R. v. Butler Date:, 2017 BCPC 315

Citation: R. v. Butler Date: 20171030 2017 BCPC 315 File No: 233990-3-A; 233819-1; 24776-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JASON DAVID BUTLER CORRIGENDUM REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Crown: S. Davies Counsel for the Defendant: A. Demeulemeester

Place of Hearing: Vancouver , B.C. Date of Hearing: October 11, 2017 Date of Judgment: October 30, 2017 A Corrigendum was released by the court on January 10, 2018. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] Mr.

Butler pled guilty to; possession of cocaine and fentanyl for the purpose of trafficking, breaching his recognizance by possessing a weapon, and obstructing a police officer. [ 2 ] A sentencing hearing was held and the Crown argued that the appropriate sentences should be; a 20 month custodial sentence plus probation for the drug offence, and a concurrent 30 day sentence for the breach of a recognizance, as well as concurrent 30 day sentence for obstructing a police officer.

The Crown also sought a DNA order, a Forfeiture order and a life time weapons prohibition pursuant to s.109 of the Criminal Code . [ 3 ] Counsel for Mr. Butler argued that an appropriate sentence is a total sentence of 14 months less the time that Mr. Butler has served in pre-sentence custody. [ 4 ] Counsel are in agreement that Mr.

Butler has spent 102 days in pre-sentence custody and thus he is entitled to enhanced pre- sentence custody of 153 days. [ 5 ] The task for this court is to impose a sentence that is fit and appropriate bearing in mind the jurisprudence, the applicable statues, the circumstances of the offences and Mr. Butler’s unique circumstances. CIRCUMSTANCES OF THE OFFENCES Drug offences: Information - 233819 [ 6 ] On December 1, 2016, a witness saw Mr. Butler and an unknown male fighting. During the altercation the witness saw Mr.

Butler brandish a knife and punch the male. [ 7 ] The police were called and when they arrived they arrested Mr. Butler. The police searched him and they located the following items: some drugs, a digital scale, a $50.00 bill, a knife, a knife sharpener, a Blackberry phone and a sheath. With respect to the drugs, the police located a zip lock bag containing 26 smaller zip lock bags each containing a mixture of fentanyl and cocaine, and 8 smaller zip lock bags containing methamphetamine. In total Mr.

Butler was in possession of 8.3 grams of a cocaine/fentanyl mixture and 7.2 grams of methamphetamine. [ 8 ] Of note is, as a result of the above incident, Mr. Butler was arrested and charged with possession of a dangerous weapon. He remained in custody and on December 14, 2016, he was sentenced to the time that he had already served and he was placed on probation. At the time of this offence, Mr. Butler was bound by three probation orders. [ 9 ] The drug charges were not sworn until April 27, 2017, at which point a warrant was issued for Mr. Butler’s arrest. Mr.

Butler was arrested on the warrant and he was released on a recognizance. Mr. Butler breached the conditions of his recognizance which led to the additional charges that are set out below. Breach of recognizance: Information - 233990 and Obstructing a police officer: Information - 24776 [ 10 ] In the early morning hours of August 11, 2017, the police saw a male, later identified as Mr. Butler, riding a bicycle in the west lane of the 1100 block of Howe Street. The police believed that Mr. Butler was committing an offence as he was not wearing a helmet. The police stopped Mr.

Butler and he identified himself as George Smith. Mr. Butler then fled on his bike which resulted in pursuit, whereby Mr. Butler was eventually stopped in the laneway of the 1200 block of Granville Street. [ 11 ] Once stopped, the police searched Mr. Butler and they located the following items; a folding knife, ten .22 calibre rounds of ammunition, and an expandable baton. The possession of the baton was a violation of Mr. Butler’s recognizance in that he was not to possess any weapons. Also of note is, the possession of the ammunition was a violation of a ten year weapons prohibition order that Mr.

Butler received in March of 2013. At the time of these offences Mr. Butler was bound by four probation orders and he was wanted on a

section 524 warrant for violating a condition of his recognizance by not residing at a drug recovery house. CIRCUMSTANCES OF THE OFFENDER [ 12 ] Mr. Butler is 41 years old. He was born and raised in Ontario. He was the subject of neglect and mistreatment. When he was 16 years old Mr. Butler was convicted for the first time and thereafter he has amassed 74 convictions. Of these convictions nine are for breaches of court orders. I also observe that he has two drug convictions and two convictions for obstructing a peace officer. [ 13 ] Counsel for Mr. Butler advised the court that much of Mr.

Butler’s criminal record is the product of a long standing drug addiction which Mr. Butler is determined to defeat. In this regard, Mr. Butler like many who suffer from addictions, has tried on a number of occasions to overcome his addiction. Specifically, Mr. Butler successfully completed a Drug Treatment Court program which required three months of sobriety. He has also been a resident in residential recovery houses, and while in custody, Mr. Butler participated in the Essential Skills to Success program wherein he completed Substance Abuse Education, levels 1 and 2.

[ 14 ] With respect to the offenses before the Court, Mr. Butler’s counsel advised they were committed for the purpose of Mr. Butler supporting himself. Further, the offences were committed at the street level, they were devoid of sophistication and at a time when Mr. Butler was practically homeless. PRINCIPLES OF SENTENCING [ 15 ] The fundamental principles of sentencing are stated in s. 718 of the Criminal Code : 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a) to denounce lawful conduct;

b) to deter the offender and other persons from committing offences;

c) to separate offenders from society, where necessary;

d) to assist in rehabilitating offenders;

e) to provide reparations for harm done to victims or to the community; and

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community. [ 16 ]

Section 718.1 of the Code states that the fundamental principle of sentencing is: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 17 ] Section 10(1) Controlled Drugs and Substances Act, S.C. 1996, c. 19, establishes the purpose of sentencing for drug offences. The

section states: 10.

(1) Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [ 18 ] Additional sentencing principles are found in s. 718.2 of the Code ; the relevant portions read as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing…, (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. Sentencing Objectives [ 19 ] The authorities are clear; denunciation and deterrence are the primary principles when sentencing an offender for offences related to drug trafficking. Despite this, I recognize that no one principle automatically “trumps” the others, however, drug trafficking is an offence where absent exceptional circumstances the foremost important principles are denunciation and deterrence: R. v.

Smith, 2017 BCCA 112 ; R. v. Voong, 2015 BCCA 285 ; R. v. Cruezot, 2017 BCSC 1075 . [ 20 ] The enhanced need for the objectives of denunciation and deterrence in those cases involving fentanyl was commented on by Mr. Justice Jenkins in Creuzot at paragraph 39 : [39] I conclude this reference to the applicable principles of sentencing by agreeing that denunciation and deterrence are the foremost considerations before the court today ( R. v. Voong , 2015 BCCA 285 at para. 18 ).

The presence of traces of fentanyl in the heroin emphasize even more the applicability of denunciation and deterrence in the case before me, especially considering the extensive campaigns which have publicized the tragic loss of life in recent years from the effects of fentanyl. [ 21 ] Acknowledging that denunciation and deterrence are pressing sentencing objectives in the instant matter, I do see a glimmer of hope in that Mr. Butler may overcome his addiction and thereby rehabilitate himself. I arrive at this conclusion because; Mr.

Butler has had periods of sobriety, he has participated in the Drug Treatment Court, he has taken some substance abuse education and he has a 7 year old son for whom he wishes to connect with. Despite these observations, I appreciate Mr. Butler’s rehabilitative path will likely be long and marked with deviation; nevertheless, I am of a view that the sentence imposed should have some rehabilitative objectives. Proportionality [ 22 ] As to the issue of proportionality, the trafficking of any

schedule 1 drug is a serious offence and the Act provides for the maximum sentence of life imprisonment. Moreover, the seriousness of trafficking in a drug wherein the offender knows or suspects there is a possibility that the drug contains fentanyl is amplified many times over. Sadly, the reason for this is that the number of fentanyl related deaths has increased so dramatically that a public health emergency has been declared.

[ 23 ] Mr. Butler’s moral responsibility is found in his participation in the illicit drug trade knowing (as will be addressed later) there was a strong likelihood that what he was selling was a mixture of cocaine and fentanyl. As such, his degree of moral culpability is heightened. AGGRAVATING AND MITIGATING FACTORS [ 24 ] Mr. Butler’s circumstances and the circumstances of his offences are aggravating. First, when Mr. Butler committed his offences he was bound by a number of probation orders and he was wanted on a warrant.

Probation orders are not simply pieces of paper; rather, they are orders of a court designed to assist with an offender’s rehabilitation, all with the ultimate goal of protecting of the public. Essentially, public protection through rehabilitation. [ 25 ] Second, Mr. Butler’s criminal record is aggravating. In this regard, he has one conviction for a drug offence which pre-dates the date of his offences in the instant matter. He also has related convictions for obstructing a peace officer and breaching court orders. [ 26 ] Third, the drugs involved are

schedule 1 substances. They are highly addictive with the additional concern that the use of fentanyl is frequently fatal. [ 27 ] Mr. Butler’s guilty plea is substantially mitigating. In this regard, he has saved the state the time and expense associated with a trial. His pleas also demonstrate a degree of remorse and they are a waiver of his constitutional right to have the Crown prove the allegations against him beyond a reasonable doubt. A further point of mitigation is Mr. Butler’s efforts while in custody. To this end, Mr.

Butler has completed two levels of a substance abuse education program. [ 28 ] Counsel for Mr. Butler submitted that, the absence of evidence showing Mr. Butler knew the cocaine he possessed was mixed with fentanyl is mitigating. In support of the proposition that the lack of knowledge regarding the presence of fentanyl is mitigating, counsel referred the Court to Mr. Justice Harris’ comments for the majority in Smith at paragraph 66 which reads: [66] I want to add only one further comment. The sentencing judge placed little or no weight on the suggestion that Mr.

Smith thought he was selling heroin and did not know that the powder he was selling was fentanyl. His state of knowledge played no material role in the sentence imposed. Accordingly, I prefer not to comment on the relevance of his alleged personal knowledge of what he was selling. I would prefer to leave that issue, insofar as there is any lack of clarity in the law, to a case in which it is material to the outcome. [ 29 ] The issue of an offender’s state of knowledge regarding the presence of fentanyl was also discussed by Mr.

Justice Jenkins in Creuzot , at paragraphs 68 - 70 : [68] Finally, is the absence of evidence that Mr. Creuzot was aware of the presence of fentanyl in the heroin a mitigating factor? Newbury, J.A. in Smith was clear in her dissenting opinion that it was not a mitigating factor. Pearlman J. came to the same conclusion in the later decision of Naccarato. [69] However, Harris J.A. in Smith at para. 66 chose to “not comment on the relevance of his alleged personal knowledge of what he was selling.

I would prefer to leave that issue, insofar as there is any lack of clarity in the law, to a case in which it is material to the outcome”. [70] I take from the above statement by Harris J.A. that there may be special circumstances in which the accused’s state of knowledge of the presence of fentanyl can be a mitigating factor in sentencing. However in the case before me, I do not consider any knowledge or lack of knowledge of the presence of fentanyl in the heroin to be a mitigating factor. [ 30 ] In R. v.

Henry, 2017 BCSC 1627 , the accused was sentenced for the possession of fentanyl for the purpose of trafficking. In discussing the offender’s state of knowledge regarding the presence of fentanyl, Mr.

Justice Brown commented at paragraphs 71 - 75: [71] On the question of the trafficker's state of knowledge, Justice Harris declined “to comment on the relevance of his alleged personal knowledge of what he was selling”, preferring "to leave that issue, insofar as there is any lack of clarity in the law, to a case in which it is material to the outcome."[Para. 66.] [72] Some of those comments are germane to this case, including the timing of the offence. [73] Defence counsel submitted this area of the law on sentencing canvassed in Smith is an evolving one; except that, going forward, Smith has now foreclosed any defence proffered by a drug trafficker convicted of possessing fentanyl for the purpose of trafficking, that they were unaware of the lethal risks stemming from use of fentanyl. [74] In the case at bar, the Crown did not contest Mr.

Henry's statement he did not know he was possessing fentanyl. Defence counsel pointed out the police themselves at first were unaware that the controlled substance seized was fentanyl, and that it took months before that determination was reached. Mr. Henry thought he was trafficking in heroin. I have to accept that he had no knowledge that the substance in question was fentanyl. [75] I do not find Mr. Henry's lack of knowledge of what he was trafficking in a mitigating factor.

Considering the conclusions of the majority in Smith , as I read them, this fact only mitigates to a degree for a first offender against their possession of fentanyl automatically mandating a sentence in the range of 18 to 36 months.

Had the sentence occurred at a later time, however, and considering the findings reached by both justices, one would logically expect mere possession of quantities of fentanyl for the purposes of trafficking, irrespective of specific knowledge as to whether the controlled substance was fentanyl, will attract a sentence in the range of 18 to 36 months or more, depending on the circumstances. If the offender happened to be a high-level trafficker showing total indifference to the harm their actions were going to cause, a sentence in the highest part of the range, or beyond, likely would be a fitting one.

Those are questions that will require further consideration in another case. Here the sentence range of 18 to 36 months is not a fit one. [ 31 ] I need not address the issue of whether or not the absence of knowledge regarding the presence of fentanyl is a mitigating factor

because I find that Mr. Butler knew (or wilfully blinded himself) to the fact that he was in possession of fentanyl. My finding is based in part, on a judicial inference derived from the extensive local media coverage, the social media and news reports regarding fentanyl being mixed with street drugs. In fact, I observe that for well in excess of a year, the news has been replete with warnings regarding fentanyl. I also have observed that the downtown eastside has been peppered with poster campaigns regarding the dangers of fentanyl.

Hence, it would be impossible to be within the downtown eastside and not have some awareness regarding fentanyl and its presence in street drugs. Contributing to my finding regarding Mr. Butler’s knowledge, are his comments during the sentencing hearing where he indicated that it was impossible to sell drugs without fentanyl being present. Finally, and significantly, Mr. Butler pled guilty to possessing fentanyl and cocaine for the purpose of trafficking. Hence, his plea is an acknowledgement of knowledge. As such there is no doubt that Mr. Butler knew he possessed fentanyl and cocaine.

SENTENCING RANGE [ 32 ] In Smith , and in dissent, Madam Justice Newberry set the sentencing range for drug offences involving fentanyl at 18 months and possibly exceeding 36 months of imprisonment. This range was accepted by the majority: See paragraphs 45 and 48. [ 33 ] Despite accepting the range established by Madam Justice Newberry, the majority declined to sentence Mr. Smith to a sentence that fell within the range. The majority reasoned when Mr.

Smith committed his offence (January 20, 2015) that his sentence was consistent with the public’s knowledge regarding the dangers of fentanyl at the time of at the time of his offence and to impose a sentence reflective of the public’s knowledge at the time of sentencing would render the sentence demonstrably unfit. [ 34 ] As to the issue of when it can be said that the public was well informed regarding the dangers of fentanyl, Mr.

Justice Harris in paragraph 61 of Smith, referred to the time period of late 2016. [ 35 ] Despite the range set out in Smith , I am mindful that a sentencing range is not inflexible and there are circumstances where a sentencing judge can depart from the range. In this regard, in R. v. Rutter, 2017 BCCA 193 , Madam Justice Fenlon, writing for the Court observed at paragraph 4: [4] It is clear that going forward, the sentencing range for street-level trafficking in fentanyl begins at 18 months’ imprisonment, and extends up to or beyond 36 months’ imprisonment.

It is also clear that this range is a guideline, not a straight jacket, and that sentencing judges retain the discretion to depart from this range where there are case-specific exceptional circumstances ( Smith at para. 35 ). [ 36 ] Counsel for Mr. Butler placed R. v. Creuzot , 2017 BCSC 1075 , before the court as an example of a case where an offender received a 14 month sentence for possession of cocaine, heroin and methamphetamine for the purpose of trafficking. Traces of fentanyl were found in the heroin and unlike the case at bar Mr.

Creuzot did not plead guilty to possessing fentanyl for the purpose of trafficking. Moreover, Mr. Creuzot’s offence date was July 30, 2015, which was when the public’s knowledge regarding the role of fentanyl in illicit drug overdose deaths was unclear. As such, Mr. Creuzot’s sentence was based on the state of the public’s knowledge at the time of his offence and not at the time of sentencing. [ 37 ] Counsel for Mr. Butler also relied on R. v. Vena, 2017 BCPC 62 , a decision of the Honourable Judge Challenger.

There the offender was sentenced to 14 months imprisonment and he pled guilty to trafficking in cocaine and possession of cocaine and heroin for the purpose of trafficking. The offences were committed in the context of a dial-a-dope operation and fentanyl was found in the drugs seized. I find the case to be distinguishable from the case at bar. First, Judge Challenger noted there was no evidence that the accused knew what he was selling contained fentanyl. In contrast, and in the instant matter, I find as a fact that Mr.

Butler wilfully blinded himself to the presence of fentanyl. [ 38 ] Further distinctions are, Mr. Vena was sentenced prior to the Court of Appeal’s decision in Smith and his offence was committed before the public became aware of the role that fentanyl played in drug overdoses. Third, Judge Challenger found that Mr. Vena had taken great strides towards rehabilitation. [ 39 ] Another decision of interest is R. v. Malenovic, 2017 BCPC 274 . In this case Mr.

Malenovic was sentenced to six months imprisonment for possessing a mixture of fentanyl and heroine, as well as cocaine and heroin for the purpose of trafficking. [ 40 ] In his reasons for sentence, the Honourable Judge McQuillan declined to impose the range established in Smith because the offence date was September 2015, thus, the offences were before the issues regarding fentanyl became widely known by the public. As such, the case is distinguishable. [ 41 ] Mr.

Butler’s offence of possessing heroin and fentanyl for the purpose of trafficking occurred on December 1, 2016, and I am satisfied he committed his offence at a time when the public was well aware of the dangers associated to fentanyl. As such and following Smith , I find the applicable sentencing range to be imprisonment for 18 months and possibly exceeding 36 months. SENTENCES TO BE IMPOSED [ 42 ] With respect to the offence of possessing cocaine and fentanyl for the purpose of trafficking, I sentence Mr. Butler to imprisonment for 19 months followed by probation for 18 months. If were it not for Mr.

Butler’s mitigating factors the sentence imposed would have been greater. [ 43 ] As for Mr. Butler’s pre-sentence time in custody, his record should show a sentence of 19 months, with pre-sentence custody of 102 days, as such and with an enhanced credit of 153 days, Mr. Butler has a balance of 425 days to serve. [ 44 ] With respect to the offences of breaching his recognizance and obstructing a police officer, I sentence Mr. Butler to imprisonment for one month on each offence. Each sentence is served concurrent to each other and concurrent to the 19 month sentence. Terms and conditions of probation

[ 45 ] The probation will be for 18 months with the following conditions: • keep the peace and be of good behavior; • you must appear before the court when required to do so by the court; and, notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or your probation officer of any change of employment or occupation; • within 48 hours of your release from custody you must report to a probation officer at 275 East Cordova Street, Vancouver, BC, and thereafter where, as and when directed by your probation officer; • you must notify your probation officer of your residential address and if you change that address you must immediately notify your probation of your new residential address; • you must attend at, participate in and successfully complete any counselling that maybe directed by your probation officer, this can include but is not limited to substance abuse counselling; • you are to abstain from the possession and consumption of those drugs defined by the Controlled Drugs and Substances Act except those drugs for which you have a medical prescription; • you must not possess any weapons as defined by the Criminal Code ; and • while outside your residence you must not possess any knives or bladed instruments including, axes, hatchets, box cutters, razors, machetes or similar instruments unless you are immediately engaged in the preparation or consumption of food, or you are immediately engaged in your employment.

Ancillary orders Forfeiture [ 46 ] Mr. Butler consents to the forfeiture order being sought by the Crown, as such, it is granted.

Section 109 - weapons prohibition [ 47 ] Pursuant to s. 109 of the Criminal Code , Mr. Butler is prohibited from possessing any firearm, cross-bow, restricted weapon, prohibited weapon, ammunition, and explosive substance for life.

Section 487.051 (3) - secondary DNA [ 48 ] The Crown applies for an order to obtain a sample of Mr. Butler’s DNA. In considering the issue I recognize that I can make the order sought if I am satisfied that such an order is in the best interests of the administration of justice. [ 49 ] In deciding the Crown’s application I must consider Mr. Butler’s criminal record, the offences for which he is being sentenced, the circumstances surrounding their commission, and the impact that an order would have on Mr. Butler’s privacy and the security of his person. [ 50 ] I observe Mr.

Butler has an extensive criminal record, and the circumstances involving the discovery of the drugs at issue was a violent confrontation involving a knife. As for Mr. Butler’s privacy and security of his person, I note the taking of a DNA sample is minimally intrusive and the results are guarded by statute. [ 51 ] After considering the relevant factors I am satisfied that the taking of Mr. Butler’s DNA is in the best interests of the administration of justice. Crown’s application is granted.

Victim fine sur-charge [ 52 ] Victim fine sur-charge is payable forthwith in default one day in custody served concurrent to the sentences imposed. ____________________________ The Honourable Judge R.P. Harris Provincial Court of British Columbia CORRIGENDUM - Released January 10, 2018 In the Reasons for Sentence dated October 30, 2017, File Number 24776-1 is to be added to the cover sheet.