R. v. Mann and Mann Date:, 2017 BCPC 401

Citation: R. v. Mann and Mann Date: 20171120 2017 BCPC 401 File Nos: 84371-C2, 85856-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SARABJIT SINGH MANN KARAN-JIT SINGH MANN REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. SOLOMON Counsel for the Crown: R. Macgowan Federal Crown Counsel: J.M. Le Dressay Counsel for the Accused : M. Bloom, agent for S.R. Chamberlain, QC Place of Hearing: Abbotsford , B.C.

Date of Sentence: November 20, 2017 [ 1 ] THE COURT : Sarabjit Singh Mann has pled guilty to Counts 1, 2, 4, 5, 7, 11, 12, 14, 15, 16, and 20 on Information 85856-1. Counts 1, 2, 4, 5, 7, 11, and 12 relate to trafficking in fentanyl and carfentanil to undercover police officers. Counts 14, 15, 16, and 17 relate to a search warrant executed at his residence where he was found in possession for the purpose of trafficking of fentanyl, carfentanil, and cocaine.

Count 20 is in relation to his possession of a loaded firearm found in his bedroom in his residence. [ 2 ] Karan-Jit Singh Mann has pled guilty to Counts 1 and 2 on Information 84371-2, and Counts 3 and 14 on Information 85856-1. Counts 1 and 2 of Information 84371-2 relate to a threatening charge and being in a vehicle knowing there was a loaded firearm present. This is unrelated to the trafficking and possession for purpose of trafficking charges he has pled guilty to on Information 85856-1.

On that Information he has pled guilty to trafficking in fentanyl to an undercover police officer on one occasion, and possession for the purpose of trafficking of fentanyl on March 2, 2017. Karan-Jit Singh Man (Mr. K. Mann) [ 3 ] On Information 84371-2, the Crown seeks a six-month jail sentence for the threatening charge, and a 12-to-18-month consecutive sentence for the firearm-related charge. Crown counsel reminds me that I have to consider the principles of totality and proportionality as Mr. Karan-Jit Mann, who I will refer to as "K.

Mann" for convenience, is being sentenced on two Informations at the same time. [ 4 ] Crown counsel argues that the threatening charge was serious. In addition, Mr. K. Mann attended in the area of the victim's residence in a vehicle which he knew contained a firearm. The victim was under 18 at the time. This is an aggravating factor pursuant to s. 718.2(a)(ii.1) of the Code . The firearm represented a clear and present danger. In short, a situation of a threat to kill with the means to kill. [ 5 ] Crown also seeks ancillary orders, including: 1. A lifetime firearm prohibition; a minimum 10 years is required.

I will order a lifetime prohibition at the conclusion of sentencing. 2. A DNA order; this is a secondary designated offence on the threatening charge and a DNA order will be made.

Section 743.21, Crown seeks a no contact order with D.S., the victim of the threat, Y.S., and their parents and siblings. I will also make that order. [ 6 ] Defence counsel's position for Mr. K. Mann is a global sentence of 30 months on all charges, with the record reflecting six months jail for the threatening charge and a 12-month jail sentence for the s. 94(1) firearm offence, to be served concurrently. The Circumstances of the Threat and Firearm Charges on Information 84371-2 in Relation to Mr. K.

Mann: [ 7 ] On April 28, 2016, D.S., who was 15 years old at the time, had an altercation with someone at his high school. Pepper spray was discharged. That evening he received a threatening phone call that was recorded by him. One of the voices was that of the accused, and he admits being a party to the threats that were uttered that evening. The parties threatened to assault and kill D.S., and to immediately attend at his residence. 9-1-1 was called and police were dispatched to assist D.S. [ 8 ] Near the victim's residence three vehicles drove past a police vehicle. Two of these vehicles were stopped.

The accused was in the passenger seat in one of the vehicles, and in that vehicle was found, in a storage compartment, a Kel-Tec Sub 2000 rifle, non- restricted firearm, with a loaded magazine with nine rounds and additional rounds in the chamber of the rifle, ready to fire, with the safety in the "off" position. The serial number was ground off the weapon. [ 9 ] Mr. K. Mann was arrested and released on bail on May 2, 2016. He was arrested again on March 2, 2017 regarding the Controlled Drugs and Substances Act charges and released on a promise to appear.

He was arrested again on April 19, 2017 on the CDSA Information and has consented to remain in custody since that time. This CDSA history also applies to his brother, the co-accused, Mr. Sarabjit Mann. Both accused are entitled to enhanced credit for the time they have served. The Circumstances of the Controlled Drugs and Substances Act Charges, Information 85856-1, Counts 3 and 14, in relation to Mr. K. Mann. [ 10 ] Count 3: On January 12, 2017, Mr. K.

Mann trafficked $80 worth of fentanyl to an undercover police officer set up through a dial-a-dope operation line, primarily operated by his older brother, the co-accused. The quantities of fentanyl were .19 and .23 grams. The analysis indicated 14 percent fentanyl, heroin, U-47700 and caffeine to be the substances involved. Count 14: On March 2, 2017, a warrant to search was executed at the accused's residence and on his vehicle. Seized from a Ford Fusion associated with the accused was a phone list consistent with keeping track of customers.

From his bedroom were seized $4900 cash and a functioning scale with residue of cocaine, fentanyl, U-47700 and caffeine. In his brother's room, that is the co-accused, Mr. S. Mann, which was downstairs in the house, was seized a quantity of fentanyl amongst other controlled substances. [ 11 ] Mr. K. Mann has only pled guilty to the fentanyl seized. This includes: 1. Four plastic bags of powder weighing .3 and .4 grams, analyzed to be 11 percent fentanyl and caffeine. 2. Mortar and pestle mixing bowl with fentanyl and caffeine residue.

3. A baggie containing 12.5 grams of purple chunks, analyzed to be 15 percent fentanyl and caffeine. 4. A white bowl containing 20.89 grams of white powder analyzed to be 1.8 percent fentanyl, carfentanil and caffeine. A second analysis returned a result of 8.9 percent fentanyl. I am told that the variance between the two measurements is due to uneven distribution of fentanyl from the elementary mixing techniques used by the accused in this case. [ 12 ] Crown counsel seeks a five-year sentence for Mr. K. Mann on Counts 3 and 14. The basis for their position will be discussed further below.

However, Crown says this was a compact dial-a-dope street level operation run by two brothers operated out of their parents' house. There are four features that take this case out of the norm. 1. The traffickers were specifically trafficking in fentanyl to users asking for fentanyl. 2. While this was not a sophisticated operation, the accused prepared doses for street-level trafficking from bulk amounts of fentanyl and carfentanil. 3.

The preparation of doses was outrageously negligent with concentrations of fentanyl as high as 14 percent, when anything above 2 percent is considered likely to cause an overdose as 50 percent of people would overdose on a 2 percent concentration level. 4. Analogues of fentanyl appeared in doses, including carfentanil which is 100 times more potent than fentanyl. Sarabjit Singh Mann (Mr. S. Mann) [ 13 ] Now I will move on to discuss the charges against Mr. S. Mann.

As indicated above, he has pled guilty to Counts 1, 2, 4, 5, 7, 11, 12, 14, 15, 16, 17, and 20 on Information 85856-1. [ 14 ] Counts 1, 2, 4, 5, 7, 11, and 12 relate to undercover purchases from this accused between January 10, 2017 and February 9, 2017. Count 1 refers to January 10, 2017. On this occasion the undercover officer purchased $80 worth of fentanyl. The amount was .35 grams. The drugs found pursuant to analysis were fentanyl, heroin, 3-methylfentanyl and caffeine. Caffeine is the cutting agent. [ 15 ] Count 2 refers to January 11, 2017.

On this occasion the undercover officer purchased $40 worth of fentanyl. The amount was .3 grams. The analysis came back to fentanyl and caffeine. The undercover officer was told at the time of this purchase, "This is better stuff." [ 16 ] Count 4 refers to January 18, 2017. On this occasion, $40 worth of fentanyl was purchased. The quantity was .33 grams. The concentrations and analysis returned certificates that indicated 9.2 percent fentanyl, heroin, U-47700 which is an opioid analogue, and caffeine. [ 17 ] Count 5 refers to January 18, 2017. On this occasion $40 worth of fentanyl was purchased.

The quantity was .32 grams. The concentration of fentanyl was determined to be 9.3 percent. Also included in the substance was heroin, U-47700 and caffeine. [ 18 ] Count 7 refers to January 25, 2017. On this occasion $80 worth of fentanyl was purchased. The quantity was .39 grams. The analysis indicated the substances to be fentanyl, heroin, U-47700 and caffeine. [ 19 ] Counts 11 and 12 refer to February 9, 2017. On this occasion two half balls were purchased, fentanyl weighing 1.21 grams (Count 12) and carfentanil weighing 1.14 grams (Count 11). The concentration of fentanyl was 9.4 percent.

The fentanyl was described as being purple in colour and the carfentanil, white in colour. [ 20 ] On January 24, 2017 there was an incident where the accused wanted the undercover officer to take a ride with him in his vehicle but the undercover officer refused. In response, the accused sent a text to the officer that included, "It's my fucking line. My way or fuck off. Think I would steal from you?

I make more in a year than you make in your whole life." [ 21 ] During the sentencing hearing, a Gardiner hearing was held to determine whether Crown has proved beyond a reasonable doubt that the accused knew that he was also trafficking in carfentanil, or alternatively, in a higher potency fentanyl analogue. This court ruled that this was not proved beyond a reasonable doubt. [ 22 ] Count 14 relates to the quantity of fentanyl seized March 2, 2017 on execution of the search warrant at the accused's residence and was described above at Para. 11.

Counts 15 and 17 relate to quantities of carfentanil seized March 2, 2017 at the accused's residence. Particulars are as follows: 1. A baggie of 3.98 grams of carfentanil and caffeine from a sock on his arrest. 2. From his bedroom, eight plastic bags of white powder weighing between .3 and .4 grams of carfentanil analyzed to be 0.7 percent carfentanil. [ 23 ] Count 16 relates to a charge of possession for the purpose of trafficking in cocaine.

From his bedroom was seized a plastic baggie weighing 8.69 grams of cocaine and 21.34 grams of crack cocaine. [ 24 ] Count 20 relates to an offence pursuant to s. 95(1) of the Criminal Code . In his bedroom, from the top shelf of a cabinet at the foot of his bed, was found and seized a .38 calibre H & R Arms revolver loaded with six .38 calibre cartridges. Also seized from his bedroom were quantities of caffeine, boxes of baggies, 19 baggies with corners cut out, three BlackBerry cell phones, and $1,485 cash. From the Mercedes vehicle he was associated with was seized one iPhone and one BlackBerry cell phone.

Also of note, on February 24, 2017 the police seized garbage from the roadway of the accused's residence. They found several clear plastic bags, a Safeway receipt for 200 plastic bags, latex gloves and a plastic bag with fentanyl and caffeine residue. [ 25 ] Crown counsel seeks a seven-year global sentence for the trafficking and possession for purpose of trafficking offences, plus

three years consecutive for the s. 95(1) Criminal Code firearm offence. In addition to the aggravating factors noted in paragraph 12 above, Crown counsel notes the following: 1. The certificates of analysis indicate concentrations of fentanyl that are lethal if an overdose is not reversed. 2. The accused are involved in the preparation of doses for street-level trafficking, as evidenced by the presence of baggies, a scale and caffeine as the cutting agent. 3. The accused knew the substances were powerful, and at one point he told the undercover officer for one of the purchases that it is "better stuff". 4.

Overall negligent and reckless actions, and the greed and indifference to human life requires a message to be sent. 5. The firearm was not secured in any way, and there is a cross-aggravation of drugs and firearm. The firearm can be used to further the drug trafficking business. [ 26 ] Crown counsel filed, as part of its documents, the expert report of Sgt. Boechler. He also testified and was qualified to give expert evidence in the areas of fentanyl, analogues and other opioids, with a focus on its dangers and methods of trafficking. I accept the opinion evidence of Sgt. Boechler.

Under the heading of "Illicit Fentanyl Overview" at page 3 and 4 of 24, he writes: Fentanyl is a powerful synthetic opioid drug that is approximately 100 times more powerful than morphine according to Janssen Pharmaceuticals Canada. Fentanyl and analogues of fentanyl, along with other potent synthetic opioids and analgesic drugs have become commonly used in production of counterfeit heroin and oxycodone in the illicit drug market. In some instances, drug users have been found to favour fentanyl over heroin, and as such it is sometimes intentionally trafficked as fentanyl.

Fentanyl used in illicit drug sales is typically imported from China and then cut, i.e. adulterated with a cheaper, innocuous substance, such as phenacetin, for street- level distribution. Fentanyl being smuggled into Canada and intercepted by the Canada Border Service Agency, CBSA, has been analyzed and typically found to be slightly less potent/pure than the fentanyl used legitimately within the medical profession. Although domestic production of illicit fentanyl has been identified in Canada, law enforcement does not believe domestic production to be the source of the majority of illicit fentanyl in Canada.

Fentanyl is an emerging trend across Canada, and widespread illicit use of the drug was initially detected by law enforcement in Western Canada. Fentanyl is typically used to produce counterfeit heroin and oxycodone tablets due to the significant profit potential when compared to trafficking in more common drug commodities such as cocaine, heroin and methamphetamine. A general comparison of profit using fentanyl is compared using the price that I have found illicit fentanyl sold in kilogram level from China in the realm of $12,500 per kilogram.

This one kilogram of fentanyl, if properly cut for street-level distribution, would be able to create 100 kilograms of counterfeit heroin. Heroin in the Vancouver area typically sells for approximately $70,000 per kilogram, making this 100 kilograms worth approximately $7 million for an initial investment of $12,500 and the additional cost of cutting compounds such as caffeine. [ 27 ] He continues, under the heading of "Dangers of Illicit Fentanyl": Illicit fentanyl use has become a national health issue.

There has been a dramatic increase in fentanyl being associated with overdose deaths in many provinces, i.e. fentanyl detected in the body. Many recreational drug users are unaware of the risks that the drugs they purchase illegally and use may contain fentanyl, in particular because traffickers have created counterfeit versions of common illicit drugs using fentanyl. The risk of overdose death is also heightened because traffickers employ imprecise mixing methods when creating these counterfeit drugs, which creates the risk that the potency of one dose to the next can vary greatly.

In 2015 in British Columbia and Alberta the fentanyl-detected death rate was 152 and 272 respectively. The fentanyl-detected death rate is also increasing with British Columbia experiencing greater numbers of fentanyl deaths each month. For 2016 a total of 656 fentanyl- detected deaths were noted by the BC Coroners Service. In 2017 those numbers have further increased to 525 fentanyl-detected deaths from the period of January to May.

To put those numbers into perspective, the 2015 fentanyl-detected overdose deaths for Alberta, 272, is higher than the number of deaths caused by motor-vehicle collisions and murders combined for that province. Fentanyl is a very potent and potentially dangerous, toxic drug only intended to be used in a strictly-controlled medical environment. The fact that fentanyl is skin permeable and dangerous/toxic in extremely small volume makes any handling of fentanyl-tainted items by members of law enforcement, first responders or Good Samaritans inherently dangerous.

As illicit use of fentanyl increases, there is an ever-increasing risk of injury or death to those who are inadvertently exposed to fentanyl. When the risk of fentanyl is apparent, law enforcement and first responders are being trained to use personal protective equipment and environmental controls to reduce the risk of exposure. [ 28 ] Under the heading of "Legal Dose of Fentanyl LD50", Sgt. Boechler writes: The median health dose, LD50, is a term used to indicate a particular substance acute toxicity which refers to the dose required to kill half of the subjects of a test population.

LD50 studies and rates are often the result of tests conducted on laboratory animals. The human LD50 rates for many illicit drugs are estimated using the results of primate studies. [ 29 ] Then continuing, Sgt. Boechler states: The actual lethal dose of any substance, including illicit drugs, can vary with the subject depending on size, weight, sex, as well as tolerance for and regular exposure to the particular substance. In the case of fentanyl, the LD50 may vary depending on variables that the individual drug user may not even be aware of. [ 30 ] Sgt.

Boechler then goes on to list the number of variables, and at Paragraph (

e) he states: Because the fentanyl LD value for humans is based on primate testing, the LD50 is an estimate. The fentanyl testing that was conducted

on primates for LD50 found that value to be 0.03 milligrams per kilogram taken intravenously. The two milligram LD50 value for fentanyl is based on a 66 kilogram (145 pound) human extrapolated from the primate testing. This is the generally accepted lethal dose of pure fentanyl taken intravenously identified by DEA special testing, the RCMP and Health Canada. The LD50 value for fentanyl of two milligrams, as a representation of two milligrams, a few grains of salt weigh approximately two milligrams. Also, a typical business card weighs approximately one gram.

Therefore, one over 500, the weight of a typical business card, also reflects approximately two milligrams. [ 31 ] Then (f): I have consulted personally with a practising anesthesiologist who regularly administers pharmaceutical fentanyl during surgical procedures and was informed that 300 to 500 micrograms administered intravenously, i.e. by injection, in a hospital environment, will typically result in an adult requiring respiratory assistance to prevent dangerously low levels of respiratory depression. [ 32 ] Sgt.

Boechler then goes on to state: Note: For the purpose of the expert opinion and review of the LD50 value, I will use the LD50 value of two milligrams as the most conservative value and commonly referenced value for fentanyl. However, in my opinion, almost any amount of fentanyl can be dangerous and potentially fatal if used outside of a controlled medical environment.

The public awareness and safety campaigns aimed at warning people of the dangers of fentanyl have also had the unintended effect of alerting a subset of hard core drug users to the extreme potency of fentanyl, some of whom actively seek it out for that reason. [ 33 ] Under the heading of "Carfentanil" at page 8 of 24, Sgt. Boechler writes: Carfentanil is an analogue of fentanyl that was originally created by Janssen Pharmaceuticals.

Subsequent testing conducted on the analogue identified that it had an extreme potency of approximately ten times that of morphine, or 100 times that of fentanyl. (Source Janssen Pharmaceuticals, Canada) Due to this extreme toxicity, it was not found to have an application to be used on humans, even within the medical community in highly-controlled environments. Carfentanil has subsequently been used legitimately as a large animal tranquilizing agent.

This is a drug that is legitimately used by highly-trained veterinarians under extreme caution to sedate animals such as elephants with only extremely small doses required. In discussions with an ex-Calgary zoo employee, they advised me that the zoo kept carfentanil on hand but would only use it to incapacitate and kill any dangerous animal that may escape their enclosure. [ 34 ] Sgt.

Boechler goes on to state at page 9: Carfentanil is now commonly observed in the illicit drug supply, and it is noted to be the number one analogue of fentanyl that is encountered in the British Columbia submissions to Health Canada. [ 35 ] Sgt. Boechler goes on to advise, at the bottom of page 9: Carfentanil is an analogue of fentanyl and therefore listed as a

Schedule I substance under the CDSA. [ 36 ] At page 10, Sgt. Boechler discusses 3-methylfentanyl which appeared in one of the undercover purchases: As the analogue of 3-methylfentanyl was never created by a pharmaceutical company such as Janssen Pharmaceuticals, limited information on the drug is known. Further, as it was not designed by the pharmaceutical industry, it is referred to as a designer analogue of fentanyl. Potency information available for 3-methylfentanyl indicates that the drug is between 400 to 6,000 times of that of morphine, variable-dependent on the isomer structure of the molecule.

To date, I have not been able to locate any documents that list the half life of this analogue. 3-methylfentanyl has been a common analogue that has been seen in the illicit drug supply over the past few years, specifically in the British Columbia area. [ 37 ] At page 11 of 24, Sgt. Boechler, under the heading of "Mixing of Fentanyl Illicit Drug Trade Powder Processing Location", writes: Although not technically defined as a clandestine drug laboratory, during the processing of drugs such as fentanyl for street-level distribution, a manner of processing and cutting the fentanyl may be conducted.

In pure form, fentanyl is extremely potent and is not suitable for street-level distribution. The highly pure fentanyl or analogues are required to be cut to a level that may be appropriate for street-level distribution. These facilities, if not associated with the actual synthesis of fentanyl, or the tableting of fentanyl into pills with a pill press, are referred to as powder processing locations.

These facilities are typically extremely unsophisticated and typically use inexpensive blenders such a Magic Bullets to blend the fentanyl with cutting compounds to levels that are deemed appropriate for street- level distribution. This manner of missing is extremely negligent as fentanyl is such a dangerous and potent drug, even in a controlled laboratory environment extreme caution and exact measurement and dilution must be taken to ensure that the mixture is properly diluted.

Dry mixing of powders is extremely difficult to ensure a uniform mixture and typically results in "hot spots" or areas within the batch of higher or lower concentrations.

As noted in the attached appendix of reference materials, the only accurate way to properly attempt to mix illicit fentanyl for street-level distribution without areas of higher concentration referred to "hot spots" would be to dissolve the fentanyl into a liquid, along with the cutting compound used, if water soluble. (This is similar to making rock candy with sugar.) Once the mixture is properly dissolved, the liquid is then evaporated off, leaving a consistent mixture of the solid remaining.

This solid could then be ground up and will have a much more uniform mixture and consistency. [ 38 ] At page 18 of 24, Sgt. Boechler refers to U-47700 which was also one of the substances found in some of the analyses: U-47700 is a synthetically-produced opioid that was created by a team at the Upjohn company, a pharmaceutical company in Michigan, United States, in the 1970s. U-47700 has a potency listed as 7.5 times that of morphine sourced from animal model testing. U-47700 has never been studied on humans but is expected to provide symptomology results similar to other opioids such as fentanyl.

U-47700 has been intercepted being smuggled into Canada, along with fentanyl and analogues, by the Canada Border Service Agency. U-47700 has also been found either with fentanyl or analogues, or on its own in counterfeit oxycodone tablets and counterfeit heroin in Canada.

[ 39 ] In regards to caffeine, Sgt. Boechler writes: In my experience, as well as through conversation with confidential informers, Health Canada and the United States Drug Enforcement Administration chemists, along with other police officers, caffeine is a chemical that is commonly used as cutting compounds in the illicit drug trade. A cutting compound refers to a chemical or drug that is added to an illicit drug to add volume while decreasing purity of the drug. This is typically done to increase profits in a market that sells products based upon weight with no quality control.

Caffeine specifically is the most common cutting compound used to cut fentanyl from highly pure levels to levels for street-level distribution. [ 40 ] At page 21 of 24, Sgt. Boechler describes elements of mid-level drug trafficking operations and street-level drug trafficking operations. With respect to mid-level drug trafficking, near the end of the paragraph dealing with that issue he states as follows: Typical drug paraphernalia found associated to mid-level drug trafficking operations includes scales, individual baggies to package drugs, mixers to mix drugs, cutting compounds and money counters.

Weapons such as firearms and improvised weapons such as bats and mace are often found. [ 41 ] Also associated with mid-level traffickers are other elements that do not exist in the case at bar. He describes mid-level drug trafficking to sometimes include: Mid-level drug traffickers typically control a specific geographical area and acquire their bulk amounts of drugs from high-level drug traffickers.

Mid-level drug traffickers will then break down these drugs, typically in kilogram level, to smaller amounts for street-level distribution and oftentimes individually bag and weigh these drugs for street-level distribution. This is oftentimes where the cutting of drugs takes place where other chemicals or drugs are used to increase the weight of the controlled substance for the purpose of being able to sell a larger volume of drugs at a reduced purity level.

Where high-level drug traffickers will typically distribute single drug commodities, mid-level drug traffickers will normally possess a number of illicit drug commodities to supply the street-level drug traffickers working under them. [ 42 ] Under the heading of "Street-Level Drug Trafficking", Sgt. Boechler writes: Street-level drug trafficking refers to the direct distribution of street- level drugs to people who use drugs in the community. Street-level drug traffickers typically operate within a specific geographical area and work under the mid-level drug trafficker.

They will be "loaded" or provided with an amount of drugs for distribution, typically an amount that does not exceed a volume that would significantly negatively impact the drug trafficking operation should they be seized by law enforcement. [ 43 ] He further states: Methods of street-level distribution include dial-a-dope method (usage of a vehicle and cell phone to take orders and deliver drugs, use of a residence such as a crack shack, typically less favourable as crack shacks are easily detected by law enforcement, or via walking or riding bikes in a smaller geographical area). [ 44 ] Crown counsel also relies on the expert opinion evidence of Dr.

James R. Kennedy as set out in his report of July 25, 2016. Dr. Kennedy is a medical doctor, qualified in B.C. since 1981 and practising internal medicine, clinical pharmacology and toxicology. He is a clinical associate professor of medicine and pharmacology at UBC and St. Paul's Hospital. [ 45 ] He responded to a number of questions in his report. The following passages are germane. Starting at page 3 of 7: Question 1: What is fentanyl? What effect does fentanyl have on the human body?

Fentanyl is a potent, synthetic opioid drug with pharmacological effects that are similar to other opioids, for example, morphine, oxycodone, heroin, codeine and hydromorphone. The high potency of fentanyl (it is about 100 times more potent than morphine) is the most important difference between fentanyl and these other common opioids. The pharmacological effects of fentanyl include analgesia (pain relief), euphoria, sedation, respiratory depression, lowered blood pressure, lowered heart rate, and constipation. Fentanyl is produced in liquid, powder and tablet form.

The tablets can be crushed into a powder and dissolved in water for street use. Fentanyl can be taken into the body in a number of ways. It can be administered intravenously, ingested (swallowed), absorbed through the skin via skin patch, absorbed through the mouth by placing fentanyl powder under the tongue or against the lining of the cheek, or by smoking or insufflating (snorting), the powder.

When taken intravenously, smoked or nasally insufflated, fentanyl has a rapid onset of effect, within seconds, with peak effect occurring after a few minutes for a duration of two to four hours (with higher doses lending to more prolonged and delayed effects). When ingested (swallowed) or used in a skin patch form, fentanyl has a much slower onset of effect and has a less potent effect than when taken intravenously. As a clinical pharmaceutical, fentanyl can be administered intravenously, via skin patch, or taken in sublingual tablet form. As a street drug, fentanyl can be taken in any of the ways listed above.

However, drug users typically do not swallow it given the slower onset of effects through ingestion. Question 2: How do the effects of fentanyl on the human body compare to the effects of other opioids such as heroin, oxycodone, morphine and codeine? How does the strength or potency of fentanyl compare to these other drugs? All of these drugs offer pain relief and cause sedation and constipation. The degree of these effects is directly related to their individual potencies. 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 of 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. Question 4: Is there a safe dose of fentanyl? Is there a lethal dose of fentanyl? In the hospital setting, fentanyl is safely given in 10 to 100 microgram single or repeated doses, and sometimes a continuous infusion of 10 to 100 micrograms per hour, or more.

These are safe doses in the hospitalized patient with many built-in safeguards such as monitoring by trained medical and/or nursing staff, continuous measurements of the patient's oxygen levels associated with an alarm if these oxygen levels fall below a safe level, and the availability of assisted breathing devices, and Naloxone (the antidote drug that quickly reverses the effects of fentanyl or any other opioid). [ 46 ] Then moving to the last paragraph under question 4: A lethal dose of fentanyl is highly variable and often unpredictable.

The lethality of fentanyl relates to many factors, including lack of recent opioid use that gives the user some degree of tolerance to higher doses, the use of other sedating drugs, lack of knowledge of a precise dose (as in the case of all non-pharmaceutical grade fentanyl used on the street), and a lack of knowledge of the presence of fentanyl in the substance that has been used.

For example, it is common for a drug user to think that he or she is using heroin, morphine, oxycodone, amphetamine or cocaine when in fact the drug has been mixed with fentanyl or substituted with fentanyl without the user's knowledge. When the desired or expected drug is thought to be an amphetamine but is actually fentanyl, the dangers are even greater as the user is unaware of the presence of fentanyl. He is most often opioid-naive and is unprepared for an opioid overdose. Question 6: Why/how does the ingestion of fentanyl cause overdose? Why/how does the ingestion of fentanyl cause death?

The mechanism by which fentanyl causes death is almost always related to respiratory depression resulting in weakly low circulating oxygen levels (a syndrome called hypoxemia). Sometimes the respiratory depression and resulting hypoxemia is enough to cause permanent and devastating brain damage but not death. The overdose is most often related to intravenous use, nasal insufflation (snorting), or inhalation through smoking.

Respiratory depression can also occur with ingestion (swallowing), but the degree of respiratory depression is less than with other routes of use and is slower in onset, giving the user and/or their companion more time to obtain emergency medical assistance. Question 8: Can the presence of fentanyl with another substance be detected by a lay person outside of a laboratory setting? The simple answer is no. [ 47 ] Moving to the last paragraph under question 8: There has been a marked increase in documented fentanyl overdoses in British Columbia in recent years and months.

There is a similar increase in opioid-related deaths, mostly among users thinking that they are taking heroin or oxycodone when in fact they are taking fentanyl mixed with heroin, morphine or oxycodone, or they are taking fentanyl alone. Question 9: Is fentanyl addictive or does it cause dependence in a user? The answer to both questions is yes. Fentanyl has similar addictive potentiality as morphine, heroin and oxycodone. This means that the user continues to use the drug in spite of awareness of the harm it is doing to himself or herself (these harms include respiratory depression and death).

Users who know they are taking fentanyl often accept this dangerous risk. Physical dependence (meaning the development of withdrawal symptoms upon abruptly stopping use of the drug) is essentially the same with fentanyl as it is with other opioids. [ 48 ] Crown counsel also relies on the Coroners Service report entitled "Illicit Drug Overdose Deaths in British Columbia January 1, 2017 to July 31, 2017".

Of note, at page 3 of the report it is stated: Preliminary data suggests that the proportion of illicit drug overdose for which illicit fentanyl was detected (alone or in combination with other drugs) was 67 percent in 2016 and 81 percent in January to July 2017. [ 49 ] In 2017, referring to this coroner's report, up until July 31, 2017 in British Columbia there were 876 overdose deaths. In Abbotsford, British Columbia, where this court sits, there were 39 deaths in the entirety of 2016, and 33 between the months of January to July 31, 2017.

The Fraser Health region has noted 291 deaths alone in January to July 2017. In January and February 2017, the time period of the charges in this case, there were a total of 78 overdose deaths in the Fraser Health region. These numbers continued unabated from March to July 2017. This updated coroner's report confirms that the health crisis facing the Fraser Valley and the entire province from the use of opioids like fentanyl and its analogues continues unabated. Background of the Accused Sarabjit Singh Mann: [ 50 ] Mr. S. Mann is Mr. K. Mann's older brother.

He was born and raised in Abbotsford, British Columbia and is a Canadian citizen. He is currently 23 years old. He has no criminal record. He attended W.J. Mouat Secondary School in Abbotsford, B.C. He did not complete Grade 12 but plans to obtain his Dogwood diploma while serving his sentence. After secondary school, Mr. S. Mann primarily worked with his uncles at MP Tire and for several months worked in the construction business. [ 51 ] He admits to using drugs and developing an addiction to opioids, including fentanyl. While in custody he has remained clean and sober.

He says that he feels much healthier having not consumed drugs for the last five months. Mr. S. Mann has attempted to enrol in substance abuse management courses while in custody, but these courses have not been regularly offered at the Surrey Pre-Trial Centre. He intends to complete the substance abuse management program and other courses while serving his sentence. [ 52 ] Mr. S. Mann accepts responsibility for his conduct and is remorseful. I am told he exhibits insight into the harm that has been caused as a result of the public health crisis associated with opioid consumption.

He acknowledges the grief that he created for his

family. He is currently in a stable relationship with Amarpreet Gill who is a salesperson at Honda. Upon his release he plans to work with his uncles at MP Tire and plans to take courses while serving his sentence that will help him develop skills to be successful in this endeavour. [ 53 ] Upon his release, Mr. S. Mann intends to remain clean and sober and become a productive member of the community, including having a healthy and positive relationship with Amarpreet and other people in his support system and family. Background of the Accused Karan-Jit Singh Mann: [ 54 ] He is Mr. S. Mann's younger brother.

He was born and raised in Abbotsford, British Columbia and is a Canadian citizen. He is currently 20 years of age. He has no criminal record. He attended W.J. Mouat Secondary School in Abbotsford , B.C. He did not complete Grade 12 and has almost completed his Dogwood diploma while in custody at the Surrey Pre-Trial Centre. He completed the Social Studies 11 course and has almost completed his Communications 12 course which is the last course he needs to complete Grade 12 and obtain his Dogwood diploma. [ 55 ] After secondary school, Mr. K. Mann worked with his uncles at MP Tire.

He does not consume alcohol or use drugs. He has accepted responsibility for his conduct and is remorseful. He understands that his actions caused members of the Sidhu family to be fearful and his conduct was disregarding of public safety. He acknowledges the grief that he has caused his family. Upon his release he intends to work with his uncles at MP Tire and intends to take courses while serving his sentence that will help him develop skills to be successful in this endeavour.

Principles of Sentencing: [ 56 ] Section 10(1) of the Controlled Drugs and Substances Act states: 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. [ 57 ] The objectives of sentencing pursuant to s. 718 of the Criminal Code are:

a) Denunciation

b) Deterrence, both individual and general

c) Separation of the offender from society where necessary

d) Rehabilitation

e) Reparation

f) Promotion of responsibility in the offender and acknowledgement of the harm done Sections 718.1 and 718.2 of the Criminal Code provide: A sentence must be proportional to the seriousness of the offence and the degree of responsibility of the offender. [ 58 ] Proportionality of a sentence can be achieved in one of two ways:

a) by imposing concurrent sentences, or

b) by applying the totality principle to consecutive sentences. [ 59 ] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. (See Criminal Code s. 718.2(a)) [ 60 ] A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, acknowledging no two cases are identical in the sense that the result in a particular case will necessarily determine the sentence in another. (See Criminal Code s. 718.2(b)) [ 61 ] Where consecutive sentences are imposed the combined sentence should not be unduly long or harsh. (See Criminal Code s. 718.2(c)) [ 62 ] An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. (See Criminal Code s. 718.2(d)) [ 63 ] All available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders. (See s. 718.2(e)) [ 64 ] The restraint principle encourages caution and moderation in the imposition of custodial sentences.

Pursuant to the principle of restraint, imprisonment is a sanction of last resort, and any custodial period imposed, the lightest term reasonable in the circumstances, should be imposed. The purpose of such restraint is to reduce Canada's historically high incarceration rates and avoid sentences that are unduly harsh. ( See R. v. Proulx 2000 SCC 5 ) [ 65 ] Defence counsel asks the court to consider the following mitigating factors:

1) Both accused have pled guilty at a very early stage of the proceedings, saving valuable court time, the expense of what would have been a lengthy and complex prosecution, eliminating the need for civilian, police officer and expert witnesses from having to testify and be inconvenienced which would have resulted in a very significant cost to the public. Furthermore, the accused's early guilty pleas avoided the need for time-consuming disclosure requests from the Crown and law enforcement, dispensing with the need for lengthy pre-trial motions and the time required for trial preparation.

The accused have pled guilty at a very early stage and have accepted responsibility for their actions. Both have consented to remain in custody since their arrest on April 19, 2017 when the new information was sworn. The accused are first-time offenders and have no criminal record. 2) Mr. S. Mann is 23 years old and Mr. K. Mann is 20 years old. Both are young adult offenders and therefore rehabilitation is a primary principle of sentencing. The accused's drug activity is at best characterized as "small time" and at the street level.

The amounts of drugs sold and seized is at the very lowest end of the spectrum, and the operation was not sophisticated. The offences were at the lowest end of the chain of sale and distribution in the drug trade. 3) Mr. S. Mann, since being in custody, has not consumed any illicit drugs. Prior to being in custody he was consuming drugs and his offences were, in part, to feed his addiction. 4) The accused expressed remorse. Each acknowledges the seriousness of their offences and the current public health crisis associated with illicit opioid consumption.

Accordingly, they have exhibited insight into their offending. 5) Members of the Mann family have filed letters of support. The accused continue to have the support of their family and have throughout the legal process, many of whom are in the courtroom today. The accused have a secure opportunity for gainful employment with MP Tire upon their release from custody. As a result of these offences, the Mann family has had to cope with both of their sons being held in custody. 6) The Crown has marked Mr. K. Mann's bail for estreatment and his cash bail, in part, will be forfeited to the Crown. 7) Mr. K.

Mann, while in custody, completed courses and will, in the coming weeks, receive his Dogwood diploma having completed Grade 12. 8) The accused have been respectful inmates and contributed to an orderly atmosphere at the Surrey Pre-Trial Centre. [ 66 ] I find the following aggravating factors in relation to the Controlled Drugs and Substances Act Information: 1) The accused were specifically trafficking in fentanyl to users asking for fentanyl, through a dial-a-dope format. 2) Although not considered a sophisticated operation, the operation had a mid-level component in that the accused prepared doses for street-level trafficking from bulk amounts of fentanyl, and regarding Mr.

S. Mann, from carfentanil. 3) The prepared doses were outrageously negligent with concentrations of fentanyl as high as 14 percent when anything above 2 percent is likely to cause an overdose. These figures are obtained from the evidence of Sgt. Boechler who advised that most drug users expect to receive concentrations of 1 to 2 percent, not in the range of 14 percent. 4) Analogues of fentanyl appeared in some of the doses, including carfentanil. 5) The greed and indifference to human life is significant due to the concentrations of fentanyl, and for Mr. S.

Mann, trafficking and possession for the purpose of trafficking of carfentanil; and by January 2017 the fentanyl overdose and death crisis was well known in the community. 6) Regarding Mr. S. Mann, the possession of an unsecured loaded firearm in proximity to illicit drugs. [ 67 ] I find the following mitigating circumstances: 1) Early guilty pleas. 2) Expressions of remorse. 3) Youthfulness of the offenders; Mr. K. Mann was 18 at the time of the threatening offence and 19 at the time of the Controlled Drugs and Substances Act offences. Mr. S.

Mann was only 21 at the time of the Controlled Drugs and Substances Act and firearm offences. 4) Neither accused has a criminal record. 5) Both accused have good prospects for rehabilitation. They have strong family support and employment on completion of their sentences. 6) Mr. S. Mann admits to using and developing an addiction to opioids, including fentanyl, and has not used drugs since his arrest. [ 68 ] I accept by their guilty pleas and brief addresses to the court that the accused are remorseful for their conduct.

However, I do not have the benefit of a pre-sentence report or psychological assessment to give me a better understanding of what led to the commission of these offences. I am concerned that the accused do not have true insight into the gravity of their offences. They have not expressed empathy for the people likely harmed by their sales of fentanyl and carfentanil.

Neither accused indicated to the court that they have lost any sleep wondering how many overdoses or deaths they are connected to by trafficking in these noxious substances. [ 69 ] It is also of concern that the letters of support express no empathy for the likely victims of the trafficking offences, only concern for the accused. The letters of support clearly indicate that these two young men before the court come from a very good and strong

extended family and they were given every advantage in life. They are described as kind, generous and thoughtful. This description iscompletely at odds with the offences committed. Their offences show extreme indifference to human life for financial gain, which wasthe primary goal of their enterprise. Getting to the bottom of how these outwardly kind and generous young men could be so uncaring tothe wellbeing of others will be an important component of their rehabilitation. Unless they gain that insight, they will continue to be adanger to the public.

Issue of Concurrent or Consecutive Sentences and Totality Principle: [70] Quoting from R. v. Crevier 2013 ONSC 2630 , 2013 OJ No. 2257 at paragraph 48: The general rule is that different offences that arise out of the same behaviour normally receive concurrent sentences. Consecutivesentences are normally imposed where there is some separation among the offences in time, or they constitute different legally protectedinterests. In my view, there are different legally protected interests at stake in the case at bar.

Controlled drugs carry the potential of human miseryand violence due to the nature of the drug trade, but firearms represent not merely the potential for violence but actual capacity forimmediate and lethal violence. On the facts of this case, the firearm and drug offences, specifically the possession for purpose oftrafficking offences, have different legally protected interests and should result in consecutive sentences.

Moreover, a loaded handgun, incombination with a drug business, particularly located in close proximity to the drugs, is a serious aggravating factor on both thepossession for purpose of trafficking charge and the firearm charge.

At paragraph 57 of Crevier, cited above, the court accepts, as thiscourt does, that while possession of a firearm is dangerous and, in and of itself, it is more so when combined with possession of illicitdrugs. [71] On appeal of the Crevier decision, the Ontario Court of Appeal at 2015 ONCA 619 , 2015 OJ No. 5109 rejected theargument that the effect of relying on the joint possession of the firearm and drugs as an aggravating factor, while also imposing aconsecutive sentence, amounted to a double counting and was harsh in the circumstances.

I also reject that argument. [72] In this case I conclude, in regard to Mr. S. Mann, the sentence for Count 20, possession of a loaded firearm, contrary to s. 95(1)of the Criminal Code, should be consecutive to the sentences for the CDSA offences. The CDSA offences are linked to the dial-a-dopeenterprise and arise out of the same behaviour, and they should receive concurrent sentences to the trafficking charges. [73] Regarding Mr. K. Mann, the threatening and firearm charges on Information 84371-2 are linked in time and space and shouldreceive concurrent sentences to each other.

However, the subsequent CDSA offences on Information 85856-1 are not linked in time orenterprise to the first Information, and should result in consecutive sentences. [74] Since consecutive sentences are appropriate in this case, I will have to consider the totality principle. This principle requires thecourt to ensure that a cumulative sentence rendered does not offend the general principle of proportionality; that is, it does not exceed theoverall culpability of the offenders.

If the sentence as a whole is unduly harsh or disproportionate, then the length of the individualsentences should be adjusted to arrive at an appropriate global sentence. (See R. v. Lee 2009 BCJ No. 340 at paragraphs 27 to 28) [75] Also, as mentioned above, s. 718.2(

c) of the Criminal Code provides: Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. Range of Sentence for the Threatening and Section 94(1) Charge in Relation to Mr. K. Mann: (Information 84371-2) [76] Both Crown and defence submit that a six-month sentence is fit for the threatening conviction. They differ on the fit sentencefor the s. 94(1) firearm conviction. Earlier I indicated that the offences were linked as part of a single transaction and should beconcurrent to each other.

I agree that a six-month sentence is fit for the threatening conviction and meets the principles of sentencing. The victim in that case was under 18, and this is an aggravating factor pursuant to s. 718.2(a)(ii.1). Regarding the s. 94(1) CriminalCode conviction, the case law does not provide clear direction as there are few cases that isolate the s. 94(1) issue. [77] In this case I agree with Crown counsel that the threats to the young person were serious, and the accused attended in the areaof the victim's residence knowing the vehicle he was in contained a loaded Kel-Tec Sub 2000 rifle.

The firearm represented a clear andpresent danger to the victim and the public. There was a threat to kill and a means to carry it out. The range of sentence proposed by theCrown of 12 to 18 months is appropriate. I find, for the reasons expressed above with respect to the community concern regardingfirearm offences, even considering the mitigating factors in this case of the early guilty pleas, age of the accused (18 at the time),remorse and prospects for rehabilitation, denunciation and deterrence are of primary importance. In my view, an 18-month sentence isfit for the firearm offence.

The circumstances here are extremely aggravated due to the threat and subsequent attendance in the area ofthe victim's residence. The 18-month sentence should be consecutive to the sentences on the CDSA charges, but may have to be adjustedto arrive at an appropriate global sentence considering the principle of totality. The Case Law and Range of Sentence on the Section 95(1) Offence in Relation to Mr. S. Mann: [78] Mr. S. Mann pled guilty to a s. 95(1) firearm offence. Crown counsel seeks a three-year sentence and defence concurs that athree-year sentence is warranted.

The only difference between them is whether the sentence should be concurrent or consecutive to theCDSA offences, and what impact a consecutive sentence should have in relation to the totality of the sentence to be imposed. [79] I agree that the case law supports a three-year sentence for the firearm charge. In R. v. Kachuol 2017 BCCA 292, the Court ofAppeal stated as follows, reading from the headnote: Crown appeal from a conditional sentence order imposed for possession of a loaded prohibited firearm. Held: appeal allowed, sentenceof 3 years' imprisonment imposed.

The judge erred in characterizing the respondent's conduct as not being at the “true crime” end of thespectrum of s. 95(1) offences, and by placing insufficient weight on the principles of denunciation, deterrence and public protection

given the circumstances of the offence, the offender and established range of penalties. At paragraph 1 the Court held: The Crown seeks leave to appeal and, if leave is granted, appeals from a conditional sentence order of 23 months and 29 days imposedon Mr. Kachuol for unauthorized possession of an unregistered loaded .357 Magnum handgun, contrary to s. 95(1) of the Criminal Code.Mr.

Kachuol committed the offence on March 20, 2014, when police found him driving in downtown Vancouver, conducted an impaireddriving investigation and, while impounding his car, located the loaded handgun in the console between the driver and passenger seats ofthe car. The handgun was a prohibited firearm that had never been registered and Mr. Kachuol had never held a licence to possess it. Hewas also prohibited from possessing any firearm by virtue of a prior drug conviction.

At page 7, paragraph 19: In support of his submission, Crown counsel referred us to decisions of this and other courts in which the range of conduct of offenderscaptured by s. 95(1) of the Criminal Code has been considered. For example, at the Ontario Court of Appeal level in Nur, Mr.

JusticeDoherty described the spectrum of potential offenders caught by s. 95(1) as including at one end “the outlaw who carries a loadedprohibited or restricted firearm in public places as a tool of his or her criminal trade” and, at the other, a person who “has a licence andregistration certificate for [an unloaded] firearm, but knowingly possesses the firearm at a place that falls outside of the terms of thatlicence”: R. v. Nur, 2013 ONCA 677at para. 51.

In the case of the former, he said the offender is by any reasonable measure “engaged intruly criminal conduct and poses a real and immediate danger to the public”, while, in the latter, the misconduct is “more in the nature ofa regulatory offence.” According to Mr. Justice Doherty, the vast majority of s. 95(1) offenders fall at the true crime end of the spectrumand possess their guns outside the regulatory framework in situations where such possession “is directly connected to criminal activityand/or poses some other immediate danger to other persons”: paras. 52-53.

At paragraph 21 at page 8 the Court held: In a similar vein, in R. v. Guha, 2012 BCCA 423 and R. v. Oud, 2016 BCCA 332, this Court emphasized the paramount importance ofdenunciation in sentencing for firearms offences, and the relatively less significant role of mitigating factors that are personal to theoffender.

That paramountcy is reflected in decisions such as Nur, where a 40 month sentence of imprisonment was imposed on a 19-year-old first time offender with an outstanding pre-sentence report and community support, and Guha, where a three year sentence ofimprisonment for a 27-year-old first time firearms offender was increased to four years' imprisonment. And at paragraphs 25 and 26 at page 9 the Court held: In recent years, Canadian courts have become increasingly concerned by the proliferation of handguns, gun violence and the direconsequences for our society.

Guns are inherently, often lethally, dangerous, all the more so when they are possessed for an illicitpurpose. As a result, their possession and use is highly regulated and, if unlawful, criminalized to ensure public safety, express society'scondemnation and punish offenders. To the extent possible, courts strive to achieve these goals when imposing sentences for firearms-related offences by prioritizing deterrence and denunciation, following customary sentencing ranges in all but exceptional cases and fullyaccounting for aggravating factors where they exist.

As Madam Justice Smith recognised in Guha at para. 30, when an offender possesses a firearm, particularly a handgun, for an illicitpurpose, that purpose can only be to threaten or inflict serious bodily harm or death, if and when considered necessary. Common senseand human experience suggest no other reasonable explanation or lesser risk posed by possession of this sort. As Crown counsel aptlyput it, most unlawful possession of loaded firearms represents nothing short of “tragedy in gestation”.

By criminalizing such conductvia s. 95(1), the law intervenes before someone is actually harmed or some other crime actually committed. By imposing severeexemplary sentences for possession simpliciter, courts support and advance the goals of this intervention. At paragraph 27 the Court held: Mr. Kachuol's offence must be characterized and addressed within this context. Considered thus, it is apparent that he was engaged in“truly criminal” conduct when the law interceded before the immediate danger posed ripened into actual harm.

In my view, the judgeerred in concluding otherwise. [80] In my view, the same analysis applies in this case. At the time Mr. S. Mann was in possession of a firearm, he was engaged intruly criminal conduct, and fortunately the law interceded to prevent significant danger to the public. Accordingly, I agree with bothcounsel that 3 years is a fit sentence. Case Law and Range of Sentence for Fentanyl and Carfentanil Offences: [81] Crown counsel submits that Mr. K. Mann should be sentenced to five years jail for his two CDSA convictions, and that Mr. S.Mann should receive seven years for his 11 CDSA convictions.

Defence counsel submits that 30 months for Mr K. Mann and 36 monthsfor Mr. S. Mann is fit. [82] Crown counsel submits that the circumstances of this case are more aggravated than previous fentanyl cases, and the range setout in the leading case of R. v. Smith 2017 BCCA 112 , 2017 BCCA112 is the starting point only. Moreover, Crown argues thatthere is no precedent for trafficking in carfentanil. [83] Defence counsel takes the position that the upper range of sentence of 36 months for Mr. S. Mann is fit in this case, to be servedconcurrently on each count.

Defence counsel emphasizes the mitigating factors as set out earlier in these reasons, and that these werestreet-level trafficking offences. [84] The headnote of Smith sets out the background and circumstances of that case:

Appeal by the Crown from the sentence imposed. The accused was a street level trafficker who tried to sell drugs to an undercover police officer. He was arrested and found to have 13 flaps of fentanyl, 18 flaps of powder cocaine and several rocks of crack cocaine. The accused pleaded guilty to one count of possession of cocaine, and one count of possession of fentanyl for the purpose of trafficking. The 59-year-old accused was a first-time offender and had an addiction to Tylenol 3.

Two days after his arrest for the subject offences, the accused was arrested for disobeying the terms of his bail and he was found in possession of cocaine and fentanyl. He was arrested sometime later in the same location in possession of drugs. The accused claimed that he was not aware that he was in possession of fentanyl but thought he had heroin. The accused was sentenced to six months imprisonment.

The Crown argued that the sentencing judge erred in principle as the mitigating factors, which included the fact that the accused was a first-time offender and had an addiction to or a dependence on Tylenol 3, should have been far outweighed by the sentencing goals of deterrence and denunciation. The Crown argued that the error led to a demonstrably unfit sentence particularly given the inherent danger to accidental death associated with consuming fentanyl. The appeal was dismissed. [ 85 ] At paragraph 48 Mr.

Justice Harris, for the majority held: I agree that it would helpful for this Court to identify a sentencing range for street-level dealing in fentanyl as a result of the public health crisis caused by unintentional overdosing by people who use drugs, particularly since typically they do not know that the drugs they are consuming contain fentanyl. As my colleague has clearly explained, 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. I endorse the sentencing range my colleague proposes in her judgment in para 45; namely, a range beginning at 18 months' imprisonment that might exceed 36 months.

Paragraph 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. Paragraph 50: Where I

part company from my colleague is on the question whether we should defer to this sentence imposed by the sentencing judge. In my view, we should. Here the offender was not sentenced until late November 2016, but the offence was committed in January 2015. In the interim there has been a profound and enormous escalation in the extent of the fentanyl crisis and public awareness of it.

Unlike my colleague, I am not persuaded that the sentence was demonstrably unfit given the circumstances regarding fentanyl as they existed in January 2015, when the offence was committed. [ 86 ] Madam Justice Newberry, in the minority opinion, held at paragraph 45: I agree with the many judges who have stated that denunciation and deterrence must generally be given primacy in sentencing in cases involving Fentanyl. To this end, I would suggest a normal range beginning at 18 months' imprisonment, as the Crown suggests. I would place Mr.

Smith's offences at the bottom of this range, in light of the mitigating factors discussed by the court below. I do not believe it is necessary for us to specify the top of the range, although I would suggest it might well exceed 36 months, especially where the offender has a substantial record involving the sale of Fentanyl or otherwise demonstrates an indifference to the human lives he or she is putting at risk. This is a matter that can be worked out in future cases.

Obviously, the 'range' may also increase beyond 36 months, or a different range will apply, where the offender is higher up the chain of sale or distribution. [ 87 ] In the case at bar, I agree with Crown counsel that the circumstances herein take us beyond the 36-month range. The accused have shown an indifference to human life and I find that these offenders are more than street-level dealers. There is a component of mid- level trafficking activity that included mixing and packaging of drugs for sale.

This is evident from the items seized from their residence, including scales, packaging materials, and caffeine as a mixing agent. The indifference to human life is apparent from the manner in which the drugs were prepared for sale, the high concentrations of fentanyl and, regarding Mr. S. Mann, the inclusion of carfentanil in some of the fentanyl, and sale and possession for the purpose of trafficking of carfentanil.

Anyone who traffics in concentrations of fentanyl above 2 percent is clearly indifferent to human life, and anyone who traffics in carfentanil in any concentration is clearly indifferent to human life. The expert evidence in this case indicates that fentanyl users expect concentrations of one to two percent, not nine or 14 percent, so even the lives of intentional users of fentanyl were put in extreme jeopardy in this case. [ 88 ] The case law prior to Smith is not of great assistance to the court regarding the appropriate range of sentence as the Smith case has increased the appropriate range.

Also, the Smith case makes it clear that by November 2016 there has been a profound and enormous escalation in the extent of the fentanyl crisis and public awareness of it. [ 89 ] The offences herein occurred from January to March 2017, at a time where the scourge of fentanyl was well known. Indeed, these accused, to their credit, have not claimed any ignorance regarding the dangers and scourge of fentanyl abuse. The only claim of ignorance is by Mr. S. Mann in regards to knowing that he trafficked and possessed, for the purpose of trafficking, carfentanil.

Crown counsel is unable to prove beyond a reasonable doubt that the accused knew that his fentanyl stash also included carfentanil. In my view,

his ignorance of this fact does not lessen his moral blameworthiness in the circumstances of this case. Sentences for the Fentanyl Offences: [ 90 ] Taking into consideration the principles of sentencing and circumstances of the offences and the offenders, I find the following sentences to be fit. [ 91 ] Regarding Mr. K.

Mann, on Count 3, for trafficking in fentanyl at weights of .19 and .23 grams in a dial-a-dope operation with an analysis of 14 percent fentanyl, heroin, U-47700 and caffeine, a sentence of four years is fit. [ 92 ] On Count 14, the PPT fentanyl in amounts totalling approximately 33 grams with concentrations of fentanyl between 1.8 percent and 15 percent in the context of a dial-a-dope operation, in my view four years is a fit concurrent sentence to the four-year sentence on Count 3. [ 93 ] I must now consider the totality of the sentence to be imposed on Mr. K. Mann.

The total sentence amounts to 5.5 years, considering the 18 months consecutive for the threatening and firearm charges. The question to be determined is whether a five-and-a- half-year sentence is unduly long or harsh. Due to the age of the offender, 18 and 19 at the time of the offences, his early guilty plea, his family support and his lack of criminal record, I conclude that 5.5 years is unduly harsh.

An appropriate global sentence is five years. [ 94 ] On Information 84371-2, Count 2, there will be a 12-month sentence to be served consecutive to the four-year sentences, so the firearm charge is reduced from 18 months to 12 months to take into consideration the totality principle. [ 95 ] On Count 1 there will be a six-month concurrent sentence. [ 96 ] From this intended sentence on the Controlled Drugs and Substances Information of four years, there will be deducted enhanced credit of 290 days, the accused having served 193 days to date.

This leaves, by my calculation, subject to review by counsel, four years and 75 days to be served. This is comprised of three years and 75 days on the CDSA charges, and one year consecutive on the s. 94(1) firearm charge. [ 97 ] There will be ancillary orders of a lifetime firearms prohibition, and a DNA order which the accused will submit to. Pursuant to

Section 743.21, Mr. K. Mann will have no contact with D.S., Y.S., and their parents and siblings. Mr. K. Mann will have 2 months to pay the victim fine surcharges. [ 98 ] For Mr. S.

Mann, on Counts 1, 2, 4, 5, 7 and 12 for trafficking in fentanyl, there will be concurrent sentences of four years. [ 99 ] On Count 11, trafficking in carfentanil, I find a five-year concurrent sentence is fit. [ 100 ] On Count 14, possession for the purpose of trafficking in fentanyl, there will be a concurrent sentence of four years. [ 101 ] On Counts 15 and 17 regarding possession for the purpose of trafficking in carfentanil, there will be a concurrent sentence of five years. [ 102 ] On Count 16, PPT cocaine, there will be a concurrent three-year sentence. [ 103 ] I must now consider the totality of the sentence imposed on Mr.

S. Mann. The total sentence amounts to eight years imprisonment; five years on the CDSA charges and three years consecutive for the s. 95(1) firearm charge. I must consider whether the global sentence is unduly long or harsh. Due to the age of the offender, 21 at the time of these offences, his early guilty plea, his family support and lack of criminal record I conclude that eight years is unduly harsh. In my view an appropriate global sentence is seven years imprisonment.

Accordingly, the s. 95(1) firearms sentence is reduced from three years to two years to reflect the global sentence of seven years. [ 104 ] From these intended sentences will be deducted 282 days of enhanced credit, having served 188 days to date. This leaves, by my calculation, six years and 83 days to be served. I will hear from counsel if necessary on the accuracy of the enhanced credit calculations . [ 105 ] There will also be ancillary orders. There will be a lifetime firearms prohibition, a DNA order and victim fine surcharges with two months to pay on each count. (REASONS FOR SENTENCE CONCLUDED)