R. v. Sekhon, 2022 BCPC 33

Citation: R. v. Sekhon 2022 BCPC 0033 Date: 20220307 File No: 247421-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. KULJIWAN SINGH SEKHON REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. BAKAN Counsel for the Crown: C. Gardner Counsel for the Defendant: J.S. Malik Place of Hearing: Vancouver , B.C. Dates of Hearing: February 4, 2022 Date of Judgment: March 7, 2022

[ 1 ] Kuljiwan Singh Sekhon is before this Court for sentencing on two counts of unlawful possession of controlled substances for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act . These offences were committed on December 25, 2018. [ 2 ] Mr.

Sekhon was found to be illegally in possession of 8.91 grams of heroin/fentanyl mixture and 17.91 grams of cocaine for the purpose of trafficking. [ 3 ] In addition to the able submissions of counsel, I have had the benefit of a Pre-Sentence Report filed on January 19, 2022, letters of reference, employment confirmation and certificates confirming counselling Mr. Sekhon has undertaken. [ 4 ] The sentencing positions of Crown and defence differ primarily on whether Mr. Sekhon should receive a sentence of incarceration or a Conditional Sentence Order in the community.

Crown submits a global sentence of 18 months in jail is appropriate in all the circumstances. Defence submits a CSO of 12 to 18 months duration with strict conditions is warranted. [ 5 ] Both Crown and defence agree that Mr. Sekhon was addicted to crack cocaine at the time of these offences. Defence counsel concedes that this is not a case where “exceptional circumstances” exist to reduce sentence below the range set out in R. v. Smith 2017 BCJ 112 , but rather, relies on the dicta in R. v. Proulx , [2001] 1 SCR 61 and R. v. Chen 2021 BCSC 697 , that a CSO is an appropriate sentence for Mr. Sekhon.

CIRCUMSTANCES OF THE OFFENCES [ 6 ] At approximately 0200, on December 25, 2018, Cst. Lavack noticed a car idling in an alley between Pandora and Albert Streets in Burnaby, BC. Mr. Sekhon was in the driver’s seat and another man was in the front passenger seat. [ 7 ] The officer approached the driver’s side of the car and asked Mr. Sekhon for his driver’s license. He did not ask Mr. Sekhon to get out of the car. Mr. Sekhon did not have his license in his possession, but the information he provided to the officer satisfied Cst. Lavack that Mr.

Sekhon was who he said he was and that he had a valid driver’s license. [ 8 ] Mr. Sekhon was wearing a Santa hat and was friendly and polite. The officer observed that his eyes were glassy and he was constantly moving. He smelled no alcohol and formed an opinion that Mr. Sekhon might be impaired by drugs. He was concerned about Mr. Sekhon’s ability to drive, but Mr. Sekhon advised he was returning the car to the owner, the man in the passenger seat and would not be driving. As a result of this, Cst. Lavack returned to his vehicle and considered his interaction with Mr. Sekhon to be at an end. [ 9 ] Cst.

Lavack drove towards Willingdon Avenue and stopped in the alley to document his encounter with Mr. Sekhon. Prior to starting this documentation, he observed Mr. Sekhon drive the vehicle from the alley onto Rosser Street. He observed Mr. Sekhon failed to stop completely at two stop signs and further observed him turn west onto Hastings Street from the middle lane. He was concerned Mr. Sekhon was impaired and pulled his vehicle over following his observance of the three traffic violations at approximately 0220. [ 10 ] Cst. Lavack had contacted Cpl. Grant and advised he thought Mr. Sekhon was impaired and Cpl.

Grant arrived and dealt with Mr. Sekhon after asking Cst. Lavack to fill out a Notice of Driving Prohibition. [ 11 ] Cpl. Grant asked Mr. Sekhon to exit the car for a sobriety test, which he did. Mr. Sekhon then asked if he could get his phone. Cpl. Grant agreed, but asked Mr. Sekhon to step away from the car when he put his hands under the driver’s seat and did not stop when asked. Cpl. Grant told him he would get the phone from the car. Mr. Sekhon had left the driver’s door open and Cpl.

Grant testified that before he entered the car to look for the phone, he noticed a small clear baggy filled with white powder in plain view. He believed it to be cocaine and arrested Mr. Sekhon for possession of cocaine. He searched Mr. Sekhon incidental to arrest and found a quantity of suspected drugs and other items including approximately $1,300 cash and two cell phones. [ 12 ] The estimated value of the cocaine found was between $2,150 and $2,600.00. There was 12.6 grams of rock cocaine and 4.54 grams of powder cocaine. The value of the heroin/fentanyl mixture was estimated at between $3,160 and $ 3,340.

The total value of the drugs was estimated at up to $6,000.00. The drugs were packaged in numerous baggies consistent with sale in a dial-a-dope operation. [ 13 ] Expert evidence introduced by the Crown indicated Mr. Sekhon was involved in what is referenced as a dial-a-dope operation. [ 14 ] Crown counsel described this amount of drugs as more than a low level dealer would have, but not as much as a mid-level dealer would possess. CIRCUMSTANCES OF MR. SEKHON [ 15 ] Mr. Sekhon is 38 years old. He and his family moved to Victoria, BC. when he was 5 years old.

He describes a good childhood with supportive parents and is the youngest of three siblings. He is currently single and has no children. [ 16 ] Mr. Sekhon has a dated, unrelated criminal record. He was convicted of dangerous operation of a motor vehicle in 2011. He received and successfully completed his 18 month probation order from that offence. [ 17 ] After graduating from high school, Mr. Sekhon followed in the path of his older brother and other relatives and joined the Canadian Armed Forces. He joined the Navy shortly after September 11, 2001, and served as a Naval Combat Information Officer.

He was in the military for three years and served for six months in the Persian Gulf. [ 18 ] After completing his military service, Mr. Sekhon completed post-secondary education, including a four year plumbing apprenticeship at Camosun College. Mr. Sekhon’s father was a builder and encouraged him to become a plumber. His elder brother’s letter to the Court states that Mr. Sekhon is a final level apprentice plumber and plans to write his Red Seal exam and eventually work as a gas fitter.

[ 19 ] In addition to working in the plumbing industry, Mr. Sekhon has worked as a dry-waller, bar manager, and taxi driver. [ 20 ] On January 4, 2022, Mr. Sekhon obtained fulltime employment at Lowe’s Canada in Victoria, BC, area as a Sales Specialist. It is not known when he last held lawful employment prior to that date. [ 21 ] Mr. Sekhon advised the PSR writer that he first tried cocaine when he was in the military, but that his use was sporadic until his move to the lower mainland in 2016. He became addicted to crack cocaine and describes that “things got out of control quickly”. [ 22 ] Mr.

Sekhon’s family ceased contact with him in December, 2017, due to his drug use. His brother advised that Mr. Sekhon’s addiction had become unmanageable at that time. He attended family events impaired. By this time, he had received approximately $180,000 from his mother. Her letter to the Court states that she had gone behind her husband’s back and given him money. [ 23 ] She said that this resulted in the loss of her or her husband’s retirement fund and that in 2017, she made the decision to remove Mr.

Sekhon from her life as his, “lies and use of drugs nearly destroyed my marriage, my relationship with my other two children, my grandchildren and my mental and physical health”. [ 24 ] Mr. Sekhon’s family had not had contact with him from December, 2017, until November 7, 2021, a day prior to his sentencing hearing of November 8, 2021. This date was adjourned at his former counsel’s request so that he could speak to family members. [ 25 ] The date of the actual sentence hearing was the fifth date set of same. The other four sentencing dates had been adjourned at the request of defence counsel. [ 26 ] Mr.

Sekhon’s parents, other family members, and his former camp counsellor, attended the sentence hearing in support of Mr. Sekhon. His elder brother attended at that court appearance and stated in his letter to the Court that he first saw Mr. Sekhon for the first time in five years, minutes before that court appearance. The family learned of the offences he was to be sentenced for after he advised that he might go to jail. He said that the family agreed he could live with his parents and they would help him and give him the opportunity to earn back their trust and respect, but only if he remained sober.

Though most of the family are supportive, they advise through letters to the Court that if he relapses, he must leave his parent’s home immediately. His mother acknowledged that Mr. Sekhon’s sister still does not believe he is sincere and will not see him. Mental health and rehabilitation efforts [ 27 ] The PSR states that Mr. Sekhon does not have mental health concerns when sober. He did report psychosis on occasion while using illicit substances. [ 28 ] Mr.

Sekhon was admitted to the psychiatric ward at Burnaby Hospital in February 2019, due to a suicide threat, within two months of committing the offences before the court. The PSR states that he was released from hospital into a recovery home, although he was not successful in completing the recovery house program. There is no information on how long he was in the recovery house. There is no information that he has attended any other in-person treatment for substance abuse. [ 29 ] From the PSR and letters of support, Mr. Sekhon has not used illicit substances since the latter part of 2021.

On December 10, 2021, he received a certificate of completion for a four hours drug and alcohol awareness course provided online by North American Learning Institute and a further certificate of completion on January 27, 2022, for an eight hour online drug and alcohol awareness course from the same institute. [ 30 ] From the certificate, it appears this is an American based educational institute. I have no other information on the North American Learning Institute or the specific content of the courses taken by Mr. Sekhon. [ 31 ] Mr. Sekhon also attends Narcotics Anonymous.

His attendance is online due to the pandemic. [ 32 ] Mr. Sekhon has also been employed fulltime at Lowe’s since January 4, 2022. Letters from family members indicate he assists his parents, participates in the Sikh faith and has made positive changes in his life. He has become engaged with his three nieces and re- engaged with other family members. He is given support and guidance from family and the Sikh congregation he is now an active member of. Attitude towards offences [ 33 ] Mr. Sekhon expressed remorse for these offences to the PSR writer and in court through his counsel.

He told the PSR writer that he was selling drugs to support his addiction and that of his former girlfriend. The PSR states that he is aware that he was “an instrument to the destruction” of other people’s lives. [ 34 ] Mr. Sekhon’s brother’s letter to the Court states: Kuljiwan Singh has had a growth in understanding through reading and conversations at Narcotics Anonymous and at home that have illustrated the devastation narcotics have done to families including our own. He sees his

part in that machine of destruction. He realized the role that as a cog in that machine he bears responsibility which he must answer for. EFFECT OF OFFENCES [ 35 ] As stated by Mr. Justice Williams in R. v. Milne 2021 BCSC 1859 : In a case such as this, there is no victim in the conventional sense; that is, there is no specific party who is directly injured by the offender’s conduct. Nevertheless, in a larger societal sense, the trafficking and distribution of drugs, and particularly the drug fentanyl, in addition to fueling the plight of the addicted, very much inflicts substantial injury on the community at large. (para. 29)

[ 36 ] Mr. Justice Williams continues by stating that British Columbia has been in a public health emergency regarding fentanyl since April, 2016. He cites provisions of the Coroner’s Report that was up-to-date at the time, indicating that fentanyl was present in over 80% of drug deaths between 2017 and 2020 (para. 32). [ 37 ] He further sets out portions of the report prepared by Dr James R. Kennedy in 2016 relating to fentanyl abuse in BC. Dr Kennedy at that time was a Clinical Associate Professor of Medicine and Pharmacology at UBC and St. Paul’s Hospital.

His report was accepted by the BC Court of Appeal in R. v. Smith , 2017 BCCA 112 . Dr Kennedy stated that fentanyl is approximately 50 times more potent than heroin, is more likely than heroin to cause respiratory distress and that fentanyl can cause fatalities because it causes low circulation of oxygen and even if death does not occur, can cause serious brain damage. [ 38 ] As stated in R v Smith ; … fentanyl is a scourge. It poses intolerable risks of accidental overdosing because it is so much more powerful than morphine.

Illegally manufactured fentanyl can be particularly and unpredictably potent, even tiny amounts of fentanyl mixed into other drugs such as cocaine or heroin may be fatal; often street drugs have fentanyl cut into them, and it is practically impossible for drug users to recognize whether the drugs they buy contain fentanyl (para. 48). [ 39 ] In R. v. Hanson 2021 BCPC 208 , McQuillan J. noted that fentanyl has “wreaked tremendous damage on families and communities in recent years and continues to do so” (para. 20). [ 40 ] From defence submissions in this case and letters written by Mr.

Sekhon’s parents and brother, it is clear that Mr. Sekhon’s actions at the least caused tremendous stress to his family, depleted his parents’ retirement savings and put a serious strain on their marriage. [ 41 ] Mr. Sekhon was involved in a dial-a-dope operation. I accept the expert opinion on this in the Drug Expert Report of Corporal Hopkin dated January 17, 2020, and filed in these proceedings. [ 42 ] The dial-a-dope model of drug distribution is described by Mr. Justice Williams in R. v. Milne as follows: [34] The dial-a-dope model makes drugs readily available to anyone who can place a telephone call.

An arrangement is made to have the drugs delivered and that generally happens in very short order. The result is that drugs are substantially more accessible. In effect, the dial-a-dope model very greatly enhances the proliferation of drugs. Acquiring such illicit substances requires less effort and risk on the part of the user. It is akin to home delivery. The effect is that access to drugs is made easier and the infiltration of the community is greater.

As for those who deal drugs in this way, it is noted that participation requires foresight and planning-to operate, the dealer requires a vehicle, a phone, a supplier and a marketing set-up. [35] Repeatedly, the courts of this province have remarked upon the insidious effect that dial-a-dope distribution has. SENTENCING PRINCIPLES [ 43 ] Sentencing principles are codified in s. 718 to s. 718.2 of the Criminal Code and s. 10 of the CDSA . [ 44 ] Mr.

Justice Williams addressed the purpose and principles of s. 718 Criminal Code stating: [45] Based upon the provisions of s. 718 of the Code , there are a number of purposes and principles to be considered in determining what is an appropriate sentence. These include the fundamental purpose of sentencing as set out at s. 718: denunciation, deterrence, rehabilitation, and others ...They also include the core principle of proportionality; that is, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other relevant provisions include that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, and the principle of restraint; that is the offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. [46] The conundrum of devising an appropriate sentence is to recognize that the various purposes and principles do not all sit comfortably with one another.

For example, the principle of restraint may give way to other sentencing considerations where the circumstances warrant, such as when the need for denunciation and deterrence or the need to separate an offender from society require. [ 45 ] In R. v. Smith , our Court of Appeal upheld the 6 month sentence for street level trafficking of fentanyl by a first time offender convicted of selling 2.6 grams of fentanyl and 3.2 grams of rock cocaine in the DTES in January, 2015, but set a general sentencing range of 18 months to 36 months or higher for those involved in street level fentanyl trafficking from 2016.

This was based on the increasingly worsening public health crisis associated with fentanyl use. Conditional Sentence Orders [ 46 ] At the time R. v. Smith was decided, conditional sentence orders were not available for PPT or drug trafficking. [ 47 ] In R. v. Hanson , McQuillan, J. outlines the history of CSO’s in Canada. CSO’s were enacted to provide a jail sentence in the community to counter increasing incarceration rates where the conditions in s. 742.1 of the Criminal Code were met.

These conditions include a sentence of incarceration not exceeding two years, the community not being endangered and the CSO being was consistent with fundamental purposes of sentencing in s. 718 - 718.2 Criminal Code . [ 48 ] Between the enactment of s. 742.1 of the CCC to 2012, CSO’s were a sentencing option for drug trafficking offences ( Hanson , para. 39 ).They became unavailable for sentencing drug trafficking offenders in 2012. They were not available as a sentence option when R. v. Smith was decided.

The fentanyl crisis also had not arisen at the time they stopped being a sentencing option in 2012. [ 49 ] CSO’s did not become a sentencing option again for trafficking offences until R. v. Chen in April, 2021.

[ 50 ] The Crown agrees that a CSO is a sentencing option available to this Court in respect to at least factor 1 - 2 and possibly 3. The Crown submits that a CSO should not be granted to Mr. Sekhon, however, as it is not consistent with the fundamental purpose and principles of sentencing in regards to the offences before this Court. [ 51 ]

Section 742.1 of the Criminal Code sets out the following 4 criteria required to impose a CSO: 1. The offence must not have a minimum term of imprisonment; 2. The Court must impose a term of imprisonment of less than 2 years; 3. The safety of the community must not be endangered by the offender serving the sentence in the community; and 4. That a CSO be consistent with the fundamental purpose and principles of sentencing in s. 718 to s. 718.2 . [ 52 ] In R. v.

Proulx , it was held that a CSO is capable of providing significant denunciation and deterrence, although there may be cases where the need for denunciation and deterrence is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct or to deter similar conduct in the future. [ 53 ] The sentencing judge in Proulx had sentenced the offender to 18 months in jail following his guilty plea for dangerous driving causing bodily injury and death.

She held that although he did not pose a danger to the community, a CSO would not be in conformance with the sentencing principles in s. 718 . Although specific deterrence was not necessary, she held that general deterrence and denunciation required imprisonment. The Court of Appeal substituted a CSO. This was overturned by the SCC that held the 18 month sentence should be restored, although technically the sentence had been served. [ 54 ] The CSO has both punitive and rehabilitative characteristics. They are generally more restrictive on an offender’s liberty than a probation order.

Where there is a breach of a CSO, there is a presumption that the offender will serve the remainder of their sentence in jail (para. 38). [ 55 ]

Section 742.1 does not exclude any offences from CSO except those with a minimum term of incarceration if the other statutory pre-requisites are met (para. 79). [ 56 ] In

summary, Proulx held: … in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case before them. Where a combination of both punitive and restorative objectives may be achieved a conditional sentence will likely be more appropriate that incarceration.

In determining whether restorative objectives can be satisfied in a particular case, the judge should consider the offender’s prospects of rehabilitation including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse … This list is not exhaustive.

Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence.

Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances in which the conditional sentence arises (paras. 133, 134). [51] A

summary of the use and conditions to consider in whether or not to grant a CSO is set out in paragraph 127 of R. v. Proulx . CASES WHERE INCARCERATION RATHER THAN CSO APPLIED [ 57 ] The offender in R. v. Milne was a 24 year old first offender who was addicted to drugs and left his job to sell drugs to support his addiction. At the time of sentence, he was abstinent from drug use and has been for 18 months. He was under the care of an addiction specialist and took suboxone under her care. [ 58 ] In March, 2018, Mr. Milne sold drugs on two occasions to an undercover officer in a dial-a-dope operation in Duncan, BC.

He sold the undercover officer $40.00 of what was described as heroin and basically told the officer if she gave a phone number to friends she would get “a free one”. The drug when analysed contained no heroin, but did contain 2.9% fentanyl. The second transaction that month again involved a phone request for $40 worth of heroin. When analysed, the drug had no heroin, but had 4.9% fentanyl and ketamine. [ 59 ] Mr.

Justice Williams accepted that there was a “clear and compelling line of authority” that denunciation and deterrence were the primary sentencing principles in crafting a sentence for a dial-a-dope operation. After considering the aggravating and mitigating factors, and steps Mr. Milne had taken to rehabilitate himself, he held that the considerable gravity of the offences had a high degree of responsibility and that Mr. Milne therefore required a custodial sentence of 18 months incarceration. [ 60 ] He considered the principle in R. v.

Proulx , that a conditional sentence order can be drafted to provide deterrence and denunciation, but held that the imposition of a conditional sentence would not fall within the fundamental purpose of the principles of sentencing. [ 61 ] In R v. Smith , Harris, J. held that the sentencing range for fentanyl offences should be “materially higher” that the sentencing range for other dangerous drugs such as heroin. He notes there has been a, “profound and enormous escalation in the extent of the fentanyl crisis and public awareness since 2015 and the sentencing range must accordingly increase” (paras. 48, 49).

[ 62 ] The offender in R. v. Vu File No: 255119-1, Vancouver Registry June 9, 2021, (unreported) was convicted of possession for the purpose of trafficking in both fentanyl and cocaine. When apprehended, he had 3.17 grams of fentanyl, 5.36 grams of powder cocaine, 5 rocks of crack cocaine and .43 grams of crystal methamphetamine. The value of the drugs was $1,300.00 ( Vu , para. 3). [ 63 ] The Honourable Judge Sutherland characterized Mr. Vu as a low level part of a street distribution gang. It had some characteristics of a dial-a dope scheme but was missing others ( Vu , para. 12). Mr.

Vu was 19 at the time of the offences and had no criminal record. His family was described as a “stable, hardworking immigrant family”. [ 64 ] Like Mr. Sekhon, he was remorseful and had abstained from using illicit substances for almost a year prior to sentencing. He had engaged in private alcohol and drug counselling and a letter from his counsellor indicated positively on his rehabilitation and character. He had been compliant with bail conditions. [ 65 ] Crown took a similar position to that before me that Mr.

Vu should receive a sentence of 18 months for PPT of fentanyl (less time served), and six months jail for the PPT cocaine. Defence sought a 12 month CSO for the possession for the purpose of trafficking fentanyl, and 6 months’ time served for the possession of cocaine for the purpose of trafficking. [ 66 ] In R. v.

Vu , Sutherland J. makes some general comments on the purpose, objective and principles of sentencing in s. 718 to 718.2 of the Criminal Code , in view of the offender’s personal circumstances and those of the offences. [ 67 ] He states: [10] In this process an assessment of the accused’s moral blameworthiness for the commission of the offence and a blending of the various objectives of sentencing to suit the individual case takes place. The process is individual to each case and each offender. The objectives and principles of sentencing take into account the needs of the community and the offender.

In the end the sentence must balance these needs, giving weight to some more than others depending on the circumstances of each case. [11] Despite these various considerations and balancing of objectives, the analytical process actually has a narrow focus. In the end the court is to arrive at a sentence that is proportionate to the gravity of the offence and the offender’s degree of responsibility. [ 68 ] Sutherland J, comments on the devastating effects of fentanyl and the fact that “… other hard drugs do not kill as frequently, accidentally of unpredictably as fentanyl”, and that fentanyl destroys lives.

He cites statistics from the British Columbia Coroners Service in regards to deaths indicating the increasing numbers of deaths from fentanyl between 2014 and 2021. He noted that BC was hit the hardest in the country with fentanyl overdoses ( Vu , paras. 14-20). [ 69 ] Sutherland, J. concludes his analysis on the fentanyl situation in BC stating: As fentanyl abuse continues to claim lives every day and was claiming many lives at the time Mr. Vu committed his offences, the danger posed by such a drug informs the circumstances and the seriousness of the offence, and Mr.

Vu’s culpability in committing the offence ( Vu , para, 21). [ 70 ] Sutherland, J. held that all pre-requisites for a conditional sentence order in s. 742.1 of the Criminal Code had been met. The issue was whether a CSO would be consistent with the fundamental principles of sentencing particularized in s. 718 – s. 718.2 of the Criminal Code . [ 71 ] Sutherland J, articulated that general deterrence and denunciation were required for the offences committed by Mr. Vu although rehabilitation and restraint could not be ignored. He cited R. v.

Proulx, which held that CSOs can provide deterrence and denunciation, but cited paragraphs 106 and 144 of this decision that there might be certain circumstances where the need for denunciation was so pressing that a sentence of incarceration was the only reasonable means to express society’s condemnation in spite of the fact that restorative goals might be achieved by a CSO. [ 72 ] He further held that since R. v. Smith , fentanyl related offences attract punishment directly related to the existing needs of society and that given the widely known devastating effects of fentanyl when Mr.

Vu offended, and his background, a CSO was not consistent with the fundamental purpose and principles of sentencing. [ 73 ] After considering the mitigating and aggravating factors, Mr. Vu received 14 months incarceration for possession for the purpose of trafficking fentanyl and 6 months incarceration for PPT of cocaine to be served concurrently less time served. [ 74 ] In R. v. Choi 2019 BCPC 295 , Mr. Choi was convicted of possessing 0.29 grams of a mixture of heroin/fentanyl for the purpose of trafficking in a dial-a-dope scheme.

He was 21 years old at the time of the offence, was not an addict, and came to Vernon, BC, for the purpose of selling drugs for profit. [ 75 ] Following his offence, he commenced fulltime employment and did some volunteer work. He submitted positive letters of reference to the court, but the references were unaware of his offences. [ 76 ] It was held Mr. Choi had a high degree of moral culpability and that despite his young age, lack of prior criminal record and efforts to turn his life around, denunciation and deterrence were the primary sentence considerations. Mr.

Choi was sentenced to 18 months incarceration, followed by 12 months of probation. Cases where CSO granted [ 77 ] In R. v. Flintroy 2021 BCSC 1187 , Mr. Justice Crossin imposed a 20 month CSO, followed by 12 months’ probation for possession for the purpose of trafficking large amounts of cocaine, methamphetamine, heroin and fentanyl. The charges arose in late 2014 and early 2015, prior to the 18-36 + months sentencing range set out in R. v. Smith . It is also the first case before me post R. v. Chen, where a CSO was granted.

[ 78 ] Ms. Flintroy had a traumatic upbringing that included physical and sexual abuse. She worked in the sex trade industry and became addicted to alcohol and drugs. She was physically abused by her domestic partners and had her children taken away from her. She faced periods of homelessness. At times, she was drug free and worked. She was diagnosed with PTSD, depression and an organic brain disorder. [ 79 ] The Crown sought a sentence of 30 months incarceration. Defence initially sought a suspended sentence on the basis of exceptional circumstances. After the initial sentencing submissions of counsel, R. v.

Chen was released and a CSO became a sentencing option. [ 80 ] Mr. Justice Crossin stated that generally the circumstances of the offences before him should attract a sentence with the greatest emphasis on denunciation and deterrence. He went on to state that “appellate jurisprudence leaves room for certain movement” (paras. 43, 44). [ 81 ] He considered R. v. Proulx in respect to whether a conditional sentence order was applicable. He considered Ms. Fintroy’s circumstances, including that much time had elapsed between the offences and sentence hearing.

During these times, she was mainly homeless and in addiction but found support and had made a number of positive changes in her life, including participation in an addictions treatment program and trauma counselling. She reported as required and remained in a recovery house in compliance with conditions. She also found employment. [ 82 ] Mr. Justice Crossin accepted Ms. Fintroy was sincere about continuing her rehabilitative steps. He noted that her co-accused was the “mastermind” of the offences and that there was no evidence she profited from her participation.

He found her circumstances exceptional and compelling, but not appropriate for a suspended sentence. He imposed a 20 month CSO, to be followed by one year probation. [ 83 ] In R. v. Hanson , the offender had pled guilty on one count of trafficking .66 grams of fentanyl and methamphetamine to undercover officers for $40.00 in Maple Ridge, BC, She was not found to be participating in a dial-a-dope scheme but was an addict. [ 84 ] Her mother was a heroin addict and she worked in the sex trade and was homeless for periods of time. She had mental health issues.

She was 35 years old on the date of sentencing. [ 85 ] The Crown sought a sentence of 12 to 18 months incarceration. The defence did not seek a finding of exceptional circumstances instead submitting a CSO was appropriate. [ 86 ] At the time of sentencing, she was still in addiction but had taken positive steps to improve her life. The Court referred to her offence as the “lowest hanging fruit of the drug trade” rather than being involved in an organized operation such as dial-a-dope. [ 87 ] Ms. Hanson’s sentence was a CSO of 20 months. [ 88 ] R. v.

Howard 2021 BCPC 167 concerned the appropriate sentence for possession of heroin, fentanyl and cocaine for the purpose of trafficking following a guilty plea. The Crown sought a 36 month sentence of incarceration based on R. v. Smith . Defence sought a non-custodial sentence on the basis of exceptional circumstances or a CSO. The offence occurred in Surrey, BC, during a dial-a-dope sale to undercover officers. She had over 52 grams of fentanyl, most of which was contained in counterfeit pills labelled as OxyContin. The drugs had an estimated street value of $14,320. [ 89 ] Ms.

Howard was an addict selling drugs to support her addiction. She was 38 years old at time of sentence hearing and had a prior conviction for trafficking for which she received an 8 month CSO in 2012 that she breached in 2013. [ 90 ] As with Ms. Hanson, she had a troubled upbringing. She was physically abused by her mother’s partner when she was 12 and started running away to the Downtown Eastside. She had a series of poor relationships and became addicted to heroin. She had mental health issues including bipolar since her teens.

She had two daughters that were teenagers when she was sentenced. [ 91 ] Despite her addiction, she obtained a business marketing management certificate in 2019 from BCIT and was described by her employer at sentencing as a valued employee that would be greatly missed is she went to jail. [ 92 ] Jetté, J. set out the applicable sentencing principles set out in the Criminal Code , s. 10 of the CDSA and case law including R. v. Smith ; R. v. Nur 2015 SCC 15 , para 43 ; R. v. Lacasse, 2015 SCC 64 ; and, R. v. Williams 2019 BCCA 295 . [ 93 ] Ms. Howard received a CSO of 22 months. [ 94 ] R. v.

Ellis 2021 BCPC 2 , involved the sentencing of a woman in her 40’s that sold less than 3 grams of fentanyl to undercover officers three times. The total she received in the transactions was less than $200.00. [ 95 ] Ms. Ellis was a long term addict and sold drugs to support her addiction. She had convictions for prior drug offences. She had a violent upbringing. She started using drugs and alcohol in grade 3, first smoked crack when she was in grade 8 and became addicted to heroin in her 20’s. She was sexually and physically abused.

Three months prior to the offences, her partner died of a suspected drug overdose. [ 96 ] She had been to residential treatment seven times, but still used heroin; fentanyl and other illicit substances at the time of the sentence hearing. [ 97 ] Flewelling, J. found that Ms. Ellis was operating a dial-a-dope operation when she was arrested but described it as “extremely unsophisticated” (paragraph 138). She described Ms. Ellis’s life as “dismal” (para. 20). [ 98 ] Flewelling, J. held that Ms. Ellis had lower moral culpability selling a small quantity of illicit drugs in an unsophisticated manner.

She concluded Ms. Ellis was a “street level addict seller”. She described this type of seller as “the easiest to locate most vulnerable, marginalized and least sophisticated” (paras. 125 - 127). [ 99 ] I do not find this case applicable given the difference in Ms. Ellis’s background, including abuse, socio-economic marginalization, limited opportunity and drug selling methods, to that of Mr. Sekhon. [ 100 ] I have reviewed R. v. McKay 2019 BCSC 823 . I find it distinguishable. It was decided prior to CSOs becoming available for drug offences.

It was held that exceptional circumstances applied given the efforts the offender had made to turn his life around and his traumatic and very troubling life circumstances. [ 101 ] R. v. Webber 2021 BCPC 296 , involved the imposition of a 15 month CSO following a guilty pleas to possession for the purpose of trafficking cocaine and methamphetamine. There was no conviction for fentanyl. AGGRAVATING AND MITIGATING FACTORS IN REGARDS TO MR. SEKHON [ 102 ] It is aggravating that Mr. Sekhon sold hard drugs that included fentanyl. A few grains of fentanyl can cause a fatal overdose or permanent brain injury. Mr.

Sekhon had approximately a quarter of an ounce of mixed fentanyl/heroin in his possession relating to count one. That is a number of potentially fatal fentanyl grains. Purchasers may have thought they were getting heroin. [ 103 ] It is further aggravating that this offence involving the fentanyl/heroin occurred in the lower mainland of BC, at a time when it was well known that people were dying in this area from fentanyl toxicity at times without knowing they were ingesting fentanyl. [ 104 ] Statistics cited in recent case law indicate the fentanyl epidemic in BC has gotten worst since 2016.

The body count is alarming. Mr. Sekhon’s sale model was a dial-a-dope one. This is further aggravating as it makes the sale of such drugs more difficult to ascertain and increases the scope of sales to a number of neighbourhoods. Following Mr. Sekhon’s arrest his cell phone was answered by a police officer. Callers were requesting delivery of illicit drugs in the early morning hours of Christmas day. Distribution of drugs in this manner increases the scope as users are not required to go to a certain location to obtain the drugs. [ 105 ] It is mitigating that Mr. Sekhon has no prior drug convictions.

His prior record is dated and unrelated to the current convictions [ 106 ] He has also complied with his bail terms and not re-offended since December 25, 2018. [ 107 ] He has taken some recent but commendable steps towards his rehabilitation. I am told he has not used illicit substances since returning to the family home on November 8, 2021. He has returned to his family home on Vancouver Island. His family is supportive of him as long as he remains abstinent of illicit drug use. He has engaged in some online counselling and NA. He has been employed full- time since early January, 2022.

He has accepted religious guidance and instruction from his place of worship and with his family. [ 108 ] It is further mitigating that he has expressed his remorse for these offences and acknowledged the great harm hard drugs cause in the community. WHAT IS A FIT SENTENCE [ 109 ] I find that a global sentence of 18 months is appropriate in the circumstances.

The issue is whether it should be served in jail or in the community. [ 110 ] The majority of cases since conditional sentences for offences before this Court became available as a sentence option in April, 2021, especially fentanyl, in dial-a-dope operations ( R. v. Vu, R v. Milne, R. v. Choi ) have held that denunciation and general deterrence are primary sentencing objectives resulting in a jail term rather than a CSO. [ 111 ] Where fentanyl is possessed to sell or sold in dial-a-dope operations, the sentencing range in R. v.

Smith has been applied absent exceptional circumstances, unless it is unsophisticated. In R. v. Vu , the sentence of incarcerations was 15 months. The Crown had not discharged its burden in establishing beyond a reasonable doubt that Mr. Vu was operating a dial-a-dope operation. [ 112 ] CSOs were granted in R. v. Flintroy , R. v. Hanson , and R. v. Howard . In R. v. Ellis , the offender received a 12 month suspended sentence for selling a small amount of hard drugs including fentanyl in what was referenced as an unsophisticated dial-a-dope operation. From the decision, it is clear Ms.

Ellis was a street level dealer that sold to fund her addiction. In all these cases, the offenders had very challenging life circumstances from a young age and most had made strides to overcome same. [ 113 ] It is clear that the fentanyl crisis has worsened since R. v. Smith . It is generally known that fentanyl is in the majority of most illicit drugs and that since R. v. Smith , some persons that are addicted specifically seek out fentanyl. In the case before me, fentanyl was mixed in with heroin and buyers were at risk of fatal overdosing being unsure the harm of mixed in fentanyl. [ 114 ] In this case, Mr.

Sekhon acknowledged that while he was selling drugs to support his addiction, he recognized he was an “instrument to the destruction of other people’s lives”. The PSR states he was addicted to crack cocaine. He seriously disrupted his family by taking or accepting approximately $180,000 from his mother. Unlike the cases above where a CSO was granted for PPT or selling of fentanyl, he had the benefit of a stable upbringing, family support, an education and good employment prospects. [ 115 ] Not all persons addicted to illicit drugs sell drugs to support their own addiction.

Persons with drug addiction should not be stereo-typed as one and the same. Mr. Sekhon was in possession of fentanyl, heroin and cocaine for the purpose of trafficking through dial-a-dope model. The gravity of this and Mr. Sekhon’s high level of moral responsibility have caused me to conclude that while a CSO is available in this case in that the first three conditions in R. v. Proulx are met, the fourth condition, that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to s. 718.2 is not met by a CSO on the specific facts of this case.

[ 116 ] As stated in R. v. Proulx , at para 106, there are some circumstances where “the circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct”. This is a case where I find denunciation and deterrence are particularly pressing given Mr. Sekhon was selling a lethal substances through dial-a-dope operation. This took planning and is contrasted to hand to mouth street drug transactions common in areas such as the Downtown East Side of Vancouver. [ 117 ] I sentence Mr.

Sekhon to 18 months in jail for Count 1, and 6 months concurrent to that on Count 2. [ 118 ] While denunciation and deterrence are the primary sentencing objectives in this case, rehabilitation is also an important objective for Mr. Sekhon. He has made strides since November, 2021, to change his life for the better. I find that his rehabilitation has been strongly supported by his family on Vancouver Island. He has reunited with his family and lives in his parents’ home.

It would be beneficial for his sentence to be served near his parents’ home on Vancouver Island, so he can continue with their close support and the support of his religious community. [ 119 ] The Pre-Sentence Report states that provincial institutions provide access to NA meetings, counselling and access to the BC Community Corrections CORE program, Substance Abuse Management. Mr. Sekhon would benefit from ongoing attendance at NA and other supports to prevent relapse into drug use. Mr. Sekhon has no related criminal record. His one offence is dated and did not involve violence.

He might be a candidate for less restrictive rehabilitation programs within BC Corrections at some point during his sentence. ANCILLARY ORDERS SOUGHT BY CROWN [ 120 ] I made a consent forfeiture order relating to several items seized by police on Mr. Sekhon’s arrest at the conclusion of sentencing submissions. [ 121 ] I order that under s. 109 of the Criminal Code , Mr. Sekhon receive a 10 year prohibition for possession of firearms and weapons. This is a mandatory order. [ 122 ] The Crown has applied for a discretionary DNA order pursuant to s. 487 of the Criminal Code to authorize the taking of samples from Mr.

Sekhon that are reasonable requirements for DNA analysis and retention in a DNA bank. This is a discretionary order. It was not strenuously objected to. I find that it is in the best interests of the administration of justice for this order to be made and the order is made pursuant to s. 487.051 of the Criminal Code . [ 123 ] Given that Mr. Sekhon will be incarcerated, I waive the victim surcharge fine. _____________________________ The Honourable Judge L. Bakan Provincial Court of British Columbia