R. v. F.D.W., 2018 BCPC 374

Citation: R. v. F.D.W. 2018 BCPC 374 Date: 20181030 File No: 216638-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. F. D. W. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A.M. WOLF Counsel for the Crown: E. Laurie Counsel for the Defendant (F. Wilson) : M. Stern Place of Hearing: Surrey , B.C. Date of Hearing: October 30, 2018 Date of Judgment: October 30, 2018 THE CHARGES

[ 1 ] Mr. F.D.W. pled guilty to four separate charges on Information 216638. Specifically, he pled guilty to the possession of cocaine, heroin, and fentanyl for the purpose of trafficking. He has also pled guilty to being in possession of firearms. The exact charges are found in Counts 1, 3, and 5 of the Information and set out below. THE FACTS [ 2 ] The Crown has summarized the facts in their written submissions as follows (I have taken the liberty to highlight quantities for ease of reference): I. Facts A. Overview 1.

In April 2016, members of the Combined Forces Special Enforcement Unit (CFSEU) commenced a drug investigation into the activities of Mr. F.D.W., specifically in connection with a residence located at 849 Parker St. in White Rock (the “Residence”) which was believed to be a location used for the processing of bulk quantities of drugs. 2. Between April 25 and May 3, 2016 the investigators conducted physical and electronic surveillance at that location and observed several people coming and going carrying large bags in and out of the residence. In particular they observed Mr. F.D.W. and Ms.

G. attending together on numerous occasions and using a key to unlock and lock the front door. 3. On May 3, 2016, shortly after observing Mr. F.D.W. and Ms. G. arrive in a Pontiac Montana that F.D.W. was driving, the police executed a search warrant for the Residence. 4. One of the police members who entered the property from the rear observed Mr. F.D.W. coming out of the back door wearing rubber gloves which he was in the process of removing. He dropped the gloves on the back porch prior to being arrested.

Those gloves were later analyzed and found to be contaminated with heroin, cocaine, methamphetamine, caffeine and benzocaine. During a subsequent search of Mr. F.D.W., the police located a baggie in his pant pocket which contained 9 grams of fentanyl . 5. Ms. Grewal was located inside the Residence coming out of a bedroom, and was also arrested. 6.

Inside the Residence, the police located various controlled substances and other drug paraphernalia used for the purposes of a large scale drug processing operation where bulk quantities of drugs where being “cut” or mixed with other substances (“cutting agents”) in order to increase the volume before it is resold at the kilogram level. The police also located a loaded handgun in a Louie Vuitton bag that Mr. F.D.W. was carrying when he arrived at the Residence that day. 7. The Pontiac Montana which Mr. F.D.W. and Ms. G. arrived in (the “Pontiac Montana”) was searched pursuant to a search warrant on May 6, 2016.

The police located from the vehicle a duffel bag that contained four additional handguns and ammunition. B. Drugs and drug-related exhibits from the Residence and Pontiac Montana 8. The police located significant quantities of controlled substances inside the Residence, as detailed below: a. Approximately 3.4 kilograms of a mixture of heroin, fentanyl, tramadol and caffeine broken down as follows: (

i) one brick weighing 858 g., and (ii) two vacuum sealed bags of powder weighing 88 g. and 2280 g.; b. Approximately 88 grams of fentanyl (12%) and caffeine mixture in a plastic baggie; c. Approximately 15 grams of a mixture of fentanyl (4.4%), heroin, methamphetamine, tramadol, U-47700 and caffeine contained in a plastic baggie; d. Approximately 1.7 kilograms of heroin and caffeine mixture contained in a Ziploc bag; e.

Approximately 4.7 kilograms of cocaine broken down as follows: (i) 109 g. of chunks of cocaine and benzocaine contained in a baggie; (ii) 150 g. of compressed powder cocaine contained in a vacuum sealed bag; (iii) four bricks of powder cocaine weighing 1070 g., 1090 g., 1090 g., 1095 g. respectively with 87%-89% purity; (iv) 120 g. powder cocaine in a Ziploc bag; f. Approximately 511.6 grams of a mixture of cocaine, methamphetamine and benzocaine consisting of: (i) 498 g. compressed powder in brick form located inside a hydrolic press; (ii) 13.6 g. powder in a Ziploc bag; g.

Approximately 524 grams of methamphetamine in crystal form: (i) 406 g. contained in a large Ziploc bag (96% purity)

(ii) 118 g. contained in four baggies (95% purity) h. Approximately 690 grams of MDMA or “ecstasy” tablets contained in a Ziploc bag; i. Approximately 20 litres of GHB ; j. 27 sealed 50 – 8mg. tablet bottles labelled “Ephedrine HCL”. 9. In addition, significant quantities of cutting agents were located in the Residence: a. 806 grams of Tramadol b. 21.6 kilograms Caffeine c. 22.6 kilograms of Phenacetin d. 52 kilograms of Benzocaine. 10.

Further, the police located various items in the Residence with drug residue including: a. a mixing container in the kitchen with hard white powder which analyzed as cocaine, methamphetamine and benzocaine; b. a metal bowl in the kitchen with white powder residue which analyzed as cocaine, methamphetamine and benzocaine; c. a blue Rubbermaid container with approximately 76 empty bags with residue, a random sample analyzed to have heroin, fentanyl, tramadol, U-47700 and caffeine; d. two blue Rubbermaid containers with pots, a random metal cooking pot with residue was analyzed to have heroin, fentanyl, tramadol, U-47700 and caffeine. 11.

A hydrolic press was located inside one of the two bedrooms (“Bedroom 2”). This equipment is typically used to re-press cocaine or heroin into bricks after they have been “cut” to increase the volume of drugs. As described in para. 10(f), approximately ½ kilogram of a mixture of cocaine, methamphetamine and benzocaine was located inside the press. A swab of the main press plate was tested to have cocaine, methamphetamine, fentanyl, heroin, U-47700, benzocaine and caffeine. A swab of the floor behind the hydrolic press tested positive for the same substances. 12.

A swab of the kitchen counter tested positive for cocaine, methamphetamine, fentanyl, U-47700, benzocaine and caffeine. 13. A swab of the end table in bedroom #1 tested positive for heroin, fentanyl, cocaine, tramadol, U-47700 and caffeine. 14. A swab of the dresser in the living room tested positive for heroin, cocaine, fentanyl, U-47700 and caffeine. 15. In addition, the following items were located inside several garbage bags in the living room: a. Approximately 77 empty brick-shaped packaging; b. 32 empty ephedrine bottles; c. Approximately 300 used and contaminated Ziplock bags in various sizes. 16.

The police also located and seized various wooden “marking tools” used to stamp kilogram bricks of cocaine. C. Firearms and ammunition 17. A black Louis Vuitton bag with shoulder strap was located on the living room floor. Mr. F.D.W. was observed carrying this bag when he arrived at the Residence on May 3, 2016. The following items, among other things, were located inside this bag: a. A loaded Smith and Wesson model 19-3 revolver in .357 Magnum revolver, a prohibited firearm; b. A wallet with bank cards in Mr. F.D.W.’s name and $2,835 in cash; c. A prescription bottle bearing Mr. F.D.W.’s name; d.

A smaller Louis Vuitton bag containing $5,727.15 in cash; e. $642.75 cash in an exterior pocket of the Louis Vuitton bag with the shoulder strap. 18. A .45 calibre semi-automatic rifle, a non-restricted firearm, containing a loaded magazine with 13 rounds of ammunition was located inside “Bedroom 2”. 19. A black Nike gym bag and a blue “Gators” gym bag, both containing a large number of ammunition was located inside the closet in Bedroom 2. 20. On May 6, 2016, the police searched the Pontiac Montana and located a duffel bag on the floor behind the driver’s seat containing:

a. a Ruger New Model Single Six revolver in .22 Rimfire calibre, a restricted firearm; b. a 1911 style semi-automatic pistol in .45 Auto calibre, a restricted firearm; c. a Ruger model SR1911 semi-automatic pistol in .45 Auto calibre, a restricted firearm; d. a Browning model 25 Standard semi-automatic pistol .25 calibre, a prohibited firearm; e. seven magazines; f. Over 800 rounds of ammunition, including ammunition suitable for the firearms described in sub-paragraphs (a), (

b) and (c). THE CROWN’S POSITION ON SENTENCE [3] The Crown has made their position on sentence clear in their written submissions which I outline below. It is important to notethat Mr. F.D.W. is currently serving a 7-year prison term for similar offences. The remnant of that sentence is approximately 5 yearsremaining. Crown Sentencing Position 1. On June 5, 2017, Mr. F.D.W. entered guilty pleas to counts 1 to 3, and to count 5 as amended. 2.

The Crown’s sentencing position is: Count 1 (PPT Cocaine): 8 years jail Count 2 (PPT Heroin): 12 years jail Count 3 (PPT Fentanyl): 12 years jail (all concurrent to each other) Count 5 (s. 95(1) X 4 firearms): 5 years jail (consecutive to counts 1-3) Total: 17 years (reduced to 14 years after consideration of totality) to be served consecutive to the sentence that he is currently serving. THE DEFENCE POSITION ON SENTENCE [4] Defence makes their position on sentencing clear in their concluding paragraph of their written submissions: CONCLUSION 1. We submit that:

a) The fit sentence for Mr. F.D.W.’s drug offences (counts 1-3) is 8-9 years;

b) The fit sentence for Mr. F.D.W.’s firearms offence (count 4) is 5 years;

c) The drug and firearms sentences should run concurrent to one another, as they are part and parcel of the same criminalenterprise; and

d) The 9 year sentence should be reduced to 7 years in accordance with: i. the restraint principle, with regard to Mr. F.D.W.’s Aboriginal heritage and the courts’ generalduty to impose the least restrictive sentence both in terms of mode and in terms of length; ii. the parity principle, with regard to the sentence received by a very similar offender for verysimilar offences in McCormick; and iii. the totality principle, to take into account the seven year sentence he is already serving and notmake his sentence so crushing as to ignore Mr.

F.D.W.’s reduced risk to public safety and eliminate any prospect of rehabilitation. THE LAW [5] The Honourable Judge Craig of the BC Provincial Court wrote about the evils of fentanyl and the applicable sentencingprinciples in R. v. McCormick 2017 BCPC 22 at paragraphs 61 to 63: PRINCIPLES OF SENTENCING [61] The principles of sentencing are set out in sections 718 to 718.2 of the Criminal Code. There is no dispute between the Crownand Defence that the principles of denunciation and general deterrence are of primary importance in a sentencing for an offence of thisnature. The Defence agreed that, given Mr.

McCormick’s criminal record, the principle of rehabilitation plays a lesser role. The Crownargued that the Court must also address the need to separate the offender from society as set out in s. 718(c), given the fact that Mr.McCormick was involved in high-level trafficking of significant amounts of fentanyl, a very dangerous drug. Proportionality [62] Under

section 718.1 of the Criminal Code, the sentence I impose must be proportionate to the gravity of the offence and the

degree of responsibility, or moral blameworthiness, of the offender. Although I must consider the harm that fentanyl has caused to thecommunity, Mr. McCormick must be sentenced for his criminal conduct, and must not be made a scapegoat for all of the harms causedby fentanyl. [63] The scourge of recent deaths in the community cannot help but lead to anger and emotion. I have a role to play in addressing theharm that comes from fentanyl, but my sentence must be focused on Mr. McCormick’s moral culpability, as opposed to a reaction basedon vengeance. Vengeance plays no role in the criminal justice system. In R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500,C.J. Lamer said the following: Vengeance, as I understand it, represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as areprisal for harm inflicted upon oneself by that person. Retribution in a criminal context, by contrast, represents an objective, reasonedand measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard tothe intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender'sconduct.

Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just andappropriate punishment, and nothing more. [6] It is not lost on me that in this case we are dealing with many different substances, not just fentanyl. As outlined above therewere 3.4 kilograms of fentanyl mixed in with other drugs, such as heroin. There was 1.7 kilograms of heroin mixed with caffeine. Therewas at least another 4.7 kilograms of cocaine mixed with other substances.

Another 20 litres of GHB and multiple hundred grams ofnumerous other substances, such as methamphetamine and MDMA. There was also well over a hundred kilograms of mixing agents,such as benzocaine and caffeine. There was even a hydraulic press. The press is used to create bricks of drugs. [7] Loaded handguns, thousands of dollars in cash and hundreds of rounds of ammunition were also located. [8] With respect to the law, denunciation plays an integral role in this sentencing. Both specific and general deterrence are alsokey principles of sentencing.

To me, rehabilitation plays a minor role in this sentencing and I will address this conclusion under theheading of totality. AGGRAVATING FACTORS [9] The Crown indicates at paragraph 42 in their written submissions that the court needs to consider the following aggravatingcircumstances and I agree that the following factors are aggravating: 42. There are numerous aggravating circumstances in this case: a. Mr. F.D.W. has a lengthy and related criminal history. b. He committed the offences while he was on bail on other drug charges. c.

He possessed multiple firearms and a large amount of ammunition, including a loaded prohibited handgun in his bag and fourother prohibited or restricted firearms, three of them with readily accessible ammunition, in his car. d. He was prohibited from possessing firearms and ammunition. e. The combination of drug trafficking and firearms increases the level of danger that’s already inherent in drug trafficking orpossession of firearms alone. f.

He was a mid-to high level drug trafficker engaged in powder processing and wholesale trafficking of various hard drugsincluding fentanyl at a time when there was a public health crisis in British Columbia due to overdose deaths associated to fentanyl use. g. The offences require deliberate planning and investment, and are completely profit motivated. h. The presence of a large quantity of used drug packaging, in particular the 77 used brick-shaped packaging, shows that asignificant quantity of drugs had been previously processed at the Residence. i.

Some of the fentanyl mixture found in the Residence were tested and found to contain a likely lethal dose of fentanyl. j. The fentanyl was intended to be sold as heroin, therefore users would not be aware of the presence of fentanyl and othersubstances. k. The level of contamination of fentanyl and other substances inside the Residence rendered the rented premises unsafe foranyone attending the location. l.

The drug processing operation was located in a residential area putting innocent neighbours at risk of becoming victims ofassociated crime and violence. [10] Similar to the findings of the Honourable Judge Craig in McCormick, I too find that the nature of the drugs involved isaggravating. The most serious drugs in this case were

Schedule 1 drugs, such as fentanyl, cocaine and heroin. These drugs, as thesecourts consistently recognize, are dangerous and destructive to society. I fully agree with Judge Craig’s findings regarding these drugsfound in paragraphs 64 of the McCormick case. [11] Like McCormick, Mr. F.D.W.’s role was that of a mid-level drug trafficker. His offending behaviours were continuous and notisolated events. He has a serious record for similar offences involving wholesale amounts of drugs. Mr. F.D.W. coincidentally alsoreceived significant sentences in the past similar to Mr. McCormick. For example, Mr.

McCormick was not deterred by a 10 yearsentence that he received in the U.S for related offences. The same argument can be made for Mr. F.D.W. regarding a 14 year sentence

he received in the U.S. [12] Mr. F.D.W.’s possession of drugs coupled with the presence of firearms is a lethal and toxic combination that has beencommented on in R. v. Borecky 2013 BCCA 1163 (CanlLII). [13] In my view there are significant aggravating factors in this case. The sentencing range is wide and I acknowledge that no twocases are exactly the same. There is no doubt that Mr. F.D.W.’s personal antecedents and the circumstances of the offence demand asignificant sentence. MITIGATING FACTORS [14] It is the Crown’s position that Mr.

F.D.W. entered guilty pleas after the court’s rulings on the issue of standing to advancecertain Charter arguments in a voir dire and thus while acknowledging that the guilty plea is a mitigating factor, they submit that theplea should be given limited weight. I agree with the Crown submission to a certain point. Certainly the guilty plea is late in the day, inthat it was made mid-trial and only after a number of voir dires. However, Mr. F.D.W. is entitled to a fair trial. He asserted his Charterrights at trial and is entitled to do so.

In the end, whether late in the proceeding or not, by entering a guilty plea Mr. F.D.W. has savedsignificant expense to the tax payer. This trial may have easily taken numerous if not dozens of days of court time. Many witnesseswould have been inconvenienced. I give full credit to Mr. F.D.W. for his guilty plea. Not only has expense been spared, but it is asymbol of his remorse as well. [15] Defence counsel has provided an excellent

summary of the objectives that need to be balanced when a judge sentences anoffender. I provide an excerpt of Defence counsel’s written submissions and remind myself that each of these principles demand carefulexamination. Found at paragraph 1, Defence writes: I. PRINCIPLES OF SENTENCING A. Objectives of sentencing 2. The objectives of sentencing pursuant to

section 718 of the Criminal Code are:

a) Denunciation;

b) Deterrence, both individual and general;

c) Separation of the offender from society, where necessary;

d) Rehabilitation;

e) Reparation; and

f) Promotion of the responsibility in the offender and acknowledgement of the harm done. 3. The fundamental principle of sentencing is that a sentence must be proportional to the gravity of the offence and the degree ofresponsibility of the offender [the “proportionality principle”]: Criminal Code s. 718.1. 4. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender: Criminal Code s. 718.2(a). 5.

A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances,though no two cases are identical in the sense that the result in a particular case will necessarily determine the sentence in another [the“parity principle”]: Criminal Code s. 718.2(b). 6. Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh [the “totalityprinciple”]: Criminal Codes. 718.2(c). 7.

An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances [the“restraint principle”]: Criminal Code s. 718.2(d). 8. All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,with particular attention to the circumstances of aboriginal offenders: Criminal Code s. 718.2(e). B. The proportionality principle 9. Proportionality is fundamental and central to the sentencing process, and is the cardinal principle when determining whatconstitutes a fit sentence.

It has constitutional dimensions, wherein s. 12 of the Charter forbids the imposition of a grosslydisproportionate sentence that would outrage society’s standards of decency: R v Nasogaluak, 2010 SCC 6 at para 41 (tab 1 of thedefence book of authorities). 10. Justice Lebel, writing for the Court, discusses what proportionality means in the context of sentencing at para 42 of Nasogaluak: [42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender andthe gravity of the offence.

In this sense, the principle serves a limiting or restraining function. However, the rights-based, protectiveangle of proportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks to ensure thatoffenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and theharm they caused (R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act,

(SCC) , [1985] 2 S.C.R. 486, at pp. 533-34, per F.D.W. J., concurring). Understood in this latter sense, sentencing is a form of judicial and social censure (J. V. Roberts and D. P. Cole, “Introduction to Sentencing and Parole”, in Roberts and Cole, eds., Making Sense of Sentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability, and not greater than it.

The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary. 11. Sentencing is a case-specific endeavour, requiring a multi-factored analysis that is focused on, and tailored to, the individual circumstances of the offence and the offender. C. The parity principle 12. The parity principle comes from

section 718.2(b), which mandates that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. 13. Parity as a principle is secondary to the fundamental principle of proportionality: Nasogaluak at para 40 . MISCELLANEOUS INFORMATION PSYCHOLOGICAL ASSESSMENT [ 16 ] A psychological assessment has been provided to the court. The assessment was completed by Dr. Ley who is a clinical and forensic psychologist. The purpose of the report was to assess Mr.

F.D.W.’s personality and psychological functioning as well as his risk of recidivism. [ 17 ] The report confirms that “at this time in Mr. F.D.W.’s life and period of incarceration and while awaiting sentencing, Mr. F.D.W. is adamant that he has “got to break the cycle” of crime and prison. Mr. F.D.W.’s disclosure of his severe history of childhood sexual abuse (and other trauma) is a significant sign of the genuineness of his intentions to become more prosocial. It also appears that by agreeing to an administrative segregation, Mr.

F.D.W. appears to be distancing himself from high profile gangsters and criminal organizations.” [ 18 ] Under the heading of “Behavioural Observations and Impressions”, Dr. Ley concludes: Mr. F.D.W. took full responsibility for his criminality. He rightly recognizes that the so-called “optics” of his re-offending while awaiting sentencing in 2016 are very negative. I did not find that Mr. F.D.W. minimized or rationalized his quick re-entry in the drug trade as a means to pay off a huge drug debt. Although Mr.

F.D.W. does not have a history of interpersonal violence in his criminal record, and is inclined to characterize himself as a non-violent offender, Mr. F.D.W. openly acknowledged that violence is intrinsic to the drug trade and organized crime, even if he was distant and removed from such violence. Furthermore, Mr. F.D.W. was fully aware of the extent to which the drug trade victimizes many relatively helpless, drug dependent people, and that some of those people die as a direct result of drug overdoses. Mr. F.D.W. has strong feelings of guilt regarding many untoward events from his life. And although Mr.

F.D.W. has been able to “compartmentalize” (my word) his conscience while engaging in the drug trade, I do not view him as someone without conscience. [ 19 ] Mr. F.D.W. shared details about horrific sexual abuse he suffered at the hands of others. Out of respect to Mr. F.D.W., I will not provide further details of these traumas in these reasons. [ 20 ] With respect to criminality, Dr. Ley provides his impression of Mr. F.D.W. and writes: There can be no doubt that Mr. F.D.W.’s personal identity is largely based upon his renowned and high status as a drug trafficker, Mr.

F.D.W. has enjoyed the psychological benefits of such recognition or admiration, as well as the material advantages and lavish lifestyle associated with being a successful drug trafficker. In short, Mr. F.D.W. has greatly enjoyed the intoxicating sense of status, power and relative invulnerability that is associated with his identity as a “drug lord” (my words). However, at a deeper psychological level and largely unbeknownst to Mr.

F.D.W., those same attributes serve an important psychological defensive or self-protective function as they counteract the long standing feelings of inferiority, insecurity and vulnerability that are associated with a childhood of severe sexual, physical and psychological abuse…. In my opinion, Mr. F.D.W.’s sexual abuse history is strongly implicated in his persistent criminality. [ 21 ] Dr. Ley diagnoses Mr. F.D.W. with a “severe antisocial personality disorder and a major depressive disorder, which is chronic and severe.” [ 22 ] Will Mr. F.D.W. re-offend?

There is no real way to calculate the risk of recidivism, but his criminal history is so consistent that, to me, it suggests a continuous and relentless pattern of drug trafficking. His criminality on the face of his record appears to be very entrenched. Even Dr. Ley concludes that: Mr. F.D.W. represents a high risk to reoffend. That estimation is easily established by virtue of Mr. F.D.W. quickly relapsing into criminal activity (particularly the drug trade) even when he has been on parole or while awaiting sentencing for drug crimes. Quite simply, since Mr.

F.D.W. was in his early 20’s, whenever he has been in the community…he has engaged in the drug trade. [ 23 ] Dr. Ley concludes that Mr. F.D.W. is a “very antisocial person and quite psychopathic, thus affirms a high risk to re-offend.” These conclusions need to be considered in an alternate context that Dr. Ley provides at page 16 of his assessment, wherein he writes: In

summary, Mr. F.D.W. is a high risk to reoffend. However, there are some more positive factors that mitigate that gloomy prognosis. By far the most positive prognostic factor for Mr. F.D.W. is his chronological age. It is well-established that antisocial men, including more psychopathic ones, experience “burnout” in their 40’s and 50’s. In other words, such individuals show markedly decreased rate of criminal offending… Second, Mr. F.D.W. is an Aboriginal person. In my opinion he is deriving clear and significant benefit from his

counselling from Native elders and also due to his participation in traditional Aboriginal ceremonies and practices. Although Mr.F.D.W. has had a limited history of seeing or experiencing himself as an Aboriginal person and being aware and knowledgeable aboutAboriginal traditions, nonetheless, his activities in this domain offer him a very real and practical way to change his identity from anantisocial one to a much more prosocial one. Quite simply, when people change their behaviours, their identity must change as well.

The so-called “new identities” are difficult to find and to achieve, but it is a process. [24] In my view, it would be pessimistic to say that Mr. F.D.W. will never change his behaviours. I believe most human beings canchange their behaviours. Most human beings can learn from their mistakes. The question still remains, will Mr. F.D.W. change hisbehaviour? [25] Defence submits that this new found appreciation of his Aboriginal ancestry and his willingness to learn more about traditionalAboriginal practices is a first for Mr. F.D.W. It is implicitly submitted that this ‘first’ increases the chances of Mr.

F.D.W. breaking freefrom his criminal behaviours. Optimistically, I agree with this submission, if for no other reason than previous mainstream approachessuch as jail, parole or probation have not been successful in breaking his criminal cycle. Why not try something different. I will discussthis a little further under the heading of Gladue Factors. [26] Another submission needs to be addressed. Dr. Ley writes at page 17 of the assessment that: Mr.

F.D.W.’s disclosure (referring to the sexual abuse he suffered) makes it much more difficult for him to assume a leadership role inthe drug world and to dominate, direct and influence others. In other words, Mr. F.D.W.’s sexual abuse history disclosure will serve toweaken his efficacy as a significant player in the drug world, and as a result it will serve as a lever to remove him from it by virtue of hisestrangement from other major drug operators. [27] This submission was emphasized by the defence in their oral argument. With the greatest respect to Dr. Ley and learneddefence counsel, I know nothing of Dr.

Ley’s expertise in relation to the organization of the drug trade. Without further evidence, I amnot able to accept that Mr. F.D.W. is less likely to deal drugs just because he has now disclosed that he has been sexually victimized as achild. I can only hope that through receiving expert professional assistance that Mr. F.D.W. realizes that perhaps his criminality is linkedto his emotional well-being. The traumas he suffered at the hands of others are not his fault. Nevertheless, he is an intelligent man, whohas made choices in his life.

While perhaps some of those choices were tempered by childhood trauma, in my view, they were alsodriven by greed. GLADUE REPORT AND GLADUE FACTORS [28] The Crown agrees that Gladue needs to be considered. They submit: Gladue Factors 1. The Court in R. v. Gladue, (SCC), [1999] 1 SCR 688 (BOA Vol. 3 Tab 1) directs a sentencing judge to focuson the unique circumstances of an aboriginal offender which may impact on the sentence imposed. The judge is required to consider (1)the unique systemic and background factors which may have played a

part in bringing the aboriginal offender before the courts, and (2)the types of sentencing procedures and sanctions which may be appropriate in the circumstances of the offender because of his or heraboriginal heritage or connection. R. v. Laboucane, 2016 ABCA 176 at para. 55 referring to R. v. Ipeelee, 2012 SCC 13 , [2012] 1 SCR 433 at paras 72-75 2. The SCC in Gladue and Ipeelee noted that many aboriginal offenders find themselves in situations of social and economicdeprivation with a lack of opportunities and limited options for positive development and the reality is that their constrainedcircumstances may diminish their moral culpability. Laboucane, at para. 57 3. While s. 718.2(

e) requires a different methodology for assessing a fit sentence for an aboriginal offender, it does not mandatenecessarily a different result. It does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for theoffence and the offender. R. v. Whitehead, 2017 SKQB 263 at para 90, quoting from R. v. Wells, 2000 SCC 10 at para. 44 4. While Mr. F.D.W. experienced an unfortunate and disadvantaged upbringing, it is clear that he was able to overcome theseobstacles to a significant extent by the time he was in his 20’s.

He was able to engage in legitimate employment and was not a personwho was deprived of opportunities and options for personal development. He chose to be entrenched in a criminal lifestyle throughoutmost of his adult life. His criminality was not only sustained but it was escalating, and his conduct in these offences are “predatory” innature as described by the Court in McCormick at para. 101. Further, Mr. F.D.W. has been assessed to be a high risk to re-offend. 5.

Given the gravity of the offences and the very high moral culpability of the offender, after considering the Gladue factorsdescribed in the Gladue report, this is one of those cases where a fit sentence is still a very significant period of incarceration. In R. v.Rider, the court adopted the court’s comments in R. v. Vermette that Gladue was never meant to shield organized and violent cocainetraffickers who prey upon and exploit the most vulnerable members of our society for profit. R. v.

Rider, 2013 MBQB 116 at para. 31 [29] Defence counsel submits that the restraint principle and provisions of the Criminal Code of Canada provisions to do withsentencing Aboriginal offenders have the end effect of favouring an adjustment within the framework of the totality principle. Or to putit in simple words, I am asked to impose less jail because of the Gladue factors in this case. These are their written submissions found atpage 24 to 26, with respect to sentencing Aboriginal offenders:

E. The restraint principle 14. The restraint principle comes from

section 718.2(d), which mandates that the least restrictive sanction appropriate to thecircumstances ought to be imposed. Restraint must be exercised not just for the mode of sentence but also, where imprisonment isimposed, in determining the length of the sentence. 15. The purpose of restraint is to reduce Canada's historically high incarceration rates and avoid sentences that are unduly harsh, asdiscussed by Chief Justice Lamer, writing for the Court in R. v. Proulx, 2000 SCC 5 (tab 2 of the defence book of authorities): [16] Bill C-41 is in large part a response to the problem of over-incarceration in Canada.

It was noted in Gladue, at para. 52, thatCanada’s incarceration rate of approximately 130 inmates per 100,000 population places it second or third highest among industrializeddemocracies. In their reasons, Cory and Iacobucci JJ. reviewed numerous studies that uniformly concluded that incarceration is costly,frequently unduly harsh and “ineffective, not only in relation to its purported rehabilitative goals, but also in relation to its broader publicgoals” (para. 54).

See also Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections (1969);Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987), at pp. xxiii-xxiv; Standing Committee on Justiceand Solicitor General, Taking Responsibility (1988), at p. 75. Prison has been characterized by some as a finishing school for criminalsand as ill-preparing them for reintegration into society: see generally Canadian Committee on Corrections, supra, at p. 314; CorrectionalService of Canada, A

Summary of Analysis of Some Major Inquiries on Corrections – 1938 to 1977 (1982), at p. iv. In Gladue, at para.57, Cory and Iacobucci JJ. held: Thus, it may be seen that although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence,denunciation, and rehabilitation, there is widespread consensus that imprisonment has not been successful in achieving some of thesegoals. Overincarceration is a long-standing problem that has been many times publicly acknowledged but never addressed in asystematic manner by Parliament.

In recent years, compared to other countries, sentences of imprisonment in Canada have increased atan alarming rate. The 1996 sentencing reforms embodied in

Part XXIII, and s. 718.2(

e) in particular, must be understood as a reaction tothe overuse of prison as a sanction, and must accordingly be given appropriate force as remedial provisions. [Emphasis added.] [17] Parliament has sought to give increased prominence to the principle of restraint in the use of prison as a sanction through theenactment of s. 718.2(

d) and (e).

Section 718.2(

d) provides that “an offender should not be deprived of liberty, if less restrictivesanctions may be appropriate in the circumstances”, while s. 718.2(

e) provides that “all available sanctions other than imprisonment thatare reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginaloffenders”.

Further evidence of Parliament’s desire to lower the rate of incarceration comes from other provisions of Bill C-41: s. 718(c)qualifies the sentencing objective of separating offenders from society with the words “where necessary”, thereby indicating that cautionbe exercised in sentencing offenders to prison; s. 734(2) imposes a duty on judges to undertake a means inquiry before imposing a fine,so as to decrease the number of offenders who are incarcerated for defaulting on payment of their fines; and of course, s. 742.1, whichintroduces the conditional sentence.

In Gladue, at para. 40, the Court held that “[t]he creation of the conditional sentence suggests, on itsface, a desire to lessen the use of incarceration”. F. Sentencing Aboriginal offenders

Section 718.2(

e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation ofAboriginal people in Canadian prisons: R. v. Gladue, (SCC), [1999] 1 SCR 688 (tab 3 of the defence book ofauthorities) at para 93; R. v. Ipeelee, 2012 SCC 13 (tab 4 of the defence book of authorities) at para 59. It requires “particular attentionto the circumstances of Aboriginal offenders” in considering all available sanctions other than imprisonment.

Like the restraintprinciple, this applies both to the mode of sentence and, where imprisonment is necessary as in the case at bar, to the length of the termof that imprisonment: Gladue at para 79; Ipeelee at para 72. 17. Particularly applicable in the case at bar are what the Court says at paragraph 73 of Ipeelee regarding the purposes of 718.2(e): [73] First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or herlevel of moral blameworthiness.

This is perhaps more evident in Wells where Iacobucci J. described these circumstances as “the uniquesystemic or background factors that are mitigating in nature in that they may have played a

part in the aboriginal offender’s conduct”(para. 38 (emphasis added)). Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limitedoptions for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were notvoluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moralculpability.

As Greckol J. of the Alberta Court of Queen’s Bench stated, at para. 60 of R. v. Skani,2002 ABQB 1097 , 331 A.R.50, after describing the background factors that lead to Mr. Skani coming before the court, “[f]ew mortals could withstand such achildhood and youth without becoming seriously troubled.” Failing to take these circumstances into account would violate thefundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender… … [75]

Section 718.2(

e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy theoverrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required topay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence inany particular case. This has been, and continues to be, the fundamental duty of a sentencing judge.

Gladue is entirely consistent withthe requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, includingthe status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point,Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process.

Section 718.2(

e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginalpeoples. Neglecting this duty would not be faithful to the core requirement of the sentencing process.

18. 718.2(

e) applies equally to sentencing for so-called ‘serious’ offences which warrant terms of incarceration, as to do otherwise would “deprive s. 718.2(

e) of much of its remedial power, given its focus on reducing overreliance on incarceration” ( Ipeelee at para 86 ). GLADUE REPORT [ 30 ] A private Gladue report has been prepared. The report confirms that Mr. F.D.W. is a 47-year-old individual who self-identifies as being a non-registered Metis. There were many collateral contacts, which included his mother, other family members, and his wife. [ 31 ] Mr. F.D.W. is one of seven children born to his mother.

Although his mother “reported that she was uncertain as to the timeline or paternity of some of her children, attributing this to the prevalent use of alcohol and instability in her own life and that of the other interconnected adults involved. She noted that both L.W.… shared a common ancestral connection to the Mi’kmaq First nation of PEI, but was unable to provide any further details on this subject.” [ 32 ] At age five, the accused recounts a very traumatic incident where his house burnt down, and he tragically lost the life of his siblings.

Following this incident, the accused struggled with trauma, grief and loss.

About a year after this, there was another house fire that destroyed the home he was living in. [ 33 ] Not long after this time period, the accused was sexually abused by the woman who ran their Sunday school. [ 34 ] When he was nine, his mother left his father, and had “serial involvement with extremely dysfunctional and violent partners, who sexually abused his sisters.” He commented on this time of his life and told the author of the report: My mother was on welfare, rarely around, and drinking a lot…we were always being evicted and moved around a lot.

There was never any food in the house or anything as far as the basics went… We went from rural to urban poverty…and mostly what I remember is the cold, damp, and hunger. As kids, we would have to steal food just to eat and got any clothes that we had from the donations left in the Church basement. It was humiliating and the other children I went to school with treated us like trash. [ 35 ] At age 10, the accused and his brother were further abused. They were sexually touched by adults who bribed them with food. [ 36 ] I think a fair

summary of Mr. F.D.W.’s upbringing is that his childhood was stolen from him from abusive adults who committed horrible crimes of sexual abuse on him and his siblings. [ 37 ] At age 14, he was abusing solvents, doing crime, and ended up in various youth correctional facilities. [ 38 ] He then stole a taxi cab in St. John’s and came to British Columbia, where he briefly had a period of stability and some gainful employment.

Sadly, this period of stability was short lived. [ 39 ] He started up what he described as a “rather successful dial a dope operation … We were very successful and the constant reassurance I got from other people filled the emptiness.” [ 40 ] In 1994, he received a sentence of two and a half years for some drug charges. When he was released from custody he continued to be involved in the commercial drug trade. He explained, “We would take weed to Los Angeles in boats, exchange them for cocaine, and then return to Canada.” He was arrested in California while in possession of fourteen kilos of cocaine.

He served six years and nine months of his fourteen year sentence in the United States, and then was relocated to Canada. [ 41 ] Mr. F.D.W. was open and honest with the report writer and reported that while both serving his sentence in the US and while on parole, his criminal mindset had not deviated.

He explained that although he reported regularly to his parole officer and maintained employment, his primary goal was to save up enough money to purchase a kilo of cocaine and get back into it and make up for lost time. [ 42 ] A drug run went bad when he had to throw 21 kilos of cocaine overboard to avoid the authorities. This created a drug debt that he had to pay back. [ 43 ] On May 12, 2012, he was arrested for some drug charges, and on June 30, 2016, he began serving a seven-year sentence for those drug offences. [ 44 ] It is worth noting that Mr. F.D.W. is not a drug addict.

He says that “it’s never been an issue for me…I am the only guy that I know that doesn’t do any drugs…for me it’s always been about the money, the control, and feeding the emptiness inside me.” [ 45 ] Essentially the report concludes that the accused is not in fact Metis, but rather is a man of mixed European/Mi’kmaq First Nations descent through his paternal lineage. He was essentially raised without any awareness of his indigenous origins or cultural background. [ 46 ] The report concludes that there are many Gladue factors that are relevant to the sentencing process.

These background factors are listed on page 13 of the report and include: • F.D.W. is a 47 year old man of blended Mi’kmaq First nation’s descent. • F.D.W. expressed a willingness to address the underlying factors that have contributed to the matters before the court by seeking therapeutic supports as part of his institutional and post-release planning. • Early introduction to and multi-generational family history of chronic substance abuse. • Parental neglect, poverty, and lack of stability.

• Lack of positive role models and mentoring. • Serial sexual victimization beginning as early as age five and continuing throughout his early teens.

The unresolved traumafrom these experiences has manifested in a range of maladaptive issues impacting F.D.W.’s sense of self-wroth, inter-personalrelationships, and functional abilities. • Low educational achievement and instability leading to criminal involvement and incarceration • Dislocation from his Aboriginal community, community fragmentation and consequent alienation, loss of language,culture, and traditional support network. [47] There are many in-custody and out of custody options available to Mr.

F.D.W. [48] It is often said that there are no automatic discounts in jail sentences just because you are an Indigenous offender. However,often, depending on the circumstances, a court is able to determine that the moral culpability or moral blameworthiness of an offender islessened when it takes into account some of the Gladue considerations or background factors that have potentially played a role for theoffender being before the court. [49] Certainly Mr. F.D.W.’s background is tragic. Chronic poverty and abuse at the hands of others has no doubt played a large rolein bringing Mr.

F.D.W. before the court on these charges. I do take this into account. [50] However, in my view, I am not satisfied that he is any less morally blameworthy for the crimes for which he is before thecourt. This is not his first time being sentenced for drug offences. He was also in the community on bail for drug offences when he wascharged with these crimes. [51] It is not his fault that he has been deprived of a deeper understanding of who he is in relation to his Indigenous history.

He self-identifies as being an Indigenous man, and I hope through this self-identification he makes different choices for himself in the future. Astime goes on, I expect he may wish to apply to the Federal Institution in BC, which focuses on using traditional Indigenous healingmethods as part of the rehabilitative process. CONCLUSION [52] It has been strongly submitted that Mr. F.D.W. is coming to terms with his sexual abuse, and now is trying to learn more abouthis background in relation to his Indigenous culture. It is suggested that these two ideas are so compelling that Mr.

F.D.W. may finallybe able to break free from his disturbing pattern of criminality. I hope this is the case, but the fact remains that Mr. F.D.W. is a careerdrug dealer. I have no way of finding as a matter of fact that Mr. F.D.W. is not spending each day devising a plan to buy another kilowhen he gets out of jail. Sadly, his word is not reliable. [53] There are few mitigating factors in this case. I have mentioned some above.

Notably, saving the tax payer the considerableexpense of a longer trial is at the top of the list. [54] In my view, the range suggested by the Crown is easily understood, and, in my view, within what I would describe to be a fitsentence. Except, in my view, it fails to account for the guilty plea. [55] Since this is a guilty plea, I find that a sentence of ten years is appropriate for the drug offences. This sentence is consecutive tothe sentence he is currently serving. [56] I further find that the weapons offences are serious, not his first, and in contravention to prohibition orders.

The firearms andammunition were plentiful and when coupled with the drug trade, they are lethal. To me, they are a separate and distinct part of the drugtrade. They make drug dealers more dangerous. They put the public at a higher risk of violence. I find that a sentence of 5 yearsadequately reflects the charges with respect to the guns and ammunition. But for the totality principle, it is my view that this sentenceshould be consecutive to the drug charges and consecutive to the sentence he is currently serving.

In total, 10 years, plus 5 years, plusthe remnant of 5 years he is serving would be a sentence of 20 years. THE TOTALITY PRINCIPLE [57] I agree with defence submissions in paragraphs 19 through to 21 of their written submissions wherein they write: D. The totality principle 19. The totality principle is a component of the proportionality principle and comes into play when imposing multiple orconsecutive sentences (or both). 20. The Supreme Court of Canada examined the totality principle in the context of consecutive sentences in R. v. M(CA), (SCC), [1996] 1 SCR 500 (tab 5 of the defence book of authorities).

Lamer CJC, writing for the Court, discusses theprinciple at para 42: [42] In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular formof the "totality principle". The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutivesentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D.A.

Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation tothe offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutivesentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate".

Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, supra , at pp. 44-45: The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects. 21.

The overall sentence must still be in accordance with the sentencing goals. When the overall sentence is such that it deprives the offender of any hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns: R. v. Johnson , 2012 ONCA 339 at para 18 (tab 6 of the defence book of authorities). [ 58 ] Clearly, denunciation, and general and specific deterrence play a stronger role than rehabilitation in this case. However, at the forefront of my mind is that Mr. F.D.W. is currently serving a 7-year sentence, with five being the remnant.

Some of the sentencing principles that need to be considered in the sentencing process today have already been addressed by his custodial status. Equally, he should not benefit from a shorter sentence on these serious crimes just because he is already a serving prisoner. He was on bail when he committed these offences, and as such, this is an aggravating factor. [ 59 ] Recognizing that he will be serving a further five years, I still find a 10-year consecutive sentence for the drug offences to be reasonable in the circumstances. In total, Mr.

F.D.W. will have served the equivalent of a 17-year sentence by the time he is out of custody. [ 60 ] In my view, imposing a further 5-year consecutive sentence would be unduly harsh, as he would then be serving the equivalent of a 22 year sentence. The sheer size of this number to me would be crushing and counteractive to goals of rehabilitation. [ 61 ] As such, I make his 5-year sentence for the firearms concurrent to the 10-year sentence. It may be that there is some pre-trial custody to be credited. If there is, then it will be credited to the firearms charges. [ 62 ] In

summary, Mr. F.D.W. is sentenced to 10 years on Count 1, which is contrary to s. 5(2) of the Controlled Drugs and Substances Act . This sentence is consecutive to the current sentence he is serving. He is also sentenced to 10 years for Count 3, to be served concurrent to Count 1 and consecutive to the sentence he is currently serving. [ 63 ] He is further sentenced to 5 years on the firearms Criminal Code offences, as amended, for his possession of firearms.

This 5- year sentence is also to be consecutive to the sentence he is currently serving but concurrent to Counts 1 and 3. [ 64 ] All ancillary orders are granted. [ 65 ] This concludes these reasons. The Honourable Judge A.M. Wolf Provincial Court of British Columbia