R. v. Hanson, 2021 BCPC 208

Citation: R. v. Hanson 2021 BCPC 208 Date: 20210827 File No: 100323-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTINA MARY HANSON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. McQUILLAN Counsel for the Crown: A. Aziz Counsel for the Defendant: D. Melville Place of Hearing: Port Coquitlam , B.C. Date of Hearing: June 14, 2021 Date of Judgment: August 27, 2021 [ 1 ] Christina Mary Hanson has pleaded guilty to one count of trafficking in a controlled substance, being fentanyl and methamphetamine, on November 22, 2017, contrary to section 5(1) of the Controlled Drugs and Substances Act (“ CDSA ”). She is

before the court to be sentenced. [ 2 ] The Crown is seeking a custodial sentence of 18 to 20 months. The Crown also seeks ancillary orders, being a weapons prohibition pursuant to s. 109 of the Criminal Code and a DNA order. The Defence submits that a 12 to 18 months’ sentence, served by way of a Conditional Sentence Order (“CSO”), would be a fit sentence. The Defence does not oppose the ancillary orders sought by the Crown. [ 3 ] Prior to the recent BC Supreme Court decision on April 7, 2021 in R. v. Chen, 2021 BCSC 697 , in which Mr. Justice Schultes declared s. 742.1 (

c) and (e)(ii) of the Criminal Code to be of no force and effect, a CSO was not an option available for the offence of trafficking. Those convicted of trafficking in a controlled substance could expect to receive a real jail sentence, unless they were able to establish the existence of “exceptional circumstances” to justify a non-custodial sentence, or one that departed from the sentencing ranges set out by the BC Court of Appeal.

Before Chen , however, a non-custodial sentence could only be served by way of a suspended sentence, but not a CSO. [ 4 ] In the present case, the Defence does not seek a finding of exceptional circumstances. Rather the Defence submits that a CSO is an available sentencing option, and that an application of the relevant sentencing principles to the circumstances of this offence and this offender justify a community-based sentence, which may be served by way of a CSO.

Circumstances of the Offence [ 5 ] On November 22, 2017, at approximately 1:00 p.m., two undercover police officers observed an unknown female about to inject herself outside a welfare office in Maple Ridge. The female was with an unknown male. One of the undercover officers approached the male and asked him if he knew where he could get some fentanyl. The male asked how much he wanted, and the officer told him $20 worth.

The male then walked away with the female and told the officer to meet him in the welfare line-up in ten minutes. [ 6 ] Subsequently, the male returned with the female and spoke to others in the line. He then asked the officers to follow him and the female, who was later identified as Ms. Hanson. The officers followed and were told to wait nearby at the Salvation Army building. Ms. Hanson then left and returned with a clear Ziploc bag, which she presented to the undercover officers. One officer told her to place the bag in the other officer’s sleeve.

That officer then gave her $20.00, and the officers then left the area. Ms. Hanson was subsequently arrested and charged with trafficking. [ 7 ] The total amount of drugs purchased by the officers weighed 0.66 grams. The drugs were later determined to be a combination of fentanyl and methamphetamine. Circumstances of the Offender [ 8 ] I have had the benefit of reviewing a Pre-Sentence Report dated April 23, 2020, as well as an updated PSR dated June 9, 2021. Those reports reveal that Ms. Hanson is currently 35 years old. She describes having a generally positive upbringing in Burnaby, BC.

Her parents separated when she was eight years old. She remained living primarily with her mother after the separation, but her father lived nearby and remained involved in her life. She describes her father as a “functioning alcoholic”. She also says that her mother developed an addiction to oxycodone when she was a child, and later became addicted to heroin, although she did not become aware of the extent of that addiction until she was in her early twenties. Her mother remains addicted to heroin. Despite those challenges, Ms.

Hanson states that she is not where she is because of her childhood and that she always felt loved and appreciated by both of her parents. [ 9 ] When she was 16, Ms. Hanson began a relationship with Dallas McConville. They had a daughter together when Ms. Hanson was 22 years old. They had several separations and reconciliations in the following years, attributable to Ms. Hanson’s illicit drug use, which Mr. McConville did not approve of. They last lived together in late 2016. Their daughter continues to live with Mr. McConville and his spouse. She spends some weekends at Ms. Hanson’s father’s home, and Ms.

Hanson previously visited her there. However, her father eventually stopped allowing the visits due to Ms. Hanson’s drug use and has told her she cannot see her daughter at his home until she stops using drugs. Ms. Hanson does not appear to currently be in contact with her parents, and describes her boyfriend, Kevin Pacheco, as her only support. [ 10 ] Ms. Hanson did well in school and was on the honour roll when she graduated from grade 12. However, she did not continue her education beyond high school. She has past work experience at a fast-food restaurant, and at call centres, before the birth of her daughter.

She occasionally drove and operated a coffee truck after that. For the past four years, she has sporadically been employed, cleaning boats for a friend who owns a water taxi business. She receives income assistance and is in the process of applying for a Persons with Disabilities pension. She continues to work as a sex trade worker to support her drug habit, something that she has been doing since 2016. [ 11 ] Ms. Hanson has maintained a relationship with Mr. Pacheco since 2016, and they have lived together in shelters, at a tent city, or on the street since then. When Ms.

Hanson was originally offered a room in the first modular housing units that opened, she declined because Mr. Pacheco did not qualify, and she preferred to remain living outside with him instead. Ms. Hanson qualified for the housing, as she is a female and a sex trade worker. She later accepted a room and moved into the modular housing at Garibaldi Ridge in September 2019, where she continues to live. Mr. Pacheco is not permitted to stay there but nonetheless is a frequent guest, despite the fact that his continued presence there risks Ms. Hanson being evicted.

Her longer-term plan is to obtain housing in which she can openly reside with Mr. Pacheco. [ 12 ] The manager of the modular housing complex in which Ms. Hanson resides describes her as doing well since she moved into the complex, shifting from displaying an attitude of defiance to generally following rules and being cooperative. The manager is aware that Mr. Pacheco sometimes stays there, in breach of the housing rules, but they have chosen not to evict Ms. Hanson due to her upcoming sentencing. She does not see Mr. Pacheco as a good influence on Ms. Hanson, but recognizes his importance to her.

She advises that Ms. Hanson’s room can be kept for her for as long as three months if she is incarcerated or attends residential treatment, but will be allocated to another tenant if she is away for longer than that. [ 13 ] An outreach worker with RainCity Housing and Support Society meets with Ms. Hanson regularly and describes her as

independent, intelligent and well-spoken, and says that she takes pride in her current residence. She also expresses concern that Ms. Hanson will lose her stability if she is incarcerated. [ 14 ] Although she has had limited contact with mental health professionals, Ms. Hanson acknowledges a history of mental health struggles throughout her life. She is currently working with a mental health caseworker to access a psychiatrist to confirm what she believes to be PTSD, depression and anxiety, so that she can receive counselling and apply for a Persons with Disabilities pension. [ 15 ] Ms.

Hanson used a variety of drugs in high school, but not to a problematic extent until after the birth of her daughter. She then developed post-partum depression, which led to her mother giving her oxycodone to help her sleep. Over time she increased her consumption of oxycodone and, as her tolerance increased, she eventually escalated to heroin and fentanyl use. Until recently, she has not been completely clean of drugs since the first time she tried oxycodone. She has been to detox three times, but each time left after half a day.

She has never attempted residential treatment and does not appear interested in pursuing it now. She states that drugs are all she has and that her life “sucked” before she started using. She states that she has never overdosed and says that she only smokes heroin and fentanyl, although she acknowledges some past intravenous drug use. She stated to the PSR writer that she does not wish to pursue opioid replacement therapy at this time, although she has significantly reduced the quantity of her consumption to $100 of fentanyl per day. [ 16 ] Ms.

Hanson has a brief criminal record, with two convictions for theft under $5000. The first theft occurred in 2015, and the second in 2018. She says that she has stolen to provide things for her daughter and to support her drug habit. [ 17 ] Ms. Hanson has had some difficulties complying with bail conditions. She was originally required to reside at her father’s home for several months and not go into downtown Maple Ridge. In fact, she never stayed at her father’s home and had no fixed address while living in Maple Ridge during that time. She also had difficulties with reporting.

Her conditions were varied in May 2019 to allow her to be within Maple Ridge, and she has generally been compliant with her conditions since then, although she continues to be inconsistent in reporting. [ 18 ] With respect to the current offence, Ms. Hanson says that she absolutely regrets her involvement and that she is not a drug dealer, noting that she would not have to work as a sex worker if she was selling drugs.

She believed that she was helping out an individual when she participated in this sale of drugs, and that she would never want to be part of something that could land someone in hospital or kill them. In addressing the court at sentencing, she said that she feels like she has made considerable gains since the offence, such as obtaining housing, and that she feels like she is able to begin to move away from her addiction. [ 19 ] Letters of support were provided by two friends of Ms. Hanson as well as her mental health worker and the program manager of her housing project.

The friends describe her as showing a sincere desire to change her life for the better. One of those friends is her current employer, the owner of the water taxi business, who describes her as respectful, reliable, helpful, and an asset to his business. He says that she has expressed remorse for her actions to him and has made many changes to her life since the offence, including obtaining and maintaining secure housing. The letters from the professionals describe Ms.

Hanson as engaged and meeting with them weekly to address her mental health (anxiety, PTSD, depression and substance abuse), applying for a Persons with Disability pension and maintaining her housing. Impact of Fentanyl on Individuals and the Community [ 20 ] As it frequently does in sentencing cases involving fentanyl, the Crown relies on an expert report from July 25, 2016, from Dr. James Kennedy, a physician with specialties in internal medicine, clinical pharmacology and toxicology. In his report, Dr.

Kennedy describes the effects of fentanyl on the human body and the ways in which fentanyl is particularly insidious and dangerous. It is 100 times more potent than morphine. A lethal dose of fentanyl is highly variable and often unpredictable. There is no “safe dose” of fentanyl outside of a hospital setting as a tiny dose may be greater than thought, with potentially lethal consequences.

The mixing of fentanyl with other drugs, whether intentionally or accidentally, increases this risk. [ 21 ] The Crown also refers to Coroners Service Reports detailing illicit drug toxicity deaths and fentanyl detected deaths in BC between 2010 and 2020. The statistics in those reports show a sharp increase in overdose deaths beginning in 2016. The statistics clearly show that this increase is due to the proliferation of fentanyl. The year this offence occurred, 2017, there were 1226 fentanyl-detected deaths, with 90 deaths in November alone, the month when this offence occurred.

There is no question that the fentanyl epidemic has wreaked tremendous damage on families and communities in recent years and continues to do so. Relevant Sentencing Provisions in the Criminal Code and CDSA [ 22 ] Both fentanyl and methamphetamine are

Schedule I substances, and as such, are subject to a maximum term of imprisonment for life. There is no applicable minimum sentence. [ 23 ] The Criminal Code sets out a number of principles that a court must consider in sentencing offenders. [ 24 ]

Section 718 sets out the purpose and objectives of sentencing as follows: 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. [ 25 ]

Section 718.1 sets out the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 26 ]

Section 718.2 requires a sentencing judge to consider any mitigating or aggravating circumstances relating to the offence or the offender. It also requires sentencing judges to impose sentences similar to what has previously been imposed on similar offenders for similar offences in similar circumstances. The same

section also cautions sentencing judges to exercise restraint in sentencing, and to give due consideration to sanctions less restrictive than imprisonment if appropriate. [ 27 ] For drug-related offences,

section 10 of the CDSA further provides that an additional sentencing purpose is to encourage rehabilitation and treatment of offenders in appropriate circumstances. Case Law [ 28 ] The Crown relies on four cases in support of its sentencing position. The first is the leading fentanyl sentencing case from our Court of Appeal – R. v. Smith, 2017 BCCA 112 . In that case, the Court of Appeal endorsed a higher sentencing range for trafficking offences involving fentanyl as compared to other hard drugs, given the dangerousness of the drug, and the impact of it on the broader community.

The court concluded that the range should begin at 18 months and increase to 36 months or higher, depending on the particular facts of the case. At paragraph 49, Mr. Justice Harris stated: [49] In my opinion, these facts warrant recognizing a sentencing range for street-level dealing in fentanyl which is materially higher than the sentencing range applicable to other dangerous drugs such as heroin. The range for street-level dealing in those drugs seems to start in British Columbia at six-months’ imprisonment.

As matters stand today, other dangerous drugs do not kill as frequently, accidentally, or as unpredictably as fentanyl, but the risks posed by those drugs should not be minimized even by comparison with fentanyl. Heroin, crystal meth and cocaine can have devastating consequences. They may not kill as often as fentanyl, but very large numbers of accidental deaths are associated with their consumption (indeed the majority of accidental overdose fatalities involve a mixture of illicit drugs) and they destroy lives and wreak social havoc.

The existing sentencing range for them is intended to reflect, amongst others, the sentencing principles of deterrence and denunciation.

Recognizing a different and markedly higher sentencing range for street-level dealing in fentanyl turns on the enhanced risks associated with that activity and the individual responsibility of dealers given those risks and public knowledge of them. [ 29 ] The Court of Appeal also noted that sentencing ranges are merely guidelines and not straitjackets, and do not create hard and fast categories, or preclude lesser or greater sentences if the circumstances or applicable principles warrant: para 35. [ 30 ] In R. v.

Williams, 2019 BCPC 325 , an offender was sentenced for one instance of trafficking in heroin and fentanyl, following a guilty plea. The Crown sought a custodial sentence of 21 months and 18 months of probation. The Defence sought a suspended sentence based on the existence of “exceptional circumstances”. The offender had a significant criminal record, including prior drug trafficking convictions. He had taken significant steps since the offence to improve his life by obtaining housing and starting on the methadone program, although he was continuing to use heroin and methamphetamine with some regularity.

The sentencing judge concluded that exceptional circumstances were not present and imposed a sentence of 12 months incarceration followed by 12 months of probation. [ 31 ] In R. v. Kielt, 2019 BCSC 2458 , an offender was sentenced for one count of trafficking in heroin and fentanyl, after a finding of guilt at trial. Ms. Kielt was homeless and addicted to heroin. She had a criminal record that included six convictions for theft under $5000, as well as two dated drug trafficking convictions. The sentencing judge found that exceptional circumstances were not present, and sentenced Ms.

Kielt to 18 months in prison. [ 32 ] In R. v. Nair, 2020 BCPC 172 , I sentenced Mr. Nair for one count of possessing fentanyl for the purpose of trafficking, following a guilty plea. The Crown sought a custodial sentence of 24 months. The Defence sought a suspended sentence, based on the existence of exceptional circumstances. Mr. Nair had no prior criminal record. The offending was clearly part of a dial-a-dope drug trafficking operation. Mr. Nair was not an addict and his offending was profit-motivated. I concluded that exceptional circumstances were not present and sentenced Mr.

Nair to 18 months in custody, followed by 12 months of probation. [ 33 ] The Crown did not provide any cases addressing the appropriateness of a CSO in a

Schedule I trafficking case. As noted above, such sentences have not been available since 2012, until the recent decision in Chen on April 7, 2021. The Crown nonetheless takes the position that a CSO is not appropriate in the circumstances of this case, notwithstanding the decision in Chen . [ 34 ] The Defence submits that since the ruling in Chen , a CSO is now an available sentence for Ms. Hanson’s offence. The Defence further submits that the circumstances of the present case meet the criteria for a CSO under s. 742.1 such that Ms.

Hanson’s sentence could be served in the community, instead of in a correctional institution. [ 35 ] A statutory pre-condition for a sentence to be served in the community under s. 742.1 is that the sentence must be for a period of less than two years.

Further, the court must be satisfied that service of the sentence in the community would not endanger the safety of the community, and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code . [ 36 ] The conditional sentence regime was enacted by Parliament to reflect its concerns over the high rates of incarceration in Canada: R. v. Proulx, 2000 SCC 5 at para 17 .

A properly crafted conditional sentence can still provide adequate denunciation and deterrence. ( Proulx para 67 ) [ 37 ] At paragraph 27 of Proulx , Lamer CJC summarised the principles applicable to CSO’s, some of which are as follows:

2. A conditional sentence should be distinguished from probationary measures. Probation is primarily a rehabilitative sentencing tool. By contrast, Parliament intended conditional sentences to include both punitive and rehabilitative aspects. Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty. Conditions such as house arrest should be the norm, not the exception. 3. No offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment, nor should there be presumptions in favour of or against a conditional sentence for specific offences. 4. The requirement in s. 742.1 (

a) that the judge impose a sentence of imprisonment of less than two years does not require the judge to first impose a sentence of imprisonment of a fixed duration before considering whether that sentence can be served in the community. Although this approach is suggested by the text of s. 742.1 ( a ), it is unrealistic and could lead to unfit sentences in some cases. Instead, a purposive

interpretation of s. 742.1 (

a) should be adopted. In a preliminary determination, the sentencing judge should reject a penitentiary term and probationary measures as inappropriate. Having determined that the appropriate range of sentence is a term of imprisonment of less than two years, the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community. 5. As a corollary of the purposive

interpretation of s. 742.1 ( a ), a conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence. 6. The requirement in s. 742.1 (

b) that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence, and not the primary consideration in determining whether a conditional sentence is appropriate. In making this determination, the judge should consider the risk posed by the specific offender, not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law.

Two factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. A consideration of the risk posed by the offender should include the risk of any criminal activity, and not be limited solely to the risk of physical or psychological harm to individuals. 7.

Once the prerequisites of s. 742.1 are satisfied, the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 . This follows from Parliament’s clear message to the judiciary to reduce the use of incarceration as a sanction. 8. A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be.

There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future. 9. Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community. 10.

Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved.

However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served. 11. A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances. 12.

No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. The judge should consider all relevant evidence, no matter by whom it is adduced. However, it would be in the offender’s best interests to establish elements militating in favour of a conditional sentence. [ 38 ] The principle of parity requires that similar sentences be imposed for similar offenders in similar circumstances.

However, because CSO’s have not been available sentences for drug trafficking offences since amendments were made to s. 742.1 in 2012, it is difficult to conduct a meaningful comparative analysis of cases in relation to CSO’s in drug trafficking cases. [ 39 ] Despite that challenge, the Defence has suggested that prior to 2012, CSO’s were regularly imposed in drug trafficking cases. As an example of that approach, the Defence refers to the 2008 case of R. v. Charlie, 2008 BCCA 44 . In that case, the BCCA upheld an 18 month CSO for possessing cocaine for the purpose of trafficking.

At the time of the offence, the offender was already serving a CSO for a drug-related offence, and the offence was part of a dial-a-dope operation. Balanced against those aggravating factors were the mitigating factors of a guilty plea, compliance with bail conditions for 21 months, the offender taking responsibility for his young daughter, becoming fully employed, having a supportive family and being an Aboriginal offender.

The court concluded that it would have been unjust and counterproductive to the offender, and to society at large, to interfere with his successful efforts at rehabilitation by sentencing him to a period of incarceration. [ 40 ] After the conclusion of sentencing submissions, the Defence provided the following cases from the BC Court of Appeal and BC Supreme Court: • R. v. Amhaz, 2013 BCCA 348

• R. v. Kreutziger, 2005 BCCA 231 • R. v. Datt, 2014 BCCA 484 • R. v. Heidari, 2013 BCCA 252 • R. v. Colligan, 2020 BCSC 1139 [41] These cases demonstrate a robust application of CSO’s in drug trafficking cases prior to the amendments in 2012 that renderedCSO’s unavailable in such cases. [42] After the conclusion of sentencing submissions, the Defence also provided a recent drug trafficking sentencing case, which post-dates the ruling in Chen. In R. v.

Howard, 2021 BCPC 167, Judge Jetté sentenced an offender, following a guilty plea to one count ofpossessing heroin, fentanyl and cocaine for the purpose of trafficking. The Crown sought a sentence of 36 months. The Defencesubmitted that exceptional circumstances were present to justify a non-custodial sentence. In the alternative, the Defence submitted that aCSO was appropriate in the wake of the Chen decision. [43] The offender had been arrested in the context of a dial-a-dope drug operation.

Upon arrest, she was found to be in possession ofover $14,000 worth of drugs packaged for sale, including fentanyl, heroin and cocaine. She was a drug addict who was selling drugs tofuel her addiction. She was 38 years old and had a criminal record, which included a 2012 conviction for trafficking in a controlledsubstance, for which she received an eight-month CSO, which was subsequently breached and terminated.

Since her arrest for the currentoffence, 4 ½ years before the sentencing hearing, she had made a number of positive changes, which had brought about significantimprovements in her life and the lives of her children. She had not used illicit drugs in the past three years and was on the methadoneprogram. She had been working during the day, attending night classes at BCIT, and had obtained employment in a marketing positionwith a construction company. The court concluded that a suspended sentence would not be a fit sentence given her high level ofblameworthiness for the offence.

However, the court concluded that the pre-conditions of a CSO were met and that a fit sentence was aCSO of 22 months in duration. I observe that the circumstances of the offending behaviour in that case were significantly moreaggravating than those in the present case, but the rehabilitative steps taken by the offender were also significantly more mitigating thanin this case. [44] The post-Chen drug trafficking sentencing case of R. v. Flintroy, 2021 BCSC 1187 also resulted in a 20 month CSO, followed by12 months of probation.

As in Howard, both the aggravating and mitigating circumstances were more substantial than in the present case.However, that case again demonstrates that such sentences may be appropriate in certain circumstances. Analysis [45] In the present case, I find the following to be mitigating circumstances: • Ms. Hanson has entered into a guilty plea. • Ms. Hanson’s expressions of remorse for her actions.

This was expressed in the PSR, in open court and through the support lettersfrom others. • Her limited criminal record, and in particular, a lack of previous drug trafficking-related convictions. • Some mental health issues, which include anxiety and depression. • The positive steps she has taken to stabilize her life, including obtaining and maintaining stable housing and maintaining somelevel of employment. [46] While not necessarily mitigating, I am also mindful of the fact that the transaction that led to this charge was not profit-motivated. Ms.

Hanson states that this transaction was driven by her empathy for someone whom she believed to be a fellow drug addict.There is no suggestion that she has otherwise been involved in any drug trafficking enterprise. [47] I find the presence of fentanyl, a drug that is unpredictably deadly, to be an aggravating circumstance. [48] The circumstances of this case are clearly not exceptional such as to justify a departure from the normal sentencing range forsimilar offences, and the Defence has not made that submission. [49] In my view, a sentence of less than two years is appropriate.

I am also satisfied that the service of a sentence in the communitywould not endanger the safety of the community. These determinations preserve the option of imposing a CSO, provided that I amsatisfied that doing so would be consistent with the fundamental purpose and principles of sentencing set out in the Criminal Code. [50] Over 30 years ago, the BC Court of Appeal, in a five-member decision in R. v. Preston, (1990) (BC CA), 79C.R. (3d) 61 BCCA, considered the circumstances of a drug addicted offender who was genuinely trying to rehabilitate herself.

Thecourt said at paragraph 31: The object of the entire criminal justice system, of course, is the protection of society, and I say at once that if incarceration is the onlyway of protecting society from a particular offender, then transitory and expensive though it may be, that form of protection must beinvoked.

But where, as in this case, the danger to society results from the potential of the addict to commit offences to support her habit,and it appears to the court that there is a reasonable chance that she may succeed in an attempt to control her addiction, then it becomesnecessary to consider the ultimate benefit to society if that chance becomes a reality. With respect, that benefit seems obvious. If the chance for rehabilitation becomes a reality, society will be permanently protected fromthe danger which she otherwise presents in the fashion described above.

As well, the cost associated with her frequent incarceration will

be avoided. What then is the proper approach for the court to take when sentencing in a case such as this? When the benefit to be derived to society as a whole, as a result of the successful rehabilitation of a heroin addict, is balanced against the ultimate futility of the short-term protection which the community enjoys from a sentence of incarceration, I believe it is right to conclude that the principle of deterrence should yield to any reasonable chance of rehabilitation which may show itself to the court imposing sentence.

To give the offender a chance to successfully overcome his or her addiction, in such circumstances, is to risk little more than the possibility of failure, with the result that the cycle of addiction leading to crime leading to incarceration will resume, something that is inevitable, in any event, if the chance is not taken. On the other hand, as has already been pointed out, if the effort succeeds the result is fundamentally worthwhile to society as a whole. [ 51 ] Preston has been cited with approval by the BC Court of Appeal over the years, including in R. v.

Voong, 2015 BCCA 285 . [ 52 ] As I have previously stated, Ms. Hanson’s circumstances are not exceptional. The positive steps she has taken since the offence are modest ones. At the time of the sentencing hearing, she was continuing to use illicit drugs, albeit in much lesser quantities than previously. However, when I requested further sentencing submissions from counsel regarding the challenge of imposing a CSO for an individual in active addiction, I was advised that Ms. Hanson had recently commenced opiate replacement therapy and was on the methadone program. In any event, where Ms.

Hanson finds herself currently is a significant improvement over where her life was situated at the time of her committing this offence. I am also mindful of the fact that this offence occurred as a result of the police pursuing the lowest hanging fruit of the drug trade, and not in the context of an organized operation such as a dial-a-dope line. The circumstances of this offence, despite the involvement of fentanyl, reduce Ms. Hanson’s blameworthiness to the lower end of the sentencing range. [ 53 ] I do, however, remain concerned about Ms.

Hanson’s ability to comply with the terms of a CSO, which is a jail sentence served in the community, given how recently she stopped using illicit substances. A breach of a CSO by possessing or consuming illicit substances would be a breach of the CSO and could result in her spending the remainder of the sentence in a prison.

However, I am reminded of the comment in Preston that “to give the offender a chance to successfully overcome his or her addiction, is to risk little more than the possibility of failure”. [ 54 ] In my view, while the principles of denunciation and deterrence must be at the forefront, I must not lose sight of the principle of rehabilitation. Balancing the relevant sentencing principles, I find that a CSO of 20 months is a fit sentence. [ 55 ] The terms of that CSO will be as follows: [ 56 ] You must comply with a conditional sentence order for a term of twenty two months.

The conditions are: 3001 You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. 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 supervisor of any change in employment or occupation.

You must remain in British Columbia unless you have prior written permission from the Court or your conditional sentence supervisor to leave the province. 3103 You must report by telephone to a conditional sentence supervisor at 2610 Mary Hill Road, Port Coquitlam, BC, telephone number 604-927-2207 by 3:00 p.m. today. If the office is closed, you must continue calling daily during regular business hours until you have spoken to a supervisor and received further direction to report.

After that, you must report as directed by your supervisor. 3203 You must live at an address approved in advance by your conditional sentence supervisor and provide your supervisor with your phone number. You must not change your address or phone number without prior written permission from your supervisor. 3209-2 For the first 12 months of this order, you must obey house arrest by being inside your residence or on its lot, 24 hours a day, every day.

You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the curfew. You may be away from your residence during the house arrest with the prior written permission of your conditional sentence supervisor. Such permission is to be given only for employment, to pick up methadone, to participate in any counselling that may be required by your conditional sentence supervisor, or other compelling reasons.

You must carry the permission, which can be in electronic format, with you when you are outside your residence. 3209-2-A You may also be away from your residence during the curfew hours 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 with proof of your attendance at the facility. 3209-1 For the 10 months following completion of your house arrest, you must obey a curfew by being inside your residence, or on its lot between 10 p.m. and 6 a.m. every day.

You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the curfew.

You may be away from your residence during the curfew with the prior written permission of your conditional sentence supervisor. Such permission is to be given only for employment, to pick up methadone, to participate in any counselling that may be required by your conditional sentence supervisor, or other compelling reasons.

You must carry the permission, which can be in electronic format, with you when you are outside your residence. 3209-1A You may also be away from your residence during the curfew hours 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 with proof of your attendance at the facility 3401 You must not possess or consume alcohol, drugs or any other intoxicating substance, except with a medical prescription. 3501 You must attend, participate in, and complete any intake, assessment, counselling or education program directed by your conditional sentence supervisor. This may include counseling or programming for alcohol or drug addiction. [ 57 ] This conviction for trafficking requires the mandatory imposition of a firearms prohibition under s. 109 of the Criminal Code .

As such, pursuant to

section 109 of the Criminal Code , you are prohibited from possessing: a. any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance for a period of 10 years from today, and b. any prohibited firearm or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 58 ] This is a secondary designated offence, and as such, the requirement for you to provide a copy of your DNA is discretionary. After considering the factors set out in

section 487.051(3) of the Criminal Code , I am satisfied that it is in the best interest of the administration of justice to authorize the taking of samples of bodily substances from you. You must attend on Tuesday, August 31, 2021 at 9:00 a.m. at Ridge Meadows RCMP at 11990 Haney Place, Maple Ridge, BC, to provide a sample of your DNA. _____________________________ The Honourable Judge R. McQuillan Provincial Court of British Columbia