R. v. Alidina Date:, 2016 BCPC 123

Citation: R. v. Alidina Date: 20160429 2016 BCPC 0123 File No: 217612-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal ) REGINA v. RAHIM MHOEZDIN ALIDINA REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: T. Ferreira Counsel for the Defendant: T. Ochitwa Place of Hearing: Vancouver , B.C. Dates of Hearing: July 17, Nov. 19, 2014; Feb. 27, July 2, 24, 2015; Feb. 5, 12, 2016 Date of Judgment: April 29, 2016

INTRODUCTION [ 1 ] The accused, Rahim Mhoezdin Alidina (“Alidina”), was charged in an Information that on April 14, 2013, at the City of Vancouver, he did traffic in methamphetamine contrary to s. 5(1) of the Controlled Drugs and Substances Act (“ CDSA ”). [ 2 ] In addition, Alidina was also charged in the same Information that on April 14, 2013, at the City of Vancouver, he did have in his possession heroin contrary to s. 4(1) of the CDSA . [ 3 ] On July 17, 2014, Alidina pled guilty to the single count that on April 14, 2013, at the City Vancouver, he did traffic in methamphetamine. [ 4 ] A Stay of Proceedings was directed in relation to the possession of heroin charge.

ISSUE [ 5 ] The issue to be determined is the appropriate sentence to be imposed for Alidina’s trafficking having regard to: (1) his circumstances, and; (2) circumstances surrounding the offence for which he has pled guilty. PROCEDURAL HISTORY [ 6 ] The relevant procedural history for Alidina can be summarized as follows: • the Information was sworn on April 15, 2013; • Alidina made his first court appearance on May 29, 2013.

At that time, the Crown stated that they were seeking a mandatory minimum sentence in the event Alidina was found guilty or pled guilty to trafficking in methamphetamine; • on June 21, 2013, Alidina asked to be screened for Drug Treatment Court (“DTC”); • on July 12, 2013, Alidina was deemed eligible for DTC; • on September 17, 2013, Alidina was adjourned to DTC for an interview, but failed to appear resulting in a bench warrant being issued which was later vacated and a trial date was established to commence on January 27, 2014; • the Crown filed a Notice of Intention on October 11, 2013, seeking a minimum punishment of imprisonment in the event Alidina was found guilty or pled guilty to the trafficking in methamphetamine, as a result of two prior convictions for possession for the purpose of trafficking (“PPT”) in a

Schedule I substance registered in 2009; • on January 27, 2014, a bench warrant was issued as a result of Alidina’s failure to appear for his trial; • on April 8, 2014, Alidina was in custody pursuant to the bench warrant and was released on bail; • on April 14, 2014, a second trial date was set for Alidina to commence on July 17, 2014; • on July 17, 2014, Alidina entered a guilty plea to trafficking in methamphetamine; • on December 24, 2014, Alidina filed a Notice of Application for Constitutional Remedy based, in part, that the minimum sentence prescribed by s. 5(3)(a)(i)(

D) of the CDSA violated the cruel and unusual punishment provision contained in s. 12 of the Canadian Charter of Rights and Freedoms (“the Charter ”); • on August 24, 2015, Alidina pled guilty to one count of failing to report and was sentenced to one day in prison with the Record of Proceedings to reflect time served as enhanced of 5 days; • on November 3, 2015, Alidina pled guilty to one count of failing to report and was sentenced to one day in prison with the Record of Proceedings to reflect time served as enhanced of 3 days; • on February 12, 2016, final submissions were made by the Crown and Alidina with respect to what would be a fit and proper sentence for the trafficking charge.

CIRCUMSTANCES SURROUNDING THE 2013 TRAFFICKING OFFENCE [ 7 ] On April 14, 2013, police officers were on patrol in Pigeon Park when they noticed Alidina pull an orange flap from his pocket and place it into the hands of a suspected buyer. Alidina was then observed removing $15 from the suspected buyer’s hand and placing it in his pocket. Alidina and the buyer were arrested and the flap seized from the buyer. [ 8 ] Without packaging, the contents of the flap weighed 0.11 grams.

The flap contents were later analyzed as methamphetamine. [ 9 ] There was also a small amount of heroin and cocaine found on Alidina’s person. [ 10 ] There was a brief conversation between the arresting police officer and Alidina. During the course of the conversation, Alidina admitted that he was selling the methamphetamine for $15, as he wanted to use the money to buy video games. THE CIRCUMSTANCES SURROUNDING THE 2009 OFFENCES

[11] On March 9, 2009, Alidina was convicted of PPT cocaine, contrary to the CDSA. [12] The offence related to an incident on January 3, 2009. At that time, Alidina was observed by the police making a hand-to-handtransaction with another individual in the 900 block of Granville Street. Alidina was arrested for trafficking and he was found to be inpossession of two large rocks of what was later analysed as cocaine.

The total weight of the cocaine was 0.34 grams. [13] Alidina was sentenced to one day jail, with the Record of Proceedings to reflect time served as enhanced of 28 days. [14] On November 27, 2009, Alidina was convicted of PPT cocaine, contrary to the CDSA. [15] That offence related to an incident on July 19, 2009. At that time, Alidina was observed by the police passing, what theybelieved to be, illicit drugs to a buyer. As a result of those observations, the police arrested Alidina.

Located on his person were 9.52grams of rock cocaine, along with $54.55 in various denominations. [16] Alidina was sentenced to 4 days in jail, with the record of proceedings to reflect time served as enhanced of 72 days. A one yearprobation order was also imposed. ALIDINA’S PERSONAL CIRCUMSTANCES [17] The Probation Officer (“PO”) reported the following in the Pre-Sentence Report (“PSR”) respecting Alidina’s personalcircumstances: • he was 34 years old and was currently living in a Single Room Occupancy Hotel (“SOR”) in the Downtown Eastside; • he had occasional contact with his biological mother.

She advised the PO that, while the contact was sporadic, she remainedsupportive of her son; • he had few friends and spent much of his time in his small apartment playing video games; • he completed high school and partially completed training in Industrial Machinery, but had yet to receive full certification. In thepast, he held various casual employment positions and currently reported working at the bottle depot located in the Downtown Eastside; • substance abuse was an ongoing issue for him. He began using alcohol at the age of 15. He began to experiment with cocaine,and eventually heroin, in the late 1990’s.

There was a period of sobriety, which was followed by a relapse in or around 2006 when hebegan to use illicit drugs, including cocaine, methamphetamine, and heroin. He was currently on the methadone maintenance program,and reported he no longer used cocaine or methamphetamine; • he never attended a substance abuse treatment program and felt that residential treatment would not be of benefit to him. He waswilling to attend one-on-one drug and alcohol counseling; • his criminal history dated back to 2002.

It consisted of 13 prior convictions for offences of theft, failure to comply with courtorders and drug related offences; • it was the opinion of the PO that his criminal history, suggested his prior offending was primarily related to his substance abuse; • his motivation to traffic in methamphetamine was driven by his desire to purchase a video game. He appeared to be aware that hisunemployment and substance misuse were factors that contributed to the offence.

POSITION OF THE PARTIES [18] At the time of final submissions in February 2016, it was agreed by the Crown and Alidina that the court should first determinethe sentence that ought to be imposed for the trafficking before embarking on the Constitutional Challenge being advanced by Alidina. [19] If the sentence was less than the one year that was mandatorily required at that time by operation of s. 5(3)(a)(i)(

D) of theCDSA, then the Crown wanted the opportunity to respond to the Constitutional Challenge raised by Alidina. [20] On April 15, 2016, the Supreme Court of Canada (“SCC”) rendered R. v. Lloyd, 2016 SCC 13, an appeal from the BritishColumbia Court of Appeal: 2014 BCCA 224. [21] Speaking for the majority, the Chief Justice declared that s. 5(3)(a)(i)(

D) of the CDSA was inconsistent with s. 12 of theCharter and not justified under s. 1. The

section was declared of no force and effect under s. 52(1) of the Charter. [22] The Ruling on Application rendered by the trial judge, Galati, Prov. Ct. J. was restored: 2014 BCPC 8 , 2014 BCPC0008. [23] The ruling of the SCC in Lloyd is determinative of the Constitutional Challenge raised by Alidina. The mandatory minimumsentence of one year in prison for trafficking would not apply to Alidina. (

i) Position of the Crown [24] The Crown submitted that the appropriate range of sentence for Alidina in relation to trafficking was 14 months. The basis forthis submission was set out in the Written Submissions of the Crown as supplemented by oral argument: [25] The Crown submissions can be summarized as follows:

• Alidina had a serious criminal record, including six drug-related offences of which two related to PPT in 2009; • he demonstrated a lack of interest in dealing with the drug offences as revealed by his poor track record in attending court. Warrants were issued on many occasions for his failure to appear; • the breach allegations demonstrated that Alidina would not be compliant in relation to community supervision; • his prior trafficking related offences in 2009 all involved

Schedule I substances; • possession for the purpose of trafficking in methamphetamine was a serious offence. The principles of deterrence anddenunciation would be paramount; • Alidina had not demonstrated any active steps toward his rehabilitation, including his failure to participate in DTC when he wasgiven the opportunity; • he demonstrated a lack of insight into the harm he caused by trafficking in

Schedule I Substances. [26] The Crown provided the court with authorities setting out ranges of sentence for trafficking or possession for the purpose oftrafficking in

Schedule I substances. (ii) Position of Alidina [27] Alidina submitted in oral argument in February 2016, that a Suspended Sentence with community supervision would be theappropriate sentence for trafficking in methamphetamine. This position was a departure from Alidina’s earlier Written Submission inwhich he proposed a 90 day jail sentence would be appropriate. [28] Alidina’s submissions can be summarized as follows: • he was not trafficking in methamphetamine as an active drug dealer.

To the contrary, he was trafficking for the purpose of buyinga video game as he admitted to the arresting police officer; • the small amount of methamphetamine which was trafficked; • the small amounts of heroin and cocaine located on Alidina on April 14, 2013, were for personal use; • he was a vulnerable individual trying to survive in the Downtown Eastside in which many of the residents were marginalized as aresult of addictions, physical and mental health issues, homelessness, and poverty; • he was a functioning drug addict currently involved in the methadone maintenance program and therefore he was addressingaddiction issues; • his criminal behaviour has declined and there were no convictions for substantive offences since 2009, except for the trafficking inmethamphetamine; • he had part-time employment; and • his acceptance of responsibility by pleading guilty. [29] Alidina provided the court with authorities dealing with the unique nature of the Downtown Eastside of Vancouver, as well ascases setting out ranges of sentence for trafficking.

STATUTORY FRAMEWORK [30] Alidina has been charged with trafficking in methamphetamine contrary to s. 5(1) of the CDSA, which reads as follows: 5

(1) No person shall traffic in a substance included in

Schedule I, II, III or IV or in any substance represented or held out by that personto be such a substance. [31] Any person convicted for trafficking in a

Schedule I substance is liable to imprisonment for life pursuant to s. 5(2) of the CDSA. [32] Section 10(1) of the CDSA describes the “fundamental purpose” of sentencing for offences under

Part I of the CDSA as follows: 10

(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this

Part isto contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, andtreatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [33] By operation of s. 10(2) of the CDSA, it will be deemed as an aggravating factor if a person was previously convicted of adesignated offence, which includes offences under

Part I. DISCUSSION [34] Both the Crown and Alidina made submissions as to what would be a fit sentence having regard to Alidina’s circumstances andthe circumstances of the trafficking offence. [35] As was noted by the SCC in R. v. Wust, 2000 SCC 18 , [2000] 1 S.C.R. 455, at para. 23, a court is directed by

Part

XXIII of the Code to consider various purposes and principles of sentencing, such as denunciation, general and specific deterrence,public safety, rehabilitation, restoration, proportionality, disparity, totality and restraint, and to take into account both aggravating andmitigating factors. The case law may provide additional guidelines in setting a range of sentence in particular circumstances. [36] Ultimately, it is a well-established principle of the criminal justice system that courts should strive to impose a sentence tailoredto the individual case.

Unjustly severe sentences are more likely to inspire contempt and resentment than to foster compliance with thelaw: Wust, at para.21. [37] Methamphetamine has been identified as a dangerous drug with highly addictive qualities. It has also been identified as a drugcapable of causing severe physical and psychological damage: R. v.

Francis, 2008 BCCA 309, at para. 22. [38] In trafficking scenarios involving a dangerous drug such as methamphetamine, deterrence and denunciation would generally beparamount factors in imposing sentence: Francis, at para. 12. [39] The Downtown Eastside has been described as an area that is home to some of the poorest and most vulnerable people inCanada. It encompasses a relatively small geographic area with a high concentration of intravenous drug users, mentally and physicallyill residents, poverty, homelessness, and despair: Attorney General of Canada and Minister of Health of Canada v.

PHS CommunityServices Society et. al., 2011 SCC 44 , [2011] 3 SCR 134, at paras. 4-8. [40] Alidina continues to struggle with his drug addiction. He describes himself as a functioning addict. He is currently involved inthe methadone maintenance program. He also expressed an interest in participating in one-on-one counseling to address his drugaddiction. [41] The methamphetamine trafficked by Alidina was valued at $15. It was undisputed that he was going to use the money to buy avideogame at the local flea market.

As was noted by the PO, gaming plays a significant role in Alidina’s lifestyle. [42] Notwithstanding his prior convictions for PPT, Alidina’s trafficking in the methamphetamine appears to be an isolated incident. I would describe the circumstances surrounding the trafficking as coming in at the low end of severity. [43] Hope is a commodity that is often in short supply in the Downtown Eastside. This is particularly so in relation to residents ofthe Downtown Eastside who struggle with drug addiction, health issues, homelessness, and poverty.

This list is not exhaustive. [44] Three years have now passed by since Alidina trafficked in the methamphetamine. Other than the two breaches with respect tothe substantive file, he has not committed any further criminal offences. He reportedly has a part-time job at the bottle depot in theDowntown Eastside. [45] To now impose a sentence in the range of 14 months would, in all likelihood, extinguish any glimmer of hope for Alidina’srehabilitation.

While principles of deterrence and denunciation are generally paramount in imposing sentences for trafficking inSchedule I substances, where there is a reasonable chance that an addict can control his addiction, it then becomes necessary to considerthe ultimate benefit to society if that chance becomes a reality: R. v. Preston, 1990 CarswellBC 152, at para. 31, (BCCA), applied R. v.Bay, 2011 BCCA 297, at para. 13. [46] Where that reasonable chance of rehabilitation exists, then deterrence and denunciation will be of lesser importance in thesentencing process.

To give Alidina a chance to overcome his addiction risks little more than the possibility of failure: Preston, at para.37. [47] I have had the benefit of a thorough PSR. As was noted by the PO, Alidina was aware that his unemployment and substanceabuse were contributing factors to his trafficking methamphetamine. Alidina has addressed both of those issues by securing part-timework at the bottle depot and participating in the methadone maintenance program. [48] The PO described Alidina’s family relationships as positive and supportive.

The PO confirmed that Alidina was willing tocomply with court conditions, including one-on-one counseling. SENTENCE TO BE IMPOSED [49] There may be slips, and even relapses, as Alidina struggles with both his addiction and coping with life in the DowntownEastside. However, I find that there is a chance, and possibly more than a chance, that his positive efforts to overcome his addictionrequire a sentence that will promote his rehabilitation. [50] There will be the imposition of a Suspended Sentence.

You shall be subject to an 18 month probation order with the followingconditions: • You shall keep the peace and be of good behaviour; • You shall report in person on or before 3 PM of the next business day to a Probation Officer, at 275 East Cordova Street, in theCity of Vancouver, Province British Columbia, thereafter, as when and where directed; • You shall provide your address to and reside where directed by your Probation Officer and not change your residential addresswithout the prior written permission of your Probation Officer; • At the direction of your Probation Officer, you shall participate in and successfully complete such counselling and programs asmay be directed by your Probation Officer including, but not limited to, substance abuse counseling, and substance abuse programs; • You shall abstain from the possession and consumption of drugs as defined by the CDSA, except drugs as may be prescribed byyour physician;

• At the direction of your Probation Officer, you shall complete within the first 12 months of this order 25 hours of community work service to the satisfaction of your Probation Officer; • You shall make reasonable efforts to maintain employment to the satisfaction of your Probation Officer. [ 51 ] The Victim Surcharge applies. I am granting two months in which to pay the Victim Surcharge. Should that pose a hardship, you may apply to the court to seek an extension of time to pay the Victim Surcharge. [ 52 ] Pursuant to s. 487.051(1) there will be a requirement that you provide a DNA sample. [ 53 ] Pursuant to s. 109(1)(

c) of the Code , you shall be subject to a lifetime prohibition in relation to weapons. The Honourable Judge G. Rideout Provincial Court of British Columbia