R. v. Rogers Date:, 2017 BCPC 184

Citation: R. v. Rogers Date: 20170320 2017 BCPC 184 File No: 208197-2C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KYLE ROBERT ROGERS REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE HAMILTON Counsel for the Crown: T. Spasojevic Counsel for the Defendant: M. Shamess, agent for M. Stern Place of Hearing: Surrey , B.C. Date of Hearing: March 20, 2017 Date of Judgment: March 20, 2017

INTRODUCTION [ 1 ] THE COURT: Kyle Rogers has entered a guilty plea to possession of controlled drugs, namely, cocaine, Oxycodone, methamphetamine and MDMA, also known as Ecstasy, for the purpose of trafficking those drugs, on October the 18th, 2014. [ 2 ] On January 12th, 2011, Mr. Rogers received a nine-month conditional sentence for his first conviction for possession for the purpose of trafficking. In this sentencing hearing, the Crown seeks a jail sentence of 15 months, plus certain ancillary orders in light of the fact that Mr.

Rogers was operating a dial-a-dope trafficking operation, and given that this is his second conviction for possessing drugs for the purpose of trafficking. [ 3 ] Mr. Rogers, through counsel, submits that a line of authorities culminating in the British Columbia Court of Appeal's decision in R. v. Voong , establishes that an appropriate sentence in Mr. Rogers' case is a suspended sentence with probation. Mr.

Rogers submits that a suspended sentence with probation is available in cases where exceptional circumstances exist such that rehabilitation of the offender is afforded greater consideration than denunciation and deterrence when arriving at a fit sentence. Mr. Rogers argues that his case is one of those rare cases with exceptional circumstances that justify serious consideration of the imposition of a suspended sentence with probation, rather than a prison sentence. [ 4 ] As a result of amendments to the Criminal Code , a conditional sentence is no longer an available sentencing option for Mr.

Rogers such as was imposed back in January of 2011 following his first conviction for possession for the purpose of trafficking. [ 5 ] My task in this hearing is to determine a fit sentence to impose on Mr. Rogers considering the circumstances of this offence, Mr. Rogers' personal circumstances, and a consideration of sentences imposed in similar cases for offenders with similar circumstances to Mr. Rogers. BACKGROUND [ 6 ] On October 18th, 2014 at approximately 8:40 p.m., police in Surrey, British Columbia were operating a roadblock in the area of Scott Road and 105th Street. Mr.

Rogers approached the roadblock driving his vehicle and he was pulled over by the police. The police officer detected a strong smell of marihuana emanating from Mr. Rogers' vehicle, and when questioned, Mr. Rogers said he knew nothing about the odour of marihuana. As a result, the RCMP detained Mr. Rogers and searched his vehicle.

The search revealed the following: Two cellular phones that were ringing steadily; a large sum of cash, $2,540 in various denominations; 14.75 grams of powder cocaine separated into 35 bags; 1.36 grams of crack cocaine separated into four bags; 2.7 grams of methamphetamine separated into seven bags; 613 grams of marihuana separated into five bags; 13 grams of Psilocybin, a drug for which Mr. Rogers is not being sentenced; 74 pills of Oxycodone; 44 pills of Ecstasy; a backpack in which the drugs were found, and an electronic scale with drug residue on it. The total value of the drugs found during the search of Mr.

Rogers' vehicle varies from approximately $5,000 to $9,000, depending on the manner in which the drugs were sold. Mr. Rogers was arrested and eventually charged with the various counts he is before the court in this hearing for sentencing. MR. ROGERS' CIRCUMSTANCES [ 7 ] Mr. Rogers was born February 11th, 1977. He is 40 years old today. He was 37 years old at the time he committed the offences he is to be sentenced for today. Mr. Rogers was raised by his parents in Surrey. He had a younger brother who was murdered in 2012. Mr.

Rogers' father was a self-employed auto mechanic who worked from his garage at the family home. In 1998, Mr. Rogers' father was killed in a freak accident when a propane tank exploded in the garage where his father was working at the time. Mr. Rogers had a very close relationship with his father and his untimely death dealt a severe blow to this family. [ 8 ] In 1994, Mr. Rogers was seriously injured in a car accident, suffering severe head and body injuries that left him in a coma for a week-and-a-half. While Mr.

Rogers has no lasting physical injuries from this car accident, he suffers from ongoing headaches and is more quick to anger. He settled his injury claim from the car accident and he receives a monthly payment from the settlement funds which he will receive for the rest of his life. [ 9 ] Mr. Rogers graduated from high school in 1996 in Penticton where his family had moved in 1992. Following his father's death in 1998, Mr. Rogers' mother moved from Penticton back to Surrey with the youngest son, Casey. Mr.

Rogers moved back to Surrey approximately six months later and moved in with his mother who was struggling to cope with the loss of her husband. She was, at times, suicidal. [ 10 ] Mr. Rogers was steadily employed between 2000 and 2012. He worked in construction and for a hazardous waste removal company, Enviro-Vac, until February 26th, 2012 when his brother, Casey, was murdered in a targeted drug-related shooting.

While this is not stated explicitly in any of the materials I have read with respect to this sentencing hearing, I infer that Casey was involved in the illegal drug trade in Surrey when he was murdered. Four months before Casey was murdered, a very close friend of Mr. Rogers committed suicide. [ 11 ] Prior to Casey's murder and the suicide of Mr. Rogers' close friend, Mr. Rogers met Kelly Reid in the fall of 2006. They commenced a relationship and had a son, Kyler, who was born in June of 2010. As a result of Mr.

Rogers' problems controlling his anger, along with the severe emotional toll exacted by the suicide of his friend and murder of his brother, the relationship between Mr. Rogers and Ms. Reid became strained. Mr. Rogers left the relationship and began to abuse drugs and alcohol. [ 12 ] In a report prepared for this sentencing, Mr. Rogers told the report author, Dr. Kuchenmuller, that in the aftermath of his brother's murder Mr. Rogers became involved in the sale of drugs through one of his brother's friends. While the timing of Mr. Rogers' alleged entry into the drug trade is not entirely clear, I infer that Mr.

Rogers spiralled out of control in 2012. Over the ensuing three years, Mr. Rogers had limited contact with Ms. Reid and his son, Kyler (phonetic). Ms. Reid insisted that Mr. Rogers quit drinking and using drugs if he wanted to reconcile and re-join his family. As Mr. Rogers and Ms. Reid worked at restoring their family, Ms. Reid

became pregnant with their second child, a daughter, Kaylie (phonetic). Kaylie was born in June 2014, about four months before Mr. Rogers' arrest on the charges before the court in this hearing. [ 13 ] In April 2015, Mr. Rogers moved back into the family home with Ms. Reid and their two children. In the summer of 2016, Mr. Rogers and his family moved to Summerland, a place where the family had vacationed in the past. The reason for the move to Summerland is described in Dr. Kuchenmuller's report as follows: He (Mr.

Rogers) said that in order to get away from any problems that might arise due to his past associations they decided to move to Summerland. [ 14 ] In her interview with Dr. Kuchenmuller, Ms. Reid said the major reason that she decided to return to Mr. Rogers was not only Mr. Rogers' desire to be a husband and a father, but her fear that someone would kill him and that their children would be fatherless. [ 15 ] Since moving to Summerland, Mr. Rogers has found work for a hazardous waste removal company. In December of 2016, Mr.

Rogers began attending two-hour weekly grief counselling sessions in Kelowna to help him come to terms with his emotional struggles arising out of the tragedies in his life. Mr. Rogers told Dr. Kuchenmuller that he finds the counselling sessions helpful, and Dr. Kuchenmuller received written confirmation of Mr. Rogers' attendance at the counselling sessions. [ 16 ] Dr. Kuchenmuller interviewed Mr. Rogers' mother and Ms. Reid as collateral contacts for the purpose of preparing his report for this sentencing. Some of the background information set out above comes from Dr.

Kuchenmuller's interview with each of those women. CIRCUMSTANCES OF THE OFFENCE [ 17 ] The circumstances of Mr. Rogers' offence are not complicated, but they are concerning. Mr. Rogers was quite clearly engaged in a dial-a-dope drug trafficking operation when he was stopped at the police roadblock on October 18, 2014. I would characterize Mr. Rogers' drug trafficking operation as reasonably sophisticated and aggravated by the disparate drugs he had available to his drug-addicted customers. Mr. Rogers had in his possession a fairly large sum of money from which I infer that Mr.

Rogers was running a profitable drug-trafficking enterprise. [ 18 ] Conspicuous by its absence in Dr. Kuchenmuller's report is any record of Mr. Rogers' views on his drug-trafficking operation, nor any comment as to his feelings of remorse for his crime. None of the letters filed by Mr. Rogers on this sentencing hearing, written by close family or friends, make any mention about Mr. Rogers' expression of remorse to them for the harm he caused to his drug- addicted customers. Accordingly, I have no information about the circumstances of Mr.

Rogers' offence beyond what the Crown told me was discovered by the police when they searched Mr. Rogers' vehicle on October 18th, 2014. DISCUSSION [ 19 ] Courts across the country have written extensively about the devastation wreaked upon society by the simplified access to drugs through dial-a-dope drug trafficking operations. Little would be gained by me railing on at length about the lives ruined, lives lost, families destroyed, financial ruin and rampant crime all attributed to the ongoing trade in hard drugs made available to drug addicts through dial-a-dope trafficking as easily as they can order a pizza.

Dial-a-dope drug trafficking must be stopped, but it will not be stopped as long as there is substantial money to be made by the traffickers selling to drug-addicted customers whose addiction drives them back repeatedly for their next fix. [ 20 ] Because this kind of drug trade is so destructive and seemingly unstoppable by law enforcement, our courts have imposed lengthy jail sentences on first-time offenders, and even lengthier jail sentences on repeat offenders.

Having said that, there is ample authority in prior sentencing decisions that were placed before me in argument that in cases where there are exceptional circumstances, a non-custodial sentence is available. [ 21 ] After reviewing Dr. Kuchenmuller's report, the JUSTIN conviction

summary, and the several character references and letters written in support of Mr. Rogers, I have the following comments. Dr. Kuchenmuller refers to Mr. Rogers' 2008 conviction for trafficking for which he received 12 months house arrest followed by 12 months of probation. It is not clear where Dr. Kuchenmuller got this incorrect information. Mr. Rogers committed the offence of possession for the purpose of trafficking in 2008, but his conviction was registered on January 12th, 2011. As well, Mr. Rogers was sentenced to a nine-month conditional sentence order with no probation to follow.

Beyond the information in Dr. Kuchenmuller's report about Mr. Rogers' conviction, I have no other information about that offence or that conviction. If Mr. Rogers was asked about his criminal history during his interview with Dr. Kuchenmuller, no information about that history made its way into Dr. Kuchenmuller's report. [ 22 ] There is another curious factor of Dr. Kuchenmuller's report. He says that following Casey's murder, Mr. Rogers became involved in trafficking drugs by way of Casey's friend. Ms. Reid's letter contains similar sentiments where she says that after Casey's murder she watched Mr.

Rogers turn into a person she did not recognize anymore. But the fact is that at the time of Casey's murder, Mr. Rogers had recently finished his nine-month conditional sentence for his January 2011 conviction for possession for the purpose of trafficking, and so while it may be that Casey's murder pushed Mr. Rogers further down the criminal path he was already on, Dr. Kuchenmuller's statement that Mr. Rogers became involved in trafficking drugs as a result of Casey's murder is simply not accurate. [ 23 ] Further on this point, Ms. Reid says that following Casey's murder she watched Mr.

Rogers turn into a person she did not recognize, and that too may be the case. But I find it surprising that in her letter provided to me on this sentencing, she made no mention of Mr. Rogers' earlier conviction in 2011. At the time of his sentencing in January of 2011, their son Kyler would have been about seven months old. If Mr. Rogers was sentenced to a house arrest condition as part of his conditional sentence, I would have thought that period in their life as a couple and that Mr. Rogers' life with his newborn son would have merited some comment in Ms.

Reid's recitation of the history of her relationship with Mr. Rogers. In fact, other than Dr. Kuchenmuller's comments in his report prepared for this sentencing, nobody else makes any mention of Mr. Rogers' prior conviction and what impact the nine-month conditional sentence had on Mr. Rogers. What I do know is that the prior nine-month conditional sentence did not deter Mr. Rogers from continuing his criminal lifestyle

and engaging in the drug trade with some assistance from a friend of his brother. [ 24 ] I also note that the presence of his children did not influence Mr. Rogers to divorce himself from his criminal lifestyle. At the time of his January 2011 sentencing, Kyler was about seven months old. In October 2014 when Mr. Rogers was arrested on the charges before me in this hearing, Kaylie, his daughter, was four months old. [ 25 ] Before considering whether Mr.

Rogers' circumstances in this case amount to exceptional circumstances as that phrase has been considered in the many cases I have read in preparation of this decision, I will first briefly outline the aggravating and mitigating circumstances in this case. AGGRAVATING CIRCUMSTANCES [ 26 ] Mr. Rogers is not a first-time offender given his prior relevant conviction for possession for the purpose of trafficking. As I have already mentioned, I know nothing about the circumstances of that earlier offence. I do not know if that conviction related to Mr.

Rogers' involvement in a dial-a-dope trafficking operation, but what I do know is that on the material before me, Mr. Rogers' involvement in trafficking drugs dates back as far as 2008 and ends in 2014 when he was arrested on these charges, so it spans a period of about six years. [ 27 ] The second aggravating circumstance is the fact that Mr. Rogers was operating a dial-a-dope trafficking operation which the case law clearly identifies as an aggravating circumstance.

As well, some of the cases draw a distinction between the trafficker operating the dial-a-dope operation for the limited purpose of supporting the trafficker's own drug addiction, or whether the trafficking is in pursuit of profit. Again, I am limited by the information that has been placed before me on this sentencing. Mr. Rogers did not speak to Dr. Kuchenmuller about his struggles with drug and alcohol addiction. He did not tell Dr. Kuchenmuller if he has pursued any counselling or treatment for a drug or alcohol addiction. Ms. Reid refers to Mr. Rogers' drug and alcohol use, and she told Dr.

Kuchenmuller that she made it clear to Mr. Rogers that if he wanted to reconcile with her, Mr. Rogers would have to stop his consumption of drugs and alcohol. Ms. Reid and Mr. Rogers reconciled in April of 2015, and from that I infer that Mr. Rogers satisfied Ms. Reid that he had in fact stopped using drugs and alcohol. [ 28 ] It is very difficult for me to draw any inferences about whether Mr. Rogers was trafficking in drugs to support an addiction based on the very sparse information I have about his use of drugs and alcohol. I confess that I am surprised that Dr.

Kuchenmuller did not explore this issue in any detail at all with Mr. Rogers for the purpose of preparing his report to assist this court in sentencing. Given the volume and value of drugs seized from Mr. Rogers upon his arrest in October of 2014, and given the amount of cash seized from Mr. Rogers, my view is that he was operating his dial-a-dope operation likely for profit and not just to support his own addiction. [ 29 ] The third aggravating circumstance in this case is the broad array of drugs that Mr.

Rogers had in his possession upon his arrest and was trafficking to his addicted clients. [ 30 ] The fourth aggravating circumstance is the volume and value of the drugs that Mr. Rogers had when he was arrested. As I mentioned earlier, Mr. Rogers had in his possession drugs that, depending on how they were sold, would have generated between $5,000 and $9,000 in revenue. MITIGATING CIRCUMSTANCES [ 31 ] First, Mr. Rogers has entered a guilty plea to these charges and has therefore accepted responsibility for his criminal acts. His guilty plea has also saved the criminal justice system the time and cost of a trial.

Having said that, Mr. Rogers was caught "red handed" as they say, so he was facing a very strong case for the Crown had he elected to take this case to trial, but the strength of the Crown's case should not diminish the mitigation of sentence Mr. Rogers should receive in light of his guilty plea. [ 32 ] Second, Mr. Rogers has, without a doubt, very strong support from his immediate family, friends and those people who took the time to write a letter in support of Mr. Rogers in this proceeding. The authors of those letters spoke of the kind of son, partner and father Mr.

Rogers has chosen to be since he was arrested on these charges in October 2014. As Mr. Rogers puts this episode in his life behind him by serving the sentence I am going to impose, he will benefit and society will benefit from the strong and committed support Mr. Rogers has in the people he has chosen to surround himself with. [ 33 ] Third, Mr. Rogers has taken steps on his own to seek out and pursue grief counselling to help him learn to cope with the tragedies he has experienced in his life. By taking those steps to get the help he needs Mr.

Rogers is demonstrating, not just in words but in his actions, that he is committed to change his life and to become a better person. [ 34 ] Fourth, Dr. Kuchenmuller has diagnosed Mr. Rogers with Post Traumatic Stress Disorder given the combined effect of the tragic death of his father, his abandonment by his mother who was overwhelmed by her own grief, the suicide of his good friend, and then the murder of his brother. Dr. Kuchenmuller concludes that with the changes Mr.

Rogers has made in his life by quitting his use of drugs and alcohol, reuniting with his wife and children, moving away from Surrey and pursuing counselling, Mr. Rogers poses a low risk to commit further crimes. EXCEPTIONAL CIRCUMSTANCES [ 35 ] Madam Justice Bennett, in the now frequently-cited case of R. v. Voong, wrote a lengthy decision in which she carefully reviews the sentencing principles that should apply when courts are sentencing offenders for crimes associated with dial-a-dope trafficking offences.

In Voong , the Crown appealed four decisions where the sentencing judges had sentenced the offenders to a suspended sentence with probation, rather than impose a custodial sentence. [ 36 ] When the Federal Government amended the Criminal Code and removed a conditional sentence as a sentencing option in dial- a-dope cases, sentencing judges began to consider whether suspended sentences with probation were consistent with the sentencing principles commonly recognized as deserving greater emphasis when sentencing these offenders. In effect, what was happening was that

judges were turning to suspended sentences with probation as a kind of substitute for the now unavailable conditional sentence order. In short, Judge Bennett decided that in rare cases where there were exceptional circumstances, a suspended sentence with probation could capture the necessary denunciation and general deterrence commonly recognized as the main sentencing principles to consider when sentencing a drug trafficker.

At paragraph 18 of her decision, Justice Bennett repeated that general deterrence and denunciation remain the main sentencing principles in these kinds of cases. [ 37 ] At paragraph 44 of her decision, Justice Bennett confirmed that for a first offence dial-a-dope drug trafficker the typical range of sentence is between six to nine months in jail and can reach upwards of 18 months in jail absent exceptional circumstances. [ 38 ] When considering the role of exceptional circumstances in these cases, Justice Bennett said this at paragraph 45: The exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of the main principles of deterrence and denunciation by way of a prison sentence. [ 39 ] And then at paragraph 59 of her decision, Justice Bennett provides a non-exhaustive list of factors a sentencing judge is to consider when determining whether the offender before the court for sentencing is one who has sufficiently exceptional circumstances to support the imposition of a non-custodial sentence.

In her list of factors to consider, Justice Bennett includes the following: 1. No criminal record; 2. Significant and objectively identifiable steps towards rehabilitation for the drug addict; 3. Gainful employment; and 4.

Remorse and acknowledgement of the harm done to society as a result of the offences as opposed to harm done to the offender as a result of being caught. [ 40 ] I think it would be fair to say, having regard to the many cases that have considered and applied Justice Bennett's decision in Voong , that another circumstance that can be added to the non-exhaustive list is that the offender has strong community support from family and friends. [ 41 ] As I said earlier, in preparation of this decision I have read a number of the cases that were submitted to me by both the Crown and Mr. Rogers.

I do not propose to review all of them in this decision but I will comment briefly on a few. [ 42 ] In R. v. Low (phonetic), Madam Justice Gropper imposed a suspended sentence with three years of probation on a 26-year-old first-time offender convicted in a dial-a-dope trafficking operation. Mr. Low was arrested after the police observed suspicious activity around his vehicle that was consistent with drug transactions. When arrested, Mr. Low was found in possession of about $600 in cash, nine small baggies containing heroin, and another nine baggies containing crack cocaine. Mr.

Low was employed, in a common-law relationship, and had a nine-year-old daughter. In court, Mr. Low expressed his remorse for having committed his crimes. [ 43 ] At paragraph 33 of her decision, Justice Gropper summarizes Mr. Low's circumstances as follows: A first offence, short duration of trafficking, his young age, his gainful employment, and his remorse. Based upon those factors, Justice Gropper concludes that Mr. Low's circumstances are exceptional and she suspends the passing of his sentence and imposes a three-year period of probation. [ 44 ] In R. v. Dickey , Mr.

Justice Greyell imposed a suspended sentence with 20 months of probation on a 27-year-old offender who was addicted to cocaine at the time of his arrest and was operating his dial-a-dope trafficking operation to support his own addiction. Justice Greyell noted that the amount of cocaine Mr. Dickey was arrested with was quite small, and that Mr. Dickey did not have a related criminal record. As well, Mr. Dickey had successfully overcome his drug addiction by the time of sentencing, he was gainfully employed, and he had the support of many family and friends in the community.

Justice Greyell notes, and this is repeated throughout the cases I have read, that the determination of the existence of exceptional circumstances is reached on a case-by-case basis. [ 45 ] In R. v. Wong , Mr. Justice Johnston suspended the sentencing of a 21-year-old offender and placed him on probation for three years. Mr. Wong had no criminal record, had pleaded guilty to the offence, and expressed remorse for his crime. Mr. Wong was 18 years old when he was arrested for his dial-a-dope drug trafficking operation which he ran for profit rather than to support an addiction.

He came from a troubled background during his teenage years. Following his arrest, Mr. Wong had significantly changed his life by reuniting with his family, returning to school to complete high school, and obtained additional education. He was gainfully employed and had the support of family and friends. [ 46 ] Cases I have reviewed where the sentence imposed or upheld on appeal involved a jail sentence include R. v. Johnson and R. v. Bishop . In Johnson , the B.C. Court of Appeal upheld a 12-month sentence imposed in the Provincial Court on a woman involved in a dial-a-dope operation. Ms.

Johnson's circumstances were described as "pitiful" by the sentencing judge. She was 30 years old with a Grade 12 education. She was living with her parents in the Okanagan and was unemployed, living off of a disability pension. She suffered from a number of health issues. She had a criminal record for fraud for which she had received a suspended sentence. Her co- accused had already been sentenced to 12 months in prison with no probation. Ms. Johnson was addicted to drugs, but she had stopped using drugs prior to her arrest and she stated she would not traffic or use drugs again. [ 47 ] While Ms.

Johnson expressed remorse, Justice Bennett, writing the decision for the Court of Appeal, agreed with the sentencing judge's conclusion that Ms. Johnson's remorse was more directed at getting caught rather than sincere or genuine remorse for the harm caused by her crime. Justice Bennett found no errors committed by the sentencing judge and upheld the 12-month jail sentence. [ 48 ] In R. v. Bishop , Mr. Justice Cullen imposed a 15-month jail sentence on a 53-year-old offender who Justice Cullen found guilty of a number of counts of possession for the purpose of trafficking in a sophisticated dial-a-dope operation.

The volume of drugs involved in the case was alarming. Mr. Bishop was found with between $19,000 and $26,000 worth of cocaine, Ecstasy, crystal methamphetamine and marihuana, to name just a few of the drugs. Mr. Bishop was a first-time offender who had been married for 25

years and had a long history of good, steady employment. When his marriage failed, Mr. Bishop started a relationship with another male who introduced Mr. Bishop to the drug trade and his life spiralled downhill thereafter. [ 49 ] Mr. Bishop was addicted to crystal methamphetamine at the time of his arrest. At the time of his sentencing, Mr. Bishop was gainfully employed and had stopped using drugs. Mr. Bishop wrote a letter to the court expressing his remorse for his crimes and stated his determination to remain drug and crime-free in the future. Mr.

Bishop also had the benefit of a positive pre-sentence report. [ 50 ] Justice Cullen reviews, at some length, various sentencing decisions and concludes that a conditional sentence, which was still available at that time, would not adequately address the need for deterrence and denunciation in drug-trafficking cases. Justice Cullen did not find that Mr. Bishop's circumstances amounted to the kind of exceptional circumstances that would attract a non-custodial sentence, and imposed a jail sentence of 15 months incarceration. DETERMINATION OF A FIT SENTENCE FOR MR.

ROGERS [ 51 ] In arriving at a fit sentence for Mr. Rogers, the first thing I must consider is whether Mr. Rogers' circumstances are exceptional to such a degree that a non-custodial sentence is a fit and proper sentence. [ 52 ] In

summary, Mr. Rogers is now 40 years old and was 37 years old when he was arrested. He is not a first-time offender; he has a relevant criminal record for possession for the purposes of trafficking from January 2011 where he received a jail sentence in the form of a nine-month conditional sentence. There is no evidence that Mr. Rogers was trafficking in drugs to support his own addiction. Given the large volume of drugs found in Mr. Rogers' possession, along with the amount of money he had when arrested, I infer that Mr. Rogers was trafficking in drugs for profit. [ 53 ] While there is some reference in Dr.

Kuchenmuller's report and the letters filed during the sentencing that Mr. Rogers struggled with an addiction to drugs and alcohol, there is no real detail surrounding his addiction. Mr. Rogers was not asked about this issue by Dr. Kuchenmuller, or if he was, Dr. Kuchenmuller elected to leave those details out of his report. I infer that Mr. Rogers is no longer using drugs or alcohol, but that is simply based upon Ms. Reid's assertion that before she would accept Mr. Rogers back into her life and the life of their children, Mr.

Rogers had to stop using substances, and she has accepted him back into her life. [ 54 ] Mr. Rogers has moved away from Surrey and the negative influences in his life that exist here. Mr. Rogers has settled down in Summerland. He has reunited with his family. He is employed and has the support of his close family and friends. He has sought grief counselling to help him with the tragedies he has struggled through during his late teenage and adult years. Mr. Rogers has not expressed any remorse for his crime. As I said earlier, conspicuous by its absence is any mention of this crime in Dr.

Kuchenmuller's report. [ 55 ] Based on all of the above, I am not persuaded that Mr. Rogers' circumstances reach to the level of those rare cases where our courts have found exceptional circumstances that would warrant the imposition of a non-custodial sentence. With guidance from the Court of Appeal in Voong , the range of sentence for a first-time drug trafficker is six to 18 months in jail. [ 56 ] Mr. Rogers has submitted that if I do not find that his circumstances are exceptional, then a 90-day intermittent jail sentence should be considered to allow Mr.

Rogers to maintain his employment and continue to be involved in the lives of his immediate family. I am not prepared to impose a sentence that falls that far below the established range of sentence in this kind of case. Mr. Rogers' nine months of house arrest imposed in 2011 did not deter him from engaging again in trafficking drugs in 2014, but in arriving at a fit sentence for Mr. Rogers I cannot overlook the fact that he has taken significant and objectively verifiable steps to turn his life around. Any period of time spent in prison and away from his spouse and young children will be very difficult for Mr.

Rogers. CONCLUSION [ 57 ] The Crown seeks a jail sentence of 15 months. In my view, but for your efforts to distance yourself from your criminal lifestyle and to reconnect in a meaningful way with your spouse and children, a 15-month jail sentence would be at the very bottom end of a fit jail sentence in your case.

In arriving at a fit sentence in your case, I have to keep firmly in mind that your rehabilitation should play a significant role in the sentence imposed, but also I have to impose a sentence that sends the correct message that drug trafficking through a dial-a-dope operation will be met with significant jail time. [ 58 ] Accordingly, I sentence you to 12 months in jail.

In my view, that sentence is at the very bottom end of the range that could be justified in a case with these facts. [ 59 ] At the conclusion of your jail sentence, I will place you on probation for a period of two years with a view to helping you to continue your rehabilitation. [ 60 ] While on probation you will keep the peace and be of good behaviour. You will appear before the court when required to do so by the court.

You will notify the court or your probation officer in advance of any change of your name or address, and you will promptly notify the court or your probation officer of any change of employment or occupation. [ 61 ] You will report by 2:00 p.m. on the first business day following your release from custody to the probation officer located at #102 - 14245 56th Avenue in Surrey, British Columbia. [ 62 ] You will reside where directed by your probation officer; you are not to change that residence without the prior written permission of your probation officer. [ 63 ] You will abstain absolutely from the consumption or possession of alcohol and/or non-prescription drugs, or those drugs as defined under the Controlled Drugs and Substances Act . [ 64 ] You will attend, participate and successfully complete such counselling as directed by your probation officer, and I am going to

leave it general like that so you can have a conversation with your probation officer.

It may be that additional grief counselling as well as some substance abuse counselling would be appropriate. [ 65 ] In addition, I will impose a lifetime weapons prohibition pursuant to s. 109 of the Criminal Code . [ 66 ] As well, you will provide a sample of your DNA for registration with the DNA databank. [ 67 ] I will order forfeiture of all of the offence-related items seized from you upon your arrest. [ 68 ] I will order that the victim fine surcharge is payable forthwith, and upon default you will serve one day in jail, and that jail sentence will be served concurrently with the 12-month jail sentence I just imposed. [ 69 ] MS.

SPASOJEVIC: Thank you, Your Honour. The Crown directs a stay of proceedings on the remaining counts, that's Counts 2 through 6. (REASONS FOR SENTENCE CONCLUDED)