R. v. Ali, 2022 BCPC 94

Citation: R. v. Ali 2022 BCPC 94 Date: 20220425 File No: 243662-1T Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. ZUHAYR ARFAN ALI REASONS FOR SENTENCE OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Crown: Parveen Kaur Bachra Counsel for the Accused: Paul Dutt Place of Hearing: Surrey , B.C. Date of Hearing: February 9, 2022 Date of Sentence: April 25, 2022

INTRODUCTION [ 1 ] On February 9, 2022, Mr. Ali pled guilty to the following amended Count 1 on Information No. 243662-1-T (Alberta File No. 18060334-P1): On or about the 24 th day of May, 2018, at or near Calgary, Alberta, did unlawfully traffic in a controlled substance, to wit, fentanyl and carfentanil, contrary to s. 5(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 , (the “ CDSA ”). [ 2 ] Fentanyl and carfentanil are

Schedule I controlled substances, and the index offence is punishable by a maximum term of life imprisonment. There is no applicable minimum sentence. [ 3 ] The Crown seeks a 30-month imprisonment for Mr. Ali. It also seeks a number of ancillary orders: a forfeiture order under s. 16(1) of the CDSA for all offence-related property, including cash, cell phones, chargers, and a bag; a firearms prohibition order under s. 109 of the Criminal Code , R.S.C., 1985, c. C-46 ; and a DNA order under s. 487.051(3) (

b) of the Criminal Code , on a secondary designated offence basis. [ 4 ] The defence submits that a sentence of 15 to 18 months’ imprisonment, followed by a two-year probation, is appropriate in Mr. Ali’s case. It takes no issue with the ancillary orders the Crown seeks. [ 5 ] The issue I have to decide is: what is a just and fit sentence for Mr. Ali, taking into account the circumstances of the offence, Mr. Ali’s personal circumstances, his moral blameworthiness, the principles of sentencing, and the proportionality to the offence and Mr. Ali?

CIRCUMSTANCES OF THE OFFENCE [ 6 ] The circumstances of the offence are not disputed. [ 7 ] Over a period of about eight months, the drug undercover street team in Calgary was investigating a dial-a-dope operation which was utilizing the telephone numbers [omitted for publication] and [omitted for publication]. By May 24, 2018, an undercover officer had purchased illicit drugs from these lines on 14 occasions from different individuals. [ 8 ] On May 24, 2018, Mr.

Ali sold illicit drugs to an undercover officer. [ 9 ] On May 24, 2018, at approximately 1:21 p.m., the undercover officer called the target dial-a-dope phone line, seeking $200 worth of “down”. The Crown said “down” is a slang for “heroin” on the streets. When the undercover officer called, a male answered, and the undercover officer asked who he was speaking to, and the male said, he was the “new guy” who had just started. [ 10 ] The male and the undercover officer agreed to meet at the Hudsons Bar in the Shawnessy area of Calgary. The undercover officer arrived at the Hudsons Bar.

He saw a silver Dodge Charger, which had B.C. license plates. He then spoke to the same male he had spoken to earlier, after which he saw a male come out of the Dodge Charger and head towards him. [ 11 ] The male met with the undercover officer, removed eight small baggies from his pants and gave them to the undercover officer, who then gave the male $200 in return. The male then headed back to the Dodge Charger. [ 12 ] Shortly thereafter, the male who interacted with the undercover officer who was the passenger in the Dodge Charger, and the other occupants of the Dodge Charger were arrested.

This male was later identified as Mr. Ali. [ 13 ] During Mr. Ali’s arrest, a plastic baggie fell from his pants. The total amount of drugs sold to the undercover officer was determined to be one gram of fentanyl/carfentanil, and the 16.1 grams that fell from Mr. Ali’s pants were also determined to be fentanyl/carfentanil. Mr. Ali also had on his person cash, including the $200 the undercover officer used to purchase the drugs from him, cell phones and chargers. There was a bag in the Dodge Charger. CIRCUMSTANCES OF THE OFFENDER [ 14 ] Mr. Ali comes from a large family.

He is the oldest of six children, four girls and two boys, his parents have. His parents immigrated to Canada from Fiji in the 1980’s. His father is a truck driver and his mother is a teacher. [ 15 ] Mr. Ali is currently 25 years of age. He was 21 at the time of the offence. He was born in Surrey, British Columbia. He graduated from high school in Surrey. He is currently residing with his parents and siblings in Surrey. [ 16 ] Mr. Ali’s parents struggled financially to provide for their large family. They worked day and night. As a result, Mr.

Ali, being the eldest of the six children, shouldered a lot of responsibilities, including caring for his younger siblings. While in high school, Mr. Ali had far more responsibilities than expected of an average teenager. At school, Mr. Ali felt like an outcast and did not experience the freedoms others of his age took for granted. In Grade 12, as an escape from his responsibilities, he started associating with people who introduced him to smoking marihuana. He was naïve, and did not realize that he had to pay for the marihuana he was smoking.

In due course, he ended up “working off” his drug debt by selling drugs. [ 17 ] He was charged as a youth in 2015, just before his 18 th birthday. A few months later, he was charged as an adult for a trafficking offence, to which he pled guilty and dealt with it in 2017. These offences occurred in Surrey, British Columbia.

[ 18 ] In an effort to get away from his negative peers, and in the hopes of getting employment in construction or landscaping, in which he has worked in the past, Mr. Ali moved to Calgary, Alberta, in 2018. He was 21 years of age at that time. [ 19 ] Unfortunately, when he arrived in Calgary, he reconnected with some of his former peers from Surrey, British Columbia, who turned out to be the co-accused on the Calgary charges. These people were running the dial-a-dope lines I mentioned earlier, which the police had been investigating for about eight months. These people approached Mr.

Ali to join in their operation. Mr. Ali rejected their advances twice, but after some pressure from them and due to him being unable to secure employment, he gave into their pressure. He was under the impression that he was agreeing to sell heroin. He has never sold fentanyl or carfentanil before. [ 20 ] Again, unfortunately for Mr. Ali, the day he joined the operation and conducted the sale to the undercover officer, the police concluded their investigation and arrested him and the others involved. [ 21 ] The defence rightly acknowledges that according to the case law, Mr.

Ali ought to have known that a person selling heroin was likely selling fentanyl, and that he could not have been ignorant to the fact that the heroin may have been laced with fentanyl. However, the defence is quick to point out that Mr. Ali certainly did not know that the substance included carfentanil, which is significantly more potent than fentanyl. [ 22 ] The defence also points out that Mr. Ali told the undercover officer that he was the “new guy” as he had just joined the operation, when the police were concluding their investigation. After his arrest, Mr.

Ali was in custody for about one and a half days, and then he returned to Surrey, British Columbia. [ 23 ] The defence points out that Mr. Ali decided never to sell drugs again, and he came “clean” to his parents. He has engaged in deep self-reflection, and truly understands the impact of his offending. In his letter to the court, he states: I am truly sorry for my actions and I understand the negative impact this has had on myself, my family and the public. . . . My eyes are wide open to where I went wrong in my life.

I again understand that it took me a while to realize my actions and how my involvement was impacting those around me: my family, real friends, and the public at large. I assure you now that I have come to this realization, I will work hard to make sure I stay on the right path by focusing on my goals and maintaining a close relationship with my family, which I have recently been able to get back. [ 24 ] The defence says this is true remorse and not self-absorption or self-centred remorse, as was the case in some of the case law the parties referred to. [ 25 ] Mr.

Ali has disconnected his cell phone and distanced himself from his former negative peers. He has spent a lot of time self- reflecting, and creating goals for himself. He has worked on his health: working out, eating clean, and becoming physically fit. All of this has helped him gain self-confidence. [ 26 ] Mr. Ali has not had any further charges or run-ins with the law since his Calgary charges. He has been able to rekindle and regain his family’s respect. [ 27 ] Mr. Ali wants to pursue his education.

He wants to get into the Electrical Foundation Program at the British Columbia Institute of Technology (“BCIT”), which will lead to a Red Seal certification. Mr. Ali’s parents support him in this endeavour. He also has plans to open his own business in landscaping. However, I was told that he has not forged ahead with these plans, pending his sentencing on the index offence. [ 28 ] Mr. Ali’s parents and his sisters have provided letters in his support. Mr. Ali’s three sisters talk lovingly about their elder brother, how Mr. Ali has changed his life around, and how much they look up to him. Mr.

Ali’s parents talk about their struggles moving from Fiji to Canada, their financial struggles in Canada, and how Mr. Ali was thrust into the role of a third parent to their younger children. [ 29 ] Mr. Ali has a criminal record. His adult offending began in 2015. He was convicted for drug-related offences, for which he received a six-month jail sentence. He also had a few breach charges in 2016. [ 30 ] The Crown points out that the six-month jail sentence did not deter Mr. Ali from engaging in a similar offence a year later, only this time he is selling a more lethal drug than he was before. VICTIM(

S) IMPACT / IMPACT ON COMMUNITY [ 31 ] While there are no identified victims in this case or any victim impact statements, there is ample documented evidence of the devastating impact of illicit drugs, in particular fentanyl and carfentanil, not only on the end users of such drugs, but also on their families and communities. Access to such drugs is made readily available through distribution systems, such as the dial-a-dope operation in which Mr.

Ali was involved in. [ 32 ] The Crown submitted three reports that discuss the devastating impact of these illicit drugs in British Columbia: Fentanyl Uses, Abuse and Toxicity , James R. Kennedy, MD, FRCP(C), July 25, 2016; Illicit Drug Toxicity Deaths in BC January 1, 2011 – July 31, 2021 , British Columbia Coroners Service; and Illicit Drug Toxicity Type of Drug Data, Data to July 31, 2021, British Columbia Coroners Service. [ 33 ] The defence did not object to the admissibility of any of these reports. [ 34 ] Dr.

Kennedy in his report, at para. 2, states that: Morphine is the standard to which other opioids are compared. Heroin is about two times the potency of morphine; oxycodone is about equal to that of morphine; codeine is a very weak opioid (much less than one-tenth the potency of morphine); and fentanyl is about 100 times the potency of morphine.

The most dangerous effects like sedation and respiratory depression are directly related to potency. Since fentanyl is about 100 times as potent as morphine and 50 times more potent than heroin, it is far more likely to cause depression of breathing and sedation to the point of being unresponsive to external stimuli.

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

The respiratory depression effect is amplified when another sedating drug like alcohol or benzodiazepine (a Valium-type drug) is also used. [ 35 ] The British Columbia Coroners’ report on the Illicit Drug Toxicity Deaths sets out the data on the ongoing public health crisis relating to fentanyl. At page 6, the report states: A review of completed cases from 2018-21 indicates that the top four detected drugs relevant to illicit drug toxicity deaths were fentanyl (87%), cocaine (48%), methamphetamine/amphetamine (39%), and other opioids (30%). [ 36 ] In 2018, when Mr.

Ali committed the index offence, there were 1,548 reported deaths due to illicit drug toxicity in British Columbia. The number of such deaths rose to 1,734 in 2020. The Crown says the overdose death statistic is not exclusive to British Columbia, and that overdose deaths have been prevalent in all cities across Canada, including Calgary, where Mr. Ali committed the index offence. [ 37 ] The Crown points out that the added aggravating factor in Mr. Ali’s case is the presence of carfentanil, as carfentanil is far more lethal than fentanyl.

The Crown says carfentanil is essentially used as an elephant tranquilizer, and its effect on a human being ingesting it would be devastating, adding to the overdose crisis. [ 38 ] Needless to say, Mr. Ali was contributing to the toxic drug devastation plaguing our communities, resulting in serious health and economic consequences. PARTIES’ POSITION The Crown [ 39 ] The Crown says the principles of denunciation and deterrence are the primary considerations in sentencing an offender for offences related to drug trafficking. [ 40 ] In Mr.

Ali’s case, given the high degree of his responsibility and the impact of fentanyl and carfentanil on the community, it seeks a 30-month imprisonment. As I said earlier, it also seeks the following ancillary orders: (

a) a forfeiture order under s.16(1) of the CDSA ; (

b) a firearms prohibition order under s. 109 of the Criminal Code ; and (

c) a DNA order under s. 487.051(3) (

b) of the Criminal Code , on a secondary designated offence basis. [ 41 ] In support of its position, the Crown relies on the following cases: R. v. Smith , 2017 BCCA 112 ; R. v. Rutter , 2017 BCCA 193 ; R. v. Voong , 2015 BCCA 285 ; R. v. Ruiz , 2019 BCCA 323 ; R. v. Hepworth , BCPC, September 13, 2018 (Files No: 87260-2-C, 87260-3- A, and 87260-4-A, Kelowna Registry); and R. v. Brideau , BCPC, November 13, 2018 (Files No. 87274-4-C and 87502-1, Kelowna Registry). The Defence [ 42 ] The defence submits that Mr.

Ali is a very young man, and that his first conviction for the trafficking offence he committed in November 2015 should be considered in the right context – in that he committed that offence hardly three months after he turned an adult, and that he was still immature at that time. Furthermore, the defence submits that there are exceptional circumstances in Mr.

Ali’s case which support a lesser period of incarceration than the range articulated by the Court of Appeal for British Columbia in Smith . [ 43 ] The defence submits that a sentence of 15 to 18 months’ imprisonment, followed by a two-year probation, is appropriate in Mr. Ali’s case. It takes no issue with the ancillary orders the Crown seeks. [ 44 ] In support of its position, the defence relies on the following cases : R. v. Chen , 2021 BCSC 697 ; R. v. Johal, 2018 BCSC 549 ; R. v. Mani, 2018 BCPC 100 ; R. v. Grewal, 2017 BCPC 412 ; R. v. Joon , 2017 BCPC 301 ; R. v. Choi, 2019 BCPC 295 ; R. v.

Riera, 2019 BCPC 36 ; and R. v. Stampp , 2021 BCPC 264 . It also relies on the support letters from Mr. Ali’s family members. [ 45 ] I have reviewed all the cases and the letters the parties have submitted. I do not intend to discuss the cases in any detail, except to the extent necessary to my discussion below. While there are some similarities in some of the cases, none of them stand out as a direct comparison to Mr. Ali’s circumstances. Sentencing, of course, is a subjective and individualized process. PURPOSE, OBJECTIVES AND PRINCIPLES OF SENTENCING [ 46 ]

Section 718 of the Criminal Code states that “[t]he fundamental purpose of sentencing is to protect society and 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 unlawful conduct and the harm done to victims or to the community that is caused by unlawful 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 or to the community. [ 47 ]

Section 718.1 sets out the fundamental principle in sentencing. It states that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [ 48 ]

Section 718.2 sets out other sentencing principles that a sentencing judge must take into account in imposing a sentence. It states, in part, 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,… (

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

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

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 and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 49 ] Section 10(1) of the CDSA sets out the purpose of sentencing for drug offences as follows: 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. DISCUSSION [ 50 ] I agree with the Crown that denunciation and deterrence are the primary principles I must consider when sentencing Mr. Ali for the index offence. As noted in s. 718 (

d) of the Criminal Code and in s. 10(1) of the CDSA , rehabilitation of the offender is always a consideration in sentencing. [ 51 ] The case law indicates that absent exceptional circumstances, an offender who has engaged in trafficking of

Schedule I controlled substances can expect a custodial sentence. The range starts at six months, and depending on the circumstances can exceed 36 months ( Voong ; Smith ). In Smith , at para. 48 , Harris, J.A. writing for the majority of the Court of Appeal for British Columbia endorsed a sentencing range of 18 to 36 months or more imprisonment for street-level trafficking in fentanyl.

At para. 49, Harris, J.A. said: [49] In my opinion, these facts warrant recognizing a sentencing range for street-level dealing in fentanyl which is materially higher than the sentencing range applicable to other dangerous drugs such as heroin. The range for street-level dealing in those drugs seems to start in British Columbia at six-months’ imprisonment. As matters stand today, other dangerous drugs do not kill as frequently, accidentally, or as unpredictably as fentanyl, but the risks posed by those drugs should not be minimized even by comparison with fentanyl.

Heroin, crystal meth and cocaine can have devastating consequences. They may not kill as often as fentanyl, but very large numbers of accidental deaths are associated with their consumption (indeed the majority of accidental overdose fatalities involve a mixture of illicit drugs) and they destroy lives and wreak social havoc. The existing sentencing range for them is intended to reflect, amongst others, the sentencing principles of deterrence and denunciation.

Recognizing a different and markedly higher sentencing range for street-level dealing in fentanyl turns on the enhanced risks associated with that activity and the individual responsibility of dealers given those risks and public knowledge of them. [ 52 ] In Rutter , the Court of Appeal for British Columbia reaffirmed the 18-to-36-months-plus range. At para. 4, the court said: [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 ). [ 53 ] In Voong , at para. 6 , the Court of Appeal for British Columbia said: [6] Imposing a sentence for criminal conduct is in the purview of judges in the trial courts.

It is an individualized process, in that a sentence must be fashioned to take into account the circumstances of the offence, the circumstances of the offender, the moral blameworthiness of the offender, the principles of sentencing, and proportionality to the offence and the offender. [ 54 ] The parties in this case agree that Mr. Ali was involved in street-level trafficking. [ 55 ] The Crown argues that the index offence occurred in 2018, and at that time, the dangers of fentanyl were widely known.

Therefore, according to Smith , which is binding law in British Columbia, the sentence for trafficking in fentanyl for a first-time offender, barring exceptional circumstances, and without any aggravating circumstances, starts at the 18-month range.

[ 56 ] The Crown submits that in Mr. Ali’s case, his criminal record and the fact that the index offence involved carfentanil, are aggravating circumstances that would put the sentence for Mr.

Ali at a higher range. [ 57 ] With respect to trafficking in carfentanil being an aggravating circumstance, the Crown referred to Hepworth , wherein the court at para. 26 said: [26] Also, I find as an aggravating factor that the substance, which was carfentanil, was held out to be heroin and I do find that to be an aggravating factor because carfentanil is even more dangerous and more potent than fentanyl or heroin and, in that regard, I refer to paragraph 27 of the Mann [2018 BCCA 265] decision: [27] Carfentanil is about 100 times more potent than fentanyl and 10,000 times more potent than morphine.

Due to its extreme toxicity, carfentanil has no safe or beneficial human use, even within the medical community in highly controlled environments. Its sole use appears to be as a large animal tranquilizing agent. Sgt. Boechler said there is “no way to effectively and safely try to mix [carfentanil] for any sort of street-level distribution”. A user of carfentanil will likely go into immediate overdose and require the administration of naloxone. . . . [ 58 ] The court in Hepworth , also said, at para. 11: [11] The 2018 case from our B.C. Court of Appeal, R. v.

Mann , established that it is not mitigating that an accused did not know what he sold was fentanyl or carfentanil . . . [ 59 ] In Hepworth , Mr. Hepworth pled guilty to trafficking in cocaine, .3 grams, and carfentanil, .2 grams, in 2017. He had a significant criminal record, and a related record for drug convictions from 2007, 2009 and 2011. The Crown sought a sentence of three to four years. The court took into consideration the Smith range of 18 to 36 months, and imposed a 36-month jail term, less time served. [ 60 ] The Crown also referred to the Brideau case, in which Mr.

Brideau pled guilty to trafficking in a mixture of fentanyl and carfentanil in 2017. Mr. Brideau’s personal circumstances were far more tragic than Mr. Ali’s. Mr. Brideau was 32 years of age at the time of his sentencing in 2018. He had a very difficult upbringing. His father had significant substance addiction and mental health issues. Mr. Brideau was in foster care from age eight to 15. He was diagnosed with ADHD at the age of 11. He was introduced to illicit drugs at the age of 12 and has been an addict ever since. He was homeless at the time of the offence. He had a very lengthy criminal record.

In light of these circumstances, the Crown sought a two-and-a-half to three-year jail sentence. The court imposed a three-year jail sentence. [ 61 ] The Crown submits that cases such as Hepworth and Brideau reflect the courts’ distaste for trafficking in dangerous drugs, especially fentanyl and carfentanil, as the courts recognize the harm these drugs are causing to the communities in Canada. [ 62 ] The defence argues that there are exceptional circumstances in Mr. Ali’s case, supporting a sentence below the lower end of the Smith range. The defence says Mr.

Ali has a supportive family; he is a very young person; at the time of the index offence, he was only 21 years of age, and was involved in only one transaction in a different province where he did not know anyone; he has a minimal criminal record; most of his offending occurred when he was 17 and 18 years of age. [ 63 ] The Crown disagrees with the defence that there are exceptional circumstances in Mr.

Ali’s case. [ 64 ] In discussing exceptional circumstances, the Court of Appeal for British Columbia, in Ruiz (a 2019 case), at paras. 17 to 19, said: [17] The phrase “exceptional circumstances” was used by Bennett J.A. in R. v. Voong , 2015 BCCA 285 to describe situations in which drug traffickers — particularly those involved in “dial-a-dope” operations — might be given suspended sentences. She began her judgment by saying: [1] Those who embark in drug trafficking engage in serious criminal conduct.

Absent exceptional circumstances, in British Columbia, they should expect to be sent to prison. [18] It is important to recognize that “exceptional circumstances” is not a term of art, but rather a generalized description intended to encompass circumstances of the offender and of the offence that call out for a sentence that is well below the generally accepted range.

In Voong , Justice Bennett said: [59]…Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence.

There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. [19] There is, in short, no litmus test for “exceptional circumstances”. Further, as Bennett J.A. recognized in Voong , at para. 102 , there are degrees of “exceptional circumstances”.

A sentencing judge, recognizing that suspended sentences may be imposed even for trafficking of drugs, must evaluate the circumstances of the offence and of the offender and decide whether the situation is such as to call for a sentence that is lighter than those usually imposed for trafficking offences. [ 65 ] In Voong , at para. 59 , Bennett, J.A. also noted that “it will be the rare case where the standard of exceptional circumstances is met.” [ 66 ] On this point, it is worth noting the court’s comments in Hepworth , at para. 38: [38] In the case of R. v. Dragani , B.C.

Court of Appeal, 2018, as supplied by defence, I found paragraph 73 to be apposite; at paragraph

73: The Crown relies on R. v. Burnett , 2017 MBCA 122 . There, the Court noted that the principle of exceptional circumstances is separate and apart from a sentencing judge’s general discretion to depart downward or upward from a starting point or sentencing range ... Findings of exceptional circumstances occur in only the “clearest of cases”, when there are “multiple mitigating factors” of significance ...

Sentencing judges should not conflate “sympathetic circumstances” with “exceptional circumstances” ... [ 67 ] Also, in Voong , at para. 45 , Bennett, J.A. cautioned that the exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of the main principles of deterrence and denunciation to deviate from the normal range. [ 68 ] I agree with the Crown that the circumstances that the defence points to as being exceptional in Mr. Ali’s case are not truly exceptional as discussed in the case law. Perhaps the additional family responsibilities Mr.

Ali was burdened with in supporting his parents and siblings can be said to be sympathetic, but certainly not exceptional. What the Ali family experienced in getting themselves established in Canada is not an uncommon experience for many immigrant families. In Mr. Ali’s case, his offending started as a youth and continued into his early adulthood. He has a conviction for a prior trafficking offence, for which he was incarcerated. Yet, that did not deter him from reoffending in the same type of trafficking offence, only later the substances involved were more lethal.

The case law is clear that his lack of knowledge that the substances were more lethal is not a mitigating factor. His criminal record also contains a number of breach charges. While Mr. Ali’s letter to the court and his family’s support letters indicate that he is genuinely remorseful for what he did, there is no indication of what significant and objectively identifiable steps he has taken towards rehabilitation.

While he talks about wanting to enroll in the Electrical Foundation Program at BCIT or start his own landscaping business, there is no indication that he has taken any concrete steps towards these goals, or taken any form of counselling to assist him in moving forward with his life. There is also no indication that he has engaged in any community work as reparation to the community. While I appreciate that his sentencing for the index offence has been hanging over his head, it is coming close to four years since he returned to his family in June 2018, after his release on bail for the index offence.

Four years is a long period of time, in which he could have made better efforts towards his rehabilitation. I do note that he has been periodically employed, and he supports his family financially. [ 69 ] However, on the whole, I am not satisfied that there are exceptional circumstances in Mr. Ali’s case to bring his sentence below the lower end of the Smith range. [ 70 ] I will now turn to the mitigating and aggravating circumstances in Mr. Ali’s case. Mitigating Circumstances [ 71 ] I find the following to be mitigating circumstances in Mr. Ali’s case: (

a) Mr. Ali pled guilty to the index offence, avoiding the need for a trial. (

b) Mr. Ali is a young person, and he has prospects of rehabilitative success. (

c) Mr. Ali has insight into his offending, and is truly remorseful and sorry for what he did. (

d) Mr. Ali’s family is very supportive of him. (

e) Mr. Ali has been compliant with his bail conditions for the past almost four years and has been leading a pro-social life. [ 72 ] I acknowledge that Mr. Ali had a somewhat challenging childhood in that he was thrust into holding a lot of family responsibilities, including caring for his siblings and providing financial and other support to his parents, as they were struggling to provide for their large family. However, he had a home, and a family who loved and cared about him, and held him in high regard. He also had the support of his extended family, including his grandparents, aunts, uncles and cousins.

Therefore, I do not consider his rather challenging childhood as a mitigating circumstance. Aggravating Circumstances [ 73 ] I find the following circumstances to be aggravating in Mr. Ali’s case: (

a) The nature of the drugs Mr. Ali was trafficking in, namely, fentanyl and carfentanil which are

Schedule 1 controlled substances, are highly addictive and potent. They have caused significant havoc in communities across Canada. (

b) Mr. Ali sold the controlled substances in the context of a dial-a-dope operation. This type of trafficking provides easy access to dangerous substances, which is a menace to society. (

c) Mr. Ali was involved in the dial-a-dope operation for financial gain. (

d) Mr. Ali has a criminal record, including prior drug-related offences. Proportionality [ 74 ] As I stated earlier, s. 718.1 of the Criminal Code requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 75 ] The Supreme Court of Canada, in R. v. Lacasse , 2015 SCC 64 , discussed the concept of proportionality, at para. 12, as follows: [12] In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender.

The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences,

but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

Moreover, if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts... [ 76 ] As the court in Lacasse notes, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. [ 77 ] In Mr.

Ali’s case, there is no question that trafficking in illicit substances involving fentanyl and carfentanil has serious consequences to the end users of those substances, and their families and communities, as I have already discussed at length. I also find Mr. Ali highly morally blameworthy, as he engaged in the dial-a-dope operation, motivated by financial gain, knowing full well its nature and attendant risks. [ 78 ] As the courts have noted ( R. v. Franklin , 2001 BCSC 706 , at para. 47 ): …One does not enter into a Dial-a-Dope operation impulsively or spontaneously.

It is necessary to obtain a supplier, to outfit oneself with a pager and a cell phone and a vehicle, and to make sure the word gets around. It is a calculated decision to engage in a particular type of business. It is reasonable to think that those who are considering that decision will take into account the likely penalty they would receive upon conviction… [ 79 ] The defence submits that Mr. Ali reluctantly reengaged in drug trafficking in Calgary because he could not find a job there. Regardless of Mr.

Ali’s motivation, it cannot be considered to lessen the aggravating nature of the dial-a-dope activity that he was engaged in. [ 80 ] While it is unfortunate that Mr. Ali was drawn into the drug trafficking world to “work off” his drug debt, he did not learn his lessons from his youth offending and punishment, and later his first adult offending and incarceration. He chose to be associated with his negative peers, even after moving to another province.

He chose to engage in drug trafficking, knowing the potential consequences, including incarceration, and without any regard for how his actions may be impacting not only the end users of the drugs he was trafficking in, but also their families and communities. [ 81 ] The Crown submits, and I agree, that those involved in distributing fentanyl and carfentanil must bear considerable moral and legal responsibility for the resulting havoc of their actions.

Every individual who bought a drug from a trafficker and has overdosed is not just a statistic, but they are a person leaving grieving family and friends behind them. Therefore, the Crown says, it is critically important that individuals engaged in trafficking be deterred from engaging in this criminal activity, and the risk of significant jail needs to outweigh the potential profit of selling these insidious drugs. [ 82 ] The defence says that Mr. Ali has been doing really well in the last four years, and the risk of him reoffending is very low.

The sentences in the cases it relies on range from 12 months to 24 months’ incarceration, followed by a period of probation in some cases. [ 83 ] I will now briefly discuss the cases that the defence referred to. Defence Cases [ 84 ] The defence first referred to the 2021 Chen case, in which the provisions of the Criminal Code – ss. 742.1 (

c) and (e)(ii) – that preclude the imposition of a conditional sentence order for the offence of trafficking, were declared to be of no force and effect. [ 85 ] The defence emphasized that the law in this area is evolving, and that but for Mr. Ali’s related record and breaches, he would likely be a good candidate for a conditional sentence order. [ 86 ] However, I understand that the Crown in the Chen case is appealing the Chen decision, as it believes that it was wrongly decided. [ 87 ] The highlights of the other cases the defence referred to are as follows: (

a) Johal – trafficking in heroin, fentanyl, and a derivative of fentanyl; 23 years of age at the time of the offence and 26 at the time of sentencing; no criminal record; trafficking at a distributor level; Crown sought five years’ imprisonment; sentenced to two years’ less a day imprisonment, followed by two years’ probation. (

b) Mani – possession of large quantities of

Schedule 1 substances, including fentanyl, and other offences; 23 years of age; no criminal record; was not forthcoming with the court about employment and volunteer work; sentenced to 22 months’ imprisonment, followed by one year’s probation. (

c) Grewal – trafficking in

Schedule 1 substances, including fentanyl; 22 years of age; no criminal record; not an addict; dial-a-dope operation; motivated by financial gain; Crown sought 18 months’ imprisonment; sentenced to 18 months’ imprisonment. (

d) Choi – trafficking in heroin/fentanyl mixture; 21 years of age at the time of the offence and 23 at the time of sentencing; dial-a-dope operation; motivated by profit; participation and possession was planned and premeditated; Crown sought 22 to 24 months’ incarceration; sentenced to 18 months’ incarceration, followed by one year’s probation. (

e) Riera – possession of significant quantities of mixed heroin and fentanyl for the purpose of trafficking and other charges; 61 years of age; addict; no criminal record; breached bail; sentenced to two years less a day incarceration, followed by three years’ probation. (

f) Stampp – trafficking in fentanyl; dial-a-dope operation; 21 years of age at the time of the offence and 23 at the time of sentencing; no criminal convictions, but involvement in the criminal justice system; mental health challenges; Crown sought 22 month’s incarceration;

sentenced to 12 months’ incarceration, followed by 18 months’ probation; under appeal. [ 88 ] The defence submits the circumstances in Grewal are closely in line with Mr. Ali’s circumstances, and that the 18-month range is an appropriate term of incarceration for Mr. Ali. [ 89 ] The defence points out that in Stampp , even without an appeal, the 12 months imposed was lower than what Mr. Ali is seeking. [ 90 ] The Crown was quick to point out that in all of the defence cases, the offenders did not have a prior criminal record at the time of their sentencing, and none of these cases involved carfentanil.

These two aggravating factors are present in Mr. Ali’s case, similar to the Hepworth and Brideau cases the Crown relies on. Mr. Hepworth and Mr. Brideau were each sentenced to 36 months’ imprisonment. [ 91 ] I note that Mr. Hepworth and Mr. Brideau both had a significantly longer and concerning criminal record than Mr. Ali. [ 92 ] Regarding Mr. Hepworth’s criminal record, the court, at para. 24, said: [24] . . . Mr. Hepworth has a related record which starts in 1986 and continues on for most of his adult life including some 76 convictions.

I note specifically indictable drug convictions in 2007, 2009, and 2011, and these for which he received 14 months in custody, two years less a day. These are his sixth and seventh convictions for indictable drug offences. [ 93 ] Regarding Mr. Brideau’s criminal record, the court, at para. 12, said: [12] Mr. Brideau has an extremely lengthy court history. His offending began when he was a youth in 2000 and he amassed 17 convictions before he reached 18 years of age. These include offences of violence, property offences, and failures to comply with court orders.

His criminal lifestyle continued into adulthood which saw further 56 convictions (excluding the offences currently before the Court) which include offences of violence, property offences, failures to comply with court orders, and drug offences. . . . SENTENCE [ 94 ] Having considered the circumstances of the offence and the offender Mr. Ali, the harm done to the community, the submissions and case authorities of the Crown and the defence, and the sentencing purpose, objectives and principles, I conclude that a 22-month incarceration, followed by a 12-month probation to be a just sanction for Mr. Ali. [ 95 ] Mr.

Ali, will you please stand up? I sentence you to incarceration for 22 months, followed by 12 months’ probation. Probation Order [ 96 ] Mr. Ali, you must comply with the conditions of a probation order for a term of 12 months. The conditions of the order are as follows: (a) 2001 - You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation. (b) 2104 - You must report in person to a probation officer at Suite 102 – 14245 56 Avenue, Surrey, BC within two business days after your release from custody unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different time frame.

After that, you must report as directed by your probation officer. (c) 2202 – When first reporting to your probation officer, you must provide them with the address where you live and your phone number. You must not change your address or phone number without notifying your officer in writing at least seven days in advance of any change. (d) 2501 – You must attend, participate in and successfully complete any intake, assessment, counselling, or education program as directed by your probation officer. (e) 2509 – You must complete 40 hours of community work under the direction of your probation officer.

Your community work service must be completed within the first 10 months of your probation order. ANCILLARY ORDERS Forfeiture Order [ 97 ] The Crown seeks a forfeiture order under s. 16(1) of the CDSA . [ 98 ] Pursuant to s. 16 of the CDSA , I am satisfied on a balance of probabilities that the items I referred to earlier are offence-related property in relation to the designated substance offence of which Mr.

Ali has been convicted, and I order that they be forfeited to Her Majesty the Queen in right of Canada to be disposed of in accordance with the directions of the Attorney General, as defined in s. 2 of the Criminal Code . DNA Order [ 99 ] The Crown also seeks a DNA order under s. 487.051(3) (

b) of the Criminal Code . [ 100 ] Amended Count 1 on Information No. 243662-1-T (Alberta File No. 18060334-P1) is a secondary designated offence. Before making this order, the factors I must consider in Mr. Ali’s case are his criminal record, if any, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on Mr. Ali’s privacy and the security of his person.

[ 101 ] Mr. Ali already has a criminal record, and he has been incarcerated in the past. Given an adult offender’s diminished expectation of privacy following conviction, I find that in Mr. Ali’s case, the intrusion to his privacy and the security of his person is minimal. In light of the nature of his offence and the circumstances surrounding its commission, I conclude that it is in the best interests of the administration of justice to make this order. [ 102 ] Therefore, Mr. Ali, pursuant to s. 487.051(3) (

b) of the Criminal Code , I make an order in Form 5.04 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank. The samples will be taken from you while you are in custody and you must submit to the taking of the samples. Weapons Prohibition Order [ 103 ] Finally, the Crown also seeks a weapons prohibition order under s. 109(3) of the Criminal Code . [ 104 ] Mr. Ali, pursuant to s. 109(3) of the Criminal Code , you are prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, and explosive substance for life.

CONCLUSION [ 105 ] That concludes my reasons for sentence. Thank you. _____________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia