R. v. Anderson, 2023 BCPC 3

Citation: R. v. Anderson 2023 BCPC 3 Date: 20230106 File No: 111340-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. DARCY DEAN ANDERSON REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.D. PHILLIPS Counsel for the Crown: V. Yip Counsel for the Defendant: M. LaFlamme Place of Hearing: Kamloops , B.C. Date of Hearing: October 21, 2022 Date of Judgment: January 6, 2023 [ 1 ] Before me today for sentencing is Darcy Dean Anderson. [ 2 ] He has plead guilty to one count of unlawful possession of methamphetamine for the purpose of trafficking, contrary to s. 5(2) of

the Controlled Drugs and Substances Act (“ CDSA ”) and to a second count of unlawful possession of fentanyl and cocaine for the purpose of trafficking. The offences occurred on June 11, 2021 in Kamloops, British Columbia. Circumstances of the Offence [ 3 ] On June 11, 2021, police were conducting foot patrols in the North Shore of Kamloops. At approximately 16:55 hours, police observed four individuals behind a gas station sharing an open flame and pop can. Mr. Anderson was one of the individuals. At the time of the offence, officers learned that Mr.

Anderson was subject to house arrest having being released by a Release Order the day prior. A search of Mr. Anderson revealed $140 in cash, a scale, 27.4 grams of meth, 11.1 grams of mixed cocaine and fentanyl of which analysis determined contained approximately 2.5% fentanyl, and 10.8 grams of cocaine. A conservative estimate of the value of the drugs found on Mr. Anderson was approximately $2,470. Circumstances of Offender [ 4 ] Mr. Anderson is 34 years of age and identifies as Indigenous. From a Gladue Report prepared for Mr.

Anderson on a prior matter and submitted by his counsel in this proceeding, it is clear that Mr. Anderson has significant Gladue factors. The report states that Mr. Anderson's grandmother was from the Montreal Lake Cree Nation. She was removed as a child as part of the Sixties Scoop, that she had also spent time at a residential school. She was kept away from her family and community during this time. As Mr. Anderson’s maternal aunt states “ as her mother got older, she wouldn’t say any thing about her past or let any of us kids be alone with a priest or go into a church.

There was just so much unaddressed trauma.” At 18 years of age, she moved to 100 Mile House, British Columbia, with a new partner. Together they had seven children and there was a lot of violence and alcoholism in the relationship. [ 5 ] One of Mr. Anderson's maternal aunts was run over and left on the side of the road to die at the age of 15. No one stopped to see if she was okay and there were no arrests made. [ 6 ] Bonnie, is the mother of Darcy Anderson. She passed away at the age of 47 years with cirrhosis of the liver – she drank herself to death. Mr.

Anderson’s maternal aunt recalls “Bonnie got pregnant with her first child when she was 15 years old and even though it was a violent and unhealthy relationship, she remained involved with Jake off and on for a few years after. When she became pregnant with Darcy, they were no longer together. However, he continued to stalk and harass her. One night – and this was while she was pregnant with Darcy – he snuck into our house in the middle of the night, crept into Bonny’s bedroom, and tried to stab her in the belly with a coat hanger.” He was arrested, however, the family did not know what became of it.

Jake left the area and the family did not see him again. They later learned that he had died of an overdose. Mr. Anderson was apprehended at three years of age and between the ages of 13 and 17, transitioned through a number of non-Indigenous foster homes. [ 7 ] One of his foster parents, Ms. Bjornson stated that Darcy was 14 years old when he and his brother were placed by the Ministry in her care. She recalled: At the time, Darcy was living with his brother Darryl in an apartment in100 Mile.

Another young guy, who was approximately 19 years old was also living with them – he committed suicide by shooting himself in the head with a shotgun in front of the boys. It was somehow drug related and when I was contacted by the social workers, I found Darcy and Darryl hiding out in this space they’d made under a staircase at the apartment building because they were too frightened to go back inside. [ 8 ] At age 15, Mr. Anderson was diagnosed with Fetal Alcohol Syndrome Disorder (FASD).

At age 18, it was also determined that Darcy suffered from Attention Deficit Hyperactive Disorder and complex Post Traumatic Stress Disorder. In relation to FASD, the PSR writer states that: “The adult who is affected by fetal alcohol exposure struggles with impulsive and unpredictable behaviour. They often develop unhealthy friendships because they are susceptible to peer pressure and develop secondary disabilities in drug and alcohol use.

As they are unable to predict by nature the consequences of their actions, individuals diagnosed with FASD have processing deficits often compounded by slower than normal processing speeds.” [ 9 ] At 19, Mr. Anderson left foster care then became involved with criminal activity in the 100 Mile House area. From the comments of former foster parent, Ms. Bjornson, as set out in the Gladue report, the police were “uneducated around the fetal alcohol syndrome disorder and misconstrued many of his quirks . ” She found that Mr.

Anderson would struggle with bail and probation conditions and “ so began the slippery slope of his being involved with the criminal justice system. ” She observed that with charges, the lead would be stayed, but Mr. Anderson would be incarcerated for the breaches. [ 10 ] In Kamloops, Mr. Anderson is leading the life of an addict. He has been homeless for some time. His addictions are alcohol and crystal meth. He associates with individuals that suffer from drug addiction and similar living situations. [ 11 ] Up until very recently, Mr.

Anderson had very little knowledge or connection with his Indigenous background and his family. [ 12 ] The colonial history in this country has had a significant impact on the lives of Mr. Anderson and at least two generations of his family. This has resulted in generational trauma, which finds its place before me in this sentencing. Sentencing Positions [ 13 ] The Crown’s positon on sentence is 18 months’ jail. This position is informed by recent case law, s. 718(2) (

e) of the Criminal Code , and an acknowledged reduced moral culpability for Mr. Anderson, given his struggles with FASD and the significant Gladue factors present in his life. But for the reduced moral culpability of Mr. Anderson, the Crown submits an appropriate range of sentence is 24 to 36 months. [ 14 ] The Defence submits that an appropriate sentence is 6 to 12 months’ jail to be served by a Conditional Sentence Order. I will note that although defence counsel submits 6 months as the lower range, no authority was provided in support of that position.

In any event, a 6 month sentence for possession for the purpose of trafficking of fentanyl does not and will not address the principle of proportionality nor will it address the specific principles denunciation and deterrence, given the gravity of the offence and the role that

fentanyl has played in the death of so many people. Accordingly, I will say at the outset, 6 months’ jail is simply not appropriate in thecircumstances. [15] Before I engage in a review of case law, it is important to provide context to the fentanyl crisis in this province. Counsel for theCrown has provided to this court two reports. The first is a report from Dr. Kennedy describing fentanyl uses, abuse and toxicity. Thesecond is a recent report prepared by the British Columbia Coroner’s office regarding illicit drug toxicity deaths in British Columbia forthe period January 1, 2012 to August 31, 2022.

Reports on fentanyl and illicit drug deaths in British Columbia [16] From the report of Dr. James R. Kennedy: July 25, 2016 letter to Public Prosecution Services of Canada re: Fentanyl Uses,Abuse and Toxicity: • Fentanyl is a potent synthetic opioid drug and is 100 times more potent than morphine. By comparison, heroin is about two timesas potent as morphine and cocaine is one-tenth the potency of morphine. • The mechanism by which fentanyl causes death is almost always related to respiratory depression resulting in lethally lowcirculating oxygen levels (hypoxemia).

Sometimes the respiratory depression and resulting hypoxia is enough to cause permanent anddevastating brain damage but not death. The overdose is most often related to intravenous use, snorting or inhalation through smoking. • Fentanyl has similar addictive potentiality as morphine, heroin and oxycodone. This means that the user continues to use the drugin spite of awareness of the harm it is doing to himself or herself (respiratory depression and death).

Users who know they are takingfentanyl often accept this dangerous risk. [17] From the report of the British Columbia Coroners Service “Illicit Drug Toxicity Deaths in BC for period January 1, 2012 toAugust 31, 2022” posted, September 28, 2022: • In 2012 there were 186 illicit drug toxicity deaths in the province of BC.

In 2022, this number increased to 1,468. • For the period 2019 – 2022, fentanyl was involved in 85.8% of illicit drug toxicity deaths. • The majority of illicit drug toxicity deaths occurred during the days following income assistance. • For the Interior Health Region (Kamloops and surrounding area), in 2012, there were 31 illicit drug toxicity deaths.

For the periodJanuary 2021 to August 2022, there were 625 illicit drug toxicity deaths in the IHA. • Compared to other common causes of unnatural deaths from 2011 to 2021, illicit drug deaths are five time higher than deaths bysuicide, MVA, homicide or prescription drugs. (p 4, figure 2) [18] The truly sad part of these statistics is the loss of human life. The deceased were someone’s son, daughter, grandchild, parent andeven grandparent. So many people have been left grieving the loss of their loved ones and haunted by the fact that their loved one diedunder the influence of fentanyl.

Sentencing Range [19] In R. v. Smith, 2017 BCCA 112 , 2017 B.C.C.A. 112, Mr. Smith plead guilty to one count of possession of cocaine andone count of fentanyl, both for the purposes of trafficking . He was found in possession of 13 flaps of fentanyl (approximately 2.6 gramsin total), 18 flaps of powdered cocaine (approximately 4.2 grams) and several rocks of crack cocaine weighing 3.2 grams in total. Mr.Smith is Indigenous and at the time of the offence was 59 years old and a first time offender.

Our Court of Appeal agreed with manyjudges who have determined that denunciation and deterrence must be given primacy in cases involving fentanyl and in doing so,concluded that the normal range begins at 18 months’ imprisonment with a suggested upper range of 36 months, where the offender hasa substantial record involving the sale of fentanyl or otherwise demonstrates an indifference to the human lives he or she is putting atrisk. [20] In R. v. Tom, 2018 BCPC 87 , 2018 B.C.P.C. 87, Mr. Tom plead guilty to a charge of possession of fentanyl for thepurpose of trafficking.

He received a sentence of 18 months less time served. While there were significant Gladue factors present in Mr.Tom’s life, the court did not find exceptional circumstances. The court found Mr. Tom’s desire to seek help with his addiction and desireto pursue a path to rehabilitation was a particularly mitigating factor and the presence of fentanyl an aggravating factor. [21] In R. v. Brown, 2019 BCPC 313 , 2019 B.C.P.C. 313, Mr. Brown was sentenced to 30 months’ jail for possession forpurposes of trafficking of seven grams of fentanyl and cocaine. Mr.

Brown is Indigenous and was 26 years of age at sentencing.Significant Gladue factors were present in Mr. Brown’s life. At the time of sentencing, Mr. Brown was not drug dependant. In regards toMr. Brown’s moral culpability, the court had this to say at para 25: 25 As for Mr. Brown's degree of moral culpability, he was not drug dependant at the time of his offence and it appears that he wasselling drugs to maintain his lifestyle of "partying". At first blush, it may appear that Mr. Brown has a high degree of moral culpability;however, such a conclusion ignores Mr.

Brown's Indigenous background and the impact of colonialism. In this regard, Mr. Brown, hisfamily, and his community, have suffered substance abuse, violence, low level of education, poverty, and disconnection from; culture,tradition, role models, and community. For these reasons, I conclude that Mr. Brown's level of moral culpability is toward the low end ofthe spectrum. [22] The court found Mr. Brown’s criminal record and the fact that Mr. Brown was on probation at the time of his offence asparticularly aggravating factors. In arriving at sentence the court noted at para 32:

32 …I note the impact that colonialism has had on Mr. Brown. In fact, a review of his background and history strongly suggests that hewas doomed to face significant struggles even before his birth. Specifically, the historical mistreatment of Indigenous persons placed Mr.Brown on the roadway to criminal involvement and even gave him a push. [23] After considering all materials and submissions of counsel, the court had this to say at paragraph 34: 34 …A sentence of three to four years, although likely appropriate were it not for Mr.

Brown's Indigenous heritage, however the lengthdisregards the importance of minimizing Mr. Brown's separation from his family and his Reserve. As such, a lesser period of custody iswarranted but it must be one that still denounces and deters. [24] Mr Brown was sentenced to 30 months’ jail. [25] In R. v. Lockhart, 2021 BCSC 1226 , 2021 B.C.S.C. 1226, Following a three day trial, Mr. Lockhart was convicted oftwo counts of trafficking in illicit drugs – heroin and fentanyl. The amount of drugs was two points sold for $20 each to an undercoverofficer. He was sentenced to 26 months’ jail. Mr.

Lockhart is Indigenous and was 39 years old at time of sentencing. He suffered from anopioid addiction and was living on the street selling drugs to support his addiction. Prior to sentencing, he was clean and sober for 11months and took steps to remove himself from drug culture. He had a related criminal record with a gap. In terms of Mr. Lockhart’sbackground, at para. 13, the court found that : 13 Mr. Lockhart was born into a First Nations community near Regina, Saskatchewan. His grandparents were part of the residentialschool system. His parents were not.

As a child, he was introduced to and participated in traditional Indigenous gatherings, dances, andother cultural events. His upbringing was not chaotic. His family was not dysfunctional. His childhood was relatively normal. [26] No reports were provided to the court at sentencing. Instead, counsel for Mr. Lockhart made submissions on Mr. Lockhart’sbackground. At the end of the day, the court did not find exceptional circumstances that would take the case out of the normal range. Aswell, the court did not find any reduced moral culpability on the part of Mr. Lockhart.

In passing sentence, the court placed significantweight on the seriousness of offence of trafficking in Fentanyl. [27] In R. v. McDonald, 2018 BCPC 244 , 2018 B.C.P.C. 244, Mr. McDonald entered guilty pleas to possession of fentanylfor the purpose of trafficking and possession of cocaine for the purpose of trafficking. He also plead guilty to unauthorized possession ofa firearm. With respect to the fentanyl offence, the Crown sought a sentence of three years. Defence submitted that 10 to12 months’ jailis warranted based on Mr.

McDonald’s young age, the Gladue factors present in his life and specifically, his FASD diagnosis, whichcollectively amounted to exceptional circumstances justifying a deviation from the usual range. The court found that if Mr. McDonaldwas a usual offender without the cognitive deficits associated with his FASD the appropriate sentence in the circumstances, would havebeen 24 months for the charge of possessing fentanyl for the purpose of trafficking. The court concluded that given Mr.

McDonald’ssignificantly reduced personal responsibility due to his serious diagnosed cognitive disabilities, a substantial reduction from what thesentence for an otherwise average offender in the circumstances would have been was warranted and sentenced Mr. McDonald to 12months’ jail on the fentanyl offence. Sentencing Principles a. Fundamental Principle (s. 718.1): A sentence must be proportionate to the gravity of the offence and the degree of responsibility ofthe offender. b.

Purpose: Denounce unlawful conduct and the harm done to victims; to deter the offender and other persons from committingoffences; to separate offenders from society where necessary; to assist in rehabilitating offenders; to provide reparations for harm done tovictims or to the community; to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or tothe community. c. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances related to the offencefor the offender. d In accordance with 718.2(

e) of the Criminal Code and the Supreme Court of Canada decisions of R. v. Gladue (SCC), [1999] 1 SCR 688 and R. v. Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433, all available sanctions other than imprisonmentthat are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for alloffenders, with particular attention to the circumstances of aboriginal offenders. A judge must consider the unique systemic orbackground factors that may have played a

part in bringing the offender before the court and the types of sentencing procedures andsanctions that may be appropriate in the circumstances because of the offender’s heritage or connection. This principle should not betaken as a means of automatic reducing the prison sentence of aboriginal offenders. Sentence imposed will depend on all the factors thatmust be taken into account in each individual case. Aggravating factors [28] Mr. Anderson possessed meth, cocaine and fentanyl for the purpose of trafficking.

Fentanyl is a deadly drug and has taken thelives of many and for that reason, courts place a significant amount of weight on deterrence and denunciation. [29] At the time of the offence, Mr. Anderson was subject to a Release Order with house arrest and was on probation for othermatters. [30] Mr. Anderson has a criminal record with convictions for assault, ACBH, breaches of court orders, several convictions forpossession of a controlled substance, firearms, flight from police, possession of stolen property and uttering threat. Mitigating factors

[ 31 ] Mr. Anderson has entered guilty pleas eliminating the need, burden and cost of a trial. [ 32 ] From the PSR and Gladue Reports, Mr. Anderson suffers from FASD and has significant Gladue factors in his life thereby reducing his moral culpability. Analysis [ 33 ] This is a difficult case. Our courts have been clear that the tragic consequences of overdose deaths resulting from fentanyl demands harsh sanctions for those involved in its distribution. [ 34 ] What is also clear is that Mr.

Anderson’s FASD significantly limits his ability to fully understand the impact his actions will have on others, to understand the consequences of all of his actions, or to learn from past mistakes. The result is a diminished moral responsibility in relation to the usual offender. [ 35 ] From the PSR, it appears Mr. Anderson has not taken meaningful steps to address issues that would take him out of that range proposed by Crown. At page 9 of Gladue Report, there is a note from the probation officer that “ Mr.

Anderson reported minimally at best and was a high risk to reoffend .” [ 36 ] Following his release from custody in February of 2021, a recovery plan was put into place by Ask Wellness and John Howard Society. These groups worked with Mr. Anderson to access services, provide a stable residence, and set him up with part time work to earn money as he awaited admission to a vocational program that was to commence June 1, 2021. The training was directed at helping Mr. Anderson find work as a firefighter and work on pipelines. It appears Mr. Anderson did not follow through with the plan.

I note that vocational training was around the offence date – June 11, 2021. [ 37 ] The defence highlights the McDonald decision and submits that the court can make a finding of reduced moral culpability based on Mr. Anderson’s FASD diagnosis and the significant Gladue factors in his life, and in doing so can deviate from a sentence that would be imposed in the regular course. In his submission, counsel for Mr. Anderson states that Mr. Anderson’s life is a mess and questions whether 18 months’ jail is appropriate after applying s. 718(2) (

e) of the Criminal Code , and upon consideration of the Ipeelee and Gladue decisions. Specifically the over representation of Indigenous offenders in jail. [ 38 ] Mr. Anderson has prior convictions for possession of a controlled substance but this is his first conviction involving fentanyl and his first conviction for possession for the purpose of trafficking. While he has a prior record for possession of a controlled substance, I do not place much weight on this fact as he is entrenched in the street and drug culture and is an addict himself. Conclusion [ 39 ] I find that Mr.

Anderson was doomed at birth with FASD, which in and of itself is a direct reflection and outcome of colonial policies of this country. I also find that the significant Gladue factors in Mr. Anderson’s life and the lives of at least two prior generations of his family, place Mr Anderson at the lower end of the range of moral culpability. [ 40 ] This is a difficult sentence to determine given the significant Gladue factors, Mr. Anderson’s FASD diagnosis and his reduced moral blameworthiness. This must be balanced with the aggravating factors and our Court’s views on a sentencing range where fentanyl is involved.

The sentence must denounce the crime and deter Mr. Anderson and anyone else from committing the same offence. At the same time, the laws of our country have arrived at a place where courts are obligated to consider the Indigenous background factors in Mr. Anderson’s life, the systemic factors that contributed to the life Mr. Anderson lives and to be mindful of the over representation of Indigenous people in jail. [ 41 ] In the normal course, given the amount of fentanyl involved and upon consideration of the case law since the Smith decision, an appropriate sentence would be 24 months’ jail. Balancing Mr.

Anderson’s reduced moral culpability, the significant Gladue factors in his background, and the overriding need to denounce and deter, I am reducing this sentence to 16 months. [ 42 ] Accordingly, the sentence I impose is 16 months’ jail. I am not going to impose any probation, given that Mr. Anderson is already subject to probation on other matters. Adding another may overly complicate things for Mr. Anderson. As well, given Mr.

Anderson’s prior convictions for breaching court orders and the fact that he was on probation and subject to a Release Order at the time of the offense, a Conditional Sentence Order is not appropriate in the circumstances.

Ancillary Orders Forfeiture [ 43 ] Pursuant to s. 16(1) of the Controlled Drugs and Substances Act forfeiting non-chemical offence- related property, I order that any right, title or interest of Darcy Dean Anderson, or any other person in the property listed as items number #1-4 of the attached major Exhibit Flowchart, in relation to Kamloops RCMP File 2021-19439, be forfeited to and vest in His Majesty the King in Right of Canada, to be disposed by the Minister of Public Works and Government Services or otherwise dealt with in accordance to the law by the member of the King’s Privy Council for Canada that is designated by the Governor in Council in accordance with the law.

Weapons [ 44 ] Pursuant to s. 109 of the Criminal Code , I impose a lifetime ban of the weapons set out in this section. DNA [ 45 ] Count 2 on Information 111340-1 is a secondary designated offence. After considering the factors set out in s. 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. The samples will be taken from you while you are in custody and you must submit to taking of the samples. ____________________________________ The Honourable Judge R.D. Phillips Provincial Court of British Columbia