R. v. McDonald, 2018 BCPC 244

Citation: R. v. McDonald 2018 BCPC 244 Date: 20180601 File No: 23290–2C Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TERRY RODNEY JEFFREY McDONALD REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. D. MORGAN Counsel for the Crown: A. Varesi Counsel for the Defendant: J. Avis Place of Hearing: Salmon Arm , B.C. Date of Hearing: April 5, 2018 Date of Judgment: June 1, 2018 Overview:

[ 1 ] Terry McDonald has entered guilty pleas to possession of fentanyl for the purpose of trafficking, and possession of cocaine for the purpose of trafficking, both counts contrary to s. 5 (2) of the Controlled Drugs and Substances Act ( CDSA ). He has also pled guilty to unauthorized possession of a loaded restricted firearm, contrary to s. 95 (1) of the Criminal Code .

These charges arise out of circumstances occurring on February 15, 2017, at Salmon Arm British Columbia. [ 2 ] The Crown sentencing position is three years jail on both trafficking counts concurrent to each other, and three years six months jail consecutive for the restricted firearm charge. [ 3 ] The defence sentencing position is 10 to 12 months on each of the trafficking charges concurrent to each other, and 10 to 12 months consecutive on the firearm offence followed by a period of probation.

The defence recognizes the proposed sentence is below the established ranges, but submits that the personal circumstances of the accused, including his young age of 18 years on the offence date, his aboriginal heritage, and, most particularly, his diagnosis of significant fetal alcohol spectrum disorder (FASD), amount to exceptional circumstances justifying a deviation from the usual range. Circumstances of the offence: [ 4 ] On February 15, 2017, the Vernon RCMP received a 911 dispatch regarding an aboriginal male who was on a Greyhound bus en-route to Surrey via Salmon Arm.

The information provided was that the male was carrying a loaded firearm and was going to Surrey to harm someone. [ 5 ] Cpl. Sardinha contacted the bus company and determined when the bus would be stopping in Salmon Arm. He was told that there were 7 to 8 people on board. [ 6 ] The RCMP set up surveillance at the Salmon Arm bus stop and observed a male matching the given description exit the bus and walk into the men's washroom. Cpl. Sardinha followed Mr. McDonald into the washroom, heard a clunk when Mr.

McDonald put his jacket on the counter, and could see a portion of the gun in the offender’s jacket pocket. [ 7 ] Mr. McDonald was arrested. The gun in his jacket was a 22 calibre handgun. It was fully loaded with eight rounds in the cylinder. The serial number had been ground off. [ 8 ] Also located on the offender were two baggies containing a total of 23.34 grams of fentanyl, and two baggies containing a total of 35.08 grams of cocaine. Mr.

McDonald was cooperative with the police but spontaneously uttered “Kid is still going to be put under.” [ 9 ] In a warned statement given to the police, the accused said he was selling drugs to pay off a drug debt and that he was just going to drop off the drugs and return home. He stated he had been working for drug traffickers in Vernon for several months.

He did not know the quantity of drugs he had been involved in moving through a Vernon drug house, but did say it was “a lot”. [ 10 ] Through counsel the accused states he had been selling drugs to pay off a drug debt that occurred when he was selling drugs in the lower mainland and was robbed. He states he owed lower mainland gangsters $30,000 and they sent him to Vernon to work off the debt. The accused says these were the same people who provided him with the firearm. [ 11 ] It is Mr. McDonald’s belief that it was his ex-girlfriend, who is the mother of their child, who called the police.

Apparently photos were posted showing his child sitting on the knee of someone associated with his ex-girlfriend and this upset Mr. McDonald, but he denies he was carrying the gun to harm this person. He says he had the gun for protection because Surrey is a violent place. To his credit, Mr. McDonald now says he is glad the police were called. Circumstances of the offender: [ 12 ] A Pre-Sentence Report and a Pre-Sentence Psychiatric Assessment were provided to assist in the sentencing of Mr. McDonald.

Also provided was a Multidisciplinary Team Assessment Report dated January 19, 2017, from the Asante Centre regarding an assessment of Mr. McDonald for fetal alcohol spectrum disorder (FASD). [ 13 ] Mr. McDonald was 18 years old at the time of the offence. His criminal conviction history is entirely for offences occurring when he was a youth, and consists of an assault in 2012, two mischief convictions occurring in 2014 and 2015, two theft of motor vehicles and two theft under convictions occurring in 2016, and six administrative convictions regarding breaches of bail or probation.

In September 2017 he was placed on a s. 810 recognizance (peace bond) for domestic related circumstances. [ 14 ] Mr. McDonald was born in Winnipeg Manitoba. His mother, Colleen McDonald, was 19 years old. His biological father, Tommy Walkus, played no

part in his life, was suffering from addiction problems at the time of his relationship with Mr. McDonald's mother, and continues to struggle from addiction. To his credit, Mr. Walkus has reached out to Mr. McDonald over the last two years and is willing to assist Mr. McDonald in obtaining his Status and registration with Mr. Walkus’ band situated on northern Vancouver Island. [ 15 ] Mr. McDonald's mother drank to excess and did heroin while pregnant with Mr. McDonald. [ 16 ] When Mr. McDonald was 10 months old his mother was killed in an altercation that occurred in a bar. Mr.

McDonald was raised by his maternal grandmother. [ 17 ] His mother's sister developed drug and alcohol problems of her own and moved to Surrey leaving her daughter to also be raised by Mr. McDonald's grandmother. [ 18 ] In 2011 when Mr. McDonald was 13 years old, his grandmother moved the family from Winnipeg to Surrey out of a concern that both Mr. McDonald and his cousin were becoming involved in criminal behaviour and substance abuse. It is Mr. McDonald's recollection that the move was due to his involvement with the Manitoba Warriors gang. His grandmother also had a desire to be closer

to her daughter in hopes of being to assist her with her addiction issues. [ 19 ] Unfortunately, after moving to Surrey the grandmother became fully aware of the extent to which her daughter, Mr. McDonald's aunt, was heavily involved in her addictions and the gangster lifestyle. She was dealing drugs and would often have her associates over to the family home. This had a very negative influence on Mr. McDonald who soon began using and selling drugs himself. [ 20 ] Mr. McDonald reports to the author of the Gladue Report that although he had a friend who died of a drug overdose, Mr.

McDonald nevertheless continued partying because he thought it was cool, but now regrets it. Looking back he views himself as “a follower”. [ 21 ] Mr. McDonald did not have any aboriginal friends and the people he associated with held racist and stereotypical views of aboriginals. Mr. McDonald began to adopt these views himself and he treated his grandmother and cousin accordingly.

He reported these views to the author of the Gladue Report, stating at one point he did not have any First Nations friends “because they're all lazy drunks.” When the interviewer told him that she was First Nations, he became confused and did not know how to respond. Mr. McDonald expresses little interest in connecting with his aboriginal culture except for the purpose of obtaining his status for himself and his daughter. [ 22 ] Mr. McDonald did have a relationship with his grandfather and viewed him as a father figure. His grandfather was a residential school survivor. [ 23 ] Mr.

McDonald quit school in grade 10 to deal drugs full-time. It was about this time he met the mother of his daughter. His daughter was born in August 2016. A month later the couple separated. Their relationship was rocky and characterized by partying. Mr. McDonald reports that when he attempted to detox she would not support him and kept partying, and so when she became pregnant and wanted him to be sober, he says did not out of spite, something he now regrets. There is currently a no contact order between the two. Mr.

McDonald states a desire to attend parenting classes and work on himself to be there for his daughter in the future. [ 24 ] Mr. McDonald says he does not want his daughter to visit him in jail and tells the author of the Gladue Report that his grandmother warned him he would end up in jail, but he did not think it would be as bad as it is. He states “You meet killers and rapists in here, and you see things you don't want to see. I grew up a bit in here.

I've realized I've been doing wrong and I know I need to put my daughter above everything else when I get out of here.” [ 25 ] He tells the author of the Gladue Report he hopes his former associates have forgotten about him as he wants to move on from that lifestyle. He's been sober since his incarceration, and would like to attend a drug and alcohol treatment program to help him continue in his sobriety. [ 26 ] Although he was in grade 10 when he left school, his grandmother reports he was not doing grade 10 work and says school officials always told her he was “a couple of years back”.

She also adds that “although he's going on 20 he's not 20”. Mr. McDonald has had jobs as a labourer and at one point worked in a coffee shop. He has been described as a hard worker, but there is also information that he found it difficult to adjust to the

schedule and commitment of working a regular job. [ 27 ] The results of his assessment at the Asante Centre show that for verbal comprehension, perceptual reasoning, working memory, and processing speed, he scored in a percentile ranging from 0.1 to 0.4, placing him in the Extremely Low classification for all categories. [ 28 ] His performance was in the Extremely Low – Borderline range across all tests for reading, mathematics and written language.

His verbal memory skills were in the Extremely Low range for immediate recall of information presented in story format, however his performance improved to Low Average on a list learning task where information was presented over several trials. In both categories he scored in the Extremely Low range for delayed recall. His visual memory skills ranged from Extremely Low to Average. [ 29 ] The report notes that Mr. McDonald’s physical skills fall significantly below age expectations.

For example, his fine motor skills are not well developed and he has difficulty with folding letters and trimming his own fingernails. [ 30 ] His social and communication skills are lacking. He is impatient and has difficulty waiting his turn when engaging in conversation or activities with others. He can be argumentative and will lose his temper quickly. The report states his grandmother says he has difficulty following directions and must be spoken to in clear simple sentences of short phrase length.

His vocabulary is poor and he becomes irritable when asked questions in words he does not understand. [ 31 ] His personal living skills are delayed and although he can make simple foods such as sandwiches or heat up soup he would not be able to plan meals or complete regular grocery shopping. His grandmother believes he would likely depend on microwavable or fast foods were he to live alone. He does not make medical appointments or dentist appointments for himself and does not complete household chores without constant reminders. He would require assistance to select appropriate housing.

He would not know what to do if there were issues in the home, such as if the furnace stopped working. [ 32 ] He has delayed community living skills. He has difficulty with time management and is often late for appointments. He does not have his own bank account and tends to spend money as soon as he gets it. [ 33 ] Overall, on intellectual testing Mr. McDonald's full-scale IQ fell within the Extremely Low range (standard score 50; 0.1 st percentile). It was concluded that Mr.

McDonald displays a Moderate Intellectual Disability on criteria defined in both the DSM IV and DSM V. [ 34 ] His ability to make inferences such as why certain things happened is significantly below the average range and his ability to see a relationship between an action and its outcome is significantly below the average range. [ 35 ] During testing he scored a zero on the Making Inferences test, indicating he was not able to understand that he needed to put

himself in another person’s shoes, and could only talk from his own perspective even after receiving explanation and modelling. [ 36 ] The Asante Report indicates Mr. McDonald has difficulty thinking through situations in order to understand the consequences of his actions, or the intent of others. [ 37 ] Mr. McDonald was diagnosed with FASD however it's noted that the diagnosis does not mean that alcohol is the only cause of Mr. McDonald's challenges and that his arrested brain development may have resulted from genetic factors and other exposures, including heroin, during the prenatal period.

Experiences since birth including the loss of his mother, his own substance use, and early life trauma may also be contributing factors. The report concludes with the following statement: “Terry has a disability. The diagnosis of FASD has implications for educational planning, societal expectations and health. This report includes recommendations for the specific difficulties identified during the assessment.” [ 38 ] Those recommendations will be of guidance to the professionals who will be ultimately tasked with supervising Mr. McDonald in the community.

Sentencing position of the Crown: [ 39 ] Crown counsel submits that the sentence, especially for the charges of trafficking in fentanyl and possession of a restricted loaded firearm, must emphasize denunciation and deterrence. [ 40 ] Crown submits the fact of the well-publicized national health crisis of fentanyl overdose deaths has resulted in the BC Court of Appeal establishing a range of 18 to 36 months and potentially higher, for first-time offenders convicted of trafficking in fentanyl. [ 41 ] Crown further submits that the case law justifies a sentence of 3 1/2 years for possession of a loaded restricted firearm.

Crown emphasizes the aggravating factors of the accused carrying the loaded pistol in his jacket, on a public bus, while transporting drugs, thereby putting members of the public, Greyhound employees, and the police, all at risk, should there be an altercation or accidental discharge. [ 42 ] Crown counsel also notes that in his statement to the police, in reply to the question of whether he was prepared to use the gun, Mr. McDonald said: “If anyone tried robbing me on bus, right.

I never used it.” [ 43 ] Crown counsel submits that although the trafficking offences should be concurrent to each other, that the gun offence is distinctly separate and should be consecutive. [ 44 ] Crown counsel relies on the following case law: R. v. Smith , 2017 BCCA 112 ; R. v. Rutter , 2017 BCCA 193 ; R. v. Henry , 2017 BCSC 1627 ; R. v. Abraham , 2017 BCSC 2463 ; R. v. Kirton , 2018 BCPC 11 ; R. v. Nur , 2015 SCC 15 ; R. v. Marshall , 2015 ONCA 692 ; R. v. Holt , 2015 BCCA 302 ; R. v. Knowles , 2017 BCPC 39 ; R. v. Kachuol , 2017 BCCA 292 [ 45 ] I have read and considered all of those cases.

Sentencing position of the defence: [ 46 ] Mr. Avis emphasizes that sentencing is a highly individualized process. He further reminds the court that sentencing ranges are to be properly considered guidelines, and that the particular circumstances of a particular offender may justify departure from the range. [ 47 ] Mr. Avis submits that although the Crown sentencing position may not be inappropriate for the usual offender, that there are exceptional circumstances in Mr. McDonald's case justifying a departure from the usual range. [ 48 ] Those exceptional circumstances relate to Mr.

McDonald's young age, the absence of a directly related criminal conviction history, the presence of Gladue factors, and, most particularly, to Mr. McDonald's very low cognitive functioning due to his diagnosed FASD. Mr. Avis points out that in this case the Gladue factors appear to be directly connected to Mr. McDonald's FASD diagnosis. [ 49 ] Mr. Avis submits that in this case the court is tasked crafting a sentence that takes into consideration and strikes a balance between the gravity of the offences and the diminished moral responsibility of the offender. [ 50 ] Mr.

Avis submits that balance is struck with a sentence of 10 to 12 months for each of the trafficking offences to be served

concurrent with each other and a further 10 to 12 months consecutive for the firearm offence, less time served, followed by lengthyprobation with conditions consistent with the recommendations set out in the Asante report. [51] Mr. McDonald has been in custody since February 15, 2017. [52] The defence provides the following case law: R. v. Scofield, 2018 BCSC 91; R. v. Olenik, 2017 BCPC 390; R. v. Naccarato, 2017 BCSC 645; R. v. Harper, 2009 YKTC 18 [53] I have read and considered those decisions.

The Law: [54] The Criminal Code sections 718 to 718.2, which relate to the purpose and principles of sentencing, govern this sentencingproceeding.

The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful andsafe society. [55] This purpose is achieved by imposing just sanctions that have one or more of the following objectives: to denounce unlawfulconduct, to deter the individual offender and other persons from committing offences, to separate offenders from society wherenecessary, to assist in rehabilitating offenders, to provide reparations for harm done to victims or to the community, and to promote asense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [56] A sentence is to be proportionate to the gravity of the offence and the degree of responsibility of the offender. [57]

Section 718.2 directs that a sentence should be increased or reduced to account for any relevant aggravating or mitigatingcircumstances, should be similar to sentences imposed on similar offenders in similar circumstances, and where consecutive sentencesare imposed, the combined sentence should not be unduly long or harsh, and that offenders should not be deprived of liberty if lessrestrictive sanctions may be appropriate in the circumstances. [58]

Section 718.2 (

e) further directs that all available sanctions other than imprisonment that are reasonable in the circumstancesshould be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [59] I guide myself by the following principles and statements gleaned from the case law provided. [60] The sentencing range for street-level dealing in fentanyl begins at 18 months imprisonment and might exceed 36 months. Thisrange was established by the BC Court of Appeal in R v. Smith (above). In that case, Justice Harris, speaking for the majority, stated thefollowing at paragraph 48: “48.

I have had the privilege of reading the draft reasons for judgment of my colleague, Madam Justice Newbury. I agree that it wouldbe helpful for this court to identify a sentencing range for street-level dealing in fentanyl as a result of the public health crisis caused byunintentional overdosing by people who use drugs, particularly since typically they do not know that the drugs they are consumingcontain fentanyl. As my colleague has clearly explained, fentanyl is a scourge. It poses intolerable risks of accidental overdosing becauseit is so much more powerful than morphine.

Illegally manufactured fentanyl can be particularly and unpredictably potent, even tinyamounts of fentanyl mixed into other drugs such as cocaine or heroin may be fatal; often street drugs have fentanyl cut into them, and itis practically impossible for drug users to recognize whether the drugs they buy contain fentanyl.

I endorse the sentencing range mycolleague proposes in her judgment in para. 45; namely, a range beginning at 18 months’ imprisonment that might exceed 36 months.” [61] Madam Justice Newbury, in her dissent in Smith, which related only to whether the newly established range should result in anincrease in Mr. Smith's sentence, made the following comment in relation to sentencing ranges, at paragraph 35: “35. I certainly agree that ranges are “merely guidelines”, not “straitjackets”, and I did not understand Mr. Riley to suggest otherwise.

Itis trite law that ranges are not hard and fast categories and do not preclude lesser or greater sentences if the circumstances or applicableprinciples in a particular case warrant. (See for example the lengthy discussion of ranges in the three judgments delivered by this courtin R. v. Bernier 2003 BCCA 134 at paras. 40-42, 73 and 105.) Each case must be assessed on its own facts and as Lacasse reminds us,the “fundamental principle of proportionality” must be the primary focus. That said, ranges are, as Mr. Purtzki submits, one of the“tools” available to sentencing judges.

One hopes they are useful in most cases as courts search for a “single appropriate sentence for asimilar offender and a similar crime”. (R. v. M. (C.A.) (SCC), [1996] 1 S.C.R. 500 at para 92.)” [62] Madam Justice Newbury’s reference above to R. v.

Lacasse, 2015 SCC 64, is set out by her in more particularity at para. 24 inSmith, where she states at the approximate midpoint of that paragraph the following: “The majority [in Lacasse] also emphasized the importance of the “fundamental principle of proportionality” and continued: A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle.

Proportionality isdetermined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, andby comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity ofsentences must be reconciled for sentence to be proportionate: s.718.2(

a) and (

b) of the Criminal Code. [At para.53; emphasis added]” [63] In R. v. Henry (above) BC Supreme Court Justice Brown, in sentencing a 23-year-old street-level trafficker for possession of

cocaine, fentanyl and marijuana for the purpose of trafficking, had the following to say regarding the principle of proportionality atparagraph 53: “53. The principle of proportionality is central to the sentencing process, not an add-on. I am not going to refer to the authorities here,just note this principle is a long-standing one that takes on a Constitutional dimension through s. 12 of the Charter, which forbids theimposition of a grossly disproportionate sentence, i.e. one that would outrage society standards of decency. 54. As the Supreme Court of Canada explained in R. v.

Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206, what this means is thata sentence must not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining factor. At the same time, a sentence must hold offenders responsible for theiractions, and properly reflect and condemn their role in the offence and the harm caused to the community.

In short, it must both speakout and punish against the offence and punish the offender, but no more than necessary to accomplish the objectives of sentencing.” [64] In R. v.

Nur (above) the Supreme Court of Canada upheld the Ontario Court of Appeal decision to strike down the mandatoryminimum sentence of three years for possession of a loaded prohibited firearm contrary to s. 95 (1) of the Criminal Code on the basisthat such a sentence would be disproportionate in reasonable hypothetical cases at what was described as the ‘licensing end’ of the s. 95spectrum. [65] However, the Court of Appeal and the Supreme Court of Canada upheld the 40 month sentence for Mr.

Nur, given thecircumstances of his offence were at the ‘true crime end’ of the s. 95 spectrum, which was described by Doherty J.A. as individuals whohave loaded restricted or prohibited firearms they have no business possessing and who are engaged in criminal conduct or conduct thatposes a danger to others: (see para. 25 in Nur above). [66] At paragraph 120 McLachlin C.J., speaking for the majority in Nur, said: “120.

It remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in the cases at bar.For this reason I would decline to interfere with the sentences that the trial judge is imposed on Nur and Charles.” [67] The circumstances of Mr. Nur’s case were that a young man entered a community centre and told a staff member someone waswaiting outside to get him. Gun violence was a serious problem in the neighbourhood. When the police arrived they saw four men,including Mr. Nur, standing at one of the entrances of the community centre. The men scattered and Mr.

Nur threw something awayfrom him as the officer caught up with him. The object he had thrown was a loaded 22 calibre semiautomatic handgun with anammunition clip containing 23 bullets with one in the chamber. Mr. Nur was not found to be involved in the threatening behaviour and itwas not determined how, or for how long, he came to possess the loaded firearm (see paras. 17-19). [68] Mr. Nur was a 19-year-old student with no criminal record who had worked several part-time jobs and had volunteered in thecommunity. His 40 month sentence was upheld. [69] In R. v.

Marshall (above) the Ontario Court of Appeal upheld the trial judge's sentence of Mr. Marshall to 3 1/2 yearsimprisonment for possession of a loaded prohibited firearm. Although Mr. Marshall was only 23 years old at the time of sentencing andhad no criminal record, the Ontario Court of Appeal determined that the circumstances of the offence fell at the true crime end of the s.95 spectrum. [70] At paras. 47, 48 and 49, the court stated the following: “47. In R. v.

Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 206, this court held that, the s. 95 mandatory minimum aside, offenderswho engage in s. 95 offences at the “true crime and of the s. 95 spectrum of offences” should continue to receive exemplary sentencesthat emphasize deterrence and denunciation.

Nur provides, at para. 206, that: “[i]ndividuals who have loaded, restricted or prohibitedfirearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses adanger to others” will still attract such sentences, regardless of the constitutionality of the three-year minimum penalty. 48. The appellant falls within this category of offenders. By the appellant's own admission, he was present in Sudbury at Gagan’sapartment on October 6, 2011 for the express purpose of trafficking in drugs. He sold at least 15 g of cocaine that day.

He was inpossession of a prohibited loaded handgun at a location where drug deals were occurring, several individuals were present in addition toKhan and Gagan, and the potential for violence was high. On the judge's findings, the appellant then left the loaded handgun in hisLacoste bag at Gagan’s apartment, while he and his girlfriend went out for lunch.” 49. There can be no doubt that this type of crime, in the circumstances described above, is an offence at the “true crime” end of the s. 95spectrum of offences described by this court in Nur.

Denunciation, deterrence and protection of the public are unquestionably theparamount principles of sentencing implicated for such crime. [Emphasis added]” [71] At para. 53 the court in Marshall stated the following: “53. The trial judge considered the appellant's youthfulness. While the sentence imposed would be the appellant's first penitentiarysentence, his crime was serious and committed in the course of his commission of other admitted drug related crimes.

Although thecourts should impose the shortest possible sentencing cases involving a youthful first-time offender, the sentence must be consistent withthe relevant sentencing principles, including proportionality to the gravity of the offence. As I've already said, the appellant's offencewas on the true crime end of the s. 95 spectrum. A sentence of 3 1/2 years is fit in the circumstances.” [72] In R. v. Holt (above) the BC Court of Appeal allowed the Crown’s appeal of an 18 month sentence and increased Mr. Holt’ssentence to 30 months imprisonment. Mr.

Holt was a 66-year-old man with no criminal record but was a heavy drug user. He waspulled over when driving his pickup truck, arrested for possession of drugs and a search of the truck found a backpack containing theloaded 22 calibre revolver and a box containing 43 cartridges.

[73] Starting at para. 18 (in part) in Holt, Newbury J.A., speaking for the court, held as follows: “18. With respect, I am unable to accept the defence's arguments. In my view, the possession of a loaded firearm does pose a seriousthreat, and a growing one, to communities across Canada. There is no reason why British Columbia courts should take this threat lessseriously than other Canadian courts now do… 19.

In my view, the fact a 40 month sentence was upheld almost without challenge in the Nur appeals, the comments of the court inother recent appellant decisions, but most especially the proliferation of guns in the lower mainland generally, indicate that a realignmentof the “range” is in order in British Columbia. I would say that Mr. Holt falls at the bottom end of the “criminal” range, and that asentence of close to three years is called for. I am also persuaded that the sentence of 18 months’ imprisonment was unfit given theseriousness of the offence. 20.

In the result, I would grant leave to appeal, allow the Crown’s appeal and, placing this case at the bottom of the range, I wouldincrease the sentence to 30 months imprisonment, before credit for time served of 24 days.” [74] In R. v. Knowles (above) BC Provincial Court Judge Mengering sentenced Mr. Knowles to 36 months imprisonment for beingin possession of a loaded semiautomatic pistol with live cartridges in the magazine. The firearm was found in a shoulder bag that wasessentially strapped across Mr. Knowles’ chest and stomach while he was driving his car in Prince George British Columbia. [75] Mr.

Knowles had entered a guilty plea, was remorseful and demonstrated insight. He had no criminal record and did well onbail for two years prior to sentencing. He was found to be engaged in prosocial activities and enjoyed the support of his extended family. [76] Nevertheless, Judge Mengering determined general deterrence was paramount stated, starting at paragraph 44, the following: “44. It is necessary, in my view, to send a clear, strong message to others who might be tempted to move about in the community withloaded handguns that such conduct will not be tolerated.

Society expects it and the people of Prince George deserve it. 45. I find this case is distinguished by the possession of the firearm in a public place as opposed to being inside a residence. The risk tothe community is significantly higher once that gun is outside of a residence. Cases involving possession of a firearm inside a residenceare of limited assistance to me in the circumstances. 46. While I am sympathetic to Mr.

Knowles’ circumstances, I am still faced with the growing outcry by communities and statements byhigher courts that loaded firearms pose an extreme danger, putting lives at serious risk regardless of the intent of the person carrying thegun (R. v. Felawka (SCC), 1993 4 S.C.R. 199).” [77] I pause to note that in all of the cases referred to above, the sentencing ranges that were established and/or adhered to, wereapplied to offenders who did not have the cognitive limitations that Mr. McDonald has. [78] In the British Columbia Supreme Court case of R. v.

Scofield (above), Justice Weatherill, sentenced 26-year-old Mr. Scofieldfor having sexual relations with two 15-year-old girls contrary to

section 151 (sexual interference) of the Code. [79] Justice Weatherill expressly found the sentencing of Mr. Scofield to present a difficult case given the mandatory minimum oneyear sentence required under the Code, and the offender's diminished moral blameworthiness associated with his severely diminishedlevel of cognitive and executive decision-making abilities. Mr. Scofield’s IQ was 59. Starting at para. 101, Justice Weatherill stated thefollowing: “101. I have found this a difficult case. On the one hand Mr.

Scofield, who albeit had the chronological age of 22 at the time of theoffences but was intellectually much younger, had multiple sessions of sexual relations with two 15-year-old girls over a period of somesix months. On the other hand, he is intellectually challenged, clearly has psychological and cognitive issues, and has the same or evenless mental maturity as the complainants.

Furthermore, there is no violence or threat of violence; he pleaded guilty; he has no criminalrecord; there was no predatory behaviour; he was not in a position of trust or authority over the complainants, and he now understandsthat what he did was wrong. 102. I am satisfied that Mr. Scofield has learned his lesson and specific deterrence is not required. 103. That leaves denunciation and general deterrence as the primary sentencing considerations. 104. While his acts are deserving of condemnation, his sentence must be proportional to his moral blameworthiness in committing theoffences. 105.

I have already set out the particular and peculiar circumstances of the offences and Mr. Scofield's unique and exceptionalcircumstances that result in his moral culpability for the offences being reduced. Accordingly, this case calls for a highly individualizedsentence and one that cannot, in my view, be accomplished with a term of imprisonment which would neither be fit nor proportionate.” [80] Justice Weatherill determined that in Mr. Scofield's case the mandatory minimum sentence of one year offended

section 12 ofthe Charter. [81] In the 2009 case of R. v. Harper (above) Yukon Territorial Court J. Lilles sentenced Mr. Harper, a 35-year-old aboriginal whowas significantly affected by fetal alcohol spectrum disorder, to six months’ time served and two years’ probation for sexually touching a13-year-old complainant contrary to

section 151(

a) of the Code. Neither the complainant nor the offender could recall the incident due tointoxication, however the offence was established through DNA analysis. The excellent analysis undertaken by Judge Lilles regardingthe interplay between the criminal justice system and persons suffering with fetal alcohol spectrum disorder is detailed and informative. A portion of that analysis is as follows:

“29. The purpose and principles of sentencing as set out in the Criminal Code assume that accused individuals are fully competent. TheCriminal Code, in s. 672, does recognize a very limited exception to criminal responsibility in the case of extreme cognitive impairmentsthat prevent the accused from understanding the proceedings or to appreciate the consequences or wrongfulness of his or her actions. These exceptions are premised on the assumption that most mental disorders can be treated so that a person will eventually be found fitto stand trial or to present no substantial danger to the public and be released.

These exceptions were developed by judges severalhundred years ago in the M’Naughten case, [1843-60] All E.R. 229, when nothing was known about the complexity of the permanentbrain damage that is Fetal Alcohol Spectrum Disorder (FASD). 30. The cognitive deficits associated with FASD also challenge the basic assumptions of sentencing in the criminal justice system.

Thepurposes and principles of sentencing found in the Criminal Code assume that offenders are capable of making choices, understand theconsequences of their actions, and when punitive sanctions are applied, are capable of learning from their mistakes so as not to repeatthem. General deterrence, meaning that the punishment given to one person for breaking the law will operate to deter other persons,presupposes the ability of those other persons to process and translate information as well as to remember it.

Similarly, rehabilitation, asit is conventionally understood, is largely a cognitive process premised on the ability to understand, to learn, to remember and to makechoices. None of these assumptions fit well with what is known about FASD, a permanent form of brain damage that can affect all partsof the brain, and, as in the case of Mr. Harper, can leave him functioning at the level of an eight-year-old child… 34.

The Code’s two-pronged proportionality consideration, which takes into account both the harm or potential harm occasioned by anoffence and also the moral blameworthiness of the offender, is critical to the Canadian understanding of fundamental justice. It is moralblameworthiness that justifies the stigma and punishment of a criminal sanction and that animates the determination of a “just” sentence(R. v. C.A.M. [1996] 1.S.C.R. 500, at para. 79).

The importance of s. 718.1 is underscored by its recognized constitutional dimension, asa sentence that is excessive and disproportionate, either in relation to the gravity of the offence or to the moral blameworthiness of theoffender, runs the risk of violating the

section 12 Charter right to be free from cruel and unusual punishment (C.A.M., supra, para.41). 35. The two branches of the proportionality principle set out in s. 718.1 are not always easily reconciled. As noted by the Ontario Courtof Appeal in R. v. Hamilton (2004), (ON CA), 72 O.R. (3d)1, there are times when “the gravity of the offence pointstrongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction”(para. 93). When this is the case, the court's task is especially onerous.

In some circumstances it is impossible to completely balance thetwo, and in order to craft a truly just sentence, “one side of the proportionality inquiry will figure more prominently in the ultimatedisposition than the other” (para.94)… 37. FASD has specifically been recognized as a factor that affects an offender's degree of responsibility so as to reduce the severity of ajust sentence. Indeed, it may well be the “main criminogenic factor” in an offender's life (R. v. Gray, 2002 BCPC 58 at para.53).” Conclusion: [82] This is a difficult case.

The superior courts of our country have been clear that the tragic consequences of the ever-increasingoverdose deaths resulting from fentanyl use cries out for harsh sanctions for those involved in its distribution. The courts have also beenclear that harsh sanctions are necessary for the possession of prohibited or restricted firearms, especially in circumstances associated withcriminal activity such as drug trafficking. [83] What is also clear is that Mr.

McDonald’s FASD significantly limits his ability to fully understand the impact his actions willhave on others, to understand the consequences over all of his actions, or to learn from past mistakes. The result is a diminished moralresponsibility in relation to the usual offender. [84] The aggravating factors in Mr.

McDonald's case are as follows: • one of the substances he was in possession of for the purpose of trafficking was fentanyl; • the amount of the fentanyl and cocaine he had on his possession was not insignificant: $3,500 at a street value for thefentanyl and $1,250 at a street value for the cocaine; • he was transporting the drugs on a Greyhound bus with unsuspecting passengers present; • the 22 calibre pistol was fully loaded and carried on his person while he travelled on a bus with other passengers; • unsuspecting members of the public and employees of the Greyhound bus lines were put at risk. [85] The mitigating factors are: • Mr.

McDonald was only 18 years old on the offence date and has no adult criminal record and no directly related youthrecord; • Mr.

McDonald's low cognitive functioning due to his FASD reduces his ability to fully understand the wrongfulness of hisactions and reduces his moral culpability; • his FASD is a result of his birth mother's addictions that appear to be related to a lack of connection to her own aboriginalculture that may well have resulted directly from her father's experience in a residential school; • his overall tragic upbringing that included the loss of his mother at a young age and, notwithstanding his grandmothersefforts, his exposure starting at a young age to street and gang life and drug use and trafficking. [86] I find that the appropriate sentence in these circumstances if Mr.

McDonald was a usual offender without the cognitive deficitsassociated with his FASD, would have been 24 months for the charge of possessing fentanyl for the purpose of trafficking, and eight

months concurrent for the possession of cocaine for the purpose of trafficking. The appropriate sentence for being in possession of a loaded restricted firearm traveling on a public bus, while involved in drug trafficking, and taking into consideration the totality principle, would have been 36 months consecutive. The overall sentence would have been five years less credit for presentence time served. [ 87 ] However, given Mr.

McDonald’s significantly reduced personal responsibility due to his serious diagnosed cognitive disabilities, I conclude that a just sentence should result in a substantial reduction from what the sentence for an otherwise average offender in the circumstances would have been. [ 88 ] Mr.

McDonald is sentenced to 12 months jail for the possession of fentanyl for the purpose of trafficking charge, six months concurrent for the possession of cocaine for the purpose of trafficking charge, and 24 months to be served consecutive for the s. 95 gun offence. [ 89 ] The sentence is to be reduced for time served at a credit of 1.5 to 1. He has been in custody since February 15, 2017, resulting in a total credit of 23 months and 7 days. This credit will all be applied to the s.95 offence, and will be recorded on his criminal conviction history.

Consequently, the new time he will be serving on that charge will be 24 days consecutive to the 12 months for the trafficking in fentanyl charge. The end result is Mr. McDonald will be serving a further 12 months and 24 days. [ 90 ] This sentence strikes the appropriate balance between the significant gravity of these offences and the reduced moral culpability of Mr. McDonald due to his diagnosed severe FASD related cognitive deficits. [ 91 ] Following his incarceration Mr.

McDonald will be on probation for 18 months with the following conditions: • 2104 - You must report in person to a probation officer at Vernon British Columbia within two business days after your release from custody unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different timeframe. After that you must report as directed by the probation officer. • 2203 - You must reside in a residence approved in advance by the probation officer.

You must provide with your phone number, and you must not change your residence or phone number without written permission from your probation officer. • 2502 - Having consented, you must attend, participate in and successfully complete any intake, assessment, counselling, program, treatment or residential treatment program as directed by your probation officer. • 2503 - Having consented, you must attend at the direction of your probation officer for a psychiatric intake, assessment, counselling or treatment program through forensic psychiatric services. • 2610 - You must not possess either personally or through another person any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, anything that resembles a weapon or firearm, any weapon as defined in

section 2 of the Criminal Code , or any related authorizations, licenses or registration certificates. [ 92 ] Mr. McDonald will provide a sample or samples of his bodily substances for purposes of registration in the national DNA databank while he is in custody. [ 93 ] Pursuant to s. 109 of the Criminal Code I prohibit Mr. McDonald from possessing any firearm, crossbow, prohibited weapon, restricted weapon, ammunition, and explosive substance, for life. ____________________________ R. D. Morgan Provincial Court Judge