R. v. McCormick Date:, 2017 BCPC 22

Citation: R. v. McCormick Date: 20170130 2017 BCPC 22 File No: 233320-2C File No: 60518-1 Registry: Vancouver Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WALTER JAMES MCCORMICK REASONS FOR SENTENCE OF THE HONOURABLE JUDGE B. CRAIG

Counsel for the Crown: O. Bick Counsel for the Accused: L. Myers, Q.C. & J. Allingham Place of Hearing: Vancouver , B.C. Date of Hearing: August 29 & December 6, 2016 Date of Judgment: January 30, 2017 A Corrigendum was released by the Court on February 1, 2017. The corrections have been made to the text and the Corrigendum is appended to this document. Introduction [ 1 ] Mr.

McCormick is before the court for sentencing on two separate Informations; one from Vancouver for offences in January and February of 2015, and the other from Richmond, from an incident on May 18, 2016. [ 2 ] On the charges arising from Vancouver, Mr. McCormick pleaded guilty to one count of trafficking and three counts of possession for the purpose of trafficking. The trafficking count arose after Mr. McCormick supplied a total of 3,000 fentanyl pills for sale on two separate dates. When Mr. McCormick was arrested on February 17, 2015, his vehicle, residence and storage locker were searched.

The possession for the purpose of trafficking counts arose after the police located large quantities of various drugs at these locations. [ 3 ] In the searches of Mr.

McCormick’s vehicle, residence, and storage locker, the following items were seized by the police: • 27,000 fentanyl pills; • 4.054 kilograms of Cocaine; • 1.016 kilograms of methamphetamine; • 374 grams of MDMA; • 5 grams heroin; • 22.56 kilograms of cannabis; • 3 kilograms of cannabis resin; • 92,833 alprazolam pills; • $171,905 cash; • 600,000 pills that are not controlled drugs under the CDSA ; • 4.54 kilograms of cutting agents; • 44 kilograms of excipients and dyes (these are commonly used as fillers and dyes in pills and tablets); • A Heckler & Kock USP .40 calibre pistol, with readily accessible ammunition; and • A .22 calibre rifle. [ 4 ] According to an agreed Statement of Facts filed at the sentencing hearing, the total wholesale value of the illegal drugs seized in the Vancouver offences is $623,713.

The street value is $2,034,132. [ 5 ] On May 18, 2016, while out on bail, Mr. McCormick was charged with a number of new offences in Richmond. He has pleaded guilty to an amended single count that, on May 18, 2016, he possessed fentanyl, cannabis (marihuana), cocaine, and alprazolam, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act . [ 6 ] The following items were seized from Mr.

McCormick’s vehicle, his hotel room, and the parking lot outside his hotel room on May 18, 2016: • 1,000 fentanyl pills; • 2 kilograms of cocaine; • 18.1 kilograms of cannabis marihuana; • 4,285 alprazolam pills; and

• $4,736 cash. [ 7 ] The Crown asks the Court to impose what it described as an “exemplary sentence for an exemplary case”; that of 18 years in prison, globally, for all of the offences. The Crown argues that the Court must impose this sentence in recognition of the serious nature of the offences involving fentanyl, and the harms that fentanyl has caused to the community.

The Crown called evidence at the sentencing hearing to substantiate its submission that the community was facing an epidemic in relation to overdose deaths associated to the illegal sale of fentanyl. [ 8 ] The Defence recognizes the dangers associated with fentanyl, and the offences of trafficking and possession for the purpose of trafficking of this drug. The defence argues, however, that sentencing Mr. McCormick to 18 years in prison is not a measured response to his offending, nor would it alleviate the fentanyl epidemic.

The defence submits that the principles of sentencing are adequately addressed with a sentence of 8 to 9 years in prison. [ 9 ] The factors that the Court must consider in determining the appropriate sentence in this case are: 1. The Circumstances of the Offence; 2. The Circumstances of the Offender; 3. The Principles of Sentencing and Case Law; and 4. The Aggravating and Mitigating Factors. [ 10 ] I will deal with each of these factors before determining the appropriate sentence for Mr. McCormick. Circumstances of the Offence Vancouver Offences [ 11 ] Mr.

McCormick came to the attention of the police when they were investigating another individual believed to be involved in the sale of heroin in Vancouver’s Downtown Eastside. In October of 2014, there was a surge in overdose deaths that were believed to be caused by the sale of “bad heroin”, that is, a drug that was sold as heroin, but was, in reality a mixture of fentanyl and caffeine. [ 12 ] Mr. McCormick became a person of interest to investigators early into the investigation. On January 8, 2015, an undercover police officer bought 1,000 fentanyl pills from Raymon Ranu, an associate of Mr. McCormick. Mr.

McCormick was observed meeting with Mr. Ranu earlier in the day and after the sale of the fentanyl to the undercover officer. Furthermore, $3,500 of the $11,000 paid by the undercover officer was located in the search of Mr. McCormick’s residence on February 17, 2015. Mr. McCormick was not charged with this offence. It is simply background to the offences for which he has pleaded guilty. [ 13 ] On January 16, 2015, Mr. McCormick supplied Mr. Ranu with 1,000 fentanyl pills, which Mr. Ranu then sold to the undercover officer for $13,000. Mr.

McCormick has pleaded guilty to this offence. [ 14 ] On January 26, 2015, Mr. Ranu sold another 1,000 fentanyl pills, plus one ounce of heroin, to the undercover officer. When Mr. McCormick’s residence was searched, the police located $2,900 of the buy money for this transaction. Mr. McCormick was not charged with this offence. [ 15 ] On February 4, 2015, Mr. McCormick supplied Mr. Ranu with 2,000 fentanyl pills to sell to the undercover officer. Mr. Ranu sold this fentanyl, plus one ounce of heroin that he had retrieved from a stash house, to the undercover officer for $29,200.

The police recovered $10,800 of this buy money when they searched Mr. McCormick’s residence. [ 16 ] Mr. McCormick was arrested on February 17, 2015. He was carrying two cellular phones, $1,205 cash, and had a key to his storage locker. When the police searched Mr.

McCormick’s vehicle, they found the following: • two additional cellular phones; • a backpack containing 1,000 fentanyl pills, 1,000 alprazolam pills, and $5,280; • a makeup case with 1,500 fentanyl pills and 117 grams of MDMA powder; and • two black garbage bags with 18 half-pound vacuum sealed bags of marihuana, for a total of 4.4 kilograms. [ 17 ] When the police searched Mr. McCormick’s residence, they located drugs and material related to the sale and packaging of drugs in three different rooms. In a storage room connected to the ground floor TV room, the police found: • documents associated to Mr.

McCormick; • a document describing a property in Mission being considered to house a marihuana grow operation; • a document describing Mr. McCormick’s agreement to fund a marihuana dispensary, “Revive Health and Wellness”, that Mr. McCormick had been seen attending; • notebooks full of “score sheets”; • a Ziplock bag containing 3,000 alprazolam pills;

• a Z,iplock bag containing 2,100 pink pills that were not controlled substances; • an electronic scale; • 4,900 fentanyl pills; • 466 grams of cocaine; • a bag with elastics and 1” x 1” “dime bags”; • A bag under the bottom drawer of a dresser containing: 8,000 fentanyl pills in 8 Ziploc bags and a container with 956 grams of crystal methamphetamine of 97% purity; [ 18 ] In the crawlspace of Mr. McCormick’s residence, the police found a fanny pack with a H&K .40 calibre handgun, a compatible magazine loaded with ammunition, and loose ammunition hidden behind a breaker control panel.

Also located in the crawlspace was a Ziploc bag with 2000 fentanyl pills and a large money counter. [ 19 ] In the garage of the residence the following was found: • a .22 calibre long gun wrapped in a blanket; • 1.88 kilograms of marihuana vacuum sealed in half-pound bags in two garbage bags; • a further 16.28 kilograms of marihuana sealed in half-pound bags in a hockey bag; • a vacuum-sealing machine and a box of vacuum-seal bags; • 3 one-kilogram bricks of cannabis resin (hashish); • 2.43 kilograms of caffeine; • 36 grams of a substance containing morphine, codeine, and alprazolam; and • 4,500 green pills that were not controlled substances. [ 20 ] Under the bottom drawer of a dresser in the walk-in closet of the master bedroom, the police found $43,000 in cash.

Under a second dresser, the police found another $115,040 in cash. Also found there were two men’s watches with appraisal reports assessing the watches at $37,500 and $11,000 in value. A further $7,380 in cash was found in the closet. [ 21 ] When the police searched Mr. McCormick’s storage locker, they found various packages of various different drugs.

In total, in the storage locker, the police found: • 9,600 fentanyl pills; • 3.58 kilograms of cocaine; • 60 grams of methamphetamine; • 257 grams of MDMA; • 5 grams of heroin; • 88,833 Alprazolam pills; • 600,000 non- CDSA pills; • 44 kilograms of excipients (fillers) and dyes used in pill production; • 2.113 kilograms of cutting agents; and • a rusty, but functional, pill press. The Crown did not allege that Mr. McCormick had used this to make the fentanyl pills. [ 22 ] As noted earlier, there was uncontested expert evidence that the value of the drugs seized from Mr.

McCormick was $623,713 on the wholesale level, and $2,034,132 on the street level. Richmond Offence [ 23 ] Mr. McCormick was arrested on February 17, 2015 and released on bail on February 19, 2015 on a $100,000 cash recognizance with strict bail conditions. While on bail, Mr. McCormick lived in a series of apartments and hotel rooms. On May 17, 2016, he checked in to the Sandman Hotel in Richmond, intending to stay for one month. [ 24 ] On May 18, 2016, the hotel manager made attempts to evict Mr. McCormick after he had some negative interactions with staff at the hotel. After giving Mr.

McCormick time to gather his things, the manager knocked on the door of his room. After some delay, Mr. McCormick eventually opened the door and pushed past the staff, leaving his luggage in the room. The manager went into Mr. McCormick’s room, found that the patio door was wide open, saw evidence of alcohol and drug use, and observed what appeared to be packaged illicit drugs. Mr. McCormick did not return to the room.

[ 25 ] At the same time, another employee of the hotel reported that there were three duffel bags of marihuana lying in the parking lot. They were located directly below the patio of Mr. McCormick’s room. The police attended at the hotel after receiving a call from the staff. The police had also received three 911 calls from witnesses reporting that a man, who appeared paranoid and delusional, was hiding in bushes, then breaking into a UPS truck and trying to hide money inside. The police located Mr. McCormick a short distance away after he had been coaxed out of the UPS truck by the driver and then fled. Mr.

McCormick was out of breath and barefoot. He told the police he was being chased by four men. [ 26 ] The police recovered $2,085 in cash inside, and in the area around the UPS truck. A further $2,190 was found on Mr. McCormick. When the police searched Mr. McCormick’s vehicle, they located five half-pound ZIP-ZAG bags of marihuana bud, and a one-kilogram brick of cocaine. [ 27 ] In the search of Mr.

McCormick’s hotel room, the police found 1,049 fentanyl pills in a ZIP-ZAG bag, 26 grams of heroin, 24.5 grams of cocaine, 285 alprazolam pills, 7.9 grams of alprazolam powder, a bag and a container with unused packaging material inside, a heat sealer, an electronic scale, an open box of Ziploc bags and a flip phone and seven cellular phones. [ 28 ] Inside the three duffle bags in the parking lot, police found a total of 18.1 kilograms of marihuana, packaged in vacuum-sealed bags weighing approximately two pounds each.

Also found in one of the duffel bags was a one-kilogram brick of cocaine and 4,000 alprazolam pills. [ 29 ] Mr. McCormick was taken to the Richmond General Hospital for an assessment and was discharged the next day. Charges against him were sworn on June 24, 2016 and Mr. McCormick turned himself in on June 27, 2016. He consented to his detention at that time on both the Vancouver and Richmond files and has been in custody since. Issue on Possession of the Duffel Bags [ 30 ] On the first day of the sentencing hearing, the Defence stated that, although Mr.

McCormick agreed to the Statement of Facts filed, he did not agree that those facts were sufficient to find that he had possession of the duffel bags, and the drugs found therein. This issue was not pressed in the Defence’s closing submissions, but I must, nevertheless, address it. [ 31 ] I am satisfied beyond a reasonable doubt from the evidence at the sentencing hearing that Mr. McCormick had possession of the duffel bags and the drugs found therein on May 18, 2016. My conclusion is based on the following facts: • the duffel bags were located in the parking lot, not far from Mr.

McCormick’s vehicle and immediately below the patio for his room; • hotel staff had been trying to evict Mr. McCormick and were waiting outside his door for him to leave; • the duffel bags were found just after Mr. McCormick rushed out of his room, leaving the patio door wide open; • the duffel bags contained $84,000 worth of drugs - this is not something one could reasonably expect would be left unattended; • Mr.

McCormick was clearly not acting rationally; he was reported by hotel staff to appear to be under the influence of alcohol and/or drugs, he was reported by witnesses to be acting in a paranoid and delusional manner, he had attempted to hide cash in a UPS bus, and he believed he was being chased by four men; • the ZIP-ZAG packaging for the marihuana in the duffel bags was similar to the ZIP-ZAG bags of marihuana found in Mr. McCormick’s car and the ZIP-ZAG bag containing fentanyl found in Mr.

McCormick’s room; • the alprazolam found in one of the duffel bags tested positive for a synthetic cannabinoid receptor type 1. The alprazolam in Mr. McCormick’s room also tested positive for this receptor; • the brick of cocaine found in one of the duffel bags was vacuum-sealed in clear plastic and red tape. The brick of cocaine found in Mr. McCormick’s vehicle was also vacuum-sealed in clear plastic and red tape. • From these facts, there is no other reasonable inference other than that the duffel bags belonged to Mr. McCormick and were thrown by him over the balcony after he was evicted by hotel staff.

Evidence on the Dangers Associated with Fentanyl Trafficking [ 32 ] The Crown called evidence at the sentencing hearing to emphasize the serious nature of the offending in this case. This evidence identified the dangers related to fentanyl abuse, and associated with fentanyl trafficking. It also spoke to the increased prevalence of fentanyl on the street and the consequential harms to the community. This evidence was from the oral testimony of Dr. James Kennedy, the expert report of Sgt. Peter Sadler, and from documentary evidence reporting on deaths related to fentanyl abuse. Dr. Kennedy’s Evidence [ 33 ] Dr.

Kennedy testified as an expert in the effect of fentanyl on the human body. He described fentanyl as a synthetic opioid designed to have pharmacological effects similar to naturally occurring opioids like morphine and heroin. A significant difference with fentanyl is its high potency. Whereas heroin is twice as potent as morphine, fentanyl is up to 100X more potent than morphine. [ 34 ] Fentanyl is commonly used for medical purposes for pain relief. In a medical setting, fentanyl is administered in a controlled environment.

Any change in dosage is made in small increments, with safeguards in place, such as constant monitoring of the patient by medical personnel, continuous measurements of the patient’s oxygen levels, and the availability of assisted breathing devices and naloxone if the oxygen level falls below a safe level. Naloxone is an antidote drug that quickly reverses the effects of fentanyl.

[ 35 ] Dr. Kennedy testified that fentanyl is also safely prescribed for patients with chronic pain. Out of the hospital setting, this prescription is usually by way of a patch. The patch is worn on the skin and delivers low levels of fentanyl into the body over a period of several days. [ 36 ] In recent years, fentanyl has been found commonly in street drugs. Fentanyl’s danger when consumed as a street drug is due to its potency. It has a low therapeutic index, meaning even slight changes in dosage can cause significant effects.

This makes it difficult for the untrained street user to accurately measure a safe dose. In addition, fentanyl has a more significant effect on a user naïve to opioid use than an experienced user. Two people sharing the same drug can be affected much differently. [ 37 ] Dr. Kennedy testified that overdose deaths are much more likely to be caused by fentanyl because of its potency. Death is caused by respiratory depression resulting in lethally low circulating oxygen levels. In simple terms, a person stops breathing after ingesting too much fentanyl. [ 38 ] In cross-examination, Dr.

Kennedy agreed that much of the blame for what has been described as the opioid epidemic can be attributed to the over-prescription of opioids as pain medication by medical doctors. In the 1990’s, doctors were convinced by prescription drug companies that opioid pain-killers were effective and rarely caused addiction. As the medical profession started to better understand the risks associated with opioid use, including its addictive qualities, doctors started to cut patients off their prescriptions.

This lead to people turning to the street to find their drugs, which in turn lead to an increased demand for opioids on the street. Sgt. Sadler’s Report [ 39 ] In the report filed with the Court, Sgt. Sadler set out the background to the use and sale of fentanyl on the street. The most significant danger posed by fentanyl on the street was when it was added to, or used to replace, the more common street drugs heroin and oxycodone. [ 40 ] In 2012, a newer, safer form of oxycodone was manufactured. It replaced the older form that was being abused by addicts and causing overdose deaths.

Drug traffickers began using fentanyl in place of oxycodone, and selling these as Oxycontin. The buyers of these counterfeit pills did not know they were buying fentanyl. When suppliers of these pills did not “cut”, or dilute the fentanyl concentration enough in these pills, deaths due to fentanyl overdose resulted. [ 41 ] Sgt. Sadler noted that traffickers then started cutting or replacing heroin with fentanyl. Fentanyl cut with caffeine powder is sold as heroin.

If the amount of fentanyl was not properly diluted, a user, believing to be taking the less potent heroin, could die from overdose. [ 42 ] The use of fentanyl to replace oxycodone and heroin is attractive to drug traffickers for two reasons. Firstly, it is less risky to purchase and import into Canada. Because of its concentration, smaller amounts can be imported into Canada and then diluted for sale on the street. Secondly, there is a much greater profit margin with the sale of fentanyl. It is much cheaper than heroin. Sgt.

Sadler stated that a kilogram of fentanyl can be purchased on the internet from manufacturers in China for $7,000-$12,000 a kilogram. That kilogram can be diluted out to produce 7,000 doses per gram of fentanyl. In comparison, a kilogram of heroin is $70,000. That kilogram of heroin is typically diluted only 3½ times before being sold on the street. Reports on Fentanyl-Related Overdose Deaths [ 43 ] The Crown filed a number of reports at the sentencing hearing that identified an alarming increase in overdose deaths related to fentanyl abuse in British Columbia. A report from the B.C.

Centre for Disease Control from September of 2014 described the significant increase in fentanyl-detected deaths that had been noted since 2013. A report from July/August 2015 confirmed that fentanyl-detected illicit drug overdose deaths in British Columbia had gone from 5% of the total illicit drug deaths in 2012 to over 20% in 2014 and represented an “emerging public health concern in B.C.” [ 44 ] The September 2014 report described drug users dying after they consumed what they believed to be oxycodone, but what was in fact counterfeit oxycodone (or “fake oxy”) containing fentanyl.

The evidence that people were using fentanyl without knowing it, and dying due to overdose was confirmed in further reports filed: B.C. Centre for Disease Control report of July/August 2015; Fentanyl Urine Screen Study of 6/12/2015; Harm Reduction Journal (2015). [ 45 ] In August of 2015, the Canadian Centre on Substance Abuse put out a bulletin identifying the increase in the number of deaths where fentanyl was the cause, or a contributing cause.

The report noted that “anecdotal reports suggest that many fentanyl overdoses occurred in individuals who thought they were using heroin, oxycodone, cocaine or another substance, but mistakenly took fentanyl.” Furthermore, the number of reported fentanyl seizures by police had doubled every year between 2009 and 2014. This number doubled again in 2015, with British Columbia representing the highest number of fentanyl seizures reported by the police. [ 46 ] The evidence showed that the significant increase in overdose deaths due to illicit drug use in British Columbia was continuing in 2016. The B.C.

Coroners Report “Illicit Drug Overdose Deaths in BC: January 1, 2007 - July 31, 2016” showed that there were 433 overdose deaths in British Columbia between January and July of 2016. Between January and June of 2016 there were 238 illicit fentanyl-detected overdose deaths, a 250% increase over the number during the same period in 2015.

Fentanyl-detected drug deaths in the first half of 2016 represented 62% of the total illicit drug overdose deaths. [ 47 ] In April of 2016, the overdose deaths related to fentanyl caused the Provincial Health Officer to declare a public health emergency providing notice of the increased availability of fentanyl and its contribution to overdose deaths. [ 48 ] The evidence in this case was heard in August of 2016, before the year had ended. The trend in increase in deaths related to fentanyl did not abate, but continued for the balance of the year. I recognize that I must sentence Mr.

McCormick on the evidence at the sentencing hearing. But I must also recognize that the harm to the community posed by fentanyl abuse continues.

Circumstances of the Offender [ 49 ] Mr. McCormick is 53 years old. He was born in Kelowna and raised by his father after his mother died when he was six years old. He has two brothers and four sisters. Mr. McCormick obtained a grade 12 education and then worked as an iron-worker on-and-off for 22 years. He was in a common-law relationship for 10-12 years that ended with his arrest on the Vancouver offences. [ 50 ] Mr. McCormick was described by defence counsel as having a drug and alcohol problem. He was severely intoxicated by drugs and alcohol when he was arrested on the Richmond charges in May of 2016.

Criminal Record [ 51 ] Mr.

McCormick has a serious, and related criminal record as follows: • January 13, 2000 - Conspiracy to Distribute Cocaine - Sentence of 121 months jail - Seattle, Wash. • January 30, 2002 - Conspiracy to traffic in cocaine - Sentence of 6 years jail, concurrent to the sentence of 121 months from Seattle, Wash. • October 18, 2002 - Flight from a peace officer - 30 days jail; • August 2, 2012 - Possession for the purpose of trafficking - 20 months jail • August 2, 2012 - Impaired Driving - 60 days jail, concurrent. [ 52 ] The conviction for conspiracy to distribute cocaine from January 13, 2000 involved 10 kilograms of cocaine that Mr.

McCormick had arranged to purchase in the U.S. for delivery to Canada. As part of the U.S. Plea Agreement, Mr. McCormick was transferred under the International Prison Exchange Program to serve the sentence that was imposed in the United States in Canada. [ 53 ] Regarding the 2002 conviction for conspiracy to traffic in cocaine, I was told that that sentence was for an offence related to the sentence he received in the U.S. There was a joint submission for a 6 year sentence that was to be concurrent to the U.S. sentence. In the Reasons for Judgment on the 2002 sentence, Mr. Justice Cullen noted that Mr.

McCormick was involved with another individual in the distribution of cocaine in the Lower Mainland area between April 30, 1997 and February 3, 1998. The conspiracy for which he was sentenced by Justice Cullen involved 50 kilograms of cocaine, “at least some of which was destined to be sold to Fehr and McCormick”. [ 54 ] The sentence on 20 months jail in August 12, 2012 was for possession for the purpose of trafficking in 2 kilograms of cannabis resin. Challenger, J. agreed to the joint submission between the Crown and Defence, but noted that the sentence was “on the more lenient side of things”, given Mr.

McCormick’s criminal history. Crown Position on Sentence [ 55 ] The Crown seeks a total sentence of 18 years in custody; 10 years on the Vancouver offences, and 8 years consecutive on the Richmond offence. The Crown recognizes that this is a harsh sentence, and a sentence that could be considered above the range for similar offences. The Crown’s first position was that the sentence is not outside any established range, when one takes into account the serious nature of fentanyl, and its impact on the community, and the other aggravating factors in the case.

Furthermore, even if the sentence sought is outside the range, the Crown says there is ample authority to allow the Court to increase the range: R. c. Lacasse, 2015 SCC 64 ; R. v. Su , 2000 BCCA 480 ; and R. v. Kwok , 2015 BCCA 34 . [ 56 ] In support of its position on sentence, the Crown relied upon 32 different cases. Some of these cases, as noted above, addressed circumstances where a Court may go beyond, or increase, the range of sentence for a particular offence. A number of other cases addressed sentencing for fentanyl-related offences.

Finally, the Crown relied upon cases involving the sentencing for offences involving large amounts of other serious drugs, cocaine and heroin. Although I will not mention every case relied upon by the Crown, I have considered all of these cases in detail. I will refer to the more relevant cases in my analysis of the appropriate sentence. Defence Position on Sentence [ 57 ] Mr. Meyers, on behalf of Mr. McCormick, agreed that the principles of denunciation and deterrence are the paramount principles for the Court to take into account, and that rehabilitation plays a lesser role. With respect to rehabilitation, Mr.

Meyers said that “it may be considered a bit of a stretch for a 53 year old man”, but the principle still applied. Mr. Meyers did not raise any factors that suggested any prospects for rehabilitation, beyond pointing out that Mr. McCormick had managed to stay out of trouble for a period of 8 years between being released on parole in 2004 and the possession for the purpose of trafficking offence in 2012. [ 58 ] Mr. Meyers emphasized that Mr. McCormick’s guilty plea to the Vancouver and Richmond offences is a significant mitigating factor. He agreed that the Richmond offence was aggravated by the fact that Mr.

McCormick was on bail at the time, but argued that Mr. McCormick’s intoxication by alcohol and drugs at the time was somewhat mitigating. [ 59 ] Mr. Meyers argued that a sentence of 18 years is not proportionate to the nature of the offences and Mr. McCormick’s moral blameworthiness. He argued that the appropriate sentence for each of the Vancouver and Richmond matters is one of 5-6 years. He agreed that the sentences for the separate files must be consecutive.

But, he said, the resulting total sentence of 10-12 years ought to be reduced to a sentence of 8-9 years to take into account the totality principle. [ 60 ] Although Mr. Meyers filed a book of authorities containing seven cases, he only relied upon one case in argument, the case of R. v. Match , [2012] B.C.J. No. 2076 , since that case provided a comprehensive review of other authorities. I have, nevertheless, reviewed all of the cases provided by the defence. I will refer to the relevant cases in my analysis of the appropriate sentence. Principles of Sentencing

[61] The principles of sentencing are set out in sections 718 to 718.2 of the Criminal Code. There is no dispute between the Crownand Defence that the principles of denunciation and general deterrence are of primary importance in a sentencing for an offence of thisnature. The Defence agreed that, given Mr. McCormick’s criminal record, the principle of rehabilitation plays a lesser role. The Crownargued that the Court must also address the need to separate the offender from society as set out in s. 718(c), given the fact that Mr.McCormick was involved in high-level trafficking of significant amounts of fentanyl, a very dangerous drug. Proportionality [62] Under

section 718.1 of the Criminal Code, the sentence I impose must be proportionate to the gravity of the offence and thedegree of responsibility, or moral blameworthiness, of the offender. Although I must consider the harm that fentanyl has caused to thecommunity, Mr. McCormick must be sentenced for his criminal conduct, and must not be made a scapegoat for all of the harms causedby fentanyl. [63] The scourge of recent deaths in the community cannot help but lead to anger and emotion. I have a role to play in addressingthe harm that comes from fentanyl, but my sentence must be focused on Mr.

McCormick’s moral culpability, as opposed to a reactionbased on vengeance. Vengeance plays no role in the criminal justice system. In R. v. M. (C.A.), (SCC), [1996] 1S.C.R. 500, C.J. Lamer said the following: Vengeance, as I understand it, represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as areprisal for harm inflicted upon oneself by that person.

Retribution in a criminal context, by contrast, represents an objective, reasonedand measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard tothe intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender'sconduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just andappropriate punishment, and nothing more.

Aggravating & Mitigating Factors [64] Under s. 718.2 of the Criminal Code, before determining the appropriate sentence, I must consider any aggravating andmitigating factors. The aggravating factors are as follows: 1) The nature of the drugs involved The most serious drugs involved in this case are the

Schedule 1 drugs, fentanyl, cocaine, methamphetamine, and a small amount ofheroin. Heroin, cocaine, and methamphetamine are well-recognized as dangerous drugs that are destructive to society. On the evidencebefore me, it is clear that fentanyl is even more dangerous. The evidence established that fentanyl is more dangerous than otherSchedule 1 drugs for the following reasons:

a) It is much more potent than other drugs - 50X as strong as heroin. Because of its potency:

i) errors in the proper dosage are more likely to lead to overdoses; and ii) individuals who are naïve to opioid use are more vulnerable to overdosing;

b) Fentanyl is being used in place of other drugs without disclosing its presence when those drugs are sold:

i) It is being added to or replacing oxycodone, then being sold as counterfeit oxycodone without users being aware that they areconsuming fentanyl instead of oxycodone. This places users at higher risk of overdosing. ii) It is being mixed with caffeine and being sold as heroin. Mr. McCormick is not charged with selling, or attempting to sellcounterfeit oxycodone or heroin, but he did have substantial amounts of caffeine and other cutting agents and fillers in his possession forno apparent legitimate reason.

c) Fentanyl is easier to smuggle into Canada because it is harder to detect by law enforcement agencies. The potency of fentanylmeans that much smaller amounts need to be smuggled. Once in Canada, it can be diluted down by the thousands before it is sold. Fentanyl is available for sale on the internet, particularly from China, making it easier to buy and smuggle into Canada, than, forexample, heroin.

d) The profit margin for fentanyl is much higher for traffickers due to its potency, and the ability to dilute it down to makemultiple doses. This can make it more accessible to traffickers, and more prevalent in the community.

e) Fentanyl can be consumed orally in pill form. This opens up a new market of users who would never consider injecting a drug,but are looking for an opioid - whether it be due to an opioid addiction, or because their opioid prescription for pain medication has beencut off or limited by their doctor. 2) The amount and variety of the drugs involved Mr. McCormick had wholesale quantities of a number of different drugs:

a) The Vancouver offences included a total of 30,000 fentanyl pills, over 4 kilograms of cocaine, one kilogram ofmethamphetamine, 374 grams of MDMA, 25½ kilograms of cannabis marihuana and cannabis resin. There were 92,833 alprazolam pillsrecovered. This is a less serious

Schedule IV drug, commonly known as Xanax. These drugs were found in three separate locations;

b) The Richmond offence involved 1,049 fentanyl pills, 2 kilograms of cocaine; 18.1 kilograms of cannabis marihuana, and 4,285alprazolam pills.

3) Mr. McCormick’s role in the offences In the trafficking offence in Vancouver, Mr. McCormick was the supplier to a mid-level drug trafficker. He was three levels removed from the level of a street trafficker. In both the Vancouver and the Richmond offences, Mr. McCormick was the principle actor; he was not acting as a courier or a middle-man. He controlled his operation. 4) The scope of offending The offences were not isolated incidents. They occurred over several different days and at different locations. The offences were not instigated by the police. Mr.

McCormick was operating on his own initiative, independently of the police. 5) Mr. McCormick’s Criminal Record Mr. McCormick has a very serious record for similar offences involving wholesale amounts of drugs. He received a significant, though lenient, sentence in the past, but continued to offend. He received a 10 year sentence in the U.S. for related offences, but was not deterred. This is a particularly aggravating factor: see R. v. Lepage 2010 BCCA 249 at para. 26 and R. v. DiQuinzio 2014 BCCA 125 at para. 19 . 6) The presence of firearms The police found a handgun with a loaded magazine in Mr.

McCormick’s crawl space. He had an unloaded .22 calibre long gun wrapped in a blanket in his garage. The presence of firearms and drugs has been held to be a “toxic” combination: R. v. Borecky 2013 BCCA 163 (B.C.C.A.). This factor is further aggravated by the fact that Mr. McCormick was subject to a lifetime firearms prohibition under

section 109 of the Criminal Code when he possessed these firearms. 7) Mr. McCormick’s offences have a significantly negative impact on the community . There was no evidence that his offences caused any overdose deaths, but they certainly introduced a high level of risk to the community. [ 65 ] On the Richmond offence, there is an additional aggravating factor that Mr. McCormick was on bail for the Vancouver offences when he committed this offence. [ 66 ] The only mitigating factor in this case is that Mr. McCormick has pleaded guilty on both Vancouver and Richmond files. This is a significantly mitigating factor.

Firstly, it saves the state the time and burden of having to undertake a full prosecution. I am told that there were significant triable legal issues, particularly with respect to some of the Vancouver offences. Secondly, and most importantly, in my view, it shows that Mr. McCormick has accepted responsibility for his role in the offences. Analysis - Sentence for Fentanyl Trafficking [ 67 ] When determining the appropriate sentence, courts are guided by previous sentencing decisions for similar or related offences.

Section 718.2 (

b) of the Criminal Code directs that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. [ 68 ] The sentencing cases related to fentanyl offences are a helpful guide to determine what has been done in previous cases. There have yet to be many decisions in British Columbia related to fentanyl sentencing beyond street-level amounts. I was provided with two authorities that involved sentencing for offenders who were arrested in the same investigation that had led to the arrest of Mr. McCormick. [ 69 ] In R. v.

Molemba , (June 27, 2016) Vancouver No. 233321-3C, Judge Bahen sentenced Mr. Molemba after he pleaded guilty to three separate counts of trafficking in cocaine, heroin, and fentanyl, respectively. He had engaged in a number of sales of small amounts of cocaine and heroin to an undercover officer in November and December of 2014. In two further transactions, Mr. Molemba sold 90 “fake oxy” pills, then 338 other pills represented as heroin to the undercover officer. The pills in both of these transactions were found to contain fentanyl. It was unclear from the circumstances whether Mr.

Molemba knew that these pills contained fentanyl. It was clear that he was unable to supply the undercover officer with the 1,000 pills he had requested, and was only able to come up with 338 pills in the final transaction. [ 70 ] Judge Bahen was provided with much of the sentencing material that was put before this Court on the dangers of fentanyl. He concluded that the distribution and sale for profit of all of the drugs involved created a danger to the public health that called for a sentence emphasizing general deterrence. [ 71 ] Mr. Molemba had one prior conviction on his criminal record.

He had received a conditional sentence of two years less one day for possession of cocaine for the purpose of trafficking. He was serving his conditional sentence when he committed the offences before the Court. [ 72 ] Judge Bahen noted that, while Mr. Molemba’s response to his conditional sentence order was clearly dismissive, his response since being in custody was more constructive. Mr. Molemba had expressed remorse for his involvement in the offences and had insight into the harm caused by his offending. He was only 24 years old and had a supportive family.

Judge Bahen concluded that: This is not a case where the need for deterrence and denunciation should overwhelm the realistic prospects this man has to change his pattern of conduct in the community. [ 73 ] Judge Bahen imposed a sentence of 12 months jail for the trafficking in cocaine, 14 months jail for the trafficking in heroin and 20 months jail for the trafficking in fentanyl. Separate sentences were also imposed for assault and obstruction of a peace officer, matters unrelated to the drug offences.

[ 74 ] In R. v. Castro , 2016 NWTSC 8 , the offender was sentenced for three separate counts of possession of fentanyl, cocaine, and marihuana, respectively, for the purpose of trafficking. In what was described as a “wholesale commercial operation”, Mr. Castro had large amounts of drugs at two locations. At a storage locker, he had 538 grams of crack cocaine, 175 grams of powder cocaine, and 503 fentanyl pills.

When police searched his residence, they discovered smaller amounts of crack cocaine, powdered cocaine, marihuana, and 90 fentanyl pills, as well as $212,955 in cash. [ 75 ] The Court in Castro referred to the dramatic increase in the number of deaths related to fentanyl in recent years. Because of the dangerous nature of the drug, the Court held that sentences for trafficking and possession for the purpose of trafficking involving fentanyl should be higher than sentences for the same offences involving cocaine. Mr.

Castro was on probation for trafficking in cocaine when he committed the offences. [ 76 ] The mitigating factors noted by the Court were Mr. Castro’s guilty plea, his young age, and his prospects for rehabilitation. The Court accepted the joint submission for 6 years in jail. [ 77 ] A number of the cases relied upon by the Crown involving sentencing for fentanyl-related offences were from Ontario. When there is a dearth of cases in B.C. dealing with the appropriate range of sentence for similar offences, a court may look to decisions in other provinces for assistance: R. v. Kwok at para. 115 .

The following cases were particularly relevant: 1) In R. v. Mitchell , [2014] O.J. No. 2556 (C.J.) , the court accepted a joint submission after a guilty plea on two separate offences for trafficking in fentanyl. The amount of fentanyl involved was not stated in the judgment, other than “a valuable and substantial amount” in the first offence, and “much less” in the second offence. The second offence was committed within weeks of, and while the offender was on bail for the first offence. The offender had no previous criminal record.

The court held that the offences were “very grave” because they involved fentanyl which has had a “devastating effect in this community”. The court noted that “Courts have to be a part of the solution by sending a strong message”. The sentence imposed was six years in jail. 2) The offender in R. v. Brooker , [2014] O.J. No. 2609 (C.J.) , was sentenced for three counts of trafficking of fentanyl in patch form: 6 patches for $1,200, 9 patches for $1,800, and 8 patches for $1,760. The 24 year old offender had pleaded guilty and shown remorse.

The offender had a criminal record, the contents of which were not stated, and an addiction to drugs. The sentencing judge recognized that there was some prospect for rehabilitation, given the youth of the offender and accepted the joint submission for 4 years in jail. 3) In R. v. Cloutier , [2014] O.J. No. 4783 (C.J.) , the 47 year old offender was sentenced for one count of trafficking in two patches of fentanyl for $400. The court referred to the expert evidence called at the sentencing hearing regarding the dangers of fentanyl.

He concluded that the offence is “extremely serious” and that fentanyl is “extremely dangerous” and “potentially lethal”. The offender had pleaded guilty, no criminal record, and had shown remorse. The court held that he was “an otherwise good man who has done a very bad thing”. He was sentenced to 27 months in jail. 4) In R. v. Edwards (December 18, 2014), Kitchener No. 14-8176 (Ont. S.C.), the offender was sentenced for trafficking in 15 patches of fentanyl on two separate occasions.

He was 24 years old at the time of the offences, had pleaded guilty, and had an unfortunate upbringing associated with his mother’s involvement in drug trafficking throughout his young life. The court referred to the expert evidence regarding the dangers of fentanyl. The offender had been warned of this danger by his mother. The court found that fentanyl was a “very dangerous drug”, and “worse than heroin”. The sentence imposed was 32 months in jail. 5) In R. v.

Baks 2015 ONCA 560 and 2015 ONCA 615 , the Ontario Court of Appeal addressed an appeal of a sentence of nine years that had been imposed after a joint submission at trial. The appeal arose after Ms. Baks’ co-accused had received a nine year sentence, despite being higher up in the criminal enterprise. Ms. Baks had pleaded guilty to 20 counts of trafficking in fentanyl, one count of trafficking in oxycodone and an unspecified number of counts for forgery.

The court noted that the offender played a key role in a “somewhat sophisticated scheme” in which she wrote fraudulent prescriptions in the name of her employer doctor for fentanyl which she knew would be sold on the street. The court noted that there were “several powerful mitigating factors”, including the fact that the appellant was a young mother with no criminal history, she had fully co-operated with the police after arrest, including by testifying against two of her co-accused who were “higher ups” in the scheme, and had excellent prospects for rehabilitation.

The court varied the sentence to a 6 year global sentence, attributing 5 years to the fentanyl offences. 6) A co-accused of Ms. Baks received a sentence of 6 years after being found guilty at trial for 3 counts of using a forged prescription and 3 counts of trafficking in fentanyl patches in R. v. Loor (September 22, 2015), Barrie No. 15-1744 (Ont. C.J.). The total amount trafficked was 45 patches. The 42 year old offender had a criminal record which included previous convictions for drug offences. He was the father of two children and had support in the community and from his family.

The court noted that fentanyl was an “extremely dangerous drug” and imposed a sentence of 6 years jail. 7) In R. v. D. Lu , 2016 ONSC 292 (Ont. Sup. Ct.), the 28 year old offender was sentenced after pleading guilty to some offences, and being found guilty for other offences after trial. The offences included one count of trafficking in marihuana, two counts of the possession of proceeds of crime and six counts of possession for the purpose of trafficking relating to 522 Fentanyl pills, 923 grams of cocaine, 277 oxycodone pills, 700 grams of marihuana, 500 grams of hash, and 5.8 grams of crack cocaine.

He had a related criminal record. The court referred to fentanyl as a “very dangerous drug”. The sentence was 5 years jail, after giving the offender a credit of 7 months for being on bail on restrictive “house arrest” conditions. 8) In R. v. T. Lu , 2016 ONCA 479 , the offender appealed his sentence of 2½ years in custody after being convicted at trial for possession for the purpose of trafficking of 20 fentanyl patches.

The court upheld the sentence, stating “Fentanyl is one of the most highly addictive and dangerous drugs”. [ 78 ] A review of related cases often gives the court a range of sentences for the offence. Having said that, sentencing ranges should not be considered “straight-jackets”, nor should they be considered “averages”. They are simply a

summary of what may be considered the minimum and maximum sentences within the appropriate ranges imposed in previous cases. A sentencing judge has the discretion to impose the appropriate sentence after considering the particular circumstances of the offence and the offender. There will always be

cases which properly fall outside an established range: R. c. Lacasse , 2015 SCC 64 at paras. 57-58 . [ 79 ] On the cases provided to me, it does not appear that there is yet an established range of sentences for trafficking in fentanyl in British Columbia, at least for the amounts involved in this case. If it could be said that the cases establish a range for sentencing of fentanyl-related offences in British Columbia, the Crown argues that the Court should increase that range to make it more in line with the sentences reflected in the Ontario cases.

The Crown argues that this is necessary to address the epidemic of fentanyl-related deaths in the community. [ 80 ] The case law makes it clear that there are times where local circumstances call for a sentence above the usual range. There are times where the “needs and current conditions of and in the community” highlight “the need to denounce the unlawful conduct… in that place and at the same time to deter anyone from doing the same thing”: R. c.

Lacasse , at paras. 87-92 . [ 81 ] In this case, the Crown has complied with the procedure recommended by our Court of Appeal if the Crown seeks to increase the usual range of sentence for a particular offence. In R. v. Su , 2000 BCCA 480 , Braidwood, J.A. stated that, in those cases, the Crown must make submissions and call evidence at the sentencing hearing to justify the need for the increase in the range of sentence. [ 82 ] An example of a sentencing judge increasing a sentencing range can be found in the case of R. v. Francis , 2008 BCCA 309 .

In that case, the Court of Appeal agreed that the sentencing judge was entitled to increase the range of sentence for possession of methamphetamine for the purpose of trafficking due to the evils that were associated with methamphetamine, such as its highly addictive qualities, the physical and psychological damage it caused, its associated violent behaviours, and the fact that its use in the community was increasing. [ 83 ] In R. v. Chu , [1996] B.C.J.

No. 713 , the Court of Appeal adopted the comments of the sentencing judge that the increase in addiction, overdoses and deaths due to the heroin trade on the upper of Vancouver Island, was an aggravating factor. Conclusions on Sentence for Fentanyl Trafficking [ 84 ] When determining the appropriate sentence for Mr. McCormick I must take into account the “needs and current conditions” in British Columbia. I must recognize the fact that an increasing number of people are dying due to the illegal sale of fentanyl.

This is something which cannot be ignored, nor can it be minimized. [ 85 ] I recognize that a sentence above any established range will not lead to an end to the fentanyl epidemic. I recognize further that Mr. McCormick did not create the problem with opioid addiction in the community. He is just one of the players in a far more complicated problem. But the Court must, nevertheless, exercise its responsibility to denounce the unlawful conduct and attempt to deter others from engaging in offending of this nature.

The lure of substantial profit for lower risk, with the awareness of the very real and substantial risk to life that comes from trafficking in fentanyl must be counteracted with the threat of a significant jail sentence on conviction. [ 86 ] I do not agree with the defence submission that, because fentanyl is a

Schedule I drug, I am bound by the sentencing ranges in cases for other

Schedule 1 drugs, like heroin and cocaine. It is well-established that, within each

Schedule under the CDSA , there are different ranges for different drugs. In R. v. Kwok , 2015 BCCA 34 , the court noted that, because ketamine was a less serious drug than cocaine, it called for a lower sentence, although both drugs were

Schedule I drugs. [ 87 ] I have already set out the aggravating factors earlier in these reasons. With respect to the count of trafficking in fentanyl, the particular aggravating factors are: • the dangerous nature of fentanyl and the harm caused to the community by its illegal sale; • the quantity of drugs - 3,000 fentanyl pills were sold by Mr. McCormick; • Mr. McCormick’s position three levels removed from the level of a street trafficker; • this was not an isolated occurrence; • the trafficking occurred in the context of a much larger drug operation wherein Mr.

McCormick had possession of a variety of harmful drugs in three different locations. • Mr. McCormick’s serious Criminal Record with related drug convictions. [ 88 ] In mitigation, Mr. McCormick accepted full responsibility for the offence by pleading guilty. [ 89 ] Denunciation and deterrence are the paramount principles, as is the need for the protection of the public. There was very little evidence of any prospect for Mr. McCormick’s rehabilitation. His criminal history shows a gap in his offending for an 8 year period. For some of that time he was still on parole. While this provides a glimmer of hope that Mr.

McCormick may not commit further offences in the future, he does not get the benefit of the “gap principle” because “this is not a ‘single fall from grace or lapse’, but a clear return to criminal activity”: R. v. Murray 2009 BCCA 426 . Despite the defence’s submission on the significance of the gap in Mr. McCormick’s record, it is clear to me that he has been entrenched in drug trafficking for a significant part of his adult life. [ 90 ] In my view, the appropriate sentence for the one count of trafficking in fentanyl on January 16, 2015 and February 4, 2015 is five years in custody.

Analysis - Sentence on Possession for the Purpose of Trafficking Counts Vancouver Offences

[ 91 ] The appropriate sentence for the three counts of possession for the purpose of trafficking must take into account the variety of drugs involved: fentanyl, cocaine, methamphetamine, MDMA, cannabis marihuana, cannabis resin and alprazolam. Once again, there are no cases that are specifically on point for these offences. There are no cases that I am aware of that involve anything close to the amount of fentanyl in Mr. McCormick’s possession. [ 92 ] I found some guidance in the sentencing cases involving trafficking and possession for the purpose of trafficking in larger amounts of cocaine and heroin, both also

Schedule 1 offences. [ 93 ] In R. v. Murray , 2009 BCCA 426 (B.C.C.A.), the offender appealed a sentence of nine years for two counts of possession of cocaine for the purpose of trafficking. The first count involved 14 grams of powder cocaine and 48 grams of crack cocaine and was committed while the offender was on bail for other offences. The trial judge imposed a sentence of four years in custody for that count. While the offender was on bail for this offence he committed the second offence, this time possessing one kilogram of cocaine for the purpose of trafficking.

The trial judge determined that a sentence of six years was appropriate for this offence. Because this sentence was consecutive to the four year sentence, the total sentence was ten years. After taking into account the principle of totality, the trial judge reduced the sentence by one year for a total sentence of nine year in custody.

The offender had a lengthy criminal record with two prior drug convictions. [ 94 ] The Court of Appeal determined that the principles of denunciation, deterrence, proportionality and totality could have been adequately addressed by reducing the sentence by one further year for an total sentence of eight years in custody. [ 95 ] In R. v. Borecky , 2013 BCCA 163 , the Court of Appeal addressed a Crown appeal of a sentence of three years concurrent for each of three counts of possession for the purpose of trafficking in heroin, cocaine, and methamphetamine respectively.

The sentences were concurrent with the sentences of four years and two years on weapons related offences. Mr. Borecky had been found in possession of a “small arsenal” of firearms, as well as 410 grams of cocaine, 260 grams of methamphetamine, and 240 grams of heroin. [ 96 ] The Court of Appeal considered the total effective sentence of five years to be unfit. The Court considered the cases of Murray and R. v. Fraser 2009 BCCA 179 .

After consideration of these cases, the Court held that the appropriate sentence for the drug offences, without considering their combination with the weapons offences, was at least five years. When the aggravating factor of the presence of the weapons was taken into account, the appropriate sentence for the drug offences was held to be seven years’ imprisonment. [ 97 ] In R. v. Match, 2012 BCSC 1492 , the offender and his co-accused Mr. Virk, were sentenced after conviction at trial for possession of 40 kilograms of cocaine for the purpose of trafficking.

Although they had been apprehended with the cocaine near the Canada/U.S. border, the trial judge was not satisfied that they had imported the cocaine into Canada. Joyce, J. found that, although general deterrence was a major consideration, it must be balanced with the principle of rehabilitation. The accused were relatively young, had no history of drug convictions, and were otherwise good citizens with strong community and family support. The sentence imposed was five and one-half years in jail. [ 98 ] In R. v.

Friedel, 2016 BCSC, the offender was sentenced to possession of 386 grams of cocaine and 490 fentanyl pills, both for the purpose of trafficking. The fentanyl pills were described as “counterfeit oxycodone”. There was no evidence that the offender knew the pills contained fentanyl, or as to how much fentanyl was contained in the pills. The 32 year old offender had a minor, unrelated criminal record. Hyslop, J. found that the offences were motivated by an addiction, which the offender had taken significant steps to address. His prospects for rehabilitation were good.

The sentence imposed was 28 months on each count, concurrent. Conclusions on Sentence for Possession for the Purpose of Trafficking Counts Vancouver Offences [ 99 ] While the case law provides some assistance to the Court, a sentencing of this nature is an individual exercise based upon the unique circumstances of the case and the offender. There is no dispute that the principles of denunciation and deterrence are the most important factors. Mr. McCormick’s offences were motivated purely by greed.

Although he is reported to have had an alcohol and drug problem at the time of the offences, I do not consider this a mitigating factor. The drugs Mr. McCormick possessed for the purpose of trafficking were far in excess of what was needed to support any addiction: see R. v. Terezakis 2010 BCCA 268 at para. 17 . In my view, given the amounts involved, and Mr. McCormick’s history, he is an entrenched drug trafficker motivated only by self-interest. This factor emphasizes the need for general deterrence: R. v.

Fraser 2009 BCCA 179 . [ 100 ] The cases of Murray, Fraser, and Borecky have some similarities to this case, but involved smaller amounts of drugs of less variety. Significantly, none of these cases involve fentanyl, let alone 27,000 fentanyl pills. [ 101 ] Mr. McCormick must be sentenced based on his moral culpability. He did not create the crisis of opioid addiction in the community. But, the offences he chose to commit are predatory in nature. The increase in the prevalence of fentanyl in the community and increase in fentanyl-related deaths has not been driven by demand for fentanyl.

Rather, it has been driven by supply. Traffickers are exploiting the benefits of the lower cost of the drug and its easier importation into Canada. The potency of the drug is being exploited by diluting it down significantly and using it to replace oxycodone and heroin, often unbeknownst to the user. Mr. McCormick had multiple kilograms of cutting agents in his possession. He had a functional pill press, electronic scales, and an abundance of various drugs. He had a loaded handgun and unloaded long gun in his home, despite being under a lifetime firearms prohibition. I view Mr.

McCormick’s moral culpability in these offences as very high. [ 102 ] The aggravating factors to these offences are set out in detail at paragraph 64. In mitigation, Mr. McCormick pleaded guilty. I am told that there were triable issues regarding the possession of some of these drugs. Mr.

McCormick must be given credit for accepting full responsibility for these offences. [ 103 ] When I take into account the significant aggravating factors, along with the mitigating fact of the guilty pleas, in my view the appropriate sentence for the three counts of possession of the fentanyl, cocaine, methamphetamine, MDMA, cannabis (marihuana), cannabis resin, and alprazolam, for the purpose of trafficking is a global sentence of 8 years on all three counts.

[ 104 ] The Crown conceded that these sentences should be concurrent to the sentence on the trafficking count, although there was a basis to ask that these sentences be consecutive. I agree. Although the fentanyl sales occurred as separate transactions, and on separate dates, they should be considered a “part of a linked series of acts within a single endeavour”: Borecky , supra, at para. 19 , citing R. v. G.P.W. (1998), 106 B.C.A.C. 239 (B.C.C.A.) at para. 35 Richmond Offence [ 105 ] While on bail for the Vancouver offences, Mr.

McCormick committed the offence of possession for the purpose of trafficking in Richmond. Despite being charged and on bail for related offences, Mr. McCormick was not deterred. Once again, he was motivated by greed and continued to offend. Once again, he was found in possession of multiple drugs and all the necessary tools to continue his trade.

He had the following in his possession: • 1049 fentanyl pills; • two kilograms of cocaine • 18.1 kilograms of marihuana; • 26 grams of heroin; • 24.5 grams of cocaine; • 4,285 alprazolam pills; • 7.9 grams of alprazolam powder; • packaging material; • a heat sealer; • an electronic scale; • Ziploc bags; and • seven cellular phones. [ 106 ] I have noted already that the fact that Mr. McCormick was on bail for the Vancouver offences when he committed the Richmond offence was a particularly aggravating factor. Further aggravating was that, by this point in time, Mr.

McCormick must have been aware that people in the community were dying from fentanyl overdoses. He admitted at the sentencing hearing that, while he was on bail, there was regular coverage by local and national news outlets on overdose deaths in the community related to fentanyl. In some of these articles and broadcasts, Mr. McCormick was specifically named as an alleged fentanyl trafficker. Yet, in the face of this coverage, not only did he intentionally take on the risk of further offending, he did so knowing the deadly effect fentanyl was having in the community.

His moral culpability when committing this offence is very high. [ 107 ] When I take into account these aggravating factors, including the relevant aggravating factors listed in paragraph 64, I find that a sentence of 8 years on the Richmond offence is appropriate. The amounts and variety of drugs involved are less than the Vancouver offences, and firearms were not involved. But those factors must be balanced with Mr. McCormick’s greater moral culpability when committing the Richmond offence while on bail.

Totality [ 108 ] There was no dispute that the sentence for the Richmond offence must be consecutive to the sentences for the Vancouver offences. That leads to the question of whether the total sentence for all of the offences is just and appropriate in all of the circumstances. This is the principle of totality. This principle was described by Lamer, C.J. in R. v. M. (C.A.) as follows: 42 In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the "totality principle".

The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D. A.

Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56: o The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate".

Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, supra, at pp. 44-45: o The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate "just and appropriate".

A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects. [ 109 ] Without taking into account the totality principle, the total sentence in this case would be one of 16 years in custody. I do not believe that a sentence of 16 years in custody would be is a “crushing sentence” when one considers Mr. McCormick’s record and his prospects for rehabilitation.

But the sentence is “substantially above the normal level of sentence for the most serious of the individual offences involved”. When I take this into account, I believe the total sentence should be reduced by a period of 2 years to accord with

the totality principle. An aggregate sentence of 14 years is just and appropriate in my view. Conclusion [ 110 ] The sentence will be as follows: On Count 3 on Information No. 233320-2C, trafficking in fentanyl on January 16, 2015 and February 4, 2015, the sentence will be 5 years’ imprisonment. On Counts 14, 16, and 28, the possession of controlled substances for the purpose of trafficking, the sentence will be a global sentence of 8 years in custody.

The 8 year global sentence on these counts is concurrent to the 5 year sentence on Count 3. [ 111 ] On Richmond Information No. 60518-1, on Count 1, the possession of controlled substances for the purpose of trafficking, the sentence will be 6 years’ imprisonment. The sentence of 6 years for Count 1 on Information 60518-1 is consecutive to the 8 year global sentence for Counts 14, 16, and 28 on Information 233320-2C, but concurrent to the 5 year sentence on Count 3 on that Information. [ 112 ] The total sentence of 14 years’ imprisonment must be reduced to reflect the time that Mr. McCormick has spent in custody.

As of today’s date, Mr. McCormick has spent 221 days in custody. The remaining sentence that must be served by Mr. McCormick is 13 years and 144 days in prison. Ancillary Orders [ 113 ] The following additional orders are made with respect to both Informations: • There is an order under s. 487.051 authorizing the taking of a DNA sample for forensic DNA analysis; • Mr. McCormick will be banned from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life pursuant to

section 109 of the Criminal Code ; • Based on the lengthy period of custodial sentence imposed on Mr. McCormick, I order that the victim fine surcharges are payable forthwith; • Pursuant to

section 16 of the CDSA, there will be Forfeiture Orders on both Informations as set out in the Orders I signed today. The Honourable Judge B. Craig Provincial Court of British Columbia CORRIGENDUM - Released February 1, 2017 [1] This corrigendum to my Reasons for Judgment issued January 30, 2017, is to correct the title to Reasons for Sentence and the wording in paragraphs [86]: [86] I do not agree with the defence submission that, because fentanyl is a

Schedule I drug, I am bound by the sentencing ranges in cases for other

Schedule 1 drugs, like heroin and cocaine. It is well-established that, within each

Schedule under the CDSA , there are different ranges for different drugs. In R. v. Kwok , 2015 BCCA 34 , the court noted that, because ketamine was a less serious drug than cocaine, it called for a lower sentence, although both drugs were

Schedule I drugs. [2] Otherwise, my decision of January 30, 2017, remains unchanged.