R. v. Kumar, 2019 BCPC 22

Citation: R. v. Kumar 2019 BCPC 22 Date: 20190205 File No: 222509-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BIRENDRA KUMAR REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: J. Rutherford Counsel for the Defendant: E. Heba Place of Hearing: Surrey , B.C. Date of Hearing: January 24, 2019 Date of Judgment: February 5, 2019 [ 1 ] On August 29, 2018, I found Mr.

Kumar guilty of both Counts on this Information wherein on or about July 16, 2016, at or near the City of Surrey, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: methamphetamine, for the purpose of trafficking, contrary to Section 5 (2) of the Controlled Drugs Substances Act ; and further that on the same date, time and location, did unlawfully possess a controlled substance, to wit: heroin and fentanyl, for the purpose of trafficking, contrary to Section 5 (2) of the Controlled Drugs and Substances Act . Briefly, the facts are such that Mr.

Kumar arranged to knowingly meet a drug dealer, he left the drug dealer alone in his own vehicle, knowing that the dealer was awaiting a reload, and upon his return to his own vehicle, observed the dealer counting large amounts of money and had at least one cellular phone on the dealer. The police located within Mr. Kumar’s vehicle where he was seated in the driver’s seat and thereafter falling from his lap a total of 3 meth flaps valued at $60.00, 20 flaps of heroin and fentanyl valued at $400.00, 4 flaps of heroin and fentanyl valued at $160.00 for a total of $620.00, cash was located,

and three mobile phones of which two were inside Mr. Kumar’s vehicle and marijuana. [ 2 ] A Justin Conviction List was filed for the purposes of sentencing wherein Mr. Kumar has five entries since 2017 including theft under, driving without a licence, breach of undertaking or recognizance, and applications for a warrant which were granted.

All such were after this offence date. [ 3 ] A Pre-Sentence Report was prepared indicating that he is currently 56 years of age, born in Fiji, had an upbringing void of any abuse of neglect, that he and his second spouse settled in British Columbia with two biological children and they also adopted his brother’s daughter. They operated a number of family businesses until recently when he self-reported that his wife was unfaithful to him, and his life became so stressful, that his businesses failed and he was foreclosed.

He was introduced to cocaine by peers on a daily basis, resulting in his wife and children removing themselves from Mr. Kumar and his spiralling addiction. His addiction to cocaine traversed over to both heroin and crack. He self-reports that he has not been able to have a period of abstinence from his drug use. He attended a recovery house once, self-reporting it was for a three week period, however, the writer of the PSR noted that this was inaccurate and it was for a one week period.

Arrangements were made for him to attend another residential treatment and despite the submissions that he could not attend due to his methadone, the writer of the PSR noted that in actual fact Mr. Kumar failed to attend for the intake more than once and as such his bed was lost. He was forcibly removed from his rental accommodation and since such time has not been able to maintain stable housing. The PSR noted that there was a recovery house bed being held for Mr.

Kumar that was confirmed by his Probation Officer, however, at the time of sentencing submissions, Defence Counsel submitted that he was unable to attend because he was on the methadone programme. This inability to secure a bed conflicts with the actions of his own Probation Officer and I am unable to reconcile such. At the time of the preparation of the PSR, Mr. Kumar self-reported that he has removed himself from his negative peer associations and relies upon one person, however, the writer of the PSR was unable to verify such information. Mr. Kumar has no contact with his spouse and his sons.

He has training as a truck driver. He self-reported that he suffers from back and shoulder pain and is on narcotic pain medications such as Toradol and Tylenol 3. He has an outstanding debt of $7,000.00 to ICBC. The writer of the PSR noted that Mr. Kumar “has not responded well to past sentences and interventions. He has breached his community supervision conditions a number of times and has re-offended during these supervised periods in the community” (Page 6). Most notably, Mr.

Kumar self-reports that he is aware of his addiction and indicates a verbal willingness to address his addiction many times, however, “he has yet to follow through on any actions to further his recovery” (Page 7). He has not completed any community programming to address his addiction. [ 4 ] The mitigating factors before me are few. He has a criminal record, however, it is brief and after this offence date. He has no stable residence. He verbalizes on many occasions that he will attend counselling, however, has not done so, despite intake appointments being made for him.

He is currently on the methadone programme. He has no family supports in place. [ 5 ] The aggravating factors are that Mr. Kumar does have a criminal record, albeit I will balance that those occurred after this offence date, and it is related. There are no exceptional circumstances before me to assist in mitigating his sentence. The most poignant aggravating factor is the simple factual basis that Mr. Kumar committed these crimes involving heroin, methamphetamine and fentanyl.

Fentanyl in particular is a drug that has inflicted thousands of overdoses in this Province for a number of years and you need not be engaged in the law enforcement, social services, or medical communities, but simply as a member of the general public to be aware continuously of the scourge and wrath of fentanyl. Mr. Kumar had such for the purpose of not only possession but also possession for the purpose of trafficking. I will concede that the fact pattern before me is unique, however, I concluded at trial that Mr.

Kumar had both the knowledge and consent with the ability to exercise power over the circumstances and he had a directing and restraining power over the drugs. He was the registered owner of his own vehicle in which the dealer was found along with Mr. Kumar. Mr. Kumar knowingly exited his vehicle under the alleged guise of going for a walk to allow the known dealer to sit in his vehicle awaiting for a reload, hoping by his own acknowledgement that he would also score a better deal on his own drugs that he was allegedly purchasing. I did not find that believable. Mr.

Kumar knew of the presence of the drugs within his own vehicle, he acquiesced to such occurring and he had control over its location at all times within his own vehicle. Mr. Kumar was an active confederate along with the other occupant in the passenger seat of his own vehicle. I found that the facts supported that, upon the police arriving, Mr. Kumar stood up from being seated in the driver’s seat of his own vehicle and baggies of drugs fell onto the ground from Mr. Kumar.

The filed Agreed Statement of Facts states: “That the contents of the bag of drugs described…were for the purpose of trafficking.” [ 6 ] Crown Counsel has filed and relies upon the report dated July 25, 2016 from Dr. James Kennedy about the uses, abuse and toxicity of fentanyl. Defence Counsel did not oppose its filing nor take any issues as to the expert qualification of Dr. Kennedy who is a BC medical doctor since 1981 practicing in internal medicine, clinical pharmacology and toxicology. He is a professor at the University of British Columbia and at St. Paul’s Hospital.

He is an accepted expert in internal medicine, clinical pharmacology and therapeutics and clinic toxicology in the BC Supreme Court. The filed report details and describes what is fentanyl, identifies that it can be produced in liquid, powder and tablet form. In addressing the effects of fentanyl on the human body, at Page 4 of the report, it states: Since [f]entanyl is about 100 times as potent as morphine and 50 times more potent than heroin, it is far more likely to cause depression of breathing and sedation to the point of being unresponsive to external stimuli.

Even the smallest dose or change in dose of this very potent opioid is difficult to measure outside of a regulated pharmaceutical laboratory such that an assumedly small dose or increase in dose may be greater than expected due to measuring error, and the negative effect on breathing may be much more than anticipated simply due to its potency. The respiratory depression associated with fentanyl use is much more likely to result in cessation of breathing than the other opioids unless very high doses of these other opioids are used.

Page 5 of the Report addresses its lethal impact: A lethal dose of fentanyl is highly variable and often unpredictable. The lethality of fentanyl relates to many factors, including lack of recent opioid use that gives the user some degree of tolerance to higher doses, use of other sedating drugs, lack of knowledge of a precise dose (as is the case in all non-pharmaceutical grade fentanyl used on the street) and lack of knowledge of the presence of fentanyl in a substance that has been used.

For example, it is common for a drug user to think that he or she is using heroin, morphine, oxycodone, amphetamine or cocaine when in fact the drugs has been mixed with fentanyl or substituted with fentanyl without the user’s knowledge. When the desired or expected drug is thought to be an amphetamine but is actually fentanyl, the dangers are even greater as the user is unaware of the presence of fentanyl, is most often opioid-naïve and is unprepared for an opioid overdose.

It is here that I concur with the submissions of Crown Counsel that when this is applied to the facts before me with Mr. Kumar, that thisis an aggravating factor for consideration. By his own self-reporting and admission, Mr. Kumar was using drugs on a daily basis and thetype of drug was escalating, thus I do acknowledge that Mr. Kumar is a drug addict. Those drugs seized in this matter were mixed withfentanyl. The risk to Mr.

Kumar and others in the community with fentanyl, if not lethal, can have lasting and devastating impacts uponthe person, their family members, and the pressures upon the medical community, first responders, law enforcement, social well-beingagencies and the community as a whole is exponentially increased with the introduction and use of fentanyl. Mr. Kumar put himself andothers at risk and as articulated in Page 6 of the report, it concludes that a layperson is simply unable to detect if fentanyl has been mixedwith another substance.

Fentanyl is highly and rapidly addictive. [7] Crown Counsel has also filed the Coroners’ Service Report regarding “Illicit Drug Overdose Deaths in BC January 1, 2008 –August 31, 2018“. A review of this Report quickly illustrates the lethal impact that drugs such as fentanyl and heroin have upon thecommunity.

In review, it noted that in August, 2018 alone there were 98 suspected drug overdose deaths, that the highest number ofillicit drug overdoses were in Surrey, Vancouver and Victoria and that in particular both the Fraser Health and Vancouver Coastal HealthAuthorities had the highest number of illicit drug overdose deaths. Page 2 of the Service Report produces a chart wherein the increase ofdeaths in BC due to illicit drugs exponentially increased in 2016.

One need not be a front line responder to know that with the dearth ofmedia postings and news feeds that 2016 marked the unfortunate rapid and sharp increase in overdose deaths. Mr. Kumar’s offenceoccurred in 2016. Mr. Kumar would have had knowledge at the very public consumer level of the number of overdose deaths and thestruggles that BC’s first responders have had in tackling this epidemic. More so telling is on Page 4 of the Service Report wherein thereis a breakdown of illicit drug overdose deaths both including and excluding fentanyl.

The sharp clear delineation upwards of thosedeaths as a result of fentanyl is significant and very troubling as of the latter part of 2015. Deaths in BC due to illicit drug overdose inJuly 2015 was 39, however, in July 2016 (the time of this offence), there were 75 deaths in that very month. Page 14 of such ServiceReport notes that from 2016 – 2018, fentanyl accounted for 75.6% of the drugs detected among illicit drug overdose deaths, cocaine was48.4%, meth was 31.2% and heroin was 23.3%. All of these drugs were found in the matter before me.

This is very aggravating. [8] The seminal case for consideration is that of R. v. Smith, 2017 BCCA 112 , [2017] BCJ No. 471, which is a BC Courtof Appeal decision for an accused who was a street-level trafficker, who was found to have 13 flaps of Fentanyl, 18 flaps of powderedcocaine, and rocks of crack cocaine. He pled guilty to one count of possession of cocaine and one count of possession of fentanyl for thepurpose of trafficking. He was a first time offender, a drug addict and said that he was not aware that he had fentanyl believing insteadthat he had heroin.

In the Smith, (supra), decision, the Court made specific reference in its March 2017 decision that from the time of theoffence in January 2015 to the date of the trial sentence in November 2016, there was a “profound and enormous escalation in the extentof the fentanyl crisis and the public awareness of it” (Page 1) and identified a sentencing range of 18 to 36 months. Mr. Kumar’s offencedate is July, 2016.

It is clear that offenders, counsel and sentencing judges have been put on notice that there is a public health crisisinvolving fentanyl and that deterrence and denunciation is required when crafting a sentence involving fentanyl. The Smith, (supra),decision had unique facts in that his involvement in trafficking was brief, he had no criminal record, he was ignorant about fentanyl, andhe had taken large steps towards rehabilitation and had an Aboriginal background. Mr.

Kumar is on methadone, however, has not takenany steps towards residential treatment, despite assurances to the writer of his Pre-Sentence Report that he would do so, he failed toreport for intake and even with the gap from the initial sentencing submissions to January 24, 2019, he took no steps and Mr. Kumar isnot Aboriginal. There is nothing before me to convince me that Mr. Kumar was not aware or ignorant to the public health crisis at thetime of the offence.

What is, however, unique is that when the Court considers the fundamental principle of proportionality and if asentence is to deviate from the Smith, (supra), framework, is there sufficient facts before the sentencing judge to depart from the 18 – 36month framework. I am in the matter before me convinced that I am able to depart from the framework set out in Smith, (supra), for theunique reason that there is nothing factually before me to ascertain how much Mr. Kumar was involved in the trafficking and his level ofinvolvement. That is my only qualification.

I am satisfied that, upon undertaking my analysis and reasons for finding Mr. Kumar guilty,he had both possession and possession for the purpose of trafficking, and was engaged in such knowingly with the other occupant whomhe allowed entry and to remain in his own vehicle. However, the unique facts before me are that I do not know the extent of hisinvolvement. It is only for that absence of factual information that I will depart from the Smith, (supra), guidance.

However, I amunable to accede to Defence Counsel’s submission which initially was a two year Probation Order or alternatively 4 – 6 months ofincarceration, however, was changed to a submission of 6 months of incarceration. There is an alarming absence of other strongmitigating factors, particularly an absence of a Criminal Record and despite the date of this offence, no attendances at treatment, whetherresidential or within the community and counselling. Mr.

Kumar has no stable employment, no stable residence and only one person inthe community with whom he identifies as a support person to which the writer of the PSR was unable to confirm. I am also mindfulthat a number of the drugs seized included those drugs to which the Coroner’s Report have listed as being the significant contributingdrugs to deaths in this Province including fentanyl and heroin. In stating such, I am drawn to Paragraph 30 of the Smith, (supra),decision wherein the BC Court of Appeal stated: Although no finding was made in the case at bar that Mr.

Smith was “willfully blind” to the fact that he was in possession of fentanylrather than heroin, the case law suggests that even being genuinely mistaken about the true identity of the illegal drug in one’spossession does not serve as a mitigating circumstance in sentencing, provided the offender knew that he or she was in possession of anillegal drug: see R. v. Giammarco [2012] OJ No. 1053. Mr. Kumar knew and admitted that he knew that he was with a dealer and that the drugs were illegal. Mr.

Kumar was a confederateparticipant along with the other person whom he permitted not only entry to his vehicle, but also to remain in his vehicle alongside withdrugs, cellular phones and cash. I am also drawn to Paragraph 36 of the Smith, (supra), decision wherein the Court of Appeal relied uponR. v. Nur 2011 ONSC 4874 which supports my sentencing position that I am unable to support the submission of Defence Counsel onsuch a lower end.

The Nur, (supra), decision addressed the proliferation of handguns, however, it is equally applicable with the increaseof illicit deaths and harm caused by fentanyl: …[S]ocial norms and judicial responses to them, have changed since the 1980s and 1990s. The proliferation of handguns has increased,homicides involving handguns have increased, and the justice system has responded to public alarm by stiffening its approach tosentencing in cases involving handguns.

It is a common phenomenon, in the law of sentencing, for sentences to increase and decrease associetal and judicial knowledge and attitudes about certain offences change. It is exactly as articulated in both the Nur, (supra), and Smith, (supra), decisions that deterrence and denunciation must be considered in

crafting a sentence for Mr. Kumar rather than a primary and directed approach solely upon rehabilitation. I respectfully reject the submissions of Defence Counsel and concur with Crown that the Smith , ( supra ), decision is applicable and given the dearth of public awareness by governmental agencies and non-profits about the dangers of fentanyl, Mr. Kumar would have known about its risks and potential for fatal consequences to himself in the illegal sale and distribution and use of fentanyl and of the other illegal substances found on him. The culpability of the offender must be considered.

I am mindful that there is a distinction between a low-level street dealer and the commercial enterprise of a distributor. There is a vacuum of that information before me, however, the filed materials are clear in that while I find the Smith, (supra ), sentencing principles applicable, I will deviate, albeit not significantly, from its sentencing range due to the unique factual circumstance before me that the actual level of involvement and engagement of Mr. Kumar is lacking, however, I did find that he had both possession and possession for the purpose of trafficking.

British Columbia regrettably continues to be the province with the highest and continuing to be the highest number of illicit deaths due to drugs such as fentanyl and heroin across Canada. It not only impacts the person who sells, but impacts the user, and as a whole, has significant financial, physical and emotional impacts upon those first responders such as paramedics, police, fire and healthcare providers, and the exposure of risk to the general community.

Paragraph 44 of the Smith, (supra ), decision summarizes by stating that “the danger posed by such a drug must surely inform the moral culpability of offenders who sell it on the street, and obviously increases the gravity of the offence beyond even the gravity of trafficking in drugs such as heroin and cocaine.” [ 9 ] Crown Counsel additionally seeks to rely upon the BC Provincial Court decision of R. v. Lencucha out of this Registry by the Honourable Judge D. Boblin of April 18, 2018.

My judicial colleague found that the Smith , (supra ), analysis was applicable and that there was an absence of mitigating factors before her. In R. v. Oates, 2015 BCCA 259 , the Court carefully considered that the safety and protection of the community as a whole was predominant rather than rehabilitation. I have considered such. Thereafter, the Smith, (supra ), decision forms a basis of a framework of 18 to 36 months for trafficking in fentanyl, thus increasing what was the seminal framework as set out in R. v.

Voong, 2015 BCCA 285 of that historically being six to nine months for a first time offence for a dial-a- dope trafficker. The Courts put the offenders and those engaging in fentanyl on notice that sentences would be higher. The Smith, ( supra ), decision was endorsed again by the BC Court of Appeal in R. v. Rutter , 2017 BCCA 193 that street-level trafficking in fentanyl has a base of 18 months. Thus, I am satisfied that in applying the facts before me that the Smith, (supra ), decision is applicable and that the sentencing range is 18 – 36 months. However, what draws Mr.

Kumar uniquely out of the framework is the void before me of his level of involvement. I have clearly found him involved in both possession and trafficking. His level of involvement in this enterprise has bearing on the crafting of his sentence and but for that void of information, I would be imposing a period of 18 months incarceration. I recognize that sentencing is an art and is individualized. I will note that Mr. Kumar has not engaged in rehabilitation, including during the gap of the continuation date for sentencing submissions.

The PSR notes that he was afforded opportunities to attend intake sessions for residential treatment and failed to attend more than once. He has not turned his life around. He has no steady employment. He has no steady residency. In rejecting the sentencing submission of Defence Counsel, the moral blameworthiness of the offender is critical. Mr.

Kumar knew and ought to have known about the dangers of fentanyl and the other drugs found on him in both its use and its distribution and thereafter its consequences to not only himself, to other users, to first responders who knowingly risk their own lives to help addicts and to the community as a whole. Mr. Kumar cannot respectfully convince this Court that he was operating in a vacuum of the increased public awareness around him. Mr.

Kumar knowingly permitted a drug dealer to not only enter his vehicle, but remain unattended in his vehicle hoping that he would garner a better deal on drugs, thus allowing the dealer to sit in his vehicle is implicit to those drugs risking the inclusion of fentanyl. Mr. Kumar was either reckless or knowingly turned a blind eye to the prospect of the makeup of these drugs. That does not permit such to be a mitigating factor.

So, too, this was a dial-a-dope operation which is a sophisticated business enterprise and while again, I am mindful that the facts do not allow me to form a framework of the actual level of involvement of trafficking undertaken by Mr. Kumar, a dial-a-dope operation is an aggravating factor. [ 10 ] In the decision of R. v.

Kirton, [2018] BCJ No. 146 , the Honourable Judge Hewson from the Vernon Registry of the Provincial Court of BC, wherein a sentence of 2 years less one day followed by a 12 month Probation Order was imposed on an accused who was the father of a young child, the offences were out of character, he used cocaine recreationally, he engaged in trafficking to supplement his income, he had no prior record, and was of Metis heritage. [ 11 ] R. v.

Olenik, 2017 BCPC 390 is a decision from the Vancouver Registry of the Honourable Judge Harris for an accused who was young at 25 years of age, did not have a criminal record, was addicted to drugs, that he since stopped using drugs, he excelled at his employment and in essence, had turned his life around. That is not before me. It was for those reasons that Judge Harris was able to find exceptional and unique circumstances to impose a sentence of suspended sentence for a three year period.

I am not satisfied that those unique factors are before me. [ 12 ] After careful consideration of the sentencing provisions of the Criminal Code , case law, and the filed materials before me, the date of the offence, the aggravating and mitigating factors, I believe that a fit and proper sentence for Mr.

Kumar is to be 9 months of imprisonment to be followed by a 12 month Probation Order with the following terms and conditions: • You must keep the peace and be of good behaviour; • You must appear before this Court as and when required to do so; • You must report in person to your Probation Officer in Surrey, British Columbia within two business days after your release from custody and thereafter no less than one time per month in person; • When first reporting to your Probation Officer, you must provide him or her with your residential address and phone number.

You must not change your residence or phone number without written permission of your Probation Officer; • You must reside at a residence approved of in advance by your Probation Officer; • You must not possess or consume drugs or any other intoxicating substance, except in accordance with a medical prescription; • You must not reside at any place where any other resident has illegal drugs in his or her possession or permit any of these

items be brought inside your residence; • You must not possess drug paraphernalia including but not limited to pipes, rolling papers and syringes; • You must not possess or use any mobile communication device, except you may possess one cell phone with one phone number, which can only be used for the purposes of contacting your Probation Officer, lawyer, for lawful employment, for medical appointments, for counselling appointments, or in an emergency. • You must provide your Probation Officer with the telephone number and service provider and do not change it without the prior written consent of your Probation Officer. • You must sign any release of information forms as will enable your Probation Officer to monitor your compliance with this term.

Any information obtained by the Probation Officer can be given to a peace officer. • You must provide the device and any password used to lock the device to your Probation Officer or peace officer, upon their request, in order for him or her to monitor your compliance with this Order. • You must provide your Probation Officer with a copy of your monthly cell phone bill with details of all phone and text message activity.

A peace officer may obtain a copy of these records from your Probation Officer. • You must retain a history of and not delete your call and text usage; • You must attend, participate in and successfully complete any intake, assessment, counselling, programme, treatment or residential treatment as directed by your Probation Officer including drug abuse. • You must comply with all the rules of the programme so long as the rules do not conflict with this Order. If they do conflict, you must advise your Probation Officer forthwith.

You must immediately provide proof of your completion of the programme to your Probation Officer; • If you are expelled from the treatment centre/programme or voluntarily remove yourself from the programme without prior written permission being obtained in advance from your Probation Officer, you must report to your Probation Officer forthwith in person the first business day thereafter; and • You must sign any release of information forms as will enable your Probation Officer to monitor your attendance and completion of any assessment, counselling or treatment programme as directed by your Probation Officer. • There will be a DNA Order; • There will be a Forfeiture Order; and • There will be a mandatory

Section 109 Order for a ten year period. [ 13 ] I am satisfied that the sentence is in proportion to the gravity of the offence and Mr. Kumar’s moral culpability, particularly when I balance the mitigating and aggravating factors and the framework provided by case law. ________________________________ The Honourable Judge K. Arthur-Leung Provincial Court of British Columbia