R v Kamyar, 2023 MBPC 39

CITATION: R v Kamyar, 2023 MBPC 39 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: His Majesty the King ) K. Henley ) for the Crown ) and ) ) ) Irfan Kamyar ) J. Pinx ) for the Accused Accused ) ) ) Reasons for Decision: ) Delivered: August 10, 2023 DEVINE, P.J. INTRODUCTION [ 1 ] Mr. Kamyar pleaded guilty to possessing fentanyl for the purpose of trafficking. In a presentence Gardiner application, I determined he was operating at the high end of mid-level fentanyl trafficking ( R v Kamyar , 2023 MBPC 28 ). [ 2 ] There were large quantities of drugs found in Mr.

Kamyar’s apartment pursuant to a search warrant: almost a half-kilogram of fentanyl (426.97 grams), nearly five-and-one-half kilograms of methamphetamine (5,412.4 grams), 72.09 grams of powdered cocaine and 62.73 grams of crack cocaine. The fentanyl represents approximately 4,300 doses with a street value of over $200,000. [ 3 ] The Crown had argued at the Gardiner hearing that he was a high-level drug trafficker. After considering all the evidence of what was found and not found on Mr.

Kamyar’s person, in his vehicle, and in his apartment, as well as the lack of any evidence of a drug trafficking organization or hierarchy, I was not satisfied beyond a reasonable doubt that he was a high-level trafficker. Nonetheless, I was satisfied that he was operating at the high end of mid-level drug trafficking. [ 4 ] The Crown is seeking a sentence of 13 years. The defence is seeking a sentence of six years. Both agree that the significant pretrial time Mr. Kamyar has spent in custody should be subtracted from his sentence going forward.

THE OFFENCE [ 5 ] In addition to the significant quantity of fentanyl and other drugs found in Mr.

Kamyar’s possession, there were several other relevant indicia of trafficking in drugs at the high end of mid-level drug trafficking: • over a half-kilogram of the cutting agent phenacetin (631.56 grams); • significant numbers of used, empty, kilogram-size Ziploc bags; • the above-mentioned bags were contaminated with fentanyl, methamphetamine and cocaine, as well as with etizolam (a benzodiazepine) phenacetin, lidocaine, caffeine and levamisole; • three working scales contaminated by fentanyl, cocaine, methamphetamine, and the cutting agents phenacetin, etizolam and

caffeine; • a blender contaminated with cocaine and phenacetin; • Solo cups with residue of the same drugs and same mixing agents, the cups being used to adulterate or mix product; • a package of prepaid call cards found in a small, carry-on suitcase; • a “score sheet” indicating ounce and half-ounce drug sales; • over $13,000 of Canadian currency in the bedroom, in five bundles: $1,060, $1,270, $2,930, $4,150 and $4,010; • the five-and-one-half kilograms of methamphetamine was contained in six Ziploc freezer bags with the exact gram amount written on the bags in black felt marker: 996.8 grams, 998 grams, 997.5 grams, 997.6 grams, 999.6 grams and 999.5 grams, all approximating one kilogram.

Three of the bags contained significantly less than that, indicating that some of the methamphetamine had been sold; • unused Ziploc freezer bags and sandwich bags; • no small baggies, “dime bags” or other street level packaging materials; • a black garbage bag containing empty, used Ziploc freezer bags with approximate one-kilogram amounts written on the bags, such as “1,004”, “992”, and “998.5”; • although the freezer bags could also be evidence of sales at the kilo level, there was no evidence of any bulk sales; • a money counter on the nightstand; • at the time of his arrest, in his vehicle, Mr.

Kamyar was in possession of 3 grams of fentanyl in a small baggie tied in a knot, 3.38 grams of crack cocaine in a small baggie knotted at the top, 27.98 grams (the equivalent of approximately one ounce) of methamphetamine in a small, plastic baggie tied in a knot on the driver’s seat.

He also had two phones (an LG and an iPhone) in the vehicle with him; • a Blackberry found in the apartment, although not analyzed for communications nor encryption; • what appears to be a luxury watch on the mantle in the living room; • no drug-use paraphernalia found; • no surveillance, confidential informants, text messages or intercepted communications, nor were there any “buys” conducted by undercover police officers; • no record of any purchase of any drug at the half or full kilogram level; • over a half-kilogram of the cutting agent phenacetin (631.56 grams). THE OFFENDER [ 6 ] Mr.

Kamyar was 22 years old at the time of the offence and is now 24 years old. He does not have a criminal record. His family moved from Afghanistan, then Pakistan, where he was born, and then to Canada in 2016. He is a permanent resident, so there will be immigration consequences as a result of this conviction and sentence. He moved to Alberta with his parents, younger sister and four younger disabled brothers. His mother was often sick and in hospital.

As the oldest child, he took a lot of responsibility for the younger siblings – looking after them, cooking for them, doing all the driving for groceries and so on, and eventually, he also took a lot of financial responsibility for his family. He was by all accounts a caring, helpful, responsible, bright boy and young person. His family continues to live in Alberta. It is not clear if he relocated to Winnipeg, or rented his apartment in Winnipeg as part of or as his drug operation.

I note that there was little in his apartment to indicate this was a long-term residence and there was at least one piece of carry- on luggage and the driver’s licence found was an Alberta licence. In any event, at some point the strain on Mr. Kamyar led to him using drugs. He told me during the sentencing hearing that he borrowed money from a friend to buy drugs and then started selling drugs and doing more drugs. [ 7 ] At the sentencing hearing, he advised me he was using cocaine, and given that he wanted to use cocaine every day, he considered himself an addict.

He has become sober in jail, although did not participate in any addictions programming, such as the Winding River Therapeutic Community in the Headingley jail, where he has spent his two years and eight months of presentence custody. He has taken the Coming to Terms program in custody and has obtained his high school transcript from Alberta to see how many courses he needs to graduate. [ 8 ] He has a partial Grade 12 education. He had dreams of being a lawyer.

But he has no college or university and a limited employment background, working as a cook and a 7-Eleven service attendant. [ 9 ] One of his sisters and a friend describe him in very positive terms. In that regard, he worked as a volunteer to help seniors in the community. PROPORTIONALITY

The Seriousness of the Offence [ 10 ] Justice Moldaver’s concurring reasons in R v Parranto , 2021 SCC 46 (followed by Justices C ô t é and Rowe) outline comprehensively the seriousness of trafficking in fentanyl , observing that “fentanyl has altered the landscape of the substance abuse crisis in Canada, revealing i t self as public enemy number one ” (at para 93).

I include the following point s from his concurring reasons (at paras 94- 97): • It is synthetically produced and readily available on the illicit market; • It is significantly more harmful than other opioids because it is 80 to 100 times more powerful than morphine and 25 to 50 times more powerful than pharmaceutical grade heroin; • A lethal dose could be less than two milligrams; • The risk of overdose and death is therefore extremely high; • Nationally, it has contributed to significant opioid deaths: 23,000 deaths between 2016 and 2021, 71 percent involving fentanyl (compared to 3,400 homicides in Canada between 2016 and 2020). [ 11 ] Justice Moldaver trenchantly stated (at para 98): Largescale trafficking in fentanyl is not a crime marked merely by the distribution and sale of an illicit substance; rather, it is a crime marked by greed and the pursuit of profit at the expense of violence, death, and the perpetuation of a public health crisis previously unseen in Canadian society. [ 12 ] The Crown correctly observed that in this case, the public health crisis caused by fentanyl and other opioids was exponentially worsened by the COVID-19 pandemic – Manitoba’s health care system was in a state of extreme crisis at the time Mr.

Kamyar was trafficking in large quantities of fentanyl and methamphetamine. [ 13 ] The risk of death and overdose is exacerbated in this case because there was evidence that some of the product had been cut with etizolam, a benzodiazepine. The additional sedation qualities of benzodiazepines interfere with the ability of naloxone to effectively save the life of a person who has overdosed.

Naloxone may restore the person’s breathing, but they may remain unconscious. [ 14 ] The Crown filed the Analyzed Drug Report from Health Canada which shows that fentanyl is the third largest of the illegal drugs analyzed by Canada’s drug analysis service labs, after methamphetamine and cocaine. Fentanyl accounts for a whopping 65 percent of the opioids. The occurrence of fentanyl has spiked between 2012 and 2020, in both Canada and Manitoba. Statistics from the Chief Medical Examiner in Manitoba show an increasing number of drug-related deaths between 2018 and 2020.

Of the 372 drug-related deaths in Manitoba in 2020, fentanyl contributed to 196 of them, that is, over half. Fentanyl deaths have increased since 2020. There were 117 deaths involving fentanyl in the first half of 2021, and 120 in the first half of 2022. Winnipeg Fire and Paramedic Service collected statistics for the number of calls involving Naloxone for suspected opioid overdoses. There was a significant spike in numbers (more than double) from May to August 2020 and continuing into 2021.

Th e Offender’s Moral Culpability [ 15 ] Assessing the moral culpability of a person who is convicted of drug trafficking involves assessing the magnitude of their participation in the drug operation. ( See R v McLean , 2022 MBCA 60 at para 61 ). [ 16 ] The typical markers of moral culpability point to a high level of moral culpability in this case ( see R v Johnson , 2020 MBCA 10 at paras 16 – 20 ). [ 17 ] Mr. Kamyar engaged in intentional risk-taking behaviour.

As Judge Mason stated in the Alberta trial-level decision of R v Frazer , 2017 ABPC 116 , “Trafficking in fentanyl is almost the equivalent of putting multiple bullets in the chambers of a revolver and playing Russian roulette” (at para 11). Not only did Mr. Kamyar traffic in fentanyl, but also in enormous quantities of methamphetamine and significant quantities of crack cocaine and powdered cocaine. He took the intentional risk of not insulating himself – in order to maximize profits for himself. [ 18 ] The consequential harm of fentanyl is now well-known.

The danger posed by fentanyl informs the moral culpability of those who traffic in it. [ 19 ] The number of fentanyl deaths in Manitoba is shocking. As Justice Moldaver noted in Parranto , the number of deaths caused by fentanyl overdoses vastly exceeds the number of homicides in Canada. “[B]etween 2016 and 2020, there were approximately 3,400 homicides across Canada, a number far below the number of fentanyl-related deaths (Statistics Canada, Table 35-10-0069-01 — Number of homicide victims, by method used to commit the homicide , July 27, 2021 (online)).

This disparity makes clear that, in a very real way, those individuals responsible for the largescale distribution of fentanyl within our communities are a source of far greater harm than even those responsible for the most violent of crimes” (at para 97). [ 20 ] In paragraphs 86 and 89 of McLean , Justice Mainella stated: The consequential harm of trafficking in fentanyl is axiomatic. The comparative dangers of fentanyl in light of the science are discussed comprehensively by Cameron JA in Petrowski and I rely on her observations (see paras 43-49; see also Parranto at paras 93-98 ). . . .

Trafficking in fentanyl is a reckless and inordinately dangerous activity; the crime “not only destroy[s] lives, but [undermines] the very foundations of our society” ( ibid at para 98). The grim statistics of increasing opioid overdoses in Manitoba make clear that fentanyl trafficking must be dealt with severely by Manitoba courts “to reflect and be responsive to the local conditions” (at para 59). [ 21 ] As I noted earlier, the world was in the throes of the COVID-19 pandemic at the time Mr.

Kamyar was trafficking drugs that put further strain on the emergency life-saving crews and the health care system. [ 22 ] The normative character of Mr. Kamyar’s conduct, that is, making a deliberate decision to traffic in large quantities of highly addictive drugs – one of which, fentanyl, is often fatal – seriously violates societal values. The dire consequences of street-level drug use in Manitoba is palpable, especially in the city of Winnipeg. [ 23 ] Although Mr. Kamyar was apparently a regular cocaine user, he was trafficking in very large quantities.

This is not a situation where he was simply supporting his habit. Moreover, he chose to traffic in far more dangerous substances that he himself did not consume – fentanyl and methamphetamine. Sentences for Fentanyl Trafficking and Parity [ 24 ] In 2020, the Manitoba Court of Appeal declined to set a range for trafficking in fentanyl, on the basis that at the time, there was not sufficient information about the consequential harm and no direction from the Supreme Court and other appellate courts across the country ( see R v Petrowski , 2020 MBCA 78 at paras 31 to 35 ). [ 25 ] That is no longer the case.

Both the Supreme Court of Canada in Parranto and the Manitoba Court of Appeal in McLean have provided unequivocal guidance about the direction that sentences for fentanyl trafficking should go: up. [ 26 ] Parranto involved the sentencing of two offenders engaged in the wholesale trafficking of fentanyl in Alberta, which corresponds to mid-level trafficking in Manitoba ( see McLean at para 111 ) . The seven- judge majority made it very clear that sentences for fentanyl trafficking should be high and perhaps higher than they had been up to that point.

The four-person majority decision written by Justices Martin and Brown reviewed appellate decisions across the country and noted that the national range for trafficking fentanyl at the mid to h igh level was 8 to 15 years ( Parranto , at para 68 ) . [ 27 ] The sentencing judge’s sentences of seven years and 11 years respectively for Mr. Felix and Mr. Parranto were overturned.

The Alberta Court of Appeal established a starting point of nine years for wholesale trafficking in fentanyl and increased the co-accused sentences to 10 and 14 years, respectively. [ 28 ] Notwithstanding that sentencing is an individualized ex ercise, it has a relationship to proportionality, which takes into account parity.

The Supreme Court stated in R v Lacasse , 2015 SCC 64 (at para 53 ): Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2 (

a) and (

b) of the Criminal Code . [ 29 ] In Parranto , Mr. Felix was the directing mind of a dial-a-dope operation in Fort McMurray, with some of the drugs destined for Nunavut. He pleaded guilty to two counts of trafficking in fentanyl and two counts of trafficking in cocaine. He had runners who refilled fro m a stash house and paid a “boss” who in turn paid Mr. Felix weekly. The structure of the operation was designed to insulate him from criminal exposure.

The guilty pleas related to five complete and one incomplete drug transaction – which totaled approxi mately 1 , 500 fentanyl tablets and approximately 90 ounces of cocaine. Mr. Felix was a college-educated business man with no criminal record, no mental or addictions issues and a good relationship with his children.

The Court of Appeal stated it would have imposed a 13 -year sentence, but in light of the fact that the Crown had sought only a 10 - year sentence at the sentencing hearing and that the jurisprudence was still developing, it imposed a sentence of 10 years. [ 30 ] The Supreme Court upheld the 10-year sen tence, noting as well Mr.

Felix’s strong rehabilitative prospects, his involvement in only pro-social pursuits while on judicial interim release and clear support from many family and friends (17 letters of reference) . [ 31 ] In upholding the sentence, Justices Brown and Martin were quick to emphasize that future sentences involving the wholesale trafficking in fentanyl “may very well be expected to attract more signi ficant sentences” ( Parranto at para 73 ). [ 32 ] Mr. Parranto was found with a similar amount of fentanyl as Mr.

Kamyar, approximately a half-kilogram, o n two different occasions , and entered two guilty pleas under C ontrolled D rugs and S ubstances A ct s. 5(2), two counts of Criminal Code s. 95 possession of loaded handgu n s for use in the trafficking operation and one count of violating his weapons prohibition order under Criminal Code s. 117 . He was also bound by life-time weapons prohibitions and was found with a handgun and body armour.

He had a lengthy and related criminal record and after his release from jail on the first set of offences, he resumed his status as a wholesale trafficker within 12 weeks. [ 33 ] He was sentenced to 11 years cumulatively and the Court of Appeal increased the global sentence to 14 years, which was upheld by the Supreme Court. [ 34 ] The Supreme Court took into account Mr. Parranto’s circumstances as a Métis person.

[ 35 ] The majority noted that if they were to apportion the sentence to the various charges, suggested that the Crown’s suggestion of 9 and 12 years on the fentanyl traffic king, to be served concurrently, would be appropriate. [ 36 ] There is an absence of any evidence of a drug-trafficking operation or hierarchy in the case before me. The expert witness who provided an opinion as to the level of drug trafficking that Mr. Kamyar was involved in believed him to be obtaining fentanyl and other drugs at the wholesale level and then cutting out the middlemen to maximize profits. Indeed, Mr.

Kamyar had been under surveillance for some time and was observed selling at the street level. [ 37 ] He was able to obtain large quantities of fentanyl during the first year of the COVID-19 pandemic, which was very difficult in Winnipeg, demonstrating his ability through money or contacts, to obtain a drug that was very difficult to procure at the time. [ 38 ] Although his situation can be distinguished from Mr. Felix who had insulated himself in the organization of the drug- trafficking hierarchy and Mr. Parranto, who also had loaded handguns, body armour and a serious criminal record, Mr.

Kamyar as a sole operator, if that is what he was, demonstrates the greed and profit motive involved. [ 39 ] In Petrowski , the Manitoba Court of Appeal upheld a 10-year sentence for trafficking 51 grams of fentanyl. The Crown had asked for a 13-year sentence. The accused was 29 years old and was an independent drug dealer (see reference in McLean at para 70 ), although he used a co-accused to insulate him from detection (picking up his mailed package).

He had an unrelated record except for one conviction for simple drug possession as a youth, and he had good rehabilitative prospects. [ 40 ] In R v Slotta , 2020 MBCA 79 , the motivation to import 49 grams of fentanyl was addiction. He was the custodian who received fentanyl mailed from overseas and held it until it was picked up by his dealer. He had a previous, unrelated record and poor rehabilitative prospects.

His eight -year sentence was upheld. [ 41 ] At the time of Petrowski and Slotta , the Crown had sought a declaration from the Manitoba Court of Appeal to set a range of 8 to 12 years for mid-level trafficking in fentanyl, but the Court declined to do so, on the basis that other appellate courts had not yet set a range.

Nonetheless, Petrowski is noted in Parranto as contributing to the national range of 8 to 15 years. [ 42 ] I n the decision of McLean , the Manitoba Court of Appeal established a range for someone minimally involved in mid-level fentanyl trafficking, such as a courier or custodian without decision-making or responsibility , at be six to eight years of imprisonment (see para 118). I n that case, the accused couriered 220 grams of fentanyl and a 981 gram brick of cocaine in his luggage from Vancouver to Winnipeg. He was sentenced to 12 years for the fentanyl, and six years concurrent for the cocaine.

On appeal, the Court of Appeal hel d that he was a courier in a sophisticated interprovincial drug network, but he did not have any decision-making authority in the operation. The sentence was reduced to nine years. [ 43 ] Justice Mainella in McLean comprehensively outlined the considerations that would tend to increase or decrease a sentence for trafficking in fentanyl. [ 44 ] Mr. Kamyar’s sent ence is not in the six- to eight- year range. His degree of participation and involvement in the operation was high – it appears he was a sole operator. [ 45 ] He was not “minimally” involved in fentanyl trafficking.

He was not a “mere courier” without decision-making authority.

Given the large quantity of not only fentanyl, but other drugs that he wa s in possession of, including five-and-one-half kilograms of methamphetamine, as well as cocaine and crack cocaine, and the obvious cutting and packaging going on in his apartment, he was operating at the hi gh end of what is typically understood as mid-level trafficking in Manitoba. [ 46 ] Justice M ainella went on to describe the range of sentence for a higher mid-level dealer, in McLean (at para 122 ) : The range of sentence for those more heavily involved in the trafficking of fentanyl than a mere courier or custodian at what, in Manitoba, would be considered mid-level trafficking is, according to Parranto , a very lengthy penitentiary term in the high single digits and will commonly be well into the double digits (leaving aside the effect of the aggravating and mitigating factors and, in the case of an Indigenous offender, a proper application of

section 718.2(

e) of the Code ). That is consistent with what this Court said in Petrowski and Slotta. Accordingly, those who have reduced moral culpability, such as a mere courier or custodian, should face a lesser range of sentence, but one that is still higher than the range for like offenders trafficking in other hard drugs. (Emphasis added.) [ 47 ] The defence filed cases supporting its requ est for a sentence of six years.

Other than McLean , all the cases are from outside of Manitoba and several of them pre-date Parranto and McLean , so they are of limited value. [ 48 ] The decision of R v Cashman , 2022 BCSC 1836 involved wholesale trafficking in fentanyl (3.5 kilograms) , methamphetamine, cocaine, ketamine, codeine, hydromorphone and morphine. The Crown position and the ultimate sentence imposed demonstrate that the sentences for similar offences in British Columbia are much lower than in other juris dictions, including in Manitoba.

The Crown sought nine years for the fentanyl, with five years concurrent for all the other substances. The amount of fentanyl and the profit motive demonstrated a high degree of culpability, but Mr. Cashman was not the directing m ind of the operation, and took direction from a co- accused.

The sentencing judge took into consideration five other British Columbi a cases in sentencing him to six years on the fentanyl, with concurrent sentences imposed for the other substances. [ 49 ] In R v Lynch , 2022 ONCA 109 , the Ontario Court of Appeal identified several fatal errors in a sentencing judge’s sentence of four years for mid-level fentanyl trafficking. The sentencing judge misidentified the sentencing range for fentanyl trafficking, erred in principle in assessing the accused’s moral culpability and ascribed too much weight to the guilty plea.

The accused sold fentanyl to an undercover officer on six occasions, and was able to provide several different types of drugs, in increasing amounts, demonstrating that he was a mid-level trafficker. He pleaded guilty and accepted responsibility for 41.37 grams of fentanyl, 149.28 grams of MDMA and 965.01 grams of cocaine. The Crown initially sought a sentence of 10 years, but reduced their position to eight years at the hearing,

subsequent to Parranto . The Court of Appeal found that the sentence request was reasonable, except that it did not take into account the guilty plea by the accused. The Court of Appeal increased the sentence from four years to six years. [ 50 ] The next three cases were decided before Parranto . A sentence of eight years was imposed in each. In R v White , 2020 NSCA 33 , the Nova Scotia Court of Appeal increased the sentence for mid-level trafficking in fentanyl from six years to nine years.

One of the errors made by the sentencing judge was failing to consider jurisprudence from other parts of Canada where the courts had more experience in dealing with cases involving fentanyl. That is not the situation today and in Mr. Kamyar’s case – there are many cases involving sentences for fentanyl trafficking in Manitoba, at the trial court level and the Court of Appeal. [ 51 ] The offender in White had possession of 2,086 fentanyl pills (the weight being approximately one third of a kilogram) disguised as OxyContin, which was extremely aggravating, 101 grams of cocaine and 81.9 grams of crack cocaine.

The offender had a lengthy and violent record, including two previous drug trafficking convictions. It should be noted that this was a very large fentanyl seizure, but fentanyl trafficking was still fairly rare in Nova Scotia. The Court of Appeal declined to set a starting point or range, given the lack of cases in the province to that point. [ 52 ] In R v Solano-Santana , 2018 ONSC 3345 , the offender had 5,000 fentanyl pills that were being trafficked in remote, northern communities.

He received a sentence of eight years. [ 53 ] In R v Leite , 2018 ONCJ 132 , the offender was in possession of significant quantities of cocaine (1.238 kilograms) and methamphetamine (371.1 grams) and a much smaller quantity of fentanyl (147.9 grams). Again, it was prior to the Supreme Court of Canada’s decision in Parranto and before most jurisdictions had sufficient “handle” on sentencing fentanyl in order to establish ranges or starting points. The offender was 29 years old with no criminal record and the purpose of trafficking was purely for profit.

He had many positive character references, was married with a new baby and had been successful on 14 months of judicial interim release. He was sentenced to a cumulative eight years for the fentanyl with concurrent sentences for the other drugs and currency. AGGRAVATING AND MITIGATING CIRCUMSTANCES [ 54 ] The nature of the substance is aggravating. The amount of fentanyl seized is aggravating.

The additional substances that the accused was trafficking – five-and-one-half kilograms of methamphetamine and significant quantities of powdered and crack cocaine is aggravating. [ 55 ] It is also aggravating that the fentanyl was sometimes cut with etizolam, increasing the danger of overdose deaths. [ 56 ] I also take into account that the accused came to this province from his home province of Alberta and trafficked this poisonous, lethal substance in a city that is rife with poverty and many vulnerable people, often unhoused and dependant on fentanyl and other opioids to survive each difficult day.

It is highly aggravating that this young, otherwise prosocial, bright young man came to this city and took advantage of our hardships for his own profit. [ 57 ] Mr. Kamyar’s guilty plea is mitigating. I also note that the Crown’s case was strong. He saved the criminal justice system a likely lengthy trial. He is very young and had no criminal record at the time. SENTENCE [ 58 ] The sentence sought by the defence is wholly inadequate. It is at the bottom end of the range for a person who has no decision-making power or authority. All evidence points to Mr.

Kamyar having significant, if not sole, decision-making power and authority. [ 59 ] Mr. Kamyar was operating at the very high end of mid-level trafficking, in poly-substances. Whether I had found Mr. Kamyar to be a “high-level” or “mid-level” dealer in fentanyl, the resultant sentence may not be significantly different.

I observe Justice Pfuetzner’s decision in R v Bisson , 2018 MBCA 92 , where she likewise discusses that categorization is not a scientific exercise: The categorisation of drug traffickers as street-level, mid-level or high-level dealers and the application of the corresponding sentence ranges are useful tools to help assess the moral culpability of an offender in arriving at a fit sentence. However, the determination of the appropriate category is not a scientific exercise; it involves the weighing of many factors.

There is no bright line dividing mid-level traffickers from high-level traffickers, nor is any one factor determinative. The categories lie on a continuum and, depending on the particular circumstances, an offender could fall somewhere near the intersection of two categories. . . . The evidence before the sentencing judge revealed some factors consistent with high-level trafficking and others consistent with mid- level trafficking.

However, in our view, even if the sentencing judge erred in failing to categorise the accused as a high-level trafficker, we are not persuaded that the eight-year sentence he imposed is demonstrably unfit. (At paras 6 and 8.) [ 60 ] The Manitoba Court of Appeal has accepted that the range for mid-level trafficking in fentanyl is between 8 and 15 years. Clearly, this sentence will be at the higher end of that range, given the serious aggravating circumstances: the quantity of fentanyl; the fact Mr.

Kamyar was trafficking in large quantities not only of fentanyl, but also of methamphetamine (five-and-one-half kilograms) and significant quantities of cocaine; huge amounts of packaging of these substances in kilogram-size bags; the presence of etizolam, making the fentanyl more toxic and deadly; the fact this was an ongoing operation; and the fact that Mr. Kamyar appears to have come to Manitoba only for the purpose of trafficking in drugs. [ 61 ] Mr. Kamyar’s cocaine use has little or no impact on his moral culpability and consequently his sentence.

This is not a situation where he was an addict selling drugs to support his addiction. I accept that he was a user of cocaine, and even that the desire to use

cocaine daily might qualify him as addicted. But I distinguish this from the cases where street level dealers are selling to get their next fix. This was a large operation in fentanyl, methamphetamine, powdered cocaine and crack cocaine for profit. He was obtaining these substances at the kilogram level, cutting them with various substances and selling them on the street. The huge numbers of kilogram- sized bags, unused bags, and the huge amount of cutting agents, are some of the indications of this type of operation.

The existence of etizolam is very aggravating. [ 62 ] The Crown candidly advised that prior to the Gardiner hearing, her position as to sentence had been 15 years, but taking into account Mr. Kamyar’s guilty plea, his age, and lack of record, she revised her position to 13 years. [ 63 ] The sentence of six years sought by the defence is well below the range set by our Court of Appeal. There are no circumstances of this offence or the offender that would justify a sentence below the range. His rehabilitation prospects are largely unknown, given the lack of information before the court.

He had a letter of support from his sister and a letter of support from an old acquaintance, who at best, glossed over the crime and the enormity of the crime, in their letters. [ 64 ] I have taken into account the significantly mitigating circumstance of the guilty plea, as well as Mr. Kamyar’s young age and lack of criminal record. It does bring his sentence below what the Crown is seeking. [ 65 ] I am imposing a sentence of 11 years.

This sentence reflects the seriousness of the offence, the high level of moral culpability of the offender, and gives effect to the clear direction from the Supreme Court and the Manitoba Court of Appeal that sentences for trafficking in fentanyl must increase to address the lethal nature of the crime. In Manitoba, the drug is killing and oppressing an already- oppressed populace of drug users. [ 66 ] The sentence of 11 years will be reduced by the considerable time that Mr.

Kamyar has spent in presentence custody, approximately four years (992 days at a rate of 1.5x = 1,488 days, or 4.076 years.) [ 67 ] Costs and surcharges are waived. [ 68 ] The following ancillary orders are made: • 10-year s. 109 weapons prohibition • DNA, secondary designated offence • Forfeiture of all items seized Original signed by Judge Devine DEVINE, P.J.