R. v. Lorenzana, 2023 BCPC 104

Citation: R. v. Lorenzana 2023 BCPC 104 Date: 20230420 File No: 255169-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. JANE ALBERT ALEJO LORENZANA REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Crown: T.J. Cook Counsel for the Defendant: P. Ferguson Place of Hearing: Vancouver , B.C. Date of Hearing: December 5, 2022 Date of Sentence: April 20, 2023

INTRODUCTION [ 1 ] Ms. Lorenzana pled guilty to possessing methamphetamine, cocaine, fentanyl, and heroin for the purpose of trafficking. On December 5, 2022, the court heard sentencing submissions. On February 9, 2023, a pre-sentence report was ordered and the court requested further materials from counsel. The materials and additional submissions were ultimately received and considered. [ 2 ] Counsel for Ms. Lorenzana argues a conditional term of imprisonment is appropriate whereas the Crown argues the principles of sentencing justify a traditional custodial sentence.

The primary issue is whether a conditional term of imprisonment will satisfy the purpose and principles of sentencing. CIRCUMSTANCES OF THE OFFENCE [ 3 ] On February 14, 2020, the Burnaby RCMP followed a vehicle driven by Ms. Lorenzana and in doing so they saw behaviour consistent with drug trafficking and as a result Ms. Lorenzana was stopped and arrested. [ 4 ] Ms. Lorenzana and the vehicle she was driving were searched. During the search the police located $1485.90 and three cell phones.

While dealing with the phones the police answered incoming calls and from the conversations with the callers it became clear that the calls were from persons looking to purchase drugs. [ 5 ] Inside the vehicle the police also found a lint roller, a brush, and a water bottle. Examination of these items revealed that they were concealing bags containing drugs. The black brush had a hidden compartment and inside the police located: • A number of

Schedule III pills • 11 baggies of rock cocaine weighing - 3.86 grams • 1 bag of powder cocaine weighing - 0.35 grams • 17 baggies with a mixture of fentanyl and heroin weighing - 3.4 grams [ 6 ] The lint roller was found in the centre console and concealed inside the roller the police found: • 23 baggies of powdered cocaine weighing - 11.2 grams • 19 baggies of methamphetamine weighing - 11.73 grams • 4 baggies with a mixture of ketamine and methamphetamine weighing - 3.42 grams [ 7 ] Examination of the metal water bottle revealed a false bottom and inside the police located: • 17 fentanyl pills • 10 flaps of methamphetamine weighing - 27.51 grams • 2 flaps of methamphetamine weighing - 5.56 grams • Mixture of fentanyl and heroin weighing - 3.4 grams • Powdered cocaine weighing - 15.43 grams • 22 miscellaneous pills MS.

LORENZANA’S PERSONAL CIRCUMSTANCES [ 8 ] Ms. Lorenzana is 29. She was born in the Philippines and she came to Canada when she was nine years old. She currently lives with her parents and siblings in Burnaby and she is in a long-term relationship. [ 9 ] In terms of education and employment, Ms. Lorenzana left high school prior to graduation and she worked in the retail industry. Ultimately, she obtained her grade 12, she then started an online business, and she became a qualified Reiki practitioner with the intention of becoming a registered massage therapist. [ 10 ] On February 13, 2019, Ms.

Lorenzana was injured in a motor vehicle accident. In this regard, she suffered a mild traumatic brain injury, whiplash, bruising and soreness. She was seen in hospital and released a few hours after the accident. In terms of lasting injuries, Ms. Lorenzana has post-traumatic stress, chronic pain, photophobia and memory issues. [ 11 ] Although experiencing difficulties, Ms. Lorenzana started working for Canada Post shortly after the accident. The loud noises, bright lights and her chronic pain made working in a warehouse environment impractical. With this in mind, Ms. Lorenzana stopped working at Canada Post.

Thereafter, she held a position as a factory worker, ultimately she left this job so she could help her brother in his bike business. [ 12 ] Further to her employment challenges, Ms. Lorenzana struggled with pain management and depression. Although she had been prescribed Percocet, the quantities were ineffective and she found herself in circumstances where she was seeking greater amounts. Concerned that her doctor might discontinue her prescription if she asked for more Percocet, Ms. Lorenzana opted to pursue an outside

source and it was through that source that she became involved drug trafficking. [ 13 ] The outside drug source took advantage of Ms. Lorenzana’s depression, drug dependency, chronic pain and involved her in the trafficking of drugs. In terms of what she believed her involvement would be, Ms. Lorenzana was led to believe that she would be selling Xanax, Oxycontin and cocaine. [ 14 ] As for what occurred on the day of her arrest, the vehicle involved was Ms. Lorenzana’s father’s and she had just picked it up from an individual who had borrowed it from her, thereafter she made one meet and was arrested.

As such, she maintains she was not involved in the earlier meets observed by the police. [ 15 ] Since her arrest, Ms. Lorenzana has discontinued contact with persons involved in drug trafficking. She has overcome her drug addiction, she has addressed her depression, she has obtained assistance with her brain injury and she has received help with vocational planning. [ 16 ] Several letters were filed on Ms. Lorenzana’s behalf. All speak to Ms. Lorenzana’s character before and after her car accident. In

summary, they observe that prior to Ms. Lorenzana’s accident, and as a teenager, she was happy and outgoing. As a teenager, she participated in sports and Air Cadets. After high school, she displayed determination and a strong work ethic. After her car accident, Ms. Lorenzana was in pain, she stopped seeing friends, she stopped participating in sports and she stopped working. Finally, all of the letters confirm that Ms. Lorenzana’s offence was out of character. [ 17 ] Further to the character letters is a letter from her counselor, Dr. Sisler. Of importance, Dr. Sisler opined that Ms.

Lorenzana’s offending was not related to a character flaw, rather, it was related to impaired reasoning and judgment. In this regard, Dr. Sisler wrote: Jane’s medical records and my own clinical counselling notes indicate impairment with reasoning that do not seem to stem from characterological deficits but rather fit more with the PTSD, MTBI (mild traumatic brain injury) and post-concussion symptoms. POSITION OF THE PARTIES [ 18 ] The Crown submits the circumstances necessitate a sentence that denounces and deters.

In support, the Crown points out the offence involved the dial-a-dope trafficking of lethal substances. As such, and pursuant to previous decisions, the Crown argues that a custodial sentence of 18 months is justified. The Crown argues the degree of denunciation and deterrence mandated by the circumstances would not be achieved if Ms. Lorenzana served her sentence in the community. [ 19 ] Counsel for Ms. Lorenzana argues the facts support a conclusion that a conditional term of imprisonment is appropriate. Counsel justifies their position by highlighting Ms.

Lorenzana’s reduced moral culpability and her significant rehabilitative strides and argues onerous terms and conditions will achieve the requisite degree of denunciation and deterrence. LEGAL PRINCIPLES [ 20 ] Sentencing is one of the most delicate tasks in the criminal justice process: R. v. Lacasse , 2015 SCC 64 at para. 1 . The complexity of sentencing is somewhat lessened by virtue of the guidance found in ss. 718 – 718.2 of the Criminal Code, R.S.C, 1985, c. C-46,

section 10 of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 ( CDSA ) and related sentencing decisions. Criminal Code and Controlled Drugs and Substances Act [ 21 ]

Section 718 of the Criminal Code outlines sentencing objectives that assist in achieving the fundamental purpose of respect for the law and maintenance of a just, peaceful and safe society.

Section 10 of the Controlled Drugs and Substances Act embraces similar objectives while encouraging rehabilitation and treatment, in appropriate circumstances. Objectives [ 22 ] Denunciation and deterrence are the primary sentencing objectives for offences involving drug traffickers: R. v. Voong, 2015 BCCA 285 at para. 18 . These objectives are particularly pressing where the offence involves fentanyl and its distribution via dial-a- dope. [ 23 ] Based on the above, the sentence imposed must communicate society’s abhorrence for Ms. Lorenzana having breached societal rules.

The sentence must also inform those who engage in the trafficking of fentanyl that they will be dealt with harshly and absent significantly reduced culpability, a jail sentence will likely follow: Voong , 2015 BCCA 285 at para. 1 , R. v. Oates, 2015 BCCA 584 at para. 20 , and that these objectives become more pressing when the offence occurs in the context of a dial-a-dope operation: R. v. Milne, 2021 BCSC 1859 at para. 49 . [ 24 ] In addition to the objectives of denunciation and deterrence, I conclude that consideration should be given to Ms. Lorenzana’s continued rehabilitation.

Simply, if she receives continued support with her pain management, depression and cognitive challenges, then the likelihood of her returning to criminal activity is erased. Such a result will benefit her and the community. Proportionality [ 25 ] As per

section 718.1 of the Criminal Code , proportionality is a fundamental principle of sentencing. In this regard, the sentence imposed must balance the seriousness of Ms. Lorenzana’s offence and her degree of culpability. [ 26 ] In considering the seriousness of Ms. Lorenzana’s conduct, the seriousness can be determined by noting that the maximum available sentence for possessing fentanyl and cocaine for the purpose of trafficking is life imprisonment. I also note the recent comments of the Supreme Court of Canada in R. v.

Parranto , 2021 SCC 46 , where the Court stated at para. 87: The dangers posed by trafficking in hard drugs, such as heroin and cocaine, have long been recognized in Canada. Over the past few

decades, however, society’s awareness of the true gravity of trafficking in such drugs has grown to the point that we are reminded, on a daily basis, of the death, destruction, and havoc it causes in communities across Canada. [ 27 ] Further to the above and a commonly known fact that I take judicial notice of is the social and personal harm caused by fentanyl. Simply, the harm is staggering and in this regard, fentanyl has caused the death and disability of thousands. Notably, persons of all ages and social positions have lost their lives while countless others have become disabled.

Further, and as a collateral consequence, emergency responders and health care professionals are overburdened in that their time is regularly consumed with treating those in the throes of medical distress caused by fentanyl use. [ 28 ] On the issue of Ms. Lorenzana’s culpability, I conclude her moral culpability was substantially reduced. She was addicted to drugs, she was struggling to manage her pain, she was depressed and her cognitive reasoning was compromised. Aggravating and mitigating factors [ 29 ] The drugs involved are aggravating. Specifically, they are highly addictive, harmful and frequently deadly.

The dial-a-dope method of distribution is also aggravating. This is because the method broadens the area of distribution and makes the drugs easily accessible. Arguably, ordering food is more challenging because one has to produce a credit card prior to delivery. [ 30 ] Ms. Lorenzana’s guilty plea is substantially mitigating. In doing so, she has demonstrated some remorse and she has saved the State the time and expense associated with a fulsome prosecution. Ms. Lorenzana’s rehabilitative strides are also mitigating.

She has severed negative contacts, she has rehabilitated herself from her drug addiction and she has taken steps to address her health struggles. I conclude, her lack of criminal involvement in the 38 months since her arrest underscores Ms. Lorenzana’s rehabilitative success. Similar cases [ 31 ] Counsel rely on several authorities and these assist in highlighting the relevant principles and the various sentences that have been imposed for drug offences. In reviewing them, I remind myself that sentencing is an individualized exercise where Ms. Lorenzana’s unique circumstances must be kept in mind. [ 32 ] In R. v.

Choi, 2021 BCCA 410 , the offender’s sentence appeal was dismissed. The offender appealed an 18 month custodial sentence alleging the trial judge erred by failing to find the offender’s circumstances were exceptional. The offence involved a dial-a- dope sale of a small amount of heroin and fentanyl to an undercover officer. The offender was 21 at the time of the offence, he did not have a criminal record, he was not drug dependant, his motive was solely monetary, and he had been selling drugs for a few weeks prior to his arrest.

The offender moved after his arrest, he obtained employment and he volunteered in the community. He had support of family and friends. In dismissing the appeal the court observed the sentencing judge did not commit an error. [ 33 ] In Milne , supra, the offender entered a guilty plea mid-way through trial to two counts of trafficking and was sentenced to an 18 month custodial sentence. The offender’s offences involved a dial-a-dope operation where he sold fentanyl to an undercover officer who was led to believe that she was purchasing heroin.

On the second occasion, the officer thought she was purchasing heroin but received fentanyl and ketamine. On each occasion the offender offered purchasers an incentive in hopes of attracting more customers. The offender was 24, after high school he fell in with the wrong crowd, he became drug dependant and he sold to support his addiction. At the time of sentencing, the offender had been drug free for 18 months.

In considering the matter, Justice Williams declined to impose a conditional sentence order, because he felt that a conditional sentence would be inconsistent with the fundamental purpose and principles of sentencing. [ 34 ] In Oates, supra, the Crown’s appeal of a suspended sentence was granted and a 6 month custodial sentence was imposed. The offender sold crack cocaine via dial-a-dope to an undercover officer and when the police went to arrest him the driver threw a bag containing heroin. The offender had an unrelated criminal record and his motivation for selling drugs was monetary.

The appeal was allowed on the basis that the sentencing judge erred by not ascribing the appropriate weight to the objectives of denunciation and deterrence. Simply, the dial-a-dope distribution of hard drugs enhanced the need for denunciation and deterrence. [ 35 ] In R. v. Sekhon , 2022 BCPC 33 , the offender received an 18 month custodial sentence for possessing 8.91 grams of a heroin/fentanyl mixture for the purpose of trafficking and 6 months concurrent for possessing cocaine.

The offender was involved in dial-a-dope trafficking when he was stopped by the police who ultimately found the drugs in the car he was driving. The offender was 37, he had a dated and unrelated criminal record, he had military experience, he had completed an apprenticeship, he had the support of his family and at the time of his offence he was addicted to cocaine.

In rejecting defence counsel’s submission that a conditional sentence order was appropriate, Judge Bakan observed the offender was engaged in a dial-a-dope operation, that his offences took some planning and his conduct was different than the “hand to mouth street drug trafficking.” Ultimately, Judge Bakan concluded that denunciation and deterrence were so pressing that incarceration was the only option. [ 36 ] In R. v. Ellis, 2022 BCCA 278 , the Crown’s appeal of a 12 month probation order was allowed and the court imposed a 3 year probation order. The offender pled guilty to two counts of trafficking.

The circumstances involved the sale of small amounts of drugs including fentanyl via dial-a-dope. The offender was 41, she had been addicted to drugs since she was a young teenager, she sold drugs to support her addiction, she had been selling for a number of months and she would complete 3 – 8 transactions per day; jail, counselling, and 7 previous attendances at treatment centres failed to assist her achieving sobriety.

In allowing the appeal the court held the sentencing judge erred by allowing characteristics of all street level fentanyl traffickers who suffer from a substance use disorder and sell to support their drug use, to displace the weight given to deterrence and denunciation thus creating a new sentencing approach for all street traffickers who suffer from substance use disorders. A further error was the judge demonstrated a misunderstanding regarding sentencing ranges and in doing so failed to address the gravity of the offender’s offences. Least restrictive sanctions [ 37 ]

Section 718.2(

d) of the Code directs that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate. Lastly, s. 718.2(

e) directs that all available sanctions, other than imprisonment, that are reasonable in the circumstances and

consistent with the harm done, should be considered for all offenders. [ 38 ] The above sections are often referenced as codifying the “principle of restraint”. This principle requires that a jail sentence be imposed only as a measure of last resort and that the lightest jail term that is reasonable should be imposed. The Court of Appeal in R. v . Bosco, 2016 BCCA 55 , summarized the principle at para. 35: Sections 718.2(

d) and (

e) reflect the restraint principle. This principle encourages caution and moderation in the imposition of custodial sentences. Pursuant to the principle of restraint, the sentencing judge should treat imprisonment as a sanction of last resort and limit any custodial period imposed to the lightest term reasonable in the circumstances. The purpose of such restraint is to reduce Canada's historically high incarceration rates and avoid sentences that are unduly harsh: Proulx at paras.16-17. ANALYSIS [ 39 ] Ms. Lorezana’s offence warrants a sentence that denounces and deters while supporting her rehabilitation.

As to the weight given to these objectives, I note Ms. Lorezena’s offence was serious and that her personal circumstances operated to reduce her culpability. I also observe that Ms. Lorezena’s continued rehabilitation must be supported. [ 40 ] With the above in mind, and after considering the aggravating and mitigating circumstances, the related authorities, and counsel’s submissions, I am satisfied that a jail sentence of 18 months is appropriate.

I now turn to the issue of whether the sentence should be served conditionally in the community. [ 41 ] With respect to the appropriateness of a conditional sentence order, the Crown opposes a conditional sentence on the basis that it would be inconsistent with the fundamental purpose and principles of sentencing because it would not achieve the requisite degree of denunciation and deterrence. [ 42 ] In considering the appropriateness of a conditional sentence order, I am guided by R. v. Proulx, 2000 SCC 5 .

Specifically, a significant amount of denunciation and deterrence can by achieved through a conditional sentence provided it contains particularly onerous conditions. [ 43 ] When I consider all of the above, I am satisfied that Ms.

Lorezana’s reduced culpability and her rehabilitative success attenuates the requisite weight to be placed on the objectives of denunciation and deterrence, as such, and recognizing that a significant amount of denunciation and deterrence can be achieved through an onerous conditional sentence order, I am satisfied that a conditional sentence is appropriate in the unique circumstances of the instant case. SENTENCE [ 44 ] I impose an 18 month jail sentence to be served conditionally in the community.

The sentence will contain the following terms and conditions. [ 45 ] You must keep the peace and be of good behaviour. [ 46 ] You must appear before the court when required to do so by the court. [ 47 ] You must notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation. [ 48 ] You must remain in British Columbia unless you have prior written permission from the court or your conditional sentence supervisor to leave the province. [ 49 ] You must report in person to a conditional sentence supervisor at 275 East Cordova Street, Vancouver, BC, on or before 4:00 p.m. today, April 20, 2023, and thereafter, you must report as directed by your conditional sentence supervisor. [ 50 ] When first reporting to your conditional sentence supervisor you must provide them with your residential address and not change that address without the prior written permission of your conditional sentence supervisor. [ 51 ] For the first 12 months of this order you must not be off the property of your residence 24 hours per day except for: • Attending scheduled appointments with your conditional sentence supervisor. • With the written permission of your conditional sentence supervisor. • For the purpose of travelling directly to and from your employment and while engaged in your employment. • On Saturdays between the hours of 9:00 a.m. to 1:00 p.m. • For the purpose of travelling to and from and while completing

schedule community work service. [ 52 ] You must present yourself at the doorway of your residence to any police officer, correctional officer or conditional sentence supervisor who attends to ensure your compliance with your curfew. [ 53 ] At the direction of and to the satisfaction of your conditional sentence supervisor you must complete 80 hours of community work service. Such work service must be completed on or before March 1, 2024. ANCILLARY ORDERS

[ 54 ] DNA – pursuant to

section 487.051 of the Criminal Code , Ms. Lorenzana’s offence is a secondary designated offence, as such I must consider if it is in the best interests of the administration of justice to make an order directing that a sample of Ms. Lorenzana’s DNA be taken. After considering all of the relevant factors, I decline to make such an order. [ 55 ] Weapons prohibition – pursuant to

section 109 of the Code, Ms. Lorenzana is prohibited from possessing all the weapons listed for a period of 10 years. [ 56 ] Victim fine surcharge – Ms. Lorenzana must pay the victim fine surcharge on or before July 15, 2023. _____________________________ The Honourable Judge R.P. Harris Provincial Court of British Columbia