or going directly to, or returning directly from a healthcare facility because of a medical emergency. If asked, you must provide your probation officer with proof of your attendance at that facility. 10. You must not possess or consume alcohol, drugs, or any other intoxicating substances, except with a medical prescription. 11. You must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden, or any other business from which minors are prohibited at any time by the terms of a liquor licence. 12.

You are not to possess any weapons, including a knife, except for the purpose of cooking or employment. 13. You must attend, participate in, and complete any intake, assessment, counselling, or education program directed by your probation officer. This may include, but is not limited to, counselling or programming for alcohol or drug use or residential treatment. 14. Having consented in court, you must attend Adult Forensics for the purpose of intake and assessment. [ 38 ] You will have noticed that the terms and conditions are very similar in both orders.

The intention is a community-based disposition that has a lot of deterrent and denunciatory bite. The conditions punish you, they sharply restrict your liberties, but they also provide for rehabilitative options that will assist in your ongoing recovery. As I said, our collective best interest is served by your remaining sober and contributing to our society as a productive and law-abiding citizen. [ANCILLARY AND FORFEITURE ORDERS SPOKEN TO] [ 39 ] THE COURT: Thank you, Mr. Melville and Mr. Gibson. “Baird J.”