R. v. Hubick, 2023 BCPC 146

Citation: R. v. Hubick 2023 BCPC 146 Date: 20230628 File No: 260934-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. CHAD RUSSELL HUBICK REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: T. Warren and A. Russell Counsel for the Defendant: Z. Myers Place of Hearing: Vancouver , B.C. Date of Hearing: March 1, 2023 Date of Sentence: June 28, 2023 I. INTRODUCTION

[ 1 ] Chad Russell Hubick (the “accused”) has pled guilty that on or about July 27, 2020, at Vancouver, British Columbia, he did unlawfully possess fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (the “ CDSA ”). [ 2 ] He has also pled guilty that on or about July 27, 2020, at Vancouver, British Columbia, he did unlawfully possess methamphetamine for the purpose of trafficking (“PPT”), contrary to s. 5(2) of the CDSA . [ 3 ] The Crown has described the accused as a mid-level drug trafficker who operated in or around the area of the Downtown Eastside (the “DTES”). [ 4 ] At the time the accused was engaging in drug trafficking, he was subject to two Conditional Sentence Orders (“CSO”) relating to a series of property offences. [ 5 ] The Crown seeks a conventional jail sentence of six years for the PPT fentanyl and four years concurrent for the PPT methamphetamine. [ 6 ] The accused seeks a two-year less one day concurrent CSO on both counts pursuant to s. 742.1 of the Criminal Code of Canada (the “ Code ”).

II. ISSUE [ 7 ] The sole issue to be determined is what is a fit sentence having regard to the purposes and principles of sentencing contained in ss. 718 through 718.2 of the Code and s. 10(1) of the CDSA . III.

BACKGROUND [ 8 ] Pursuant to s. 724 of the Code , an Agreed Statement of Facts was filed by the Crown and the accused for the purposes of the sentencing proceedings (Exhibit 2). [ 9 ] The Agreed Statement of Facts can be summarized as follows: • That in the spring of 2020, the Vancouver Police Department (the “VPD”) began an investigation (“Project Bankroll”) into drug trafficking activities of street to mid-level drug traffickers operating in and around the area of the DTES; • That the investigation into the activities of the accused commenced in April 2020, following information received from a confidential informant; • That the VPD commenced surveillance of the accused to gather evidence of his drug trafficking activities; • That over approximately three months, the accused was surveilled meeting with a variety of individuals and engaging in multiple hand to hand drug transactions; • That the circumstances of the surveillance of the accused and his activities with various individuals at various places on various dates are contained in paragraphs 4 through 31 of Exhibit 2; • That on July 27, 2020, at 7:21 PM, members of the VPD entered the accused’s room at the Exchange Hotel at 911 - 475 Howe Street, Vancouver, pursuant to a search warrant; • That the accused was present along with a female and the accused’s dog; • That the accused was searched and he was found to be in possession of multiple pieces of paper with “C 236-788-2669” written on them, a key for the hotel room, a key for his Lexus automobile and $595.00 in cash; • That a satchel bag the female was holding was searched and was found to contain: a. 14.58 g of fentanyl; b. 7.05 g of fentanyl combined with methamphetamine and benzodiazepine; c. 213.89 g of fentanyl combined with benzodiazepine (chunks); and d. 158.96 g of methamphetamine; • That the accused’s room was searched and the following items were located: a.

Empty plastic baggies and a scale (inside a dog food box); b. Drug paraphernalia; c. Multiple cell phones; d. A laptop; e. 14 small baggies containing 4.32 g of fentanyl inside a purse; and f. A safe containing $10,615 in cash in the closet;

• That the Lexus parked in the underground parking lot at the hotel was searched and the following items were located: a. Six sheets of paper with “C 236-788-2669” written on them; b. $250 in coins; c. A backpack containing drug paraphernalia; d. Two cell phones; and e. A knife; • That the total street value of the fentanyl including combinations is $46,978.00; and • That the total street value of the methamphetamine is $15,696.00. IV. POSITION OF THE PARTIES (

a) The Crown [ 10 ] The Crown submits that a conventional jail sentence is warranted in this case due to the scale and scope of the accused’s drug trafficking operation in and around the area of the DTES. [ 11 ] The Crown identified the following factors as aggravating factors in this sentencing process: • That the accused’s drug trafficking operation ranged over at least three months; • That the client base included some of the most vulnerable people residing in the DTES of Vancouver; • That illegally produced fentanyl is highly toxic and responsible for increases in individual overdosing and mortality rates in British Columbia (Exhibit 1, tab 3); • That the accused was not supporting a personal drug addiction; • That the accused’s drug trafficking operation was profit driven; • That the accused has a significant criminal record including convictions for PPT in 2003 in Calgary, Alberta, and 2012 in Calgary, Alberta, and 2017 in Vancouver, British Columbia; and • That the accused was subject to two CSOs at the time of his arrest in July 2020. [ 12 ] The Crown identified the following factors as mitigating factors in this sentencing process: • That the accused has pled guilty at an early date; and • That the accused has taken some steps to promote his rehabilitation. [ 13 ] The Crown relied upon a variety of case law in support of its position that a conventional jail sentence of six years is appropriate. [ 14 ] In particular, the Crown notes that the Supreme Court of Canada (the “SCC”) in R. v.

Parranto , 2021 SCC 46 at para. 59 (“ Parranto ”) , confirms that a sentencing court is entitled to take into account a “public health crisis” arising from “opioid-related deaths and overdoses”.

A sentencing court may take into consideration “the needs and current conditions of and in the community”. [ 15 ] The Crown submits the SCC in Parranto at para. 71 identified there are vulnerable populations who suffer “disproportionate harm” from fentanyl trafficking and sentencing courts may be entitled to give special consideration to protect this vulnerable population. [ 16 ] The Crown submits that the British Columbia Court of Appeal (the “BCCA”) in R. v.

Lloyd , 2019 BCCA 128 at para. 18 (“Lloyd”) , establishes that the range for mid-level fentanyl trafficking is between 28 months and seven years imprisonment. [ 17 ] The Crown also applied for ancillary relief including: DNA; a weapons prohibition; and forfeiture. The accused was not opposed to the ancillary relief requests. (

b) The Accused [ 18 ] The accused is forty-two years old. He has a grade 12 education. [ 19 ] For approximately one year, he has been employed as a Glazier with Ad Glass in Burnaby, British Columbia. [ 20 ] His employer, Ron Cararro, provided a letter of reference in which he described the accused, in part, as earning a spot as his “lead hand on various projects” and he is viewed as a “trusted member of our team”. [ 21 ] The accused attempted to engage residential treatment programs to address his mental health and addiction issues without success.

However, he has reached out to out-patient pillars in the community to assist with his mental health and addiction issues that he asserts are currently in remission. [ 22 ] He has completed an outpatient recovery program at Vancouver Daytox. This was confirmed in correspondence from his

counsellor at Vancouver Coastal Health dated July 21, 2022. [23] In February of 2023, he completed four sessions of counselling with the Warriors Against Violence Society. [24] While not recent, in the past he was involved in the Vancouver Drug Treatment Court program but was unsuccessful incompleting that program following his discharge in 2017. [25] He enrolled in and successfully completed a group anger management program at Moose Anger Management, composed of atwelve hour, six session group counselling, from August 2017 to September 2017. [26] He is attending Narcotics Anonymous (“NA”).

A letter of support was filed by his sponsor at NA. His sponsor will continue tosupport the accused on his road to recovery. [27] The accused prepared and read in Court a letter he prepared detailing where his life went wrong and how he has turned thingsaround in the last two years.

He expressed his sorrow for his actions that not only hurt himself but also hurt other people, including theirfamilies. [28] A favourable Electronic Supervision Technical Suitability Report was prepared confirming that his proposed residence in MapleRidge was a suitable residence for electronic monitoring. [29] He concedes that he committed the drug trafficking offences while he was subject to two CSOs.

However, he did not collapse theCSOs as the charges were not sworn until October 8, 2021. [30] He admits that he was aware of the potential peril that the CSOs could be terminated arising from the Project Bankrollinvestigation, but continued to establish positive supports in the community and secure employment. [31] In his Written Submissions, he explains he became involved in the trafficking offences during the pandemic, after he fell on hardtimes in relation to his employment. Eventually, he became homeless and was unable to access any public funding.

He experiencedpersonal instability and depression: para. 23. [32] He further explains in his Written Submissions that “his involvement in the offending behaviour transitioned from a survivalmechanism to overcome homelessness, and grew into an issue with him attempting to sever ties from the line boss with fear of retributionand harm”: para. 24. [33] He emphasizes the importance of the guilty plea as a substantial mitigating factor applying the dicta of Hill, J. in R. v. Hoang,[2002] O.J.

No. 1355 at para. 110 (“Hoang”). [34] He submits that the purposes and principles of sentencing contained in the Code and the CDSA can be met through theimposition of a CSO that imposes prohibitive and restrictive conditions, which would be monitored by electronic monitoring to give“teeth” to the CSO to ensure compliance. [35] He relies as well on the SCC ruling in R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, that addresses the need foralternatives to conventional incarceration in the sentencing process.

In that process, a general principle has developed throughout Bill C-41 that “jails should be reserved for those who should be there. Alternatives should be put in place for those who commit offences butwho do not need or merit incarceration”: para. 20. [36] He submits exceptional circumstances are not required to justify a departure from the Lloyd range for trafficking in fentanyl andrelies on R. v. Ellis, 2022 BCCA 278 (“Ellis”) at para. 122, and R. v. Laher, 2021 BCSC 1748 at para. 48, to support his position. V. LEGAL FRAMEWORK [37] The purpose of sentencing is defined in the Code in s. 718.

It reads: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

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 acknowledgment of the harm done to victims or to the community. [38] It is a fundamental principle that a sentence must be proportionate by operation of s. 718.1 of the Code. It reads: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [39] The purpose of sentencing is defined in the CDSA in s. 10(1). It reads:

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 . [ 40 ] The accused has pled guilty to PPT of fentanyl and methamphetamine. Both substances are included in

Schedule 1 of the CDSA . [ 41 ] By operation of s. 5(3)(

a) of the CDSA , any person found guilty of possession for the purpose of trafficking in fentanyl and/or methamphetamine can be liable to imprisonment for life. [ 42 ] The availability of a CSO is established by s. 742.1 (

a) of the Code . It reads: (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; [ 43 ] There are various exceptions in ss. (

b) through (

f) that are not applicable to this case. [ 44 ] After making findings in relation to the mitigating and aggravating circumstances, and having regard to the principle of proportionality, a court, in imposing sentence for a mid-level trafficker in hard drugs, will be guided by the Lloyd range of 28 months to 7 years. I am not persuaded that Ellis has changed this approach to sentencing a mid-level trafficker in fentanyl. VI. ANALYSIS (

a) Applicable Principles [ 45 ] Trafficking in fentanyl is notorious as it creates a palpable risk of serious harm and death for those individuals who purchase drugs at the street level, for their families and for their community in which they reside: Ellis at para. 11 . [ 46 ] The population of the DTES includes many drug addicts who are socially marginalized, physically and emotionally vulnerable and, for many, homeless. [ 47 ] I find the trafficking of fentanyl to drug addicts in this community amounts to conduct that demonstrates a reckless disregard for human life: Parranto at para. 70 . [ 48 ] Accordingly, I find denunciation and deterrence are the primary principles for sentencing the accused for his involvement in drug trafficking of fentanyl.

While rehabilitation is an important objective, the weight to be accorded will be affected by assessing the accused’s degree of moral blameworthiness. [ 49 ] I find the accused’s involvement in drug trafficking in the DTES in hard drugs, in particular fentanyl, as a mid-level trafficker driven by profit, attracts a high degree of moral blameworthiness for his conduct. (

b) Mitigating Circumstances [ 50 ] The accused’s guilty plea is a substantial mitigating factor deserving of considerable weight in the sentencing process: Hoang at para. 110. [ 51 ] He has been subject to conditions of bail and I am unaware that he has committed any breaches while on bail. [ 52 ] He has taken positive steps towards his own reformation and rehabilitation through his participation in some counselling programs including participating in NA. [ 53 ] He has expressed his remorse for his conduct in this sentencing process. [ 54 ] He is gainfully employed as a valued employee with Ad Glass as a Glazier. (

c) Aggravating Circumstances [ 55 ] Fentanyl is highly toxic and responsible for increases in individual overdosing and mortality rates in British Columbia. [ 56 ] The accused was involved in the trafficking of fentanyl and methamphetamine in the DTES as a mid-range dealer for at least three months, and I infer likely longer. His cellular phone number was attached to some of the packaged drugs, ready to go. [ 57 ] At the time of the VPD Project Bankroll investigation, he was not supporting a personal drug addiction.

His drug trafficking operation was profit driven. [ 58 ] The total street value of the fentanyl, including combinations, was $46,978.00. The total street value of the methamphetamine was $15,696.00. [ 59 ] Located in a safe in the closet of his room at the Exchange Hotel was $10,615.00 in cash. [ 60 ] He submits his involvement in his trafficking operation evolved post pandemic, after he experienced employment difficulties and became homeless. [ 61 ] He does not explain why it was necessary to live at the boutique Exchange Hotel in Vancouver.

This property is recommended in the Michelin Guide, Traveler’s Choice 2022 and is a Four Diamond recipient with the AAA and CAA: www.Exchangehotelvan.com.

[ 62 ] He does not explain why it was necessary to drive a Lexus automobile, an upper-end vehicle, in the pursuit of his drug trafficking operation. [ 63 ] Clearly his customer base of individuals living in the DTES most certainly did not enjoy the lavish lifestyle that he was living. Many of the residents in the DTES are homeless or are living in substandard conditions in tents and SROs. [ 64 ] I find that his involvement in the trafficking of fentanyl and methamphetamine in the DTES was both opportunistic and predatory.

His customer base was particularly vulnerable to his opportunistic and predacious conduct. [ 65 ] The Lexus was searched. A knife was found in a backpack in the trunk. I find the knife is an aggravating factor. Knives have become a far too frequent feature in the DTES. Knives are increasingly involved in attacks on other addicts, plus, importantly, innocent individuals.

By their very nature, knives are an offensive and not a defensive weapon. [ 66 ] The accused has a significant criminal record that includes convictions for breach of court orders, failure to appear, breaches of parole, property offences and three drug offences from Calgary and Vancouver: Exhibit 1, tab 1. [ 67 ] At the time the accused was involved in his trafficking operation, he was subject to two CSOs.

Two of the conditions of his CSOs included that he keep the peace and be of good behaviour and he was prohibited from having in his possession any drugs except as prescribed by a medical prescription. [ 68 ] He was in breach of both of those conditions.

He clearly was aware of those conditions as he understood and acknowledged all of the conditions of his CSOs with his personal signature. [ 69 ] He now submits he will abide by all terms and conditions of two further CSOs with the “teeth” being the monitoring of the orders by electronic monitoring. [ 70 ] From his conduct on his two prior CSOs and his criminal record of non-compliance, I do not have confidence that electronic monitoring can provide the type of “teeth” to effectively ensure compliance that would adequately protect society should the accused breach. VII.

SENTENCE TO BE IMPOSED [ 71 ] I find it would be patently unfit to impose CSOs in this case. [ 72 ] In considering the gravity of the accused’s involvement in drug trafficking as a mid-level dealer and his high degree of moral blameworthiness, such a sentence would be inconsistent with the fundamental purpose and principles of sentencing contained in s. 718 to s. 718.2 of the Code . [ 73 ] In addition, the imposition of CSOs in this case would not contribute to the respect for the law and the maintenance of a just, peaceful and safe society as required by s. 10(1) of the CDSA . [ 74 ] For his role in the possession for the purpose of trafficking of fentanyl, I impose a sentence of four years in prison. [ 75 ] For his role in the possession for the purpose of trafficking of methamphetamine, I impose a concurrent sentence of three years in prison.

VIII.

ANCILLARY RELIEF [ 76 ] Pursuant to s. 109, the accused is prohibited from possessing: • Any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosives substance for a period of ten years; and • Any prohibited firearm or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 77 ] After considering the factors contained in s. 487.051(3) of the Code , I am satisfied that it is in the best interests of the administration of justice to authorize the taking of samples of bodily substances from you. [ 78 ] I am ordering forfeiture of all offence related property pursuant to s. 16 of the CDSA . [ 79 ] The victim surcharge is waived. _____________________________ The Honourable Judge G.M.

Rideout Provincial Court of British Columbia