R. v. Dugas, 2023 BCSC 85

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Dugas, 2023 BCSC 85 Date: 20230106 Docket: 51942-2 Registry: Vernon Rex v. Ravin Blair Dugas Before: The Honourable Madam Justice Hardwick Oral Reasons for Sentence Counsel for the Crown: M. Reinhart Counsel for the Accused: G.A.P. Verdurmen Place and Date of Trial/Hearing: Vernon, B.C. November 22, 2022 Place and Date of Judgment: Vernon, B.C. January 6, 2023 [ 1 ] THE COURT: These are my oral reasons for judgment with respect to the sentencing of Mr. Ravin Dugas. This follows Mr.

Dugas's guilty plea on two offences on April 12, 2022, before another member of this Court. Specifically, on April 12, 2022, Mr. Dugas pled guilty to two counts on the relevant indictment: namely the possession of fentanyl for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , and possession of a loaded prohibited or restricted firearm, contrary to s. 95(1) of the Criminal Code . [ 2 ] Given the length of these reasons and the fact that, with the consent of both counsel for Mr.

Dugas and the Crown, they are being delivered by videoconference, I am going to order that a transcript of them be prepared for the benefit of counsel and Mr. Dugas at the request and expense of the Court. Circumstance of the offences [ 3 ] The circumstance of the offences can be generally described as follows. [ 4 ] On December 4, 2019, Mr. Dugas was a person experiencing homelessness, who resided without a fixed address in or about Vernon, British Columbia. Mr. Dugas at this time was struggling with addiction issues.

He was walking down the street at approximately 11:00 in the morning in what is described as an agitated state. His behaviour caught the attention of a civilian who had had no prior contact or interactions with Mr. Dugas. They made eye contact and this further agitated Mr. Dugas. Mr. Dugas made some comment to the effect of, "what are you looking at?" and then proceeded to reach into the front pocket of a distinctively coloured hooded sweatshirt he was wearing and pulled out the butt of a handgun.

He flashed the civilian with the butt of the handgun, but it is conceded that the barrel of the handgun remained in the front pocket of his sweatshirt and was not fully brandished. There was no further interaction between Mr. Dugas and the civilian and no violence ensued. The civilian, however, contacted the RCMP and they promptly attended. [ 5 ] There are somewhat differing accounts of the events presented by the Crown and defence on when Mr. Dugas disposed of the handgun, either prior to arrest, namely was he approached by the responding officers or shortly after.

I do not consider this to be a material issue, given that it is conceded that Mr. Dugas disposed of the subject firearm, a loaded 9mm semiautomatic handgun, in the snow in the parking lot or possibly storage compound of a local mechanics shop and it was located shortly thereafter by the police. The fact that it was Mr. Dugas who disposed of the weapon was confirmed by video surveillance obtained subsequently. Mr. Dugas did not resist arrest. [ 6 ] When being searched incidental to arrest, a satchel that Mr. Dugas was wearing was specifically searched.

In that satchel was the following: • approximately 59.05 grams of fentanyl in a single bag; • approximately 18.96 grams of cocaine in a single bag; • approximately 42.39 grams of phenacetin, an agent commonly used to cut cocaine;

• approximately 159 tablets of benzodiazepine, an agent commonly used to cut fentanyl; • a digital scale which was found to be contaminated with fentanyl, cocaine, and methamphetamine; • a small amount of methamphetamine with a pipe, consistent with being for personal use; • a further handgun magazine with ammunition consistent for use with the above-noted 9mm semiautomatic handgun which was used in the incident with the civilian. [ 7 ] Based upon the evidence presented, the total amount of the fentanyl and cocaine seized was between $5800 and $13,680, depending upon how it was trafficked, namely in bulk or on a street level.

Circumstances of Mr. Dugas [ 8 ] Turning to the circumstances of Mr. Dugas, in addition to the helpful submissions of counsel, I had the benefit of a Gladue report dated September 12, 2022, and a presentence report which was filed June 10, 2022. From my review of those reports, I note the following for the purposes of establishing my ultimate conclusion on sentencing. [ 9 ] Mr. Dugas is 29 years of age at present. He would have thus been 26 years of age at the time of the two offences in December of 2019. [ 10 ] Mr. Dugas identifies as an Indigenous person with ties to the Cherokee Nation on his paternal side.

For reasons I will set out, he is disconnected from most of his family and does not presently have connections with his Indigenous traditions or culture. Mr. Dugas's late grandfather, where his Aboriginal identification arises from, also apparently did not have much opportunity to connect with his Indigenous traditions or culture. Mr. Dugas never met his paternal grandfather as he passed away when Mr. Dugas was only six years of age.

He was able to spend some limited time with his now-deceased paternal grandmother, and reports those limited interactions as positive, saying she was a "good lady". [ 11 ] Going back in the chronology, Mr. Dugas's parents separated when he was extremely young, perhaps as young as three months or as late as six months, following his father being involved in a car accident. His contact with his father was very limited thereafter during his childhood, not even truly meeting him after infanthood until age seven. They have reconnected in some fashion during adulthood and Mr. Bouwie, Mr.

Dugas's father, participated in the Gladue report interviews. Mr. Dugas's mother did not participate, on the specific instruction of Mr. Dugas. He reports that they have been estranged with some only rare contact for some 11 years, and recent efforts in the last year to build a bridge forward were not successful. She is also apparently terminally ill. [ 12 ] Mr. Dugas reports that after separation between his biological parents, his mother then re-partnered on multiple occasions. This resulted in Mr. Dugas having three half-siblings. One of his mother's partners is noted to have been a positive support for Mr.

Dugas and someone who he identifies as a stepfather. He also had positive support from the same former partner's parents whom he identifies as his grandparents. Other subsequent romantic relationships that ensued starting when Mr. Dugas was around or about age seven, particularly with two individuals who I will simply refer to as W. and R., were not positive and there was violence in the household. [ 13 ] Mr. Dugas reports that he struggled during these times to have his basic needs as a child met, such as proper food and clothing, when in the care of his mother. At approximately age eight, Mr.

Dugas reports that he was sexually assaulted by a male neighbour. It appears there was apparently some police intervention and he was interviewed. This is an example, as I will refer to below, where there is a key difference between the Gladue report and the presentence report. The Gladue report states that Mr. Dugas was interviewed but nothing further was done to protect Mr. Dugas, other than him not spending time with this adult male neighbour again. [ 14 ] In the presentence report, it is stated that these events resulted in charges and Mr. Dugas had to provide a victim impact statement.

The latter scenario would mean there was a conviction for an offence by this individual against Mr. Dugas and that there was a sentencing hearing, effectively akin to the one that has proceeded before me today. Neither the author of the Gladue report or the presentence report was cross-examined and counsel did not address this contradiction in the evidence in their submissions.

However, if there was actually a criminal conviction arising from these offences, I expect that would have been specifically brought to the court's attention. [ 15 ] Having regard to the circumstances, I am inclined to accept the recitation of the events in the Gladue report, which is more comprehensive, as more accurate and this matter did not proceed beyond an investigative stage. This is not to say I do not accept Mr.

Dugas's self-report that these incidents occurred, but I have concluded that the presentence report author may have misunderstood or mischaracterized how this issue was dealt with. [ 16 ] Ultimately, the family situation for Mr. Dugas became untenable and the Ministry of Children and Family Development, or the equivalent as it may have been called at that time, removed Mr. Dugas from his mother's care at the age of 12. [ 17 ] Mr.

Dugas had behavioural challenges after the removal from his mother's care, including some criminal activity, resulting in him having to leave the care of his mother's prior partner who, as noted, had been a positive support and was willing to take on the care of Mr. Dugas after he was removed. After a relatively brief time at a group home, Mr. Dugas connected with a family who offered to assume the role of his foster parents. They were very positive supports. Although Mr.

Dugas is not in regular contact with these two individuals, he describes them in very good terms and indicates that their door is always open and he can call them at any time. [ 18 ] I make this final observation for the purposes of highlighting that it does not appear that Mr. Dugas's removal by the Ministry, as I will refer to it, was the root of his slide into addiction and ultimately criminality.

Rather, his living situation seems to have significantly improved after his removal, but the path he was on had unfortunately already been set and, even with these positive supports, they did not seem enough to change that path.

[ 19 ] In this regard, Mr. Dugas reports that he started using crack, heroin, and methamphetamines at around age 16. The drug use escalated by age 17. He started selling drugs, as I will colloquially refer to them, at 19 after choosing, on his own accord, to move out of his foster parents' home despite their positive supports. [ 20 ] In light of these circumstances and his other family situation, Mr. Dugas did not graduate from high school and has a Grade 10 education only. [ 21 ] Although it appears that Mr.

Dugas was generally involved in active addiction and possibly the trafficking of controlled substances between ages 19 and 25, his criminal record during that period of time is not extensive. There is actually a significant break in that record from in or about 2011 to in or about 2015, and even that 2015 offence resulted in a guilty plea to what is commonly referred to as simple possession of a controlled substance and a modest $200 fine. It is my understanding that Mr.

Dugas did have sporadic temporary employment during this time which generally involved a manual labour component, such as landscaping, construction, and rebar work. [ 22 ] At age 25, his former stepfather, the individual I referred to above as generally being a positive support, helped obtain employment for Mr. Dugas as an insulator. He held that employment for approximately six months, and he reported in the Gladue report, he enjoyed the work and his coworkers. It was a prosocial environment generally. After he left that employment, Mr.

Dugas returned to selling controlled substances and a non-prosocial lifestyle. [ 23 ] In fairly close proximity to these offences, Mr. Dugas reports a traumatic event involving the death of a close friend who was also immersed in active addiction and involved in the trafficking of controlled substances. The reason for the significance of this event to Mr. Dugas, beyond just the loss of a close friend, was that he was supposed to meet this friend on the evening and instead had dinner and went to sleep at what I will refer to as his stepfather's home.

In his absence, the friend overdosed and it appears may not have had anyone with him at that time to call for assistance or administer NARCAN. This was understandably upsetting for Mr. Dugas. [ 24 ] As I will return to, Mr. Dugas is still a relatively youthful individual, and there is still absolutely an opportunity to now take the time to right the path towards a prosocial life. The question for this Court is how long should Mr.

Dugas be incarcerated as a result of the two guilty pleas on the indictment before being given the opportunity to return to the community and demonstrate that he can live a prosocial life free from the scourge of addiction, which clearly appears to have been plaguing him at the time of these offences. [ 25 ] Turning to the presentence report, it is mostly consistent with the Gladue report with some identifiable differences, as already alluded to above. For example, in the presentence report, it is noted that Mr. Dugas's parents separated when he was six months old and not three months old.

This is clearly not a fact that Mr. Dugas would have personal recollection of, and this modest difference is not material to the fact that Mr. Dugas did not have a relationship with his biological father during his youth until seven years of age, and it was very limited contact thereafter. Similarly, in the Gladue report it is indicated that his mother was 16 years old at the time of his birth and 17 in the presentence report.

As with the above, I do not find these inconsistencies to be material or relevant. [ 26 ] However, a notable difference between the Gladue report and the presentence report is that the presentence report states that Mr. Dugas went to live with his biological father in Mission, British Columbia, in 2021, with the belief that this arrangement would be supportive, but it only lasted for approximately one-and-a-half months after his father reported him to the police (or possibly his bail supervisor) regarding an outstanding warrant. The result of this is that Mr.

Dugas has been in custody since, as I understand, August 16, 2020. This may be potentially explained by the portion of the presentence report that reports that after having been abstinent from using drugs for some four-and-a-half months or thereabouts while in initial pretrial detention, he started using methamphetamines in April of 2020 after his judicial interim release. [ 27 ] I also do note that there are two fairly important facts in the presentence report regarding Mr.

Dugas's relationship with his mother which are not noted in the Gladue report, the most significant being that he is bound by no-contact conditions with his mother, and I quote, "due to his behaviour at her home," as set out at page 2 of the report.

This is said to have occurred after a period of "two to three years of estrangement." This period of estrangement is substantially different than what is described in the Gladue report and the Court infers that these no-contact conditions are quite likely related to his criminal record entered into evidence for the purposes of these sentencing proceedings, which show subsequent convictions post these offences when he was released and before he returned to pretrial detention. [ 28 ] The presentence report is also inconsistent with the Gladue report in that it reports that Mr.

Dugas says it is difficult to relate to his father and that he has no contact with his stepfather. The former issue is the most significant for the Court given, as I will state below, that Mr. Dugas's apparent plan for obtaining employment and being prosocial involves the positive support of his biological father. [ 29 ] The presentence report is consistent as it relates to the positive support, albeit from time to time due to his circumstances and other challenges, from his former foster family. Mr.

Dugas could not identify any other prosocial connections in terms of friendships or romantic relationships. [ 30 ] Mr. Dugas also reports having been diagnosed with attention hyperactivity disorder. This is not confirmed other than by self-reporting. The Court does take judicial notice that this disorder, if confirmed, can result in impulsivity and a difficulty in regulating self-control. The Gladue report notes effectively the same at page 7 of the report. [ 31 ] Returning to my earlier comments about Mr. Dugas being a relatively youthful offender with a genuine chance for rehabilitation, I note that Mr.

Dugas does have some plan to right the path as set out in the Gladue report, which is specifically to relocate after his release to live in or about Mission, British Columbia, to be closer to his biological father, and his father has indicated that he will assist Mr. Dugas in finding employment. Mr. Dugas himself recognizes the benefits of being employed - it keeps him busy and it gives him a purpose. I have absolutely no doubt that steady employment would be beneficial. The inconsistencies in the two reports regarding the state of Mr.

Dugas's relationship with his biological father are of some genuine concern as I have addressed above. [ 32 ] However, I ultimately accept that these challenges in the relationship are substantially the product of their limited ability to fulsomely form a bond while Mr. Dugas was a child or a young adolescent, and so there are tenuous aspects of the relationship as a

product of what I will describe as the fractured nature of Mr. Dugas's upbringing. In reaching that conclusion, I accept that Mr. Dugas's father, Mr. Bouwie, seems sincerely interested in assisting Mr. Dugas, and that the relationship may have the opportunity to form a more solid foundation once Mr. Dugas is no longer incarcerated and hopefully does not return to active addiction. [ 33 ] The final factual point I will address is that Mr. Dugas did take the opportunity to address the Court at the sentencing hearing. He expressed remorse for his conduct resulting in the guilty pleas, which I accept is genuine.

One aspect of Mr. Dugas's address which gave me some pause was his request for a sentence that would allow him to remain outside of a federal penitentiary, as he has been apparently informed by others that controlled substances are more readily available in federal penitentiary, and so he would like to avoid a sentence which places him in such an institution. Leaving aside the obvious concern about the availability of controlled substances generally to individuals incarcerated, whether in provincial or federal institutions, the practical reality is that controlled substances will inevitably be available to Mr.

Dugas upon his release from incarceration. In order to lead a prosocial life, Mr. Dugas needs to seek the necessary help to address the issues which are the root of his substance use and misuse. It is not a solution simply to reduce his access to controlled substances while in custody, as suggested. As such, I have not taken this particular portion of Mr. Dugas's address to the Court in consideration as part of my sentencing.

The law [ 34 ] As a starting point, s. 718 of the Criminal Code provides as follows regarding the purposes of sentencing: 718 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 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. [ 35 ] The fundamental principle that is set out in s. 718.1 provides that: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 36 ] In terms of other sentencing principles, the relevant provisions of s. 718.2 mandate that a sentence should be increased or decreased to account for any relevant aggravating or mitigating circumstances of the offender.

I will not read in the entirety of s. 718.2 into the record, but I have considered the principles set out therein by the Criminal Code , including the dangers of fentanyl and the dangers of prohibited weapons, Mr. Dugas's limited criminal record, Mr. Dugas's guilty plea, Mr. Dugas's expression of remorse and, importantly, the relevance of the Gladue factors. [ 37 ] On a broad level, the majority of the Supreme Court of Canada set out in R. v.

Nur , 2015 SCC 15 , that the fundamental principle in sentencing is reaching a proportionate sentence that balances the gravity of the offence and the degree of the responsibility of the offender.

I will again not read them extensively into the record, but paragraph 42 of Nur is particularly relevant in this regard: [42] In reconciling these different goals, the fundamental principle of sentencing under s. 718.1 of the Criminal Code is that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [ 38 ] In a similar vein, the Supreme Court of Canada in R. v.

Lacasse , 2015 SCC 64 , directs that sentences are to be crafted in a way that takes into consideration the moral blameworthiness of the offender and sentences given to offenders in similar circumstances. I specifically make note of paragraph 53 of Lacasse : [53] This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code , which provides that a sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender".

A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2 (

a) and (

b) of the Criminal Code . [ 39 ] Turning now to sentencing on what I will describe as fentanyl offences specifically. [ 40 ] In 2007, our Court of Appeal in British Columbia rendered a decision in R. v. Smith , 2017 BCCA 112 . This, as I will return to, was more recently considered again and confirmed in R. v. Ellis , 2022 BCCA 278 .

Smith sets out a proposed range of sentencing for what is described as "street level" trafficking in fentanyl, which begins at 18 months and extends to 36 months, and even upward of that where appropriate. [ 41 ] There is case law which I was referred to by counsel which attempted to distinguish between street-level trafficking and mid-level trafficking. As I frankly stated to counsel during submissions in this regard, the difficulty with cases like this is that possession of controlled substances does not necessarily fit into an exact category.

[ 42 ] Mr. Dugas clearly had more controlled substances in his possession than was plausible that he could have been individually selling. He conceded this through his guilty plea. Although he had a scale and cutting agents, he had no individual bags to package the substances, no score sheets, and no cash. He is clearly thus not just a plain street-level trafficker.

He also had a weapon, which will be addressed in the conviction for the second offence but is, in and of itself, somewhat inconsistent with street-level trafficking, as individuals in those circumstances generally do not carry a quantity of controlled substances which put them at particular risk of theft or robbery, which I understand is the rationale presented for why Mr. Dugas had the prohibited weapon in the first place. [ 43 ] However, balancing these factors on the other end of the spectrum is that Mr.

Dugas was a person experiencing homelessness, was actively using drugs himself, and again in possession of no cash, or at least any material cash such that it is not noted in any of the circumstances. Importantly, no cash, not just on his person but apparently at all generally, given that he was homeless. This would appear to suggest that the controlled substances were provided to him by a third party for sale in some fashion, in return for Mr.

Dugas obtaining drugs for his own personal use, and possibly some other remuneration, the amount of which is clearly unknown and will never be determined by the court given the guilty plea. But I again reiterate it is not contested that Mr. Dugas was homeless at the time of these two offences and that no significant or notable cash was found on his person at the time of his arrest.

All he had in his possession of significance were the controlled substances and, of course, the handgun which he had disposed of nearby. [ 44 ] Further, the ranges are not a straitjacket, it is always an individual analysis. [ 45 ] I ultimately concede, however, that to the extent it is necessary for the purposes of these reasons to plot this offence on a range for the purposes of sentencing, that Mr.

Dugas hovers closer to a mid-level trafficker than a simple street-level trafficker, but again reiterate that the role of this Court is to ultimately determine a fit sentence, having regard to the circumstances, the case law, and the Gladue factors which I will return to. [ 46 ] Returning to the law and consistent with the foregoing, no specifically set range has been established to date by our Court of Appeal in this province with respect to the trafficking of fentanyl beyond street level.

There are some decisions which impose or uphold sentences between four to five years, and some cases which impose or uphold sentences of upwards of eight to 10 years. [ 47 ] The Supreme Court of Canada also fairly recently issued a decision providing guidance on the principles for higher-level fentanyl trafficking cases in R. v. Parranto , 2021 SCC 46 . [ 48 ] Parranto is highly distinguishable from a factual perspective, save for the fact that the controlled substance being trafficked was fentanyl. Specifically, Parranto involved what was conceded to be "wholesale commercial trafficking".

The Crown in this case does not even purport to suggest that Mr. Dugas was engaged in the commercial trafficking of controlled substances. However, there are key principles from Parranto which are applicable, which I will set out below. [ 49 ] Specifically, I refer to paragraph 36 of Parranto , which states that the key principles of sentencing can be summarized as follows: 1. Starting points and ranges are not and cannot be binding in theory or in practice ( Friesen , at para. 36); 2.

Ranges and starting points are "guidelines, not hard and fast rules", and a "departure from or failure to refer to a range of sentence or starting point" cannot be treated as an error in principle ( Friesen , at para. 37); 3. Sentencing judges have discretion to "individualize sentencing both in method and outcome", and "[d]ifferent methods may even be required to account properly for relevant systemic and background factors" ( Friesen , at para. 38, citing Ipeelee , at para. 59); and 4.

Appellate courts cannot "intervene simply because the sentence is different from the sentence that would have been reached had the range of sentence or starting point been applied" . . .

The focus should be on whether the sentence was fit and whether the judge properly applied the principles of sentencing, not whether the judge chose the right starting point or category ( Friesen , at para. 162). [ 50 ] Further, paragraph 40 of Parranto provides guidance to trial judges or sentencing judges, as in this case, as to how to draft reasons to allow an appellate court, if necessary, to discern whether the sentence is fit in light of the principles and objectives in the Criminal Code .

Specifically, paragraph 40 states as follows: [40] Most particularly, and irrespective of the modality used, the trial judge's reasons and the record must demonstrate why the sentence is proportionate to the moral blameworthiness of the offender and the gravity of the offence. This may involve adopting appellate guidance such as this Court's comments in Friesen on the harms of the offence. Quantitative appellate guidance may also be part of the jurisprudential background informing the gravity of the offence. As noted, it is not an error in principle for the sentencing judge to fail to refer to a starting point.

Since starting points and ranges reflect the gravity of the offence, however, the sentencing judge's reasons and the record must allow the reviewing court to understand why the sentence is proportionate despite a significant departure from the range or starting point. This applies regardless of whether the reasons refer to the starting point or not. At the very least, the appellate court must be able to discern from the reasons and the record why the sentence is fit in the circumstances of the offence and the offender.

We emphasize, however, that it is inappropriate for appellate courts to "artificially constrain sentencing judges' ability to impose a proportionate sentence" by requiring "exceptional circumstances" when departing from a range ( Friesen , at paras. 111-12; R. v. Burnett , 2017 MBCA 122 , 358 C.C.C. (3d) 123, at para. 26 ). Departing from a range or starting point is appropriate where required to achieve proportionality. [ 51 ] I shall further refer to the comments of Justice Moldaver and Côté at paragraphs 93 to 101 of Parranto .

As noted above, I accept and it is acknowledged by counsel that Parranto is highly factually distinguishable. Indeed, in this regard, I note that paragraph 99 of Parranto specifically says that the comments do not apply for sentences for street-level trafficking or where traffickers are motivated by a need to support their own addiction.

However, the general principles from the Supreme Court of Canada are still applicable and I consider them appropriate in the circumstances to read into the record, starting at paragraph 93: [93] As grave a threat as drugs such as heroin and cocaine pose, that threat pales in comparison to the one posed by fentanyl and its analogues. Indeed, over the past decade, fentanyl has altered the landscape of the substance abuse crisis in Canada, revealing itself as

public enemy number one. [94] Synthetically produced and readily available on the illicit market, fentanyl is an extremely dangerous and powerful painkiller andsedative. As with other opioids, such as heroin and morphine, it is a highly addictive substance, which, when taken outside of controlledmedical environments, puts its users at risk of serious harm, including brain damage, organ damage, coma, and death. Fentanyl'spotential for harm is, however, significantly greater than other opioids.

It is, for example, estimated to be 80-100 times more potent thanmorphine and 25-50 times more potent than pharmaceutical grade heroin. Given its strength, a lethal dose will often be less thantwo milligrams, an amount as small as a single grain of salt (R. v. Smith, 2016 BCSC 2148, 363 C.R.R. (2d) 365, at para. 24). The risk ofoverdose and death from fentanyl is thus extremely high, particularly for naïve users or where it is taken in combination with othersubstances, such as alcohol or other opioids.

The risk of overdose is also one that can be difficult to guard against, as traffickers oftensurreptitiously mix small amounts of fentanyl with other substances to create a cheaper product with the same effects, thereby drasticallyincreasing their profitability (H. Hrymak, “A Bad Deal: British Columbia’s Emphasis on Deterrence and Increasing Prison Sentences forStreet-Level Fentanyl Traffickers” (2018), 41 Man. L.J. 149, at p. 153). This deceptive practice leaves users vulnerable and unaware,especially as fentanyl is physically indistinguishable from other hard drugs, such as heroin, oxycodone, and cocaine(C. C.

Ruby, Sentencing (10th ed. 2020); Smith, at para. 24; R. v. Joumaa, 2018 ONSC 317, at para. 12 ). [95] Analogues or derivatives of fentanyl further exacerbate the risks, as these substances can be far more potent than even fentanylitself, with some estimated to be as much as 100 times more potent than fentanyl. One such analogue, carfentanil, is so toxic that it “hasno safe or beneficial human use, even within the medical community in highly controlled environments” (A.

Sabbadini and A.Boni, Sentencing Drug Offenders (loose-leaf), at s. 2:1600.10). [96] Beyond its mere potential to cause harm, however, fentanyl has had — and continues to have — a real and deadly impact on thelives of Canadians. Indeed, trafficking in fentanyl is so deadly that various courts have described it as a national crisis, reflective of anincreased understanding of the gravity of the harm it causes (see, e.g., R. v. Smith, 2017 BCCA 112, at para. 50 ; R. v. Vezina,2017 ONCJ 775, at para. 58 ; R. v. Aujla, 2016 ABPC 272, at para. 1 ).

This heightened understanding is supported bythe available statistical evidence. The expert evidence on the record before us establishes, for instance, that fentanyl-related deaths inAlberta increased by 4,858 percent between 2011 and 2017, rising from 12 deaths in 2011 to 583 deaths in 2017.

More broadly, federalstatistics on opioid-related deaths show that, between January 2016 and March 2021, approximately 23,000 Canadians lost their lives dueto accidental apparent opioid-related deaths, with fentanyl involved in 71 percent of these deaths (Special Advisory Committee on theEpidemic of Opioid Overdoses, Opioid and Stimulant-related Harms in Canada (September 2021) (online). The epidemic also shows nosigns of abating, with over 6,000 accidental deaths occurring in 2020 alone, 82 percent of which involved fentanyl (Government ofCanada, Federal actions on opioids to date (June 2021) (online)).

These figures throw into stark relief the dark and inescapable realitythat “[e]very day in our communities, fentanyl abuse claims the lives of Canadians” (R. v. Loor, 2017 ONCA 696, at para. 33 ). [97] The scale of fentanyl’s devastating impact becomes even more apparent when one considers that, between 2016 and 2020, therewere approximately 3,400 homicides across Canada, a number far below the number of fentanyl-related deaths (Statistics Canada, Table35-10-0069-01 — Number of homicide victims, by method used to commit the homicide, July 27, 2021 (online)).

This disparity makesclear that, in a very real way, those individuals responsible for the largescale distribution of fentanyl within our communities are a sourceof far greater harm than even those responsible for the most violent of crimes. [98] The time has thus come for our perception of the gravity of largescale trafficking in fentanyl to accord with the gravity of thecrisis it has caused.

Largescale trafficking in fentanyl is not a crime marked merely by the distribution and sale of an illicit substance;rather, it is a crime marked by greed and the pursuit of profit at the expense of violence, death, and the perpetuation of a public healthcrisis previously unseen in Canadian society. In many ways, “[t]rafficking in fentanyl is almost the equivalent of putting multiple bulletsin the chambers of a revolver and playing Russian roulette. It is the most efficient killer of drug users on the market today” (R. v. Frazer,2017 ABPC 116, 58 Alta. L.R. (6th) 185, at para. 11).

Put simply, it is a crime that can be expected to not only destroy lives, but toundermine the very foundations of our society. [99] My comments that follow do not apply to sentences for street-level trafficking, or where traffickers are motivated by a need tosupport their own addiction. Rather, the focus of this guidance is on the directing minds of largescale fentanyl trafficking operations. [100] In my view, heavy penitentiary sentences will be appropriate where offenders have trafficked in large quantities of fentanyl andassumed leadership roles in the trafficking operation.

Indeed, in the context of largescale fentanyl trafficking operations, substantialsentences should be neither unusual nor reserved for exceptional circumstances. As this Court has previously explained, maximumsentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances”, but rather should beimposed whenever the circumstances warrant it (R. v.

L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 22; see also Friesen, atpara. 114). [101] Ultimately, largescale trafficking in fentanyl is a crime that preys disproportionally on the misery of others — the marginalizedand those whose lives are marked by hopelessness and despair. It is a crime motivated by greed and by a callous disregard for the untoldgrief and suffering it leaves in its wake. Above all, it is a crime that kills — often and indiscriminately.

It follows, in my view, that whatmatters most is that those individuals who choose to prey on the vulnerable and profit from the misery of the Canadian public forpersonal gain are sentenced in accordance with the severity of the harms they have caused. Fentanyl trafficking, and largescaletrafficking in particular, are a source of unspeakable harm.

Accordingly, while the range of sentences currently imposed for the directingminds 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 aggravatingcircumstances, potential sentences of life imprisonment. [52] The last point is particularly apt given my conclusion that, although I find that the circumstances of this offence hover closer tomid-level trafficking than street-level trafficking, that is grounded in large part by my conclusion that Mr.

Dugas was homeless andactively engaged himself in drug addiction at the time of the offence. It is entirely possible that another judge on another factual matrixinvolving a similar quantity of drugs, cutting agents, and a scale may definitively find an accused to be a mid-level trafficker operatingfor profit rather than to support their own addiction. Nonetheless, the comments from the Supreme Court of Canada I referred to above

are instructive and I have fulsomely taken them into consideration. [ 53 ] The final authority I will refer to with respect to sentencing of the offence of possession of fentanyl for the purpose of trafficking is R. v. McLean , 2022 MBCA 60 . [ 54 ] This is a very recent Manitoba Court of Appeal case referred to by the Crown which considers and applies Parranto .

In that case, the Court comprehensively reviewed the jurisprudence on the issue of sentencing in matters involving the trafficking of fentanyl and I will refer specifically to the following three paragraphs of that decision: [6] While not a perfect paradigm, the distinctions of street-level, mid-level and high-level trafficking highlight the drug trade's chain of distribution beginning with the sourcing of the drug by either importation or domestic production through a series of transactions to its ultimate consumption.

Street-level trafficking refers to activities focused on the back end of the chain of distribution—direct sale to drug users. Mid-level trafficking refers to the wholesale trade where one trafficker supplies another trafficker lower down the chain of distribution. This subset commonly has many layers of entrepreneurs.

Finally, there is high-level trafficking, whose distinguishing attribute is the significant scale of the trafficking and, in particular, the quantity, purity or value of the drugs; the ability to obtain the drugs at their source; and/or the sophistication and organization of the drug operation. . . . [100] The mere fact the accused had been convicted of the fentanyl and cocaine offences in relation to April 6, 2019 did not relieve the Crown from the criminal burden of proof in relation to aggravating factors relevant to the sentencing objectives of denunciation and deterrence [citing the Code and R. v.

Angelillo , 2006 SCC 55 ]. . . . [111] Based on a survey of 11 reported decisions from across Canada (including Petrowski ), Brown and Martin JJ (on behalf of themselves and two other judges) commented that a national range of approximately "8 to 15 years" (at para 68) has arisen for those involved in the commercial wholesale trafficking of fentanyl in circumstances that would be considered to be mid-level or the beginning of high-level trafficking in Manitoba (see para. 68, 78). A careful review of those 11 decisions confirms that none deal with the situation of a mere courier.

All of the cases involved independent dealers, the directing mind of a drug network or someone performing an important task in the [drug] trafficking activity with some decision-making authority or responsibility. [ 55 ] Like with Parranto , the facts of McLean are distinguishable from those of the circumstances before the Court. There is no submission that Mr. Dugas was a mere courier.

However, the analysis of the Manitoba Court of Appeal in that case, including the portion of the decision not specifically referred to in these oral reasons, are instructive. [ 56 ] Ultimately, however, I return to my earlier point that the role of this Court is to fashion an appropriate sentence for these offences in accordance with the principles set forth in the Criminal Code , and which is appropriate in this particular factual matrix. This factual matrix includes the fact that Mr.

Dugas has also pleaded guilty to the relevant weapons offence. [ 57 ] In that regard, I was referred to, amongst other cases, the decisions in R. v. Lee , 2018 BCCA 428 , and R. v. Leach , 2019 BCCA 451 . Again, the circumstances of these cases are distinguishable from the case at bar. Without being exhaustive, Mr. Leach had a prior conviction for manslaughter and Mr. Lee had substantially more fentanyl in his possession than Mr. Dugas. Mr.

Lee also was apparently not homeless, as the seizure of his drugs is described in the reasons as being at "his apartment". [ 58 ] Although I recognize that these authorities are binding on this Court, I ultimately conclude that the circumstances in Leach are so distinguishable that they are of limited utility in this Court's role in determining an appropriate sentence for Mr. Dugas in accordance with the Criminal Code . [ 59 ] However, there are again principles which are relevant which the Court must consider.

Specifically, I refer to paragraph 22 of Lee : [22] As the Crown emphasized, citing, among other authorities, Mann and R. v. Smith , 2017 BCCA 112 , fentanyl is a scourge that imposes intolerable risks on society and sentences of four to six years' imprisonment have been imposed for offences involving trafficking in fentanyl alone. Similar sentences have also been imposed in cases involving substantial quantities of cocaine and methamphetamine: R. v. Francis , 2008 BCCA 309 ; R. v. Godbout , 2015 BCCA 168 ; Borecky .

In addition, a three-year sentence for a firearm conviction in "true crime" circumstances is near the bottom of the appropriate range of sentences: R. v. Holt , 2015 BCCA 302 ; R. v. Kachuol, 2017 BCCA 292 . In my view, considered against this backdrop, taking into account the circumstances of the offences and Mr. Lee's recent, related criminal record and prohibitions, the seven-year global sentence imposed by the judge is manifestly fit. I would not disturb it on appeal. [ 60 ] The final case I will note is R. v. Racette , 2016 BCCA 275 . Racette has much closer factual similarity to this case.

In that case, the offender was Aboriginal and had a very difficult upbringing. He was also apprehended by effectively child and family services and placed in care. He also reported experiencing sexual abuse and started involvement with the correctional system at an early age. In this regard, I do note that Mr. Racette's criminal record is substantially more significant than Mr. Dugas's and includes a sexual assault conviction, in addition to drug-related, and offences for failure to comply with court orders and property offences. [ 61 ] Paragraph 18 of Racette sets out this dynamic: [18] Given Mr.

Racette's tragic background, defence counsel says the principles of proportionality and totality require careful attention. The systemic and background factors discussed in Gladue and Ipeelee plainly played a role in his offending behaviour, impacting his moral culpability and reducing his moral blameworthiness. It is notable in this regard, he says, that Mr. Racette's criminal record is mainly for property offences, which is consistent with drug and alcohol dependency, low education and possible [fetal alcohol spectrum disorder].

It is also notable that he has no prior drug offences and the trafficking involved an unsophisticated, relatively low-

level drug sale to support a drug habit. Further, while his guilty plea was entered late, it is entitled to some weight as an expression of remorse and acceptance of responsibility. [ 62 ] In sentencing Mr. Racette, the Court of Appeal ultimately did not accept the sentencing judge's conclusions were legally supportable.

Specifically, I will read into the record paragraphs 21 to 25 of that decision authored by Madam Justice Dickson of the Court of Appeal: [21] Despite defence counsel's helpful and focused submissions, I am not persuaded that, in all of the circumstances, a sentence of three months consecutive on the first dial-a-dope offence or four years on the possession of the loaded prohibited firearm offence would adequately address the sentencing principles of deterrence and denunciation and the need to protect the public. This is so even when all mitigating factors, including Mr.

Racette's aboriginal heritage and background, are taken into account. [22] I accept that Mr. Racette's commission of the first dial-a-dope offence is related to his drug addiction and efforts to fuel it, which in turn is connected to his background, aboriginal heritage and all that entails. I further accept that these factors significantly reduce his moral blameworthiness. Were it not for these factors, given his extensive criminal record and the fact he was bound by a recognizance at the time, in my view it is likely a sentence well above the bottom of the usual range would be appropriate.

When they are accounted for, I agree with Crown counsel that a sentence of six months imprisonment consecutive should be imposed. [23] I also agree with Crown counsel that a sentence of five years imprisonment is appropriate for the possession of a loaded prohibited firearm offence. Mr. Racette engaged in profoundly dangerous misconduct when, as a tool of his criminal trade, he carried a loaded sawed-off shotgun into a public place. The case law is clear. Weighty exemplary sentences should be imposed for crimes of this sort for purposes of public protection and as a reflection of our shared social values.

While mitigating factors, including an offender's aboriginal heritage, are important and must also be considered, deterrence and denunciation remain at the fore. [24] Mr. Racette's extensive criminal history and the other aggravating factors identified distinguish his case from those cited by defence counsel. The impact of his aboriginal heritage on his moral blameworthiness goes only so far in helping to explain his decision to arm himself with a loaded sawed-off shotgun and carry it into a busy public place while in possession of methamphetamine for the purpose of trafficking.

Further, in its absence, these circumstances combined with such an extensive criminal history and a firearms prohibition, would justify an even weightier custodial sentence. All things considered, in my view, a five year sentence appropriately balances the aggravating and mitigating circumstances and properly accounts for Mr.

Racette's background and aboriginal heritage. [25] In sum, I consider a fit total sentence to be six years imprisonment, less two years credit, composed of: six months for trafficking in methamphetamine on October 24, 2013; five years consecutive for possession of a loaded prohibited firearm, nine months concurrent for possession of methamphetamine for the purpose of trafficking and six months consecutive for possession of a firearm while prohibited on November 14, 2013. [ 63 ] I will acknowledge that several other cases were referred to in submissions, but I do not consider them overly helpful as the circumstances of the offences are noticeably distinguishable and the key principles are set out from the Supreme Court of Canada and British Columbia Court of Appeal authorities referred to above.

In this regard, I note that R. v. Cashman , 2022 BCJ 2214 , which was a decision referred to by the defence, involved an individual who was not actively involved in addiction at the time of his arrest and had controlled substances in his possession which had the value of between approximately $525,000 and $870,000. I have concluded, as set forth above, that is not the situation with Mr. Dugas. Mr. Dugas, as I have indicated, was a person experiencing homelessness. It appears the only items of value that he had were the drugs that were seized.

Position of the parties [ 64 ] In this case, the position of the parties on sentencing is as follows:

a) the Crown seeks consecutive sentences for both offences, resulting in a global sentence of seven years in custody less time served;

b) the defence seeks a global sentence of four years and makes specific note that this would allow him to remain in the provincial system and allow for probation. Conclusions on sentencing [ 65 ] Before turning to my ultimate conclusion on sentencing, I do want to make brief reference to a very recent decision which was delivered subsequent to my actually having initially prepared these decisions, and submissions were not made by counsel on this. The case is the R. v.

Kehoe , 2023 BCCA 2 , decision which addresses in considerable detail with the importance of how the Gladue principles are to be fully considered and applied when sentencing offenders of Indigenous heritage. This decision, which is written by Justice Marchand of our Court of Appeal, succinctly described the Gladue principles at paragraphs 35 to 44.

I am only going to refer to paragraphs 46 and 47, for the record: [46] In many cases involving the sentencing of Indigenous offenders, Canada's assimilationist policies have been so successful that the offender may be largely or completely disconnected from their Indigenous culture, community and support . . .

In such cases, an obvious tension arises in the task of balancing (1) the well-known principle that it is not necessary to establish a direct causal link between systemic and background factors and the offence at issue with (2) the requirement that it is nevertheless necessary to "evaluate relevant information about the significance of a person's Indigenous identity and the individual's circumstances as an Indigenous person" . . . [47] As with all of the challenges in the sentencing process, we rely on the wisdom and experience of the sentencing judge to strike the right balance. In R. v.

Whitehead , 2016 SKCA 165 , the Saskatchewan Court of Appeal helpfully observed:

[63] The link between systemic or background factors and moral culpability for an offence does not require a detailed chain of causative reasoning. Instead, the analysis is based on inferences drawn from the evidence based on the wisdom and experience of the sentencing judge . . . [64] In applying this approach, sentencing courts must pay careful attention to the complex harm that colonization and discrimination have inflicted on Aboriginal peoples. [ 66 ] As indicated above, I have the benefit of a Gladue report in this case.

I have taken the Gladue factors, including the recent decision in Kehoe which assists the court in applying them, into consideration. Those factors include, but are not limited to, dislocation, violence, substance use, abuse, or misuse, and incarceration. All of these factors are present here. I have specifically considered these factors, notwithstanding that Mr. Dugas has not had the opportunity to date to connect in a meaningful way with his Aboriginal heritage. [ 67 ] Much like Kehoe , although not expressly addressed in the Gladue report, I believe that Mr.

Dugas's limited connection to his heritage is related, at least in part, to the fact that neither his grandfather nor his father made those connections, and so while Mr. Dugas's exposure to his heritage was limited, the Gladue factors remain very relevant. However, the impact of his Aboriginal heritage on his blameworthiness, as indicated in the case law referred to, only goes so far. [ 68 ] Mr.

Dugas has pleaded guilty to two serious offences, both of which create significant risk to the public, including contributing to the fentanyl scourge referred to above and the patently obvious risk of carrying a loaded prohibited weapon, particularly in a state of agitation as was described. [ 69 ] Having regard to all of the circumstances and the submissions of counsel, I am not satisfied that the sentence sought by the defence is proportionate and sustainable, based upon the provisions of the Criminal Code and the case law, which I have taken pains to make efforts to detail and refer to above.

Similarly, I find that the sentence sought by the Crown does not fully account for the fact that I have found that Mr. Dugas falls on the spectrum between street-level and mid-level trafficking, or fulsomely apply the Gladue factors.

However, ultimately, after consideration, the submission of the Crown falls closer in line with the case law for the sentencing of offenders in somewhat similar circumstances. [ 70 ] Thus, I have concluded that a total fit sentence is six years' imprisonment: four years for possession of fentanyl for the purposes of trafficking, and three years for possession of a loaded prohibited weapon, to be served consecutively, which shall be reduced to six years as a global sentence on the basis of the principle of proportionality. [ 71 ] In terms of time served, the calculations are somewhat difficult as Mr.

Dugas was in and out of judicial interim release at times. However, at the date of the sentencing hearing, I understood, and I do stand to be corrected, that it was conceded that Mr. Dugas had been in pretrial custody for some 21 months, specifically December 4, 2019 to April 21, 2020, May 6 to May 15, 2020, one day in October 2021, February 16 to March 12, 2021, and August 16, 202 to the day of sentencing.

Allowing for a credit of 1.5 days, he was thus, again I understood to generally agreed to, credit of 31.5 months. [ 72 ] Having regard to my having been presiding outside of the Okanagan, Christmas holidays, and other scheduling challenges, I was not able to give reasons until today, January 6, 2023. I have thus preliminarily concluded that it is appropriate to increase Mr.

Dugas's credit to 33 months. [ 73 ] I will allow, after I finish my reasons, for counsel to make submissions on this point if they think I am demonstrably wrong, but I did do my best to do the math in accordance with the facts before me and the relevant jurisprudence on this issue. [ 74 ] The that I will address counsel with respect to is that I understand there is the DNA order that was being sought by the Crown, which is appropriate in the circumstances. I would simply ask the Crown to confirm which

section of the Criminal Code , namely whether it be 487.051(1) or 487.015(3), that the order is being sought on, as that was not clear for me in the materials submitted at the time of the sentencing hearing. [ 75 ] But I will first ask if counsel has any submissions with respect to my, albeit somewhat arbitrary, increasing of the credit for time served? [ 76 ] CNSL M. REINHART: No submissions from Crown on that point. What has been stated accords with my recollection of what we put forward at sentencing. [ 77 ] CNSL G.

VERDURMEN: No submissions on the part of the defence on that. [ 78 ] THE COURT: Thank you, counsel. And Crown, with respect to -- are we in agreement that it is a 487.051(1) DNA order? [ 79 ] CNSL M. REINHART: I am just looking at my Criminal Code right now, because I don't have that at the top of my mind, 487.0 -- [ 80 ] THE COURT: Five-one, so it is whether it is primary or secondary. [ 81 ] CNSL M. REINHART: Yes, so it's a secondary. [ 82 ] THE COURT: It is, okay. [ 83 ] CNSL M. REINHART: Thank you. [ 84 ] THE COURT: So Mr. Dugas, I am going to ask you to stand, please. Mr.

Dugas, having regard to the reasons for judgement that I have delivered today and that you have heard, you are sentenced to six years of incarceration on account of your guilty pleas set forth on the indictment before the Court of possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs

and Substances Act , and possession of a loaded prohibited or restricted firearm, contrary to s. 95(1) of the Criminal Code . [ 85 ] There shall be a weapons prohibition made pursuant to s. 109(2)(a), namely a 10-year prohibition which begins today, the date of sentencing. [ 86 ] There shall be a mandatory order of forfeiture and destruction of the weapon involved in the offence pursuant to s. 491(1) of the Criminal Code . [ 87 ] And I am satisfied, pursuant to s. 487.051(3) of the Criminal Code , 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.

These samples will be taken from you while you are in custody, and you must submit to the taking of these samples. [ 88 ] You may be seated now, Mr. Dugas. [ 89 ] THE CLERK: May I confirm which counts the DNA order and the firearms order apply to? [ 90 ] THE COURT: I am sorry, Madam Clerk, that was somewhat garbled, I could not quite hear you. [ 91 ] THE CLERK: Oh, I am sorry.

The DNA order and the firearms order, I just wish to confirm which counts they apply to. [ 92 ] THE COURT: They apply to the s. 95(1) possession of the restricted or prohibited weapon. [ 93 ] THE CLERK: Thank you. [ 94 ] THE COURT: Subject to any matters that counsel believe I have inadvertently omitted, those are my reasons for judgment. [ 95 ] CNSL G. VERDURMEN: Yes, thank you, Madam Justice. Just to make it real for my client, the indication then would be that he still has 39 months to serve. Would that be -- [ 96 ] THE COURT: Yes. [ 97 ] CNSL G.

VERDURMEN: Thirty-nine months left to serve, sir, and there is no probation order. [ 98 ] THE COURT: No. [ 99 ] CNSL G. VERDURMEN: Thank you. Those were -- and in terms of when you sentenced him, it's -- will the term of six years be indicated against each count? That's what -- [ 100 ] THE COURT: No, sorry, what I did was I actually sentenced to Mr. Dugas for seven years and then reduced for proportionality. So let me go back to the exact -- [ 101 ] CNSL G.

VERDURMEN: Just when -- when he stood up, on each count you said -- I think you said your sentence is six years, so I just wanted to make sure. [ 102 ] THE COURT: Yes. No, so what my conclusion was that -- I just want to make sure to read it back for the record, the primary sentence is four years for the possession of fentanyl for the purposes of trafficking, and three years for the possession of a loaded prohibited weapon, to be served consecutively, but I reduced them to six years as a global sentence on the basis of the principle of proportionality. [ 103 ] CNSL G. VERDURMEN: Thank you.

I just wanted to make sure that was on the record. [ 104 ] THE COURT: Yes, thank you, and as I just had to go back to a page in my reasons. All right, thank you very much, counsel, for your helpful submissions. [ 105 ] CNSL M. REINHART: Thank you, Madam Justice. I thank my friend. [ 106 ] CNSL G. VERDURMEN: Thank you, Madam Justice, and my friend, thank you. “Hardwick J.”