R. v. Pelly, 2023 BCPC 7

Citation: R. v. Pelly 2023 BCPC 7 Date: 20230111 File Nos: 93480-1, 90099-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. DYLAN SHANE PELLY REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Provincial Crown: S. Thomson Counsel for the Federal Crown: S. Gill Counsel for the Defendant: P. Dutt & N. Chhabra Place of Hearing: Abbotsford , B.C. Dates of Hearing: December 1, 2022 and January 5, 2023 Date of Judgment: January 11, 2023

INTRODUCTION [ 1 ] Dylan Pelly has pled guilty to committing a home invasion of a legal, licenced marihuana grow operation in Abbotsford, BC, on January 10, 2018. Mr. Pelly was one of three men who burst into a home using firearms or imitations thereof, and he and the other two perpetrators were masked. The home was occupied by a man and his 16-year-old son, both of whom had their hands tied behind their backs with zap straps. The specific pleas were to break and enter, robbery, and using an imitation firearm while committing the robbery. [ 2 ] Beginning in May of 2019, the police targeted Mr.

Pelly in an undercover operation to elicit statements confirming Mr. Pelly’s involvement in the home invasion. Mr. Pelly not only gave a full account of his involvement in the home invasion, but he also supplied firearms and fentanyl to the undercover officers. Between August 6 and November 12, 2019, Mr. Pelly sold the undercover officers a total of 943 grams of fentanyl at a combined price of $82,000.

He also sold to the undercover officers a small 25-calibre Raven Arms semi-automatic handgun, which is a prohibited firearm, a Smith and Wesson semi-automatic pistol, which is a restricted firearm, and a Colt semi-automatic pistol, a prohibited firearm. [ 3 ] The Provincial Crown is prosecuting the above offences by indictment under information 93480. [ 4 ] Mr. Pelly also pled guilty to two other drug offences arising from a separate investigation and search warrant on his home.

On July 12, 2018, he unlawfully possessed 2.25 grams of heroin/fentanyl, 34.11 grams of fentanyl, and 36.17 grams of cocaine for the purposes of trafficking. The Federal Crown is prosecuting these offences by indictment separately under information 90099. [ 5 ] All of the above offences are serious crimes under the Criminal Code and Controlled Drugs and Substances Act . The Provincial Crown and defence counsel have presented the court with a joint submission for the home invasion, firearms and drug offences under information 93480. They are submitting that Mr.

Pelly ought to serve a total jail sentence of five and one-half years, including two years for the home invasion offences consecutive to three and one-half years for the firearms trafficking and three and one-half years for the drug trafficking, with the three and one-half year sentences being concurrent to each other. [ 6 ] However, the Federal Crown is seeking an additional three and one-half years of jail, consecutive to any other sentence, for the possession for the purposes of trafficking offences under information 90099. This would mean a total jail sentence for Mr.

Pelly of nine years. [ 7 ] Defence counsel submits that the jail sentence sought by the Federal Crown should be two or two and a half years. However, he strongly argues that this sentence ought to be concurrent to the other trafficking jail sentences, and in any event, the total jail sentence should be five and one-half years using the totality principle. Defence counsel argues that Mr. Pelly was committing crimes to feed his own drug addiction, and he has done extremely well during his time in pre-trial custody.

The home invasion should be consecutive to any other sentence. [ 8 ] The central issue here is determining the appropriate jail sentence for Mr. Pelly for these serious crimes. As always, I bear in mind the general sentencing principles under s.718 and following in the Criminal Code .

Denunciation and deterrence come to the forefront for these serious home invasion and trafficking crimes, but the real possibility of rehabilitation here cannot be overlooked. [ 9 ] The main area of contention is whether the jail sentence for the possession for the purpose of trafficking offences under information 90099 ought to be concurrent or consecutive to the other five and one-half year jail sentence, and most importantly, whether the overall jail sentence ought to exceed five and one-half years applying the totality principle.

CIRCUMSTANCES OF THE HOME INVASION (Counts 1, 2 and 6 of 93480) [ 10 ] An Agreed Statement of Facts was filed concerning the home invasion and firearms and drug offences under information 93480. In the early hours of January 10, 2018, Mr. Pelly was one of three masked and armed men who broke into a residence at 2237 Windsor Street in Abbotsford. A legal, licenced marihuana operation was located in a shop on the property across the yard from a residence occupied by Shawn Lecy and his 16-year-old son. The marihuana operation was owned by Mr. Lecy’s friend. [ 11 ] Mr.

Pelly had been recruited by an associate, Bryan Lehman, now deceased. Three to four other men arrived in the area in three vehicles. At about 4:00 am, Mr. Pelly, Mr. Lehman, and a third man approached the front door of the residence and Mr. Pelly was armed with a shotgun or imitation thereof. Mr. Lehman pried the front door with a crowbar, and Mr. Pelly kicked the door in. The three men then entered the home. [ 12 ] The 16-year-old son saw a male holding a shotgun in the hallway, and then Mr. Pelly told him to put his hands up and get onto the floor. The 16-year-old’s father, Mr.

Lecy, was brought upstairs, and Mr. Lehman tied the hands of the father and son using zap straps. Mr. Lehman retrieved Mr. Lecy’s keys and asked which key opened the shop. The cell phones belonging to Mr. Lecy and his son were thrown in a toilet. [ 13 ] Mr. Pelly stayed with Mr. Lecy and his son and told them to cooperate. He said they were not there to hurt them; they were there for the marihuana and the money. Mr. Pelly told them his finger was not on the trigger and he was trying not to point the gun at the 16 year old. However, the two other men initially had their guns pointed at the 16 year old. Mr.

Pelly told Mr. Lecy not to be a hero and that he was not going to hurt his son because he had a son of his own. [ 14 ] While Mr. Pelly was in the residence, other men stole live marihuana plants and cut marihuana from the shop and loaded these items in Mr. Lecy’s pickup truck. About 60 plants and some dried marihuana were stolen. [ 15 ] In total, the suspects stole Mr. Lecy’s pickup truck, his cigarettes and pain medication, and marihuana in the shop. Mr. Lehman

said he was there for the weed not the money, but Mr. Pelly later removed $500 cash from Mr. Lecy’s wallet. Mr. Lehman said to Mr. Lecy to look for his truck on Bradner Road, and it was later recovered by police. [ 16 ] When the suspects left, the 16 year old was able to free himself from his zap straps, and his father went downstairs to get a pair of cutters which were used by his son to cut his zap straps. [ 17 ] Through investigative measures, the police identified both Mr. Pelly and Mr. Lehman as suspects in the home invasion. Beginning in May of 2019, the police targeted Mr.

Pelly in an undercover operation designed to elicit incriminating statements confirming his involvement in the home invasion. Over time, the undercover officers held themselves out as influential underworld figures, and they recruited Mr. Pelly to perform work for a purported criminal organization. [ 18 ] The undercover officers also said they could assist Mr. Pelly regarding the home invasion by providing him with a false alibi and by having someone else take the blame. On the strength of these assurances, Mr.

Pelly provided a full account of his involvement in the home invasion, and this account was largely consistent with the statements of Mr. Lecy and his son. [ 19 ] Defence counsel points out that Mr. Pelly was recruited for the home invasion and he was drug addicted. He even asked Mr. Lecy where the “oxy pills” were. CIRCUMSTANCES OF THE FIREARM AND DRUG TRAFFICKING (Counts 7, 9, 11, and 13 of 93480) [ 20 ] Throughout the undercover operations, Mr. Pelly made numerous offers to supply firearms and fentanyl to the undercover officers.

He bragged about his connections to the Independent Soldiers gang and his proficiency in mixing fentanyl. [ 21 ] On August 6, 2019, Mr. Pelly sold an undercover officer 27.22 grams of fentanyl within a box of granola bars for $2,500. On August 12, 2019, Mr. Pelly sold an undercover officer 85.9 grams of fentanyl within a box of Ritz crackers for $7,500. [ 22 ] On September 1, 2019, Mr. Pelly sold 141.78 grams of fentanyl in a box of cereal to an undercover officer for $12,000. Previously, Mr.

Pelly had offered the undercover officer one free firearm so long as the undercover officer continued to buy fentanyl from him. The cereal box also contained one small 25-calibre Raven Arms semi-automatic handgun with three rounds of ammunition in the magazine (Count 7). [ 23 ] On September 8, 2019, Mr. Pelly sold an undercover officer 142.92 grams of fentanyl in a cereal box for $12,000, although the initial funds were $1,000 short and paid later. There was also discussion of the purchase of a 9-millimeter calibre handgun, but that sale was delayed because Mr.

Pelly said he needed to keep the handgun for a few days as someone had pulled a gun on him the night before and he was going to “deal with that today.” [ 24 ] On September 12, 2019, Mr. Pelly arranged to meet with an undercover officer to sell the 9-millimetre handgun. Mr. Pelly talked about someone working for him who now owed him money after being caught using Mr. Pelly’s profits to buy drugs. Mr. Pelly also spoke about how the fentanyl came from the “brown guys”, but he was the one who mixed the fentanyl.

He further said that the person who pulled a gun on him and stole product had now returned the drugs after being threatened. Mr. Pelley provided the undercover officer with a make-up bag containing a Smith & Wesson 9-millimetre semi-automatic handgun (Count 9). [ 25 ] On September 18, 2019, Mr. Pelly handed an undercover officer a taco kit containing 198.3 grams of fentanyl for $17,500. He was driven by his mother in her vehicle. At a meeting on September 21, 2019, Mr. Pelly told an undercover officer he had access to crates of firearms which came from the United States. [ 26 ] On October 2, 2019, Mr.

Pelley sold an undercover officer 149.14 grams of fentanyl in a Quaker Oats box for $12,500. On October 11, 2019, Mr. Pelly inquired about when more fentanyl was to be purchased as he wanted to keep the business going. He sold an undercover officer 142.63 grams of fentanyl in a popcorn box for $12,500. [ 27 ] Prior to October 21, 2019, Mr. Pelly told an undercover officer that he had a 9-millimetre calibre handgun to sell for $2,500. On October 21, he sold that handgun with nine rounds of ammunition for $2,500 and indicated he was not making a profit (Count 11).

He had lined up a new source of firearms. [ 28 ] On November 5, 2019, Mr. Pelly sold an undercover officer 30.69 grams of fentanyl in a Kleenex box for $2,750. The last sale of fentanyl occurred on November 12, 2019: 29.76 grams for $2,750. [ 29 ] Defence counsel submits that Mr. Pelly was a heavy fentanyl user and this is confirmed in other documentation. He was at the height of his addiction during the home invasion in January of 2018, and he did not address his addiction until after he was charged under information 90099 in March of 2020. He sold drugs to the undercover officers to feed his drug habit. Mr.

Pelly kept his drug use from the undercover officers. [ 30 ] Over the course of nine separate transactions, Mr. Pelly sold a total of 943 grams of fentanyl for a combined price of $82,000. The street value of the fentanyl, quantified as 33 ounces, is between $140,250 and $149,600. CIRCUMSTANCES OF THE POSSESSION FOR THE PURPOSE OF TRAFFICKING OFFENCES - INFORMATION 90099 [ 31 ] The two possession for the purpose of trafficking counts under Information 90099 arise from a separate investigation. This investigation happened after the home invasion but before the undercover operation.

There is no joint submission for these offences. [ 32 ] In July of 2018, the Abbotsford police department received information from informants that Mr. Pelly was involved in a dial-a- dope operation while residing with his mother. [ 33 ] Between July 3 and July 10, 2018, the police carried out surveillance of a residence linked to Mr. Pelly at 34576 Pearl Avenue in

Abbotsford. The police observed activity consistent with drug trafficking, including a person who attended the property six times to likely supply drugs. Garbage from the residence contained score sheets and sandwich bags with cocaine residue. A search warrant of the residence was granted on the basis of this and other information. [ 34 ] Mr. Pelly and his mother were arrested away from the residence on July 12, 2018. They were not charged until March 4, 2020. During the arrest and following a Charter warning, Mr. Pelly’s mother told police illegal drugs were in a make-up case in the living room of the residence.

Also during the arrest, one of Mr. Pelly’s cell phones rang and a female was requesting “50 D”, meaning “down” or heroin/fentanyl. An officer actually went to the location where the “down” was to be sold and observed a woman seen in prior surveillance. [ 35 ] The search warrant was executed on the Pearl Avenue residence on July 12, 2018. In Mr. Pelly’s bedroom there were empty baggies and two scales with cocaine, heroin and fentanyl residue. An envelope contained 8.2 grams of a form of fentanyl.

There was also a safe containing $2,090 cash, vials of cocaine, five bags of caffeine (often a buffing agent), two bags of purple fentanyl, and a loaded handgun magazine. [ 36 ] Scoresheets were found in the kitchen. More scoresheets were found in the living room and the make-up bag was located there. The make-up bag contained two scales, empty baggies, and two bags of cocaine. [ 37 ] In the lower level of the house, the police found drug paraphernalia, scales, a dish with fentanyl residue, sandwich bags, spoons with cocaine residue and baking soda, another buffer agent.

Fentanyl was located on a television stand and there was a pill bottle containing brown heroin/fentanyl. [ 38 ] In total, the home contained 2.25 grams of heroin/fentanyl with a street value of $420, 34.11 grams of fentanyl with a street value of $6,780, and 36.17 grams of cocaine with a street value of $2,840. [ 39 ] All counsel agree Mr. Pelly was a mid-level drug dealer, although defence counsel suggests Mr. Pelly was on the low end of that categorization. VICTIM IMPACT [ 40 ] Regarding the home invasion, limited victim impact information is contained in the Pre-Sentence Report written March 7, 2022. Mr.

Lecy and his son did not want to provide a formal impact statement to the Crown, as they did not wish to dredge up negative feelings associated with the experience. [ 41 ] Mr. Lecy did tell the Pre-Sentence writer that he and his son suffered emotional distress because of the home invasion, including difficulty sleeping. Mr. Lecy experienced trauma because a gun was pointed at him and his son. He sold the Windsor Street residence in part due to the home invasion. [ 42 ] I would only add that the marihuana operation was legal and licenced.

People expect to be safe and secure when carrying out these activities, and the home invasion must have been a harrowing experience to say the very least. [ 43 ] Regarding the drug offences, in particular the ones involving fentanyl, the victim impact on communities is brutal. As recently stated by Moldaver J. in R. v.

Parranto , 2021 SCC 46 , the trafficking of fentanyl “has altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy number one.” [ 44 ] The BC Coroners Service Report titled “Illicit Drug Toxicity Deaths in BC January 1, 2012 – October 31, 2022” summarizes all unintentional illicit drug toxicity deaths in BC from 2012 to September 30, 2022. In September of 2022 alone, there were 171 suspected illicit drug toxicity deaths, an 8% increase from the previous September. About 5.7 people died each day in September of 2022 from illicit drug toxicity. [ 45 ] When Mr.

Pelly was committing his drug offences in 2018, 1,562 people died in BC in that year from illicit drug toxicity. Specifically, 151 people died in BC in July of 2018, the month when the search warrant was executed on Mr. Pelly’s home. From 2012 to 2021, among the drug types involved in illicit drug toxicity death investigations, illicit fentanyl has increased from 5% in 2012 to 87% in 2021. [ 46 ] The Coroners Report goes on to focus on specific communities in BC. In 2018, when Mr. Pelly possessed illicit drugs for the purpose of trafficking, 41 people died in Abbotsford from illicit drug toxicity.

Forty-four people died such deaths in Abbotsford in 2019, when Mr. Pelly committed the other drug offences. [ 47 ] Regarding the victim impact of firearms offences, I can only echo what was said in R. v. Howell , [2007] O.J. No. 4585 at para. 21 : Those who engage in the unlawful trafficking of firearms can only expect stern treatment from the courts. Many of the murders, and much of the violent crime in this city involve the use of firearms.

Many of our citizens feel insecure in their communities because of the presence of guns. … [ 48 ] Although that case referred to Ontario communities, the remarks apply equally to Abbotsford. Indeed, I will end this victim impact discussion by focussing on Abbotsford. Abbotsford is a wonderful community, full of pastoral farms and bustling family neighbourhoods. But Abbotsford also has a gang problem. It has an illegal drug problem. It has an illegal gun problem. A strong message must be sent that if you decide to become a gun toting drug dealer, there will be stern consequences from the courts.

CIRCUMSTANCES OF THE OFFENDER [ 49 ] Mr. Pelly is now 27 years old, and he was between 22 and 23 years of age when he committed all these offences. He has no

criminal record. [ 50 ] According to the Pre-Sentence Report, Mr. Pelly’s father was murdered when Mr. Pelly was only three or four years old. Mr. Pelly was sexually abused by a male babysitter when he was seven. His stepfather was physically abusive. At age 15, he did have a positive relationship with a subsequent stepfather. [ 51 ] Defence counsel also indicated that Mr. Pelly was a small child and he was picked on, so he sought out older kids. [ 52 ] Mr. Pelly is in a relationship with a Ms. McNeill and they are engaged to be married. He completed Grade 10 in school, and he has had sporadic labour jobs.

He has now completed his high school equivalency while in pre-trial custody. [ 53 ] Mr. Pelly indicated in the Pre-Sentence Report that he was diagnosed with borderline personality disorder, attention deficit hyperactivity disorder, as well as anxiety and depression. He began smoking marihuana around the age of twelve which escalated to powder cocaine by age 17. At age 20, his drug use diversified to heroin and fentanyl. While in pre-trial custody, he completed the twelve session substance abuse management program. [ 54 ] A Fraser Health assessment dated August 7, 2020 states that Mr.

Pelly had been using fentanyl since age 20. He reported being clean for two months. He was diagnosed with substance abuse disorder in early remission, substance induced mood disorder, and antisocial personality traits. [ 55 ] Defence counsel again emphasized that in 2019 and earlier, Mr. Pelly would do anything to get drugs to feed his fentanyl drug habit. He would use as much as 3.5 grams of fentanyl per day at a cost of $400 per day. He sold drugs and guns to the undercover officers while he was under the influence of drugs to which he was addicted.

Those officers posed as underworld people with influence and money. [ 56 ] Mr. Pelly was not charged with the possession for the purpose of trafficking charges under Information 90090 until March of 2020, and he was not charged with the home invasion and gun/drug trafficking under Information 93480 until May of 2021, after which he was in custody. He tried to get clean as of August 2020 and he sought out counselling and met his fiancé, Ms. McNeill. [ 57 ] Mr. Pelly has achieved much since being in pre-trial custody as of June 1, 2021. He has taken virtually every course offered by the pre-trial facility. Mr.

Pelly completed modules one to five of the Healthy Relationships and Employability Skills programs. He did the three levels of the Substance Abuse Program. He finished courses called Money Management, Communication Skills, Housing Needs, Learning to Live for Life, Nutrition and Health, and What’s Next. He also completed the Substance Abuse and Living without Violence Core Programs, as well as 18 modules of Essential Skills for Success and other programs. [ 58 ] While in custody, Mr. Pelly acquired his Grade 12 equivalency with high marks in English and math.

He has plans for post secondary education while incarcerated. [ 59 ] Mr. Pelly intends to marry Ms. McNeill and she wrote a compelling letter of support. Ms. McNeill is the mother of two children and has been an instructor and now an advocate for troubled youth. Mr. Pelly’s sister, family friend, and former girlfriend wrote letters of support, focussing on his positive change in attitude. [ 60 ] I accept that Mr. Pelly made tremendous progress while in custody and he has maintained his sobriety. He spoke to the court, apologized for his actions and said the court would never see him again.

He realizes he deserves punishment, but his prior actions were fuelled by his addiction. He has learned a lot about himself, and he is now a different person.

SENTENCING PRINCIPLES Joint Submission on Information 93480 [ 61 ] The Provincial Crown and defence counsel have arrived at a joint submission under Information 93840 for a five and one-half year total jail sentence: two years for the home invasion offences, plus three and one-half years for the gun trafficking and three and one- half years for the drug trafficking, concurrent to each other but consecutive to the two years for the home invasion. [ 62 ] In the seminal case of R. v.

Anthony-Cook , 2016 SCC 43 , the court ruled that a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. [ 63 ] Based on my analysis below, I am not going to depart from the joint submission of five and one-half years jail. This jail sentence does not bring the administration of justice into disrepute nor does it offend the public interest.

The three and one-half year sentences for the gun and trafficking offences, concurrent to each other, are well within the ranges set out in case law. The two-year sentence for the home invasion is on the very low end of the range, but there are strong mitigating factors and the totality principle to justify the position. Home Invasion Offences - Information 93480 [ 64 ] Mr. Pelly has pled guilty to the offences of break and enter to a dwelling house (s. 348(1)(d)), robbery (s. 344(1)(b)) and use of an imitation firearm in the commission of the offence of robbery (s. 85(2)).

These offences constitute the home invasion on January 18, 2018. As stated above, this was a harrowing incident for a father and son who had a legal and licenced marihuana operation on their property. [ 65 ] The home invasion features the following aggravating factors: 1. Mr. Pelly knew the home was occupied, a statutory aggravating factor under s. 348.1 of the Criminal Code ; 2. Although Mr. Pelly was not the operating mind, the home invasion was a planned endeavour involving several perpetrators. Mr.

Pelly kicked in the door, rounded up the son by gunpoint, and stole cash from Mr. Lecy; 3. Mr. Pelly was armed with at least an imitation firearm, which carries with it an implied threat of violence; 4. Mr. Pelly was masked; 5. Mr. Pelly forcibly confined the two victims; 6. One of the victims was a minor, an aggravating factor under s.718.2 (a)(ii) of the Criminal Code . [ 66 ] The mitigating factors apply to this home invasion and all other convictions: 1. Mr. Pelly is a youthful offender; 2. He has no criminal record; 3. He had a difficult upbringing and has some mental health concerns; 4.

He struggled with a longstanding drug addiction that contributed to his offending; 5. Most significantly, he entered guilty pleas at an early stage, saving the victims and the public from the time and expense of perhaps several complex trials. The trials would undoubtedly have addressed the undercover operation and the search warrant; 6. He has completed an impressive list of courses and programs while in custody; 7. He has strong family support; 8. His remorse. [ 67 ] The home invasion sentencing cases are very fact specific, but deterrence and denunciation come to the forefront.

The appropriate range for home invasion offences involving some form of firearm range from seven years on the high end ( R. v. Ertmoed , 2016 BCSC 344 ), four to five years in the mid-range ( R. v. Dukeshire et al , 1999 BCCA 484 ) and two years on the most lenient end ( R. v. Eakins, 2016 BCCA 194 ).

The mandatory minimum of one year for an offence with a firearm or imitation firearm under s. 85(3) has been repealed under Bill C-5. [ 68 ] Given the aggravating and mitigating factors here, and the totality principle, the joint submission for a two-year jail sentence is on the very low end of the range but is acceptable. With the operation of s. 85(4), a one-year jail sentence will be concurrent on each of Counts 1 and 2, and one year jail will be consecutive on Count 6. [ 69 ] Under the joint submission, I take into account the totality principle and the fact that Mr.

Pelly will be serving at least another three and one-half years for the firearms and drug trafficking offences under the same file. Firearms Trafficking Offences – Information 93480 [ 70 ] During the undercover operation, Mr. Pelly gave or sold three prohibited or restricted firearms to undercover officers. These offences are all contrary to s. 99(1) (

a) of the Criminal Code and carry a mandatory minimum sentence of three years. Bill C-5 did not repeal this mandatory minimum, but the joint submission is for a higher jail sentence in any event. [ 71 ] The aggravating factors specific to the firearms trafficking counts are: 1. There were three separate transactions; 2. The handguns were either loaded or came with loaded magazines; 3. Mr. Pelly believed he was providing the firearms to persons involved in the drug trade or underworld activity; 4. Mr. Pelly profited from this gun trafficking, either by a direct sale or as part of a bargain to sell more drugs.

However, any profits were likely spent on his drug addiction. [ 72 ] The same mitigating factors apply as above, including: Mr. Pelly’s age, lack of a record, difficult upbringing, drug addiction, guilty plea, and progress while in custody. Defence counsel emphasizes that this gun trafficking was done to feed Mr. Pelly’s drug habit. [ 73 ] In R. v. Boesel , 2017 BCSC 970 , the court cited with approval comments from R. v. Martin (24 January 2014), Brantford Court File CR-10-96 (Ont.

S.C.J.) regarding the seriousness of these firearm trafficking offences: …A prohibition against gun trafficking is a necessary adjunct to gun control. It is at its worst, a means by which those inclined to commit crime acquire a weapon that significantly alters the power balance of any proposed or actual victims.

In a way, it’s one of the highest forms of moral abrogation in that the offender is facilitating the acquisition of a weapon without knowing what the weapon is going to be used for, but to some extent, we have to impute to the accused a knowledge that the acquisition by the other person is for no good purpose… [ 74 ] The Boesel case reviewed sentencing cases involving firearm trafficking and the general range is three to seven years.

Again, given the mitigating factors and the joint submission that the total sentence under this information ought to be five and one-half years, a three and one-half year jail sentence is appropriate.

Trafficking in Fentanyl - Information 93480 [ 75 ] In nine separate transactions over three months, Mr. Pelly trafficked 943 grams of fentanyl at a wholesale level to undercover officers for a combined price of $82,000. [ 76 ] The street value was between $140,250 and $149,600. [ 77 ] This offence is contrary to s.5(1) of the Controlled Drugs and Substances Act , and the mandatory minimums have been repealed under Bill C-5. [ 78 ] The aggravating factors specific to the drug trafficking are: 1. Mr. Pelly’s trafficking was part of an ongoing criminal enterprise; 2. Mr.

Pelly was a mid-level drug dealer, and he had at least one person selling drugs under him. Defence counsel argues that Mr. Pelly was at the low end of mid level dealing, but $82,000 is no small sum. Again, much of Mr. Pelly’s profit likely was spent on his addiction; 3. Mr. Pelly knew he was trafficking in fentanyl and it was of relatively high potency. [ 79 ] The same mitigating factors apply as in the gun trafficking counts, and Mr. Pelly was selling drugs at least in part to feed his own habit. [ 80 ] Our Court of Appeal in R. v.

Gill , 2022 BCCA 127 at para. 22 said that: There is no question that the moral culpability of offenders who traffic in fentanyl and its analogue, carfentanil, is very high. This Court has recognized that general deterrence and denunciation must feature prominently in such cases in light of the serious, unabated public health crisis caused by the street sale of drugs containing fentanyl… I have already set out the sad statistics for illicit drug toxicity deaths in our province. [ 81 ] In R. v.

Toth , 2017 BCSC 501 , the court concluded that for a serious, sustained, and relatively sophisticated mid-level operation, where a supplier is supplying to street-level dealers, the range is between 28 months and seven years imprisonment. [ 82 ] Taking into account the mitigating factors such as Mr.

Pelly’s young age, lack of record, and guilty plea, a jail sentence of three and one-half years for the drug trafficking is appropriate. [ 83 ] Using the totality principle, counsel have agreed that the gun and drug trafficking sentences of three and one-half years should be concurrent to each other but consecutive to the home invasion offences. The authorities demonstrate that both consecutive and concurrent sentences have been imposed for offenders facing both drug and weapon offences (see R. v. Lee , 2018 BCCA 428 ).

There is no question that the home invasion was entirely distinct in time and nature from the later trafficking offences which occurred during the undercover operation. [ 84 ] In

summary, I accede to the joint submission under Information 93480. A total jail sentence of five and one-half years is appropriate, although the sentence for the home invasion is on the low end of the range.

Possession for the Purpose of Trafficking Offences – Information 90099 [ 85 ] The most contentious issue in this case is the length of the jail sentence for the two possession for the purpose of trafficking offences under Information 90099, whether that sentence ought to be concurrent or consecutive to the five and one-half year joint submission, and whether those offences should increase the five and one-half year sentence taking into account the totality principle. [ 86 ] The Federal Crown contends that a three and one-half year jail sentence is appropriate, and it should be consecutive to any other sentence, meaning Mr.

Pelly should face a nine-year total jail sentence. [ 87 ] Defence counsel argues that such a jail sentence is too high and it ought to be concurrent, meaning Mr. Pelly should face a total five and one-half year jail sentence. Defence counsel submits that a nine year sentence is simply too punitive for a young man with no prior record and who is turning his life around. Defence counsel suggests that two or two and one-half years jail is appropriate for Information 90099, but concurrent to the other five and one-half year sentence. A.

Range of sentence for Information 90099 [ 88 ] What is the sentence range for the two possession for the purpose of trafficking offences in July of 2018? As stated in R. v. Toth above, for a relatively sophisticated mid-level operation, where a supplier is supplying to street-level dealers, the range is between 28 months and seven years imprisonment. As stated in R. v. Gill above, the moral culpability for those who traffic in fentanyl is very high. Mr. Gill received a four-year sentence for trafficking less than 20 grams of fentanyl to undercover officers on two occasions.

He was 19 without a record. [ 89 ] One must remember that the sentencing range of 18 to 36 months set out in R. v. Smith , 2017 BCCA 112 focussed on first-time street level traffickers of fentanyl, not mid-level dealers. That said, defence counsel has provided a number of cases where offenders committed more than one trafficking type of offence and received jail sentences just under two years ( R. v. Riera , 2019 BCPC 36 and R. v.

Mani , 2018 BCPC 100 ). [ 90 ] The aggravating factors under Information 90099 are somewhat similar to those in the later trafficking offences under Information 93480: it was a drug operation out of Mr. Pelly’s home and not a one time incident; he was a mid level dealer, albeit at the

lower range given the smaller amounts; and he must have known some of the drugs he was selling contained potentially harmful fentanyl. The mitigating factors again include his young age and lack of record, his difficult upbringing, the guilty pleas and remorse, his drug addiction and his great progress while in custody. [ 91 ] I am more inclined to accept defence counsel’s upper range of two and one-half years for the two possession for the purpose of trafficking offences in July of 2018. These offences suggest Mr.

Pelly was a mid-level dealer operating out of his home, but they were not nearly as serious as his trafficking in 2019, for which he will receive a three and one-half year jail sentence. In July of 2018, the total street value of the illegal drugs was just over $10,000; in 2019, Mr. Pelly sold $82,000 worth of fentanyl with a street value of over $140,000. [ 92 ] By no means am I diminishing the possession for the purpose of trafficking offences in 2018. Three types of drugs were involved and they were being sold to real people who could then die from drug toxicity.

At least the 2019 drug deals involved undercover officers who took the dangerous fentanyl off the street. B. Concurrent vs. Consecutive [ 93 ] The Federal Crown submits that the jail sentence for the possession for the purpose of trafficking offences under Information 90099 should be consecutive to the joint submission of five and one-half years jail under Information 93480.

Conversely, defence counsel seeks that the jail sentence under Information 90099 be concurrent to the trafficking offences under Information 93480, or that the overall sentence be five and one-half years applying the totality principle. [ 94 ] Our Court of Appeal in Lee , cited above, confirmed that the test for imposing a consecutive or concurrent sentence is whether the acts constituting the offence were part of a linked series of acts within a single endeavour (see s.718.3(4) (

b) of the Criminal Code ). It is a matter within the discretion of the sentencing judge, having regard to the sentencing principles such as totality, proportionality, circumstances of the offence and the culpability of the offender. [ 95 ] I have decided that the jail sentence for the two possession for the purpose of trafficking offences under Information 90099 must be consecutive to the other trafficking offences under Information 93480 and any other sentence. The offences under 90099 happened in July of 2018, much earlier in time than the 93480 trafficking in the latter part of 2019.

The earlier offences arose out of a home operation, and although there was a supplier and individual buyers, relatively small amounts were involved. The later trafficking was almost always at wholesale levels to a perceived underworld organization. [ 96 ] The offences under Information 90099 cannot be linked as a single endeavour with the different and more serious trafficking which occurred much later under Information 93480. The files are distinct. Moreover, the potential victims were different. Under 90099, the proposed buyers were individuals like the woman asking for 50 down.

Under 93480, large amounts of fentanyl were being sold to purported gangsters for distribution down the line. [ 97 ] I realize Mr. Pelly was probably carrying out all these crimes to feed a drug habit, but that does not make the crimes a single endeavour. This mitigating factor may be considered under the totality principle. [ 98 ] Although the jail sentence under Information 90099 must be consecutive to any other sentence, I still must apply the totality principle below. OVERALL SENTENCE AND THE TOTALITY PRINCIPLE [ 99 ]

Section 718.2 of the Criminal Code states “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.” Totality serves the principles of restraint and proportionality and offers one last check to ensure the overall sentence is not unduly harsh or disproportionate. [ 100 ] The first aspect of totality requires that the total sentence imposed be reasonably proportional to the offender’s criminality or culpability, taking into account the circumstances of each offence and the personal circumstances of the offender.

The second aspect prevents the courts from imposing a total sentence that exceeds the principle of proportionality or discourages attempts at rehabilitation. [ 101 ] A two-step procedure for totality has been endorsed in BC ( R. v. Au , 2006 BCCA 533 ). First, determine the appropriate sentence for each distinct offence, including whether it should be served consecutively.

Secondly, take a last look to ensure the total sentence is just and appropriate. [ 102 ] I have accepted the joint submission of five and one-half years total jail for the home invasion and gun and drug trafficking offences under Information 93480. Two years attaches to the home invasion and three and one-half years attaches to the gun trafficking and drug trafficking, concurrent to each other but consecutive to the home invasion. [ 103 ] In isolation, the sentence for the possession for the purpose of trafficking offences under Information 90099 should be two and one-half years.

However, a total sentence of eight years is too harsh for Mr. Pelly, a young man who is trying to turn his life around and who has already begun his rehabilitation journey. I accept that he was addicted when these crimes occurred. The sentence here will be long but it ought not crush his spirit. [ 104 ] That said, a five and one-half year global sentence is too low a global sentence for a man who regularly engaged in drug trafficking with dangerous consequences to the Abbotsford community.

Overall, a stern message must be sent that if you engage in drug trafficking, especially trafficking of fentanyl, there will be significant consequences. [ 105 ] I take one last look at the seriousness of all these offences and the effect they have had on the general community as well as the Lecy family, while recognizing the mitigating factors such as the guilty plea, Mr. Pelly’s young age, his former addiction and his considerable progress while in custody.

[ 106 ] Taking into account all the above analysis and the totality principle, the total jail sentence is reduced to seven years. The jail sentence under Information 90099 will be reduced to 18 months consecutive to the five and one-half month joint submission. [ 107 ] Mr. Pelly has time served of 590 actual days, which equates to 885 days of enhanced credit. This amounts to over two years and five months of enhanced credit. Even though Mr.

Pelly’s pre-trial custody was at times difficult due to COVID-19 lockdowns and other factors, there is no basis to depart from the 1.5 to 1 enhanced credit prescribed in s. 719(3.1) of the Criminal Code . There is no such thing as COVID-19 credit in BC ( R. v. Costello , 2020 BCSC 1206 ). SENTENCE [ 108 ] Mr. Pelly please stand up. The net effect of the jail sentence I am imposing is seven years jail less enhanced time served of 885 days.

You will have 1,122 days, or just over 37 months, remaining to serve on Information 93480, and another eighteen months to serve on Information 90099. [ 109 ] Under file 93480, your jail sentence is as follows: Home Invasion Count 1, the break and enter: one year or 365 days, less enhanced credit of 365 days, concurrent to Count 2 but consecutive to all other sentences; Count 2, the robbery: one year or 365 days, less enhanced credit of 365 days, concurrent to Count 1 but consecutive to all other sentences; Count 6, the robbery using firearm: one year or 365 days, less enhanced credit of 365 days, consecutive to all other sentences.

Firearms and Drug Trafficking Count 7, transfer of Raven Arms pistol: three and one-half years or 1,277 days, less enhanced credit of 155 days, leaves 1,122 days jail remaining, concurrent to Counts 9, 11 and 13 but consecutive to any other sentences; Count 9, transfer of Smith & Wesson pistol: three and one-half years or 1,277 days, less enhanced credit of 155 days, leaves 1,122 days jail remaining, concurrent to Counts 7, 11 and 13 but consecutive to any other sentences; Count 11, transfer of Colt pistol: three and one half years or 1,277 days, less enhanced credit of 155 days, leaves 1,122 days jail remaining, concurrent to Counts 7, 9 and 13, but consecutive to all other sentences; Count 13, Drug trafficking: three and one half years or 1,277 days, less enhanced credit of 155 days, leaves 1,122 days remaining, concurrent to Counts 7, 9, and 11, but consecutive to all other sentences. [ 110 ] Under file 90099, your jail sentence is as follows: Count 2, PPT heroin/fentanyl: eighteen months, concurrent to Count 3, but consecutive to all other sentences; Count 3, PPT fentanyl/cocaine: eighteen months, concurrent to Count 2, but consecutive to all other sentences.

Ancillary Orders [ 111 ] For all nine counts under both files, a mandatory firearms prohibition will be imposed under s.109 for life, under both Parts (

a) and (b). [ 112 ] Count 1 under Information 93480 is a primary designated offence. Pursuant to s. 487.051(1), a DNA sample will be taken from you for inclusion in the National DNA databank. [ 113 ] All other Counts on both files are secondary designated offences.

I am satisfied that pursuant to s. 487.051(3), a DNA sample will be taken from you for inclusion in the DNA databank. [ 114 ] Under Counts 1, 2 and 6 of Information 93840, you will have no communication with Shawn Lecy or his son during your term of imprisonment, pursuant to s. 743.21. [ 115 ] There shall be a forfeiture of all exhibits. [ 116 ] All victim fine surcharges are waived on all counts. _____________________________ The Honourable Judge G.J. Brown Provincial Court of British Columbia