R. v. Hambly Date:, 2016 BCPC 215

Citation: R. v. Hambly Date: 20160715 2016 BCPC 215 File No: 209653-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. JASON LEE HAMBLY ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.R. GARDNER Counsel for the Crown: M. Sarrazin Counsel for the Defendant: M. Sandhu Place of Hearing: Surrey , B.C. Date of Hearing: March 29, 2016 Date of Judgment: May 12, 2016

[ 1 ] THE COURT : Jason Hambly has been found guilty on three counts of trafficking-related offences: Count 1 being possession for the purpose of trafficking in heroin and Fentanyl; Count 2, possession for the purpose of trafficking in cocaine; Count 3, possession for the purpose of trafficking in methamphetamine. [ 2 ] This occurred near the SkyTrain Station on the offence date. The police observed him engaged in what they believed to be drug-related activity. When they approached him and ultimately arrested him, they found these drugs in his possession and he gave an explanation at trial that I rejected.

I found that these drugs were in his possession for the purpose of trafficking that amounted to 3.18 grams of heroin, a four-pack of crystal meth, and five packages of crack cocaine, which amounted to just over two grams of crack cocaine. [ 3 ] The Crown has asked the court to consider a sentence in the range of six to nine months.

The defence has asked the court to impose a sentence of 90 days or less, which would allow him to serve his sentence intermittently. [ 4 ] His antecedents are summarized in a pre-sentence report. [ 5 ] He advised the probation officer that his parents were Métis and Cree but he also said he does not speak his native language and did not practice traditional culture and/or traditions during his formative years, although he did state he had recently began searching into his heritage. [ 6 ] He has admitted to his problem with narcotics and has recently stayed at a residential treatment centre.

He is now attending Narcotics Anonymous and is also gainfully employed. [ 7 ] The Crown has quite fairly acknowledged that the reality of our community is that people of First Nations descent are overrepresented in our prison population so that the court has to be aware of that and we also have to be creative in the sentences that we impose for this type of individual. [ 8 ] However, it is difficult to overlook the fact that the heroin which was found and subsequently analyzed, was discovered to be combined with Fentanyl.

As I have mentioned during counsels' submissions, even if I accept that he was not aware that the heroin that he was possessing for sale to others contained Fentanyl, there is a degree of recklessness that is of concern. [ 9 ] As was recently discussed in the Ontario Court of Justice in the decision delivered in October of 2015 by Justice Beninger, it is stated that Fentanyl is a very dangerous drug. In that case, a doctor testified as to the pharmacology and toxicology, including the forensic aspects of Fentanyl and its use, abuse and effects of Fentanyl.

The doctor in that case described Fentanyl as an extremely powerful opiate drug, a hundred times stronger than morphine and 20 times stronger than heroin. It is only available by prescription, obviously, and only to persons who have an existing tolerance for opiates at the time it is prescribed. [ 10 ] I have also been referred to an

article in the National Post about the very harmful effect of Fentanyl in our province and the Provincial Health Officer, Dr. Perry Kendall, recently stated that there were more than 200 overdose deaths in this province during the first three months of 2016 that could be related to the misuse of Fentanyl. [ 11 ] The Court of Appeal has consistently stated in cases of this type, incarceration is the norm and that the emphasis of the court should be on deterrence and denunciation.

Clearly, rehabilitation is also an important factor in sentencing. [ 12 ] The accused did not have a record for this type of activity but, as I understand the law, and I had a case yesterday involving trafficking that took three-quarters of a day to complete, I was referred to numerous Court of Appeal decisions that have been given in the last two or three years.

What is consistent in the decisions is that incarceration for this type of offence is the norm unless there are exceptional circumstances. [ 13 ] Yes, the accused here has had a difficult upbringing, he has a somewhat limited education, but he did choose to engage in this lifestyle and I cannot characterize the circumstances before me today as exceptional. [ 14 ] Accordingly, on each of these counts, I am going to impose a sentence of six months' incarceration to be served concurrently. [ 15 ] In addition, I am going to place him on probation for a period of two years at the completion of his prison sentence. [ 16 ] He is to report within 72 hours to a probation officer here in Surrey and thereafter as and when directed. [ 17 ] He is to provide a residential address to his probation officer and not change that address without the prior written approval of his probation officer. [ 18 ] He shall attend for, participate in and successfully complete such counselling as directed by his probation officer and such counselling may include, at the discretion of his probation officer, residential treatment. [ 19 ] He shall not possess or consume any alcohol or non-prescribed drugs. [ 20 ] You are also to attend, participate in and complete any counselling and/or programs including, but not limited to, B.C.

CORE programs which may include a substance abuse management program and/or residential treatment. [ 21 ] The victim fine surcharge on each of these matters is payable forthwith; in default, one day concurrent. [ 22 ] I will also make an order for forfeiture of all offence-related exhibits that were seized in this investigation. [ 23 ] I am also going to order that he provide a sample of his DNA for inclusion under the National DNA Databank.

[ 24 ] In addition, under s. 109 of the Criminal Code , he shall not possess any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition or explosive substance for a period of ten years. That is a stand-alone order, Madam Registrar. (REASONS FOR SENTENCE CONCLUDED)