R. v. Johnson Date:, 2017 BCPC 251

Citation: R. v. Johnson Date: 20170710 2017 BCPC 251 File No: 219264-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. COREY WILLIAM JOHNSON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. GARDNER Counsel for the Crown: Federal Crown: G. Kipp Counsel for the Defendant: B. Jessop Place of Hearing: Surrey , B.C. Date of Hearing: July 10, 2017 Date of Sentence: July 10, 2017

[ 1 ] THE COURT: Mr. Johnson has pled guilty to five counts on an Indictment including trafficking in cocaine, possessing methamphetamine for the purpose of trafficking, possessing cocaine for the purposes of trafficking, possessing heroin for the purpose of trafficking, and possessing a controlled substance, to wit, heroin, fentanyl and methamphetamine for the purpose of trafficking. All these events took place on October 18th of 2016. [ 2 ] I suppose I could summarize the facts in this fashion, a fairly typical dial-a-dope transaction. A phone call, meeting place, transaction, arrest.

I will amplify on that, of course. During the transaction, the undercover officer paid $80 for crack cocaine. After arranging a meeting on the telephone they met at the Superstore on King George Highway around 11:00 a.m. When he was arrested not only did he have the buy money, but he also had $235 in cash on his person.

They found five packages of methamphetamine with a weight of 1.1 grams; three packages of crack cocaine, total weight 1.6 grams; 27 rocks of crack cocaine, total weight 5.75 grams; 15 points of heroin, total weight 1.6 grams; and three light brown packs which contained .28 grams of a combination of fentanyl, heroin and methamphetamine. [ 3 ] He was on a conditional sentence at the time of his arrest. They also discovered two cell phones, one of which rang consistently after the arrest.

There were 10 phone calls, received all from prospective buyers, as well as a text message. [ 4 ] The Crown has asked the court to impose a global sentence of 36 months less the 131 days of enhanced credit as he has been in custody for some time prior to today's hearing. The Crown has pointed out the aggravating factors, that this is a dial-a-dope operation. There is clearly an ongoing drug problem in the Lower Mainland. This was dealt with at paragraph 18 of the Oates decision, a decision of our Court of Appeal dated June 3rd, 2015.

At paragraph 18 the court stated: It is the structured business model of dial-a-dope trafficking that has been described as sophisticated, not the particular operation before the court. [ 5 ] The Court goes on to say: It may be useful at this juncture to remember how the jurisprudence in respect to dial-a-dope trafficking developed. In what is often taken as the most succinct description of the reason general deterrence generally plays such a high role in determining an appropriate sentence for dial-a-dope trafficking in hard drugs. [ 6 ] As Mr. Justice Henderson said in R. v.

Franklin , a 2001 decision of the Supreme Court of British Columbia: ...it must be said that the Lower Mainland of British Columbia is overrun with cocaine and heroin. Those who are willing to disseminate drugs through the community by Dial-A-Dope operations are responsible for the ready availability of these drugs. People such as Mr. Franklin, who engage in Dial-A-Dope operations, are lured into them by the high profits available with little effort. It is easy money. The destructive potential of these drugs is so well known as not to require comment.

It is my view that this is the sort of offence where general deterrence has an impact. One does not enter into a Dial-A-Dope operation impulsively or spontaneously. It is necessary to obtain a supplier, to outfit oneself with a pager and a cell phone and a vehicle, and to make sure the word gets around. It is a calculated decision to engage in a particular type of business. It is reasonable to think that those who are considering that decision will take into account the likely penalty they would receive upon conviction.

In other words, general deterrence is a genuine consideration in cases of this sort. [ 7 ] The Crown has also referred the court to the case of R. v. Voong and others, a decision dated 2015 of our Court of Appeal, in which the court stated that the sentencing judge should emphasize general deterrence and denunciation for this type of offence. At paragraph 44 the court stated in regards to range of sentence: What then is the range of sentence for dial-a-dope traffickers? We know the statutory range is from a suspended sentence to life imprisonment.

We also know, from an abundance of cases decided by this Court, that the normal range of sentence for a first offence dial-a-dope drug trafficker is between six to nine months incarceration, and upwards to eighteen months in some cases, absent exceptional circumstances. [ 8 ] As the Crown has submitted, the fact that the fentanyl was part of the drugs that were seized in this investigation, that is a very aggravating factor. [ 9 ] I have been referred to a report from the Surrey RCMP setting out the fentanyl overdoses in 2017.

In April alone there were 191 documented cases of fentanyl overdoses in the city of Surrey. In May there were 150 and in June, as of June 8th, there were 31 overdoses. Quite bluntly, in terms of deaths caused by overdoses of fentanyl/heroin, in March there were 17, in May there were 17, in April there were 11. [ 10 ] Furthermore, the court has the benefit of data indicating the illicit drug overdoses and death rate here in British Columbia. In 2014 there were 368 deaths as a result of overdoses. In 2015, 518. In 2016, 935.

To date, as of April 30th of 2017 there were 488 deaths as a result of overdoses in our province. [ 11 ] I have also been referred to the Court of Appeal decision in R. v. Smith , delivered March 10th of 2017 by our Court of Appeal and in that case the harmful effects of street drugs is also discussed. Reading from the reasons of Mr.

Justice Harris at para. 48, he states: I agree that it would helpful for this Court to identify a sentencing range for street-level dealing in fentanyl as a result of the public health crisis caused by unintentional overdosing by people who use drugs, particularly since typically they do not know that the drugs they are consuming contain fentanyl. As my colleague [Madam Justice Newbury] has clearly explained, fentanyl is a scourge. It poses

intolerable risks of accidental overdosing because it is so much more powerful than morphine. Illegally manufactured fentanyl can be particularly and unpredictably potent, even tiny amounts of fentanyl mixed into other drugs such as cocaine or heroin may be fatal; often street drugs have fentanyl cut into them, and it is practically impossible for drug users to recognize whether the drugs they buy contain fentanyl. I endorse the sentencing range my colleague proposes in her judgment... namely, a range beginning at 18 months’ imprisonment that might exceed 36 months. [ 12 ] At paragraph 49, Mr.

Justice Harris continues: In my opinion, these facts warrant recognizing a sentencing range for street-level dealing in fentanyl which is materially higher than the sentencing range applicable to other dangerous drugs such as heroin. The range for street-level dealing in those drugs seems to start in British Columbia at six-months’ imprisonment. As matters stand today, other dangerous drugs do not kill as frequently, accidentally, or as unpredictably as fentanyl, but the risks posed by those drugs should not be minimized even by comparison with fentanyl.

Heroin, crystal meth and cocaine can have devastating consequences. They may not kill as often as fentanyl, but very large numbers of accidental deaths are associated with their consumption (indeed the majority of accidental overdose fatalities involve a mixture of illicit drugs) and they destroy lives and wreak social havoc. The existing sentencing range for them is intended to reflect, amongst others, the sentencing principles of deterrence and denunciation.

Recognizing a different and markedly higher sentencing range for street-level dealing in fentanyl turns on the enhanced risks associated with that activity and the individual responsibility of dealers given those risks and public knowledge of them. [ 13 ] In his submissions on behalf of Mr. Johnson, Mr. Jessop points out that the accused before the court today is distinguishable from Smith and Rutter , Rutter being a 2017 decision of our Court of Appeal.

In Rutter the accused was 27 years of age and had a prior record for similar offences. [ 14 ] Defence has acknowledged quite properly and quite realistically, in my view, there are no exceptional circumstances, as defined by our Court of Appeal, in the case at bar and acknowledges the range is 18 to 36 months and has asked the court to impose a sentence of 18 months. The accused is 28 years of age and his family resides in Red Deer.

He has three brothers, none of whom have criminal records, and he still has the support of his family. [ 15 ] The accused has been diagnosed with a bipolar disorder which undermines his ability to maintain lawful employment. He has been prescribed medication in the past for his mental health issues but he has, at times, failed to take the medication which unfortunately leads to relapses. At the time of his arrest he was receiving $900 a month for his medical disability.

I agree with the defence submission that the accused falls into the category of an addict trying to gain funds to feed his addiction by the sale of illicit drugs.

I do accept the accused's position that he believed he was simply selling heroin although, as I pointed out during submissions, that there is certainly an element of wilful blindness here as to the potential deadly consequences of the drug he was selling. [ 16 ] One of the mitigating factors, as pointed out by his counsel, the accused is a fairly unsophisticated individual and has been unable to engage in employment, lawful employment, on a consistent basis in large part because of his medical condition. [ 17 ] I have had the benefit of a Pre-Sentence Report which cannot be characterized as positive.

It sets out all the antecedents of the accused. [ 18 ] On reviewing the facts of this case, the case law that I have been referred to, the submissions of counsel and the provisions of the Criminal Code related to sentencing, I have concluded that the appropriate global sentence would be in the range of two-and-a-half years. However, as the Crown has calculated, and Mr. Jessop, I neglected to ask you but I take it you agree with the 131 days I calculated? [ 19 ] MR.

JESSOP: I defer to my friend's estimate. [ 20 ] THE COURT: And I also acknowledge that the accused has had some mental health issues that lower his culpability in this scenario somewhat.

Taking into consideration the 131 days he has spent in custody already, which is approximately four-and-a-half months, on Count 1, I will impose a sentence of two years incarceration in addition to the 131 days’ time served, and all of the other matters it will be two years concurrent. [ 21 ] In addition, under s. 109, he is banned from possessing any firearms, ammunition or explosive substance for life. [ 22 ] Also the exhibits that were seized in relation to this investigation will be forfeited to the Crown. [ 23 ] I am also going to order that he provide a DNA sample, although given his record, including robbery, it is almost a certainty that it has already been taken; they will not take it twice but I will make that order nonetheless. [ 24 ] The victim fine surcharge is payable forthwith on each of these counts, in default one day concurrent. (SUBMISSIONS) [ 25 ] THE COURT: I do not think one day is terribly significant from my standpoint but it is from the accused's.

If he would prefer to be in the provincial system it will be two years less a day on Count 1 and two years less a day concurrent on all the others, and of course Count 1 is in addition to the time served of 131 days. (REASONS FOR SENTENCE CONCLUDED)