R. v. Riera, 2019 BCPC 36

Citation: R. v. Riera 2019 BCPC 36 Date: 20190307 File Nos: 82716-3C, 82742-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSEPH CHARLES RIERA REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. LAMPERSON Counsel for the Crown: B. Lansdowne Counsel for the Defendant: S. Taylor Place of Hearing: Nanaimo , B.C. Date of Submissions: February 25, 2019 Date of Sentence: March 7, 2019 A Corrigendum was released by the Court on March 26, 2019. The corrections have been made to the text and the Corrigendum is appended to this document.

Introduction [ 1 ] Before me for sentencing is Joseph Charles Riera. Mr. Riera has pled guilty to three criminal charges. [ 2 ] He pled guilty to Count 1 and Count 3 on Information 82716-C3. [ 3 ] In Count 1 he is charged that on or about the 15 th day of January, 2017 at or near Parksville, British Columbia he did unlawfully possess heroin and fentanyl for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act. [ 4 ] In Count 3 he is charged that on the same date and at the same place he did store a Enfield 303 Bolt Action rifle in a manner contravening section 5(1)(

b) of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations contrary to section 86(2) of the Criminal Code . [ 5 ] He also pled guilty to the single count on Information 82742-1 which charges that from the 1st day of December, 2018 to the 2nd day of December, 2018, inclusive, at or near the city of Nanaimo, British Columbia he did unlawfully possess heroin and fentanyl for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act . [ 6 ] Crown counsel submits that the appropriate global sentence in this case is six and one half years jail with 30 months being imposed for the possession for the purpose of trafficking offence committed on January 15, 2017 and a consecutive 48 months being imposed for the possession for the purpose of trafficking offence committed from December 1, 2018 to December 2, 2018, inclusive. [ 7 ] The Crown also asks the Court to impose a mandatory weapons prohibition pursuant to

section 109 of the Criminal Code , an order for the forfeiture of items seized in the course of the investigation and a DNA order. [ 8 ] Defence counsel submits that the appropriate global sentence is one of two years less a day jail followed by three years of probation.

The defence made no submissions as to the ancillary orders requested by the Crown. [ 9 ] In determining the appropriate sentence in this case, I must consider the circumstances of the offences, the circumstances of the offender, the purposes and principles of sentencing set out in the Criminal Code and in the Controlled Drugs and Substances Act , the aggravating and mitigating factors and past sentencing decisions.

Circumstances of the Offences [ 10 ] I will first set out the circumstances relating to the offences set out in Counts 1 and 3 on Information 82716 C3. [ 11 ] On December 15, 2016 a realtor who was showing a house for sale and located at 255 Lodgepole Drive, Parksville, B.C., observed two separate short visits to the residence (the “residence”). [ 12 ] On January 8, 2017 the RCMP who were conducting surveillance of the residence observed a man leave the residence, get into a vehicle and drive away. A police officer stopped the vehicle which had fogged up windows and a broken taillight.

The driver appeared nervous and voluntarily turned over a flap containing .02 grams of heroin. He said he just got the drugs from the residence from a guy named Jay with a last name starting with R. [ 13 ] The police conducted further surveillance of the residence on January 10 and 15, 2017. They observed numerous people coming and going from the residence who they believed were purchasing drugs.

On January 15, 2017 a constable stopped a person leaving the residence and found that he possessed 0.64 grams of heroin and fentanyl. [ 14 ] The police then obtained a search warrant for the residence which they executed shortly before 7 PM on January 15. Constable Sharpe knocked on the door and heard a man say “Fuck off, I don’t have any, I’m all out”. The constable knocked again and received a similar response. Constable Sharpe knocked a third time and said “RCMP”.

The man then responded “sorry, sorry” and opened the door. [ 15 ] Constable Sharpe recognized the man as Joseph Riera and arrested him for possession of a controlled substance for the purpose of trafficking. Constable Sharpe searched Mr. Riera incidental to arrest and located $80 in his front jeans pocket and a total of $1,885 in his wallet. In Mr. Riera’s wallet the constable also found a flap containing 1.3 grams of heroin and fentanyl. [ 16 ] The police removed Mr. Riera from the residence and began their search.

They found a female in the upstairs bathroom with a syringe, lighter and tinfoil. [ 17 ] The police located two safes in the master bedroom. In the first safe they found a Ziploc bag containing 41.08 grams of a mixture of heroin, fentanyl and caffeine as well as two baggies of caffeine in the amounts of 0.91 grams and 4.44 grams respectively. They also found in the first safe two cell phones, a box of 12 gauge shotgun ammunition and cards in the name of Mr. Riera.

The cards included a birth certificate and a social insurance number card. [ 18 ] In the second safe the police found another cell phone and two bottles containing methadone. [ 19 ] On a bedside table in the master bedroom they found a scale with drug residue, a 100 gram test weight and unused flaps. In the drawer of the bedside table they found Ziploc bags with drug residue and another cell phone. [ 20 ] Under the mattress in the master bedroom the police found a 12 gauge pump action shotgun with pistol grip and an Enfield 303 bolt action rifle.

The rifle had rounds of ammunition in the magazine and a round in the chamber. The police then found a box of 12 gauge shotgun shells in the closet of the master bedroom. [ 21 ] I was advised that according to a Crown expert the mix of heroin and fentanyl sells for $180 - $300 a gram. Therefore, if sold at

the gram level, 40 grams would sell for $7,200 - $12,000. [ 22 ] Following his arrest, Mr. Riera was released on an Undertaking Given to an Officer in Charge and on a Promise to Appear. [ 23 ] I will now set out the circumstances relating to the offence set out in Count 1 on Information 82742-1. [ 24 ] The police began another investigation of Mr. Riera on November 15, 2018. They obtained a judicial authorization for a tracking device to be applied to a cell phone they believed to be his.

The tracking device, which was activated on November 16, 2018 showed the location of the cell phone at different times. [ 25 ] Over a period of approximately two weeks beginning on November 18, 2018 and ending on December 1, 2018 the cell phone travelled from the Departure Bay ferry terminal in Nanaimo to the Horseshoe Bay ferry terminal near Vancouver and back five times.

Each of the five return trips were made in a single day. [ 26 ] The tracking device showed that the cell phone made return trips between Departure Bay and Horseshoe Bay on November 18, 22, 26, 27 and on December 1, 2018. [ 27 ] On November 18, the phone was at Mr. Riera’s residence on Broadland Road in Errington and then travelled to Abbotsford where he formerly lived. [ 28 ] On November 21, the tracking device showed that the cell phone was in Parksville where Mr. Riera was observed at the same time. [ 29 ] On November 22, Dennis Quesnelle , who at the time was Mr.

Riera’s roommate and is now his co-accused on Information 82742, was observed by the police to leave the Departure Bay ferry terminal and get into Mr. Riera’s vehicle. The police then observed the vehicle make stops at some residences in Nanaimo which they associated with drug activity. [ 30 ] On December 1, 2018, the police observed Mr. Riera and Mr. Quesnelle drive to the Departure Bay ferry terminal. They then observed Mr. Quesnelle exit the vehicle and walk onto the 5:55 PM ferry. [ 31 ] Three police officers also boarded the ferry to conduct surveillance. They observed that Mr.

Quesnelle spent the entire trip in the bathroom. When the ferry reached Horseshoe Bay, Mr. Quesnelle immediately purchased a return ferry ticket and then walked to a silver SUV. He got into the SUV, rode around in it for a couple minutes, returned then walked back into the Horseshoe Bay ferry terminal building. He boarded the ferry back to Departure Bay. Once again he spent the trip in the bathroom. Upon arriving in Departure Bay at approximately 9:50 PM, Mr. Quesnelle walked off the ferry and got into Mr. Riera’s vehicle. [ 32 ] The police then arrested both Mr. Riera and Mr. Quesnelle. The police searched Mr.

Quesnelle and the backpack he was carrying incidental to his arrest. They located a Ziploc bag containing 40.6 grams of a heroin and fentanyl mixture in Mr. Quesnelle’s front pocket. In the backpack the police found bear spray, a retractable baton and several knives. Also in the backpack they found a few flaps containing cocaine and heroin and fentanyl, a drug kit and a digital scale. The police found $1,000 in cash in Mr. Riera’s vehicle. [ 33 ] Following the arrest of Mr. Riera and Mr. Quesnelle, the police obtained a warrant to search the residence they then shared at 1543 Broadland Road in Errington.

In that residence they located, amongst other things, packaging material, used baggies with heroin residue, a small amount of methamphetamine and a crossbow. [ 34 ] While in custody, Mr. Riera gave a lengthy tape recorded warned statement to the police. In his statement he was initially in denial and then went on to admit that he is addicted to heroin, that he purchases significant amounts, that he and Mr. Quesnelle use some of it and that he sells some of it to friends and others. Circumstances of the Offender [ 35 ] Mr. Riera was born in Vancouver and is 61 years of age.

He has four sisters, three of whom have written and submitted letters of support. [ 36 ] Defence counsel provided some background information about his client. Mr. Riera graduated from McGee Secondary School in 1975 and then went to work as a courier. In 1977 he started his own business as a mobile disc jockey and doing sound and video recording and engineering. In 1980 he took a course in biomedical electronics. After that he worked for the Fraser Arms Hotel as a disc jockey and designing music/video systems. He also worked for a time as a front desk manager at the hotel.

After that he had his own computer business. [ 37 ] According to Mr. Riera’s sisters, he was very close to their mother. He lived with her in Parksville for a few years and remained in her home for an additional year after she died in 2010. [ 38 ] I understand from his sisters’ letters of support that the year their mother passed away Mr. Riera’s girlfriend became pregnant, that he supported her through her pregnancy and that after giving birth she left the hospital without the baby. I understand further that Mr.

Riera stayed at the hospital and was willing to care for the baby but was told after sometime that a mandatory DNA test showed that he was not the father and that he had no rights towards the child. Mr. Riera’s sisters believe that his drug addiction developed after this. [ 39 ] Defence counsel advised the Court that Mr. Riera’s addiction really set in after he separated from his wife in 2016. He advised that around that time Mr. Riera had dental problems and that his landlord, who had Crohn’s disease, provided him with opiate based painkillers and later with heroin. [ 40 ] Counsel told the court that Mr.

Riera became a chronic heavy daily user of heroin. Mr. Riera began purchasing heroin in larger quantities at a reduced price for his use and the use of his friend and room-mate, Mr. Quesnelle. He also sold the drugs to friends (often

at a reduced price) and to others to support his habit and that of Mr. Quesnelle. Mr. Riera acknowledges that he obtained and possessed heroin and fentanyl in fairly large quantities but says that he was not a mid-level drug dealer in that he never sold it to lower-level dealers for resale. He says that he purchased and sold the drugs to cover the cost of his own use and never earned a profit. [ 41 ] Mr. Riera says that he did not inject heroin/fentanyl but rather smoked it. The result was that he was using larger amounts than most addicts.

He says he was personally going through 1 ½ to two grams each day. [ 42 ] Following his arrest, Mr. Riera gave a lengthy warned statement to the police in which he ultimately admitted to his offending and made it clear that he was sick and tired of his lifestyle and really wanted help. [ 43 ] Mr. Riera appeared before me on January 10, 2019 ready for his sentencing hearing. Unfortunately, due to a lack of court time, it could not proceed that day. Defence counsel advised the Court that Mr. Riera could not control his addiction and wanted to go into custody to cease using heroin and begin his recovery. Mr.

Riera then surrendered himself to the sheriffs and has been in custody since that time. Principles and Purposes of Sentencing [ 44 ] The purpose of sentencing is set out in

section 718 of the Criminal Code . The

section reads 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 acknowledgement of the harm done to victims and to the community.

Section 718.1 provides that it is a fundamental principle that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 45 ] With respect to principles of sentencing for offences under the Controlled Drugs and Substances Act , section 10(1) reads: 10(1) Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances of offenders and acknowledging the harm done to victims and to the community. Aggravating and Mitigating Factors [ 46 ] The aggravating factors in this case include the following: • One of the controlled substances involved is fentanyl, a

Schedule 1 substance which is much more dangerous than cocaine or heroin. • Each offence involves possession of approximately 40 grams of mixed heroin and fentanyl. • Mr. Riera committed the second offence of possession of heroin and fentanyl for the purpose of trafficking 23 months after committing the first offence and while still on bail for the first offence; • Mr.

Riera was actively involved in acquiring further supplies of drugs – there were five return ferry trips between Vancouver Island and the Lower Mainland during the two weeks from November 18 to December 1, 2018; • Weapons were involved – a 12 gauge shotgun with pistol grip and a 303 rifle were located under the mattress in the master bedroom and close to the supply of heroin/fentanyl; the magazine and chamber of the rifle were loaded with rounds of ammunition; the backpack seized from Mr.

Quesnelle at the Departure Bay ferry terminal contained a retractable baton, bear spray and several knives. [ 47 ] The mitigating factors in this case include the following: • Mr. Riera is 61 years of age and has no criminal record; • Mr. Riera was employed and a contributing member of society for most of his adult life. • He has pled guilty to the three offences thereby avoiding two trials and acknowledging responsibility for his offending; • He engaged in the possession and sale of heroin/fentanyl to support his own opiate addiction and not for profit;

• He acknowledges his drug addiction and sincerely desires treatment as shown by the fact that he surrendered himself into custody on January 10, 2019. • There is no evidence that Mr. Riera was a mid- level drug trafficker in the sense that he engaged in selling drugs to lower lever drug dealers for resale. Coroner’s Report [ 48 ] The Crown provided the Court with a British Columbia Coroners Service Report regarding Illicit Drug Overdose Deaths in B.C. According to the report there were 1,489 suspected drug overdose deaths in B.C. in 2018. Of those, approximately 85% involved fentanyl.

In 2018 there were more than 4.5 times as many illicit drug overdose deaths in B.C. as motor vehicle accident deaths. This report clearly shows the extreme danger and severe consequences of fentanyl use as well as its prevalence in British Columbia. Sentencing Case Law [ 49 ] The Crown relies on the following cases: • R. v. Vagh , 2018 BCPC 349 ; • R. v. Brown, 2018 BCPC 228 ; • R. v. Mann , 2018 BCCA 265 ; • R. v. Lee , 2018 BCCA 428 ; • R. v. Chin [2017] B.C.J. 598 (BCSC) ;and • R. v. Forsberg , Victoria Registry unreported (BCPC). [ 50 ] The defence relies on the following cases: • R. v.

Harrison , 2018 BCSC 2056 ; • R. v. Shah, [2018] B.C.J. No. 6895 ; • R. v. Mani, [2018] B.C.J. No. 807 ; • R. v. Johal , [2018] B.C.J. No. 618 ; • R. v. Creuzot , [2017] B.C.J. No. 1250 . [ 51 ] In the seminal case of R. v. Smith , 2017 BCCA 112 the British Columbia Court of Appeal considered the proliferation of fentanyl and the fatal consequences of its illegal sale and distribution.

The Court noted that fentanyl is 100 times stronger than morphine and found that the risks caused by illicit fentanyl justify imposing significantly higher penalties for trafficking in fentanyl than for trafficking in other dangerous drugs such as heroin. The Court stated that denunciation and deterrence must generally be given primacy in cases involving fentanyl. It held that even for a first offender the normal range begins at 18 months imprisonment and might well exceed 36 months where the offender is higher up the chain of sale or distribution.

The Court agreed that ranges of sentence are “merely guidelines” rather than “straightjackets” and acknowledged that in cases where the circumstances of the offender and/or the offence are exceptional a sentence below the suggested range may be appropriate. [ 52 ] I have read all of the cases provided by the Crown and by the Defence.

I note that the case before me differs from all of those provided by counsel in that none of the cases provided involve sentencing an offender for both an initial offence of trafficking or possession for the purpose of trafficking and for a second offence of trafficking or possession for the purpose of trafficking while on bail for the first offence. In the present case there are approximately 23 months between the initial offence and the second offence. I note that the two possession for the purpose of trafficking offences to which Mr.

Riera has pled guilty are very similar in that they each involve approximately 40 grams of mixed heroin and fentanyl. Mr. Riera’s active opiate addiction continued through the intervening time. [ 53 ] The second offence is more serious in that it was committed while he was on bail for the first. [ 54 ] In considering the cases relied upon by counsel, I will compare each case with each individual offence committed by Mr. Riera.

I will ultimately have to decide whether the sentence I impose for each of the two drug offences are to be served consecutively or concurrently. [ 55 ] I will now consider the six cases relied upon by the Crown. I find that while they are helpful in a general way, they are distinguishable either because the circumstances of the offender differ from those of Mr. Riera or because the circumstances of the offences are more serious. [ 56 ] The first case referred to by the Crown is R. v. Vagh . Mr. Vagh pled guilty in Provincial Court in Campbell River to possessing heroin and fentanyl for the purpose of trafficking.

He was 37 years of age and had no prior criminal record. [ 57 ] The circumstances of the offence are very serious. Mr. Vagh fled from the police before being arrested. He struck a police officer with the car he was driving, lifting him off the ground onto the hood and throwing him clear of the vehicle. As he sped away at a high rate of speed he drove by an elementary school and ignored a stop sign in the process. [ 58 ] Following his arrest and a search of his backpack the police seized cash totalling $47,475 and 410 spitballs of heroin and

fentanyl mixed weighing a total of 72.28 grams. They also seized 30 spitballs of powder cocaine, 74 spitballs of crack cocaine and 39 spitballs of crystal methamphetamine. When searching Mr. Vagh’s apartment the police found packaging material, a cash counter and sales ledgers. [ 59 ] Judge Flewelling imposed a sentence of 40 months in custody. [ 60 ] I find this case to be distinguishable from the case before me. Unlike Mr. Riera, Mr. Vagh did not have an addiction problem and the sole reason for his offending was for profit. The significance of Mr.

Vagh’s enterprise is evident from the quantity and value of the drugs he possessed as well as the large amount of cash he held. The mere fact that he required a cash counter indicates that he was generating large amounts of money from his drug sales. [ 61 ] The second case provided by the Crown is R. v. Brown . Mr. Brown, who was 52 years of age and seriously addicted to drugs, was convicted after trial by Judge Blake in Provincial Court in Victoria on three counts of possession of controlled substances for the purpose of trafficking. The substances were methamphetamine, cocaine and fentanyl.

At the time of his arrest, Mr. Brown had in his possession 24.8 grams of fentanyl mixed with caffeine, 7.8 grams of methamphetamine, 2.7 grams of cocaine and $2,870 in cash. Mr. Brown had 36 prior convictions. In 2013, he was convicted of possessing a

schedule 1 substance (other than fentanyl) for the purpose of trafficking and received a 300 day jail sentence. In 1984 he was convicted of trafficking in a restricted drug and received a sentence of three months’ imprisonment. He was convicted of fraud in July 2016 and received a sentence of 89 days. Mr. Brown was on probation at the time that he committed the drug offences in question. [ 62 ] Judge Blake rejected Mr.

Brown’s testimony at trial and noted that at the time of sentencing he continued to deny his guilt. [ 63 ] On the charge of the possessing fentanyl for the purpose of trafficking Judge Blake imposed a jail sentence of 48 months. He imposed 30 months concurrent on the charge of possessing methamphetamine for the purpose of trafficking and 24 months concurrent on the charge of possessing cocaine for the purpose of trafficking. [ 64 ] Clearly, this case is distinguishable from Mr. Riera’s case in that Mr.

Brown had a very lengthy prior criminal record, including convictions for related offences, and did not accept any responsibility for his offending. Unlike Mr. Riera, Mr. Brown did not show any desire or willingness to address his drug addiction. [ 65 ] In R. v. Mann , two brothers engaged in a joint enterprise that involved dial-a-dope trafficking in fentanyl and carfentanil.

They were sentenced in Provincial Court in Abbotsford. [ 66 ] One brother, Karan-Jit, pled guilty to four offences including uttering a threat to cause death or bodily harm, occupying a vehicle knowing there was a non-restricted firearm in the vehicle, trafficking in fentanyl and heroin and possession of fentanyl for the purpose of trafficking. [ 67 ] The other brother, Sarabjit, pled guilty to 12 offences including six offences of trafficking in fentanyl and heroin, one offence of possession of fentanyl for the purpose of trafficking, one offence of trafficking in carfentanil, two offences of possession of carfentanil for the purpose of trafficking, one offence of possession of cocaine for the purpose of trafficking and one offence for possession of a loaded restricted handgun.

The brothers were found to have used a mortar and pestle for mixing fentanyl with other substances. Such crude mixing methods result in an uneven distribution of the fentanyl causing “hot spots” significantly increasing the risk of death by overdose. The drugs sold by Karan-Jit on a particular day contained 14% fentanyl, a massively high concentration far in excess of the 1% - 2% ratio traffickers generally aim to achieve. [ 68 ] Carfentanil is about 100 times more potent than fentanyl. [ 69 ] The brothers’ motivation for trafficking in drugs was to earn a large profit.

In a text message to an undercover officer posing as a buyer, Sarabjit stated “I make more in a year than your (sic) whole life.” [ 70 ] Karan-Jit was 19 years of age when he committed the drug offences. Sarabjit was 22 years old. Neither brother had a criminal record. The sentencing judge found that the brothers were not merely street-level traffickers because their operation included the mixing, weighing and packaging of fentanyl for sale on the street.

He found that by preparing doses with concentrations of fentanyl as high as 14%, when anything above 2% is likely to cause an overdose, they were outrageously negligent. He found that the offences were motivated by greed and that they displayed an indifference to human life. [ 71 ] The Provincial Court judge sentenced Karan-Jit to four years imprisonment concurrent on the two fentanyl offences.

The total sentence was five and one half years reduced to five years based on the totality principle. [ 72 ] He sentenced Sarabjit to concurrent sentences of four years imprisonment on all seven counts relating to trafficking in fentanyl and concurrent sentences of five years on the counts relating to trafficking in carfentanil or possessing carfentanil for the purpose of trafficking. The total sentence was eight years. Applying the totality principle, the judge concluded that an eight year sentence would be unduly harsh.

Accordingly, he imposed a global sentence of seven years imprisonment. [ 73 ] The brothers both appealed. The Court of Appeal found that the sentences imposed upon the two brothers had not been shown to be demonstrably unfit and, accordingly, upheld them. [ 74 ] I find that the Mann case is distinguishable from the case before me in that the circumstances as set out above are clearly more aggravated. [ 75 ] The next Crown case relied upon by the Crown is R. v. Lee . Mr.

Lee pled guilty in Provincial Court in Nanaimo to one count of possession of cocaine, methamphetamine, fentanyl, heroin and GHB for the purpose of trafficking and one count of possessing a .45 calibre handgun with readily available ammunition.

[ 76 ] Mr. Lee was 27 years of age at the time of sentencing and was addicted to drugs. He had 10 prior convictions. Among them were two convictions for possession of a controlled substance and seven convictions for possession for the purpose of trafficking. He had a mandatory lifetime firearms prohibition. [ 77 ] On January 25, 2017, police officers observed Mr. Lee and another person move a heavy bag from a suspected drug house in Courtenay into a vehicle. When the police pulled the vehicle over, Mr. Lee was in the front passenger seat.

When they searched the vehicle they located several items including: a .45 calibre handgun; a box of ammunition containing 42 rounds suitable for use in the handgun; 11.7 grams of cocaine; 65.7 grams of mixed heroin and fentanyl; nine ounces of crystal methamphetamine; 500 millilitres of GHB; over $3,000 cash; four cell phones and other items commonly associated with drug trafficking.

The total value of all of the drugs was $66,000 on the high end and $36,750 on the low end of the range. [ 78 ] Judge Saunders imposed a four year jail sentence for the drug offence and three years consecutive for the firearm offence. [ 79 ] Mr. Lee appealed his sentence arguing that the judge erred in not giving sufficient weight to his guilty plea and in imposing a consecutive rather than concurrent sentence on the firearms offence. [ 80 ] The Court of Appeal confirmed that the decision to order concurrent or consecutive sentences is a discretionary exercise that must be treated with appellate deference.

The Court stated that while it was open to the judge to impose concurrent sentences, she was not obliged to do so and held that the judge’s decision was entitled to appellate deference. Accordingly, the Court of Appeal upheld the seven year global sentence. [ 81 ] I find that this case is distinguishable because of Mr. Lee’s lengthy related criminal record and because of the larger quantity and value of the drugs in his possession. [ 82 ] The next case provided by the Crown is R. v. Chin .

In that case the co-accused Toth pled guilty to possession of fentanyl, heroin and cocaine for the purpose of trafficking. [ 83 ] The police searched the residence and truck of Mr. Toth and found a total of $48,535 in cash, a double- barrelled shotgun, ammunition, two notebooks containing score sheets, powdered cocaine and 1,098 pills containing fentanyl and heroin. The street value of the pills was estimated at between $32,940 and $65,880. Mr. Toth’s 12 year old son was in the residence when it was searched. [ 84 ] Mr. Toth was 34 years of age at the time of sentencing and had a significant criminal record.

He had 13 prior convictions for unrelated offences including 10 for failing to comply with court orders, uttering threats, assault causing bodily harm, obstructing a police officer and break and enter with intent. [ 85 ] Madam Justice Kerr noted that a critical consideration is the scope and sophistication of the enterprise at issue. She stated that where a particular case is situated on the spectrum will quite substantially impact the judge’s decision as to the appropriate sentence.

More substantial, frequent, and sophisticated operations will attract a longer sentence with greater emphasis on denunciation and deterrence. [ 86 ] Justice Kerr found that Mr. Toth was a mid-level trafficker, supplying street-level traffickers. After careful consideration she concluded that the fit and proper sentence was three years imprisonment and imposed that sentence. [ 87 ] I find that Mr. Toth’s case is distinguishable based upon Mr. Toth’s criminal record and because of the scope of his criminal involvement. [ 88 ] The final case provided by the Crown is R. v. Forsberg .

It is a brief oral decision containing limited detail as to the circumstances. Mr. Forsberg plead guilty in Provincial Court in Victoria to a charge of possession of fentanyl for the purpose of trafficking. He had a record which included two prior convictions for trafficking or possession for the purpose of trafficking in drugs. The judge found that that was a significant aggravating feature which took the case out of the range set out in Smith . The judge imposed a jail sentence of four years. [ 89 ] I will now consider the cases provided by the Defence. [ 90 ] The first case provided is R. v. Harrison . Mr.

Harrison pled guilty in B.C. Supreme Court to three offences: possession of cocaine for the purpose of trafficking; possession of heroin and fentanyl for the purpose of trafficking; and possession of methamphetamine for the purpose of trafficking. All three offences occurred on March 17, 2017 in Victoria. [ 91 ] On January 21, 2017 Mr.

Harrison was arrested by the Saanich police and was found to be in possession of 11 pre-packaged baggies of heroin and fentanyl weighing 3.3 grams, $1,600 in cash and a cell phone showing text messages consistent with engagement in drug trafficking. [ 92 ] He was released on an undertaking to appear in court on March 10, 2017. [ 93 ] On March 17, 2017 Mr. Harrison was arrested by the Victoria police for the three offences for which he was sentenced. When arrested, Mr. Harrison had a satchel over his shoulder.

Inside the satchel were 48 grams of cocaine, 220 grams of methamphetamine and 61 grams of heroin mixed with fentanyl. Also inside the satchel, was a mini baseball bat and an unloaded antique revolver. [ 94 ] Mr. Harrison also possessed a room key for the suite he had just left, $1,275 cash and a cell phone which rang. The arresting officer took a number of calls from people looking to buy drugs. [ 95 ] In the hotel room, the police located a score sheet reflecting drug transactions in the range of $100-$400, Ziploc bags for drug packaging and a scale with drug residue and seven grams of caffeine.

[ 96 ] Madam Justice Duncan characterizes Mr. Harrison’s offending as follows: [53] Mr. Harrison’s activities in January 2017 speak to an individual who is pounding the pavement, in full view of surveillance, selling the product and accepting the associated risks. His situation in March 2017 was slightly different. He had significantly more product in his possession and it was not packaged, almost as if he had just taken delivery of a supply from higher up the supply chain and had not packaged it for street use. There is no evidence that he employed anyone.

There is some suggestion in the ITO, that he answered to someone. [54] Viewed cumulatively, the factors in this case support a finding that Mr. Harrison was a street-level trafficker, albeit one who possessed a significant amount of product and an ability to cut the product with caffeine powder to increase his share of the profit , whether to line his own pockets or, more likely to service his own drug debt or purchase more drugs for himself. [ 97 ] At the time of sentencing Mr. Harrison was 25 years of age. While working a job in a camp setting Mr. Harrison had become addicted to drugs.

He was in a relationship with a young woman who also had a serious drug problem. Mr. Harrison had run up a significant drug debt so began selling drugs to support his own habit in about 2015. Following his arrest in March 2017 his mother steered him into treatment.

He attended Narcotics Anonymous and took outpatient counselling. [ 98 ] The Crown sought a sentence of four years on the charges of possession of cocaine for the purpose of trafficking and possession of methamphetamine for the purpose of trafficking and a sentence of five years concurrent on the charge of possession of heroin and fentanyl for the purpose of trafficking. [ 99 ] Counsel for Mr.

Harrison submitted that the case was an exceptional one for which a suspended sentence should be imposed. [ 100 ] Madam Justice Duncan imposed a sentence of two years less a day for the possession of heroin and fentanyl for the purpose of trafficking, and 18 months concurrent for each of the possession of cocaine for the purpose of trafficking and possession of methamphetamine for the purpose of trafficking. She also placed Mr.

Harrison on probation for two years following his jail sentence. [ 101 ] At paragraph 61 she sets out her rationale for imposing the sentences she did: [61] A sentence of two years would place Mr. Harrison in a federal institution. The PSR author writes that a provincial sentence of two years less a day or less would provide Mr.

Harrison with what I consider better access to a number of programs and services to support his recovery, such as attending Narcotics Anonymous meetings as well as substance abuse management programs or the in-custody treatment program through the Guthrie Therapeutic Community at Nanaimo Correctional Centre. It would likely also see him remain on Vancouver Island, where he can maintain contact with his family. A probation order to follow a sentence of incarceration will ensure Mr. Harrison continues supervised rehabilitation efforts in the community. [ 102 ] The next defence case is R. v. Shah .

Madam Justice Warren convicted Mr. Shah in Kamloops after a trial on four counts of possession of a

schedule 1 controlled substance for the purpose of trafficking. The four charges arose from the discovery of drugs in Mr. Shah’s residence on June 5, 2015. The police discovered: 762 fentanyl pills designed to look like oxycodone; 276.4 grams of methamphetamine, 560.2 grams of cocaine; and 42.4 grams of heroin. Together, the drugs had a value of between $48,000 and about $84,000. [ 103 ] The Crown sought a jail sentence of five years on the charge pertaining to the fentanyl and a jail sentence of four years concurrent on each of the other three counts. [ 104 ] Mr.

Shah sought a suspended sentence followed by a term of probation. [ 105 ] In addition to finding the drugs in Mr. Shah’s residence, the police located two money counters, two weigh scales and two notebooks containing drug score sheets. Madam Justice Warren did not find Mr. Shah to be a credible witness and did not accept his evidence. At the time of sentencing Mr. Shah was 49 years old and had no criminal record. Although his counsel acknowledged that he had some history of cocaine use there was no suggestion that he ever had a serious drug problem. In January 2016, after his arrest, Mr.

Shah underwent open-heart surgery. At the time he was sentenced his medical condition was regularly monitored and he was taking medication. [ 106 ] The judge considered the aggravating factors to be the sophistication of the enterprise, the grave danger associated with fentanyl, the fact that Mr. Shah was not a drug addict, that he was motivated by greed, and that he continued to minimize his involvement and failed to express remorse.

The mitigating factors she considered were that he had no criminal record and he was a middle-aged man who had lived more than four decades as an apparently law-abiding and contributing member of society. [ 107 ] Madam Justice Warren considered a large number of previous decisions and decided that the appropriate sentence was three years’ incarceration on the possession of fentanyl for the purpose of trafficking charge and concurrent sentences of two and one half years on the other three charges. [ 108 ] I find that this case is more serious than the one before me. [ 109 ] The third case relied upon by the defence is R. v.

Mani . In January 2016 in Port Coquitlam, the police searched Mr. Mani and his vehicle. On Mr. Mani they found two cell phones and $600. Inside his vehicle the officer found a golf club, a baseball bat, a cell phone that rang continuously and a quantity of drugs. The drugs included; 7.71 grams of methamphetamine wrapped in 28 blue bags; 1.24 grams of heroin in eight clear bags; 2.24 grams of cocaine in seven orange bags and 3.08 grams of cocaine in 17 bags. Mr. Mani was released on an undertaking. [ 110 ] On March 26, 2017, and while still on release the police decided to pull over a vehicle driven by Mr.

Mani based on their observations and information they received about the vehicle. When an officer exited his police vehicle and started walking towards Mr.

Mani’s vehicle, Mr. Mani drove away. While being pursued by the police, Mr. Mani entered a major intersection without stopping or slowing for a red light and collided with two other vehicles. He then ran from the scene but was apprehended in a short time. [ 111 ] Upon searching Mr. Mani’s vehicle the police found 12.06 grams of cocaine wrapped in 58 white bags; 17.49 grams of cocaine and fentanyl in 39 orange bags and 4.43 grams of cocaine wrapped in 45 blue bags. They also located four cellular telephones, $200 cash and a baseball bat. [ 112 ] Mr.

Mani pled guilty in Provincial Court to two charges of possession of drugs for the purpose of trafficking and one charge of failing to stop for the police. [ 113 ] Mr. Mani was 23 years old and did not have a criminal record. He was not drug dependent and it appears his offences were motivated by greed. At his sentencing hearing he lied about being employed and doing volunteer work. [ 114 ] With respect to the possession of drugs for the purpose of trafficking charges, Judge Harris noted as aggravating factors that fentanyl was involved, that Mr.

Mani possessed in excess of 150 individually wrapped packages of drugs, that the second offence occurred when he was at large on an undertaking in respect of the first drug charge and that he was motivated by greed. [ 115 ] On the Port Coquitlam drug charge, Judge Harris accepted a joint submission and imposed a three month custodial sentence. On the two Vancouver charges he imposed a global sentence of 19 months consecutive for a total of 22 months. The jail sentences were followed by probation for 12 months. [ 116 ] The next case provided by the defence is R. v. Johal . Mr.

Johal was convicted after trial in Supreme Court of three counts of possession for the purpose of trafficking. The three counts arose from the same incident. [ 117 ] The police searched a vehicle driven by Mr. Johal and found 1090 counterfeit pills each containing heroin, fentanyl and a derivative of fentanyl. They also found a money order receipt in the amount of $956.17, a bank receipt in Mr. Johal’s name showing a cash deposit of $1,300 and three cell phones. During the search one of the cell phones received 14 calls from various numbers. [ 118 ] Mr.

Johal was 23 years old at the time of the offence and had no criminal record. Based upon expert evidence given, Mr. Justice Kent found that Mr. Johal was trafficking at the distributor level. He also found that he showed no sincere remorse and that his motivation for the offence was financial gain, nothing else. [ 119 ] The Crown sought a sentence of five years. The defence submitted that a sentence of nine months followed by probation was appropriate. [ 120 ] Justice Kent reviewed a number of prior decisions and sentenced Mr.

Johal to serve a jail sentence of two years less a day followed by two years of probation. [ 121 ] The final case relied upon by the defence is R. v. Creuzot . Following a voir dire in which the Mr. Justice Jenkins found evidence located in Mr. Creuzot’s residence to be admissible, Mr. Creuzot pled guilty to six charges including possession of methamphetamine, cocaine, and heroin for the purpose of trafficking, possession of prohibited devices and of a prohibited weapon. [ 122 ] Items found on Mr. Creuzot’s person included 3.5 grams of methamphetamine, $4,222 in cash, and two score sheets.

Items found in his residence included cocaine, methamphetamine, heroin including traces of fentanyl, score sheets, a stun/gun flashlight, a pellet gun, a 15 round 9mm magazine and 9mm ammunition. [ 123 ] An expert police witness opined that the street level value of the heroin seized was $2,935. He valued the cocaine at $3,184 and the methamphetamine at $2,910. The expert concluded that Mr. Cruezot was trafficking illicit drugs at the low end or street level. [ 124 ] Mr. Creuzot was 51 years old and is a long-term drug addict.

His addiction followed surgery while he was in his teens, which caused his right leg to be shorter than his left. He suffers from considerable pain. In 2002 he was diagnosed with multiple sclerosis which affected his ability to work. He entered the drug trade for profit and to raise funds to support his addiction. His circumstances have resulted in depression. He has a significant criminal record relating to illegal drugs. His record includes approximately seven convictions for possession of a controlled substance, and two convictions for possession of marijuana for the purpose of trafficking. [ 125 ] Mr.

Justice Jenkins imposed a global sentence for all offences, including the weapons offences, of 14 months jail followed by two years of probation. Sentencing Decision [ 126 ] Sentencing is an individualized process. As Judge Blake aptly noted in Brown , no two offenders are identical and fact patterns vary infinitely. [ 127 ] As in any case, in deciding what is the fit and proper sentence to impose upon Mr. Riera, I must consider his unique circumstances and the unique circumstances of the offences he committed. I must then consider the aggravating and mitigating aspects of each.

I must impose a sentence which applies the principles of sentencing and gives effect to the applicable purposes of sentencing enunciated in the Criminal Code and in s. 10(1) of the Controlled Drugs and Substances Act . In determining the appropriate sentence in this case I am guided by the past sentencing decisions which were provided by counsel. [ 128 ] It is clear that in cases involving trafficking in fentanyl, the primary purposes of sentencing are denunciation and deterrence.

This is because of the lethal nature of fentanyl and the disastrous consequences of its usage. [ 129 ] In appropriate cases the sentence imposed must also serve the purpose of rehabilitation. [ 130 ] Mr. Riera possessed significant quantities of mixed heroin and fentanyl for the purpose of trafficking. He sold the drugs to cover

the cost of satisfying his own addiction. In doing so he was reckless as to the lives of other users of the drug. [ 131 ] Mr. Riera is 61 years of age and has no previous criminal record. For most of his life he was a law abiding citizen who was employed and contributed to society. This all changed when he became addicted to opiates. [ 132 ] Based on his statement to the police, the submissions of his lawyer and the fact that he surrendered himself into custody, I believe that Mr.

Riera genuinely wishes to change his way of life and recover from his addiction. [ 133 ] Of all of the prior decisions provided by Crown counsel and Defence counsel, I find that the most applicable and helpful decision is that of Madam Justice Duncan in R. v. Harrison rendered in Victoria in November 2018. Like Mr. Riera, Mr. Harrison was on release with respect to a previous drug offence when he committed a second offence. [ 134 ] Mr. Taylor advised the Court that Mr. Riera hopes to have the opportunity to take

part in the rehabilitation program provided at Guthrie House at the Nanaimo Correctional Centre. [ 135 ] The Guthrie House program is well- known to those involved in the criminal justice system on Vancouver Island and is recognized as being very successful. It is a 55 bed therapeutic community separate from the rest of Nanaimo Correctional Centre and combines work, treatment, counselling and around the clock behavioural modelling to address the causes of addiction.

The men in Guthrie House demand accountability from one another. [ 136 ] My goal is to fashion a sentence which has the effect of denunciation and deterrence but also maximizes the chances of Mr. Riera’s successful rehabilitation and recovery. [ 137 ] Upon carefully considering all of the sentencing authorities provided together with Mr. Riera’s circumstances and the circumstances of the offences he has pled guilty to committing, I have decided that the appropriate sentence which best addresses denunciation and deterrence and also provides for Mr.

Riera’s rehabilitation is a global sentence of two years less a day followed by three years of probation. Such a sentence will mean that Mr. Riera is either in custody or supervised in the community for a total of five years. If I was to impose a federal sentence, probation to follow would not be possible. [ 138 ] The British Columbia Court of Appeal has recognized that probation orders with strict conditions may serve the purposes of denunciation and deterrence in addition to the usual purpose of rehabilitation. The Court did so in R. v. Voong , 2015 BCCA 285 .

The probation order I will impose will serve all of those purposes. [ 139 ] Mr. Riera would you please stand up? For the offence of possessing heroin and fentanyl for the purpose of trafficking on January 15, 2017 I sentence you to 20 months imprisonment.

For the offence of storing an Enfield 303 Bolt Action rifle in an improper manner on the same date, I sentence you to two months imprisonment concurrent. [ 140 ] For the offence of possessing heroin and fentanyl for the purpose of trafficking on December 1 and 2 of 2018 I sentence you to two years less a day to be served concurrently. [ 141 ] I recommend that you serve your jail sentence at the Nanaimo Correctional Centre in order that you have the opportunity to be admitted into the Guthrie House Program. [ 142 ] Following your jail sentence you will be on probation for three years.

The terms of probation are as follows: • You are to keep the peace and be of good behavior and report to court when required to do so. • You must report to a probation officer at 17 Church Street in Nanaimo within 72 hours of your release from custody and thereafter as directed by your probation officer. • You must advise your probation officer at your first visit of your residential address and phone number; you must not change your place of residence or phone number without first obtaining the written permission of your probation officer. • You may only possess one cell phone which must be registered in your own name. • You must abide by a curfew for the first 12 months of your probationary period by being inside your residence or within the boundaries of your residential property between the hours of 8 pm and 6 am daily.

The only exceptions are if you are attending a clinic or hospital for a medical emergency or if you have the prior written permission of your probation officer, which may be given for a compelling reason including to attend employment. • If you are outside your residence during curfew hours with the written permission of your probation officer you must carry the written permission on your person. • You must present yourself immediately at the door to your residence during curfew hours when any peace officer or probation officer attends at your residence and knocks to make their presence known. • You must not possess or consume alcohol. • You must not enter any liquor store, beer and wine store, pub, lounge, nightclub or any other place where the primary commodity for sale is liquor, except for the purposes of employment approved in advance by your probation officer. • You must not possess or consume any drug as defined in the Controlled Drugs and Substances Act except in accordance with a valid medical prescription. • You must not possess any drug paraphernalia, including but not limited to, pipes or syringes.

• You must attend, participate in and complete any intake, assessment, counselling and treatment, including residential treatment, as may be directed by your probation officer. • Finally, you must complete 50 hours of community work service. Your work service is to be performed at the direction of and to the satisfaction of your probation officer and must be completed within the first 18 months of your probationary period. [ 143 ] Pursuant to s. 109(1) (

c) of the Criminal Code , you are prohibited from possessing any firearms or related items specified in that

section for a period of 10 years. [ 144 ] Pursuant to s. 487.051, I order that you provide a sample suitable for DNA analysis while you are in custody. [ 145 ] Under s. 16 of the Controlled Drugs and Substances Act , I order forfeiture of the items circled on the Major Exhibit Flowcharts marked as exhibits 1(

a) and 1(

b) respectively as well as of the crossbow seized by the police with the exception of $715 cash which Mr. Riera won at the casino on December 1, 2018. [ 146 ] Mr. Riera, you have now been sentenced for committing some very serious criminal offences. While you sold heroin and fentanyI to support your own addiction, you were very reckless in doing so. We will never know the full extent of the harm to which you may have contributed. I wish you all the best in your in efforts at rehabilitation and recovery.

If you are successful, as I truly hope, both you and the community will benefit immensely. __________________________________ The Honourable Judge R. Lamperson Provincial Court of British Columbia CORRIGENDUM - Released on March 26, 2019 In the Reasons for Sentence of the Honourable Judge R. Lamperson dated March 7, 2019, the file numbers on the cover page shall be amended to read: File Nos: 82716-3C, 82742-1 Registry: Nanaimo BY THE COURT ______________________________ The Honourable Judge R. Lamperson