R. v. Frederick, 2023 BCPC 56

Citation: R. v. Frederick 2023 BCPC 56 Date: 20230223 File No: 35029-1 Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. BRADLEY DION COLE FREDERICK ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. REEVES Counsel for the Crown (appearing by videoconference): F. Ahmed Counsel for the Defendant: S.A. Thompson Place of Hearing: Fort St. John , B.C. Dates of Hearing: July 11, November 14, 2022 and January 16 2023 Date of Judgment: February 23, 2023

[ 1 ] THE COURT: I am going to be delivering my oral decision today. Should the decision be transcribed, I do reserve the right to make minor edits for grammar, syntax, and provide full case citations which I do not intend to read into the record. [ 2 ] On the 16th of January, 2023, Mr. Frederick pled guilty to two counts of possessing cocaine and fentanyl, both for the purpose of trafficking, contrary to s. 5(2) of the CDSA . These offences occurring on the 15th of October, 2016, as alleged in Information 35029. I will first canvass the circumstances of the offences and the positions of Crown and counsel for Mr.

Frederick. I will then review the law in relation to sentencing for these offences and, lastly, impose the sentence that will be made today. The Circumstances [ 3 ] On the 15th of October, 2016, Fort St. John RCMP were patrolling near a nightclub known to police as a common drug- trafficking location. Officers observed a vehicle parked at a gas station and noted activity consistent with hand-to-hand trafficking involving individuals known to be involved in drug trafficking in Fort St. John.

Police quickly suspected the vehicle occupants were involved in a "dial-a-dope" operation. [ 4 ] Police stopped the vehicle and observed two passengers plus the driver as well as four cellphones that had all been turned off, and an empty baggie. Mr. Frederick was in the back seat. All three occupants were searched and police found $135 plus an empty baggie on the driver, $740 cash on the front-seat passenger, and $25 cash on Mr. Frederick.

At that time, no drugs were observed. [ 5 ] The three vehicle occupants were arrested, their Charter rights observed, and while being taken into custody, a strip search was conducted of all. No drugs were found on either the driver or front-seat passenger, both of whom were well known to police as being involved in the local drug trade. Within Mr. Frederick's underwear, however, was discovered a plastic bag of drugs which he voluntarily handed to police.

The bag contained nine fentanyl tabs and 21 spitballs of crack cocaine totalling eight grams. [ 6 ] A police expert report opines that the nine fentanyl tablets appeared to have been created to appear very similar to Oxycodone, commonly known as "fake Oxys." The street value of all of the drugs seized was between $1,290 and $1,580 for the cocaine plus $270 for the fentanyl. [ 7 ] Mr.

Frederick was released on an undertaking, but failed to appear at several subsequent appearances each resulting in a warrant being issued, and then remained at large from the 30th of October, 2017, until approximately 23rd September, 2021. Mr. Frederick soon thereafter indicated his desire to plead guilty, but his scheduled court appearances for sentencing were delayed several times until I heard submissions on the 16th of January, 2023.

Acknowledging this delay is important to the sentencing decision as the offence occurred in 2016 when the fentanyl crisis was just becoming known in B.C., unlike today where it is now long recognized as a deadly, persistent, and pernicious problem. [ 8 ] In committing this offence, the Crown suggests Mr. Frederick was part of a dial-a-dope operation which involved delivering drugs to buyers rather than buyers coming to a trafficker. Counsel for Mr.

Frederick pointed out that he was arrested for possessing for the purpose and not for trafficking itself, a distinction that, given the other uncontroverted facts admitted, is largely without a difference. I heard no evidence about dial-a-dope trafficking and thus decline to consider that as a factor. Position of the Parties [ 9 ] The Crown is seeking a custodial sentence of 18 months on Count 1 plus six months on Count 2, served concurrently, and suggests this is at the low end of the range and reflects the mitigating factors of no prior criminal record and a guilty plea.

The Crown further suggests that a conditional sentence order (CSO) is not appropriate in these circumstances. Lastly, given the nature of the offences, a 10-year weapons prohibition pursuant to s. 109, a DNA order, and forfeiture of all items seized is likewise sought. [ 10 ] The Crown submitted to the court a number of expert reports and news articles that were accepted into evidence to support its sentencing position. Dr.

Kennedy opined in a report dated the 25th of July, 2016, that fentanyl is a potent synthetic opioid drug with pharmacological effects similar to other opioids such as morphine or heroin, but is approximately 100 times more potent than morphine or Oxycodone and is extremely addictive. As such, effects on a person may be much more than otherwise anticipated due to the very high potency combined with a lack of pharmacological consistency of the drug in a street form. Even a person who simply comes into contact with fentanyl on their bare skin or through accidental inhalation can be affected. [ 11 ] In a Fort St.

John news

article dated the 9th of June, 2016, the recent rise in fentanyl-related deaths was cited in the region and the province, with six fentanyl-related deaths in this region alone noted. A subsequent news

article from the 20th of October, 2016, further underscored the rise in fentanyl-related deaths in the region and province with, by then, 11 fentanyl-related deaths occurring in Northeast B.C. [ 12 ] A provincial report covering the period from 2011 to 2021 noted the dramatic rise in total fentanyl-related deaths which began spiking in 2015, rising from 369 the previous year to 529, and then rising again to 993 in 2016.

The report then goes on to demonstrate that, beginning in 2015, fentanyl was the drug most commonly associated with fatal outcomes, rising from approximately 30 percent in 2015 to 70 percent in 2016, and again rising to over 85 percent by the end of 2017. From this, and as observed by sentencing court decisions that I will cite, from 2015 to 2016, the toxic epidemic of fentanyl-related deaths was well known in the community and would have been an accepted risk by those consuming the drugs as well as those trafficking them. [ 13 ] Mr.

Frederick's counsel, in contrast, suggests that a CSO is appropriate given that Mr. Frederick has not been accused of any additional subsequent offences since this incident and thus he poses no threat to the community; in 2016, the fentanyl crisis was not well known; the Canadian Government recently struck down mandatory minimum sentences for these offences through Bill C-5; and Mr. Frederick was the "small fish" in a drug operation that saw two well known members of the drug trade purposely avoid holding evidence on themselves in favour of Mr. Frederick's being left “holding the bag”. Lastly, Mr.

Frederick has sought to plead guilty to these matters since approximately November of 2021 and is not the same person as he was. No issue was taken regarding the ancillary orders being

suggested by the Crown. [14] A Gladue report was filed with the court. Mr. Frederick is a 31-year-old member of the Lheidli T'enneh First Nation and wasjust short of 26 years old when these offences occurred. While in the past he has had little connection to his Indigenous traditions, he hasrecently noted an increased interest in forming a greater connection to his roots. Mr. Frederick was prematurely born, but benefitted froma stable family and upbringing within limited financial means and lived at home with his mother and her partner until shortly before theseoffences. [15] Mr.

Frederick has no diagnosed mental health concerns and graduated high school. He had experienced little exposure to familyor community violence, substance abuse, or other situations that commonly affect Indigenous persons in Canada. Mr. Frederick has notheld steady employment since 2018 when he held jobs in the general labour, fishing, and archeology fields, but is interested in exploringopportunities in the trades. [16] Mr. Frederick became addicted to cocaine, methamphetamines, and speed at the age of 23, but quit when he was 25 and hadbriefly relapsed at the time of the offences before this court.

He has experienced no other addiction-related issues. Mr. Fredericksubmits he is not the same person he was when these offences occurred and attributed his actions to an inability to find work due to lostor expired identification documents combined with his addictions. He feels he fell into a bad crowd and offers no other explanation forhis actions. Counsel for Mr.

Frederick submits that he is a small street-level trafficker who was taken advantage of by his moresophisticated co-accused and that a lower level of moral blameworthiness and culpability should be found by this court. [17] In reviewing the law, courts regularly accept that trafficking offences involving hard drugs are a scourge on today's society,particularly in communities as small as Fort St. John. Thus, while there are no specific or identified victims here, this is not a victimlesscrime. [18] Sentencing courts like mine follow the principles set out in the Criminal Code beginning at s. 718.

Applicable to the matters thatI have to deal with, these principles include the need to denounce unlawful conduct, deter both the offender and others from engaging incriminal activity, separate offenders from society where necessary, assist in the rehabilitation of offenders, and promote in offenders asense of responsibility and acknowledgment of the harm they have done to their victims and to the community. [19]

Section 718.1 further requires that any resulting sentence must respect the fundamental principle of proportionality in order toensure that the sentence is linked to the gravity of the offence, but also the offender's degree of responsibility. The Supreme Court ofCanada at paragraph 40 in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 also directs sentencing courts that despite any desire toemphasize any particular factor set out in s. 718.1, I am required to also respect the fundamental principle of proportionality. [20] Likewise, a series of secondary sentencing principles are set out at s. 718.2.

These include the need to consider aggravating andmitigating circumstances, those principles of parity and totality, and the need to consider all available sanctions other than imprisonmentthat are reasonable in the circumstances, particularly with attention to the circumstances of Aboriginal offenders. [21] Lastly, as this is a drug offence, the CDSA s. 10(1) directs me to emphasize in my sentencing decision the fundamental principlesof that Act which are to contribute to the respect of the law and to maintain a just, peaceful, and safe society while encouragingrehabilitation and treatment where appropriate. [22] As set out in the materials provided by the Crown, R. v.

Smith, 2017 BCCA 112 at paragraphs 45 – 46 requires thatsentencing courts give primacy to the principles of denunciation and deterrence in cases involving fentanyl, with a normal rangeextending from 18 to 36 or more months. This range applies to street-level traffickers regardless if they are aware they actually possessfentanyl, provided there is no evidence that they took steps to ensure that they were only selling heroin and it takes into account thehuman lives being put at risk. [23] Mr. Smith's offence occurred in January of 2015 and, as here, he was a first-time offender and a street-level trafficker. Mr.

Smithwas sentenced to six months at trial. However, upon appeal, the British Columbia Court of Appeal increased his sentence to 18 months'custody. However, it should be noted that immediately subsequent to the matter before that court, Mr. Smith had been arrested andconvicted of two separate, but related, offences. [24] The Crown also referred me to R. v. Toth, 2017 BCSC 501 . Mr. Toth had pled guilty to similar offences as here, theoffences having occurred only a few months before Mr. Frederick's offences.

As here, fentanyl seized by police appeared to mimicOxycodone and, given the unknown quality and toxicity of fentanyl, the court noted that any users of the drug would, in effect, beplaying "Russian Roulette" when taking the substance. That court also noted aggravating factors including the presence of firearms, aconsiderably larger quantity of fentanyl, and that a youth was present while trafficking. Despite the mitigating factors of post-offencerehabilitation and remorse, the court imposed a three-year custodial sentence. [25] The Crown likewise referred me to a number of additional cases, R v.

Choi, 2019 BCPC 295; R v. Gill, 2021 BCSC 2269, R v.Lockhart, 2021 BCSC 1226, and R v. Vu (9 June 2021) Vancouver 255119-1 (BCPC). All these cases support the imposing of acustodial sentence within the Smith range. [26] I also found helpful the following decisions, all of which discuss the plight of the vulnerable northern communities and thosewho choose to come to these communities and then traffic in narcotics; R. v. Aguilera Jimenez, 2020 YKCA 5 , R. v.Vaquerano, 2000 BCCA 343 , R. v. Trinder, 2008 BCPC 148 , R. v. Dick, 2005 BCPC 698 , affirmed at 2005BCCA 486 .

A common theme among these cases is that offences that occur in small communities are to be taken veryseriously and that deterrence and denunciation are best achieved through an institutionalized custodial sentence (Trinder at paragraph13). [27] Counsel for Mr. Frederick agreed that the range proposed by the Crown was appropriate, however pointed out that none of thoseoffenders were Indigenous.

However, as I have pointed out from the decision of the Supreme Court of Canada in Nasogaluak, the courtemphasizes at paragraph 44 that sentencing ranges are guidelines, they are not rules, and sentencing judges may depart from them where

appropriate. [28] I also note at this point that sentences that are the lower end of the spectrum or outside of the range do not necessarily requireexceptional circumstances. As directed by the Honourable Madam Justice DeWitt-Van Oosten in R. v. Ellis, 2022 BCCA 278 ,exceptional circumstances are not required in order to depart from a sentencing range - even one substantially below that range.

Rather,sentencing ranges simply reflect judicial consensus on the gravity of an offence, they provide a starting point for sentencing judges basedon offence-based considerations, and they do not include consideration of any offender's personal characteristics (para 126). [29] I found, as well, assistance in the case of R. v. Shusterman, 2012 BCSC 362 .

That matter involved trafficking cocaine,but the court suggested that where a sentencing judge is asked to consider the low end of a sentencing range for an offence involving lowto moderate level trafficking and where the offender is themselves addicted, the court must first be satisfied that the offender showspromise to overcome that habit, paragraph 26. Here, Mr. Frederick has admitted to his addiction issues, but would appear to beaddressing them in a positive way that has avoided further involvement with the justice system since his arrest for these charges. [30] Likewise, in R. v.

C.S. 2018 ONSC 1141 , [2018] O.J. No. 909 the Ontario Court of Justice canvassed a number ofsentencing decisions and considerations and, in particular, discussed the unique circumstances of Indigenous Canadians that creates forthem a distinct situation when they are being sentencing (paragraph 56). In reviewing Mr.

Frederick's past as set forth by counsel andfrom the Gladue report before the court, while there are few direct links or nexus points that would directly mitigate his moral culpabilityfor these offences, as a young Indigenous man, he has no doubt experienced racial inequities that are otherwise not captured in the reportyet still affect his life experiences and may still be taken into account. [31] Given the need for denunciation and deterrence where the offence involves trafficking in fentanyl, a custodial sentence isrequired. Counsel for Mr.

Frederick suggested that a custodial sentence served in the community is appropriate given Mr. Frederick'slack of involvement with the criminal justice system before and since these offences and his early desire to plead guilty following hisarrest in 2021 on a second issued warrant. [32] At my request, counsel submitted proposed CSO conditions which would be served in Mr. Frederick's home community of theShelley Reservation located in the Fraser-Fort George District of British Columbia. Mr.

Frederick was living in this very smallcommunity following these offences and the reserve is located approximately 45 minutes from the nearest RCMP detachment. Counselalso points out that with the recent passage of Bill C-5, CSOs are now available for offenders like Mr. Frederick, a situation that did notexist prior to the passage of that bill. [33] A court may only impose a CSO where three prerequisites are met: the offender must not have been convicted of one of theoffences listed at paragraphs 742.1(

b) through (d), a sentence of imprisonment of fewer than two years would otherwise be imposed, andthe safety of the community would not be endangered by the offender serving his sentence in the community. If these pre-requisites aremet, I must then consider whether a conditional sentence is appropriate having regard to the fundamental purpose and principles ofsentencing set out at s. 718 through 718.2 and s. 10 of the CDSA. In particular, s. 718.2(

e) provides that: … all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [34] The leading Canadian case with regards to CSOs remains R. v.

Proulx 2000 SCC 5 which directs that a CSOincorporates elements of non-custodial and custodial measures and is generally more effective than incarceration at achieving thesentencing principles of rehabilitation, reparation to the victim and the community, and promoting in the offender a sense ofresponsibility. It is also noted that a CSO can also achieve the objectives of denunciation and deterrence when properly crafted(paragraph 22).

Although not addressed in that decision, I find that the principles of rehabilitation, reparation, and the promotion of asense of responsibility in the offender spoken to are more effectively met when the offender serves the CSO within the community wherethe offence or offences occurred. [35] In R. v. Ali, 2022 BCPC 35, Judge Jetté conducted a very useful analysis regarding CSO applicability for offenders convicted ofpossessing hard drugs for the purpose of trafficking. At paragraph 32, Judge Jetté cited R. v.

Williams, 2019 BCCA 295 para 58 inpointing out that institutional jail remains the presumptive outcome subject to aggravating and mitigating circumstances that might movean offender above or below the usual range. Aggravating and Mitigating Circumstances That I Have Considered [36] As aggravating circumstances, I found the following. First, these offences did occur in a remote community, Fort St. John, whereresources are scarce, support is often difficult, and the dangers created by a drug culture can be amplified by those lack of resources. Second, the nature of the drugs involved.

The first offence involved fentanyl, an incredibly powerful and addictive narcotic that, as earlyas 2015, was understood to be creating a public health emergency throughout B.C. resulting in the deaths of hundreds every year. Third,the fentanyl seized by police mimicked Oxycodone and could easily have been mistaken for that drug. Given the unknown quality andtoxicity of the fentanyl, any user would, effectively, be playing Russian Roulette when taking the substance. Fourth, that Mr. Frederickdid not deal with these issues for approximately three years while he remained at large on a bench warrant.

Having previously made anappearance following the first bench warrant being issued, he was aware of the need to deal with this matter and he chose to avoid that. [37] In mitigation, Mr. Frederick has pled guilty to both charges thus avoiding the cost and uncertainty of a trial. Guilty pleas arenormally accepted by courts as a sign of remorse and I do find that exists here. Also, despite no significant nexus between the Gladuefactors identified in the report and Mr. Frederick's criminal activity, his Indigenous status is mitigating.

The Sentence to be Imposed [38] I find that the sentence to be imposed will be less than two years. I must, therefore, now determine if service of the sentence inthe community would endanger the community's safety and, if not, would it be consistent with the fundamental purposes and principles

of sentencing as set out in s. 718 to 718.2 of the Code and s. 10 of the CDSA . Again, I note exceptional circumstances are not a prerequisite to the imposition of CSO ( Ali paragraphs 26 through 37). [ 39 ] Here, Mr. Frederick has had no further offences since his last warrant was issued. He appears to be addressing his addictions, although I note he has not attended any counselling, but rather has chosen to abstain on his own.

He proposes to serve a CSO in his very small and vulnerable community on the Shelley Reserve without a surety involving only a few months of house arrest followed by curfew conditions. [ 40 ] I find this proposed arrangement would leave him at a significant distance from support and counselling services as well as police or other means of ensuring compliance. He has provided only vague plans for employment and I was advised that his lack of ability to work in the Fort St. John area was a significant factor to him trafficking drugs.

Considering all of the above, I do have concerns that he would not abide by conditions I may impose and thus a CSO may not adequately protect his community. [ 41 ] I must also consider the very lengthy period during which Mr. Frederick was a fugitive from the criminal justice system. He fled twice, each time only coming back before the court after an unendorsed warrant was issued. I have heard no evidence of time spent in pretrial custody and, as already noted, it is proposed that he serve his CSO in his own remote community and not the community where the offences occurred. Fort St.

John, as a remote northern community, is entitled to see those for whom a CSO is ordered serve their sentence in the same community that the offence occurred. I am, therefore, also, not of the opinion that sufficient punitive conditions can be imposed on Mr. Frederick through a CSO in his home community that would achieve the principles of denunciation and general deterrence and, therefore, a CSO would not be consistent with the fundamental purpose and principles of sentencing. [ 42 ] Mr. Frederick, I am going to ask you to stand now, please, sir. [ 43 ] Mr.

Frederick, taking into account the aggravating and mitigating circumstances I have outlined, I am sentencing you to a period of custody of 12 months on Count 1 and six months on Count 2 to be served concurrently in a provincial facility. [ 44 ] Following your release from custody, you will serve an additional 12 months' probation under the following conditions. [ 45 ] Madam Clerk, those conditions will be as follows. [ 46 ] 2001, Mr. Frederick, you will be required to keep the peace and be of good behaviour. You will appear before the court when you are required to do so.

You will give prior notification to the court or your probation officer of any change of your name or address, and you will promptly notify the court or your probation officer if there is any change of your employment or your occupation. [ 47 ] 2104, you will report by telephone within two business days following your release to a probation officer, unless you have prior authority to report in another way or a timeframe and, thereafter, you will continue to report as directed by your probation officer. [ 48 ] 2202, when first reporting to your probation officer, you will provide your address where you are living and regularly sleeping, plus your phone number.

You must not change your address or phone number without notifying your probation officer at least two days prior to that change. [ 49 ] 2400, you will not possess or consume alcohol, drugs, or any other intoxicating substance, except with a medical prescription. [ 50 ] 2501, you must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your probation officer, which may include programming for alcohol or substance abuse. [ 51 ] 2406, you will not possess any drug paraphernalia suitable for the sale of drugs, and that includes weight scales, dime bags, lottery ticket paper, or any related items.

You may however poses Naloxone or a Narcan kit. [ 52 ] 2611, you will not live in any place where any other person keeps or stores any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosive substance. [ 53 ] With regards to ancillary orders, you will be subject to a 10-year weapons ban pursuant to s. 109 of the Criminal Code .

You are prohibited from possessing any firearm, crossbow, or restricted or prohibited weapon, prohibited device, ammunition, or explosive substance for life. [ 54 ] As these offences are secondary designated offences and having considered the factors set out in the Criminal Code in s. 487.051(3) , I am satisfied that it is in the best interests of the administration of justice to authorize the taking of bodily substances from you.

The samples will be taken from you while you are in custody and you will submit to the taking of the samples. [ 55 ] All offence-related property will be forfeit pursuant to s. 16 of the CDSA . Counsel will perfect the terms of that order and submit to me for my signature. [ 56 ] Lastly, with regards to the victim of crime surcharge, given that Mr. Frederick has not been holding a job and will not, it is anticipated, for a considerable period, I will order that the surcharge not be imposed in this matter. [ 57 ] Are there any questions, Mr. Ahmed? [ 58 ] CNSL F. AHMED: Yes, thank you, Your Honour.

I just would note that my friend and I did submit an order for forfeiture. I do not know if Your Honour has that in front of you [indiscernible/overlapping speakers]. [ 59 ] THE COURT: I do. I will take an opportunity to review it and sign after I have confirmed what else I have to deal with on docket today, but thank you, Mr. Ahmed, I do have that. Thank you, sir. [ 60 ] CNSL F. AHMED: Okay, thank you. No further questions from the Crown.

[ 61 ] THE COURT: Okay, thank you. Ms. Thompson? [ 62 ] CNSL S. THOMPSON: Nothing, Your Honour, thank you. [ 63 ] THE COURT: Thank you, ma'am. [ 64 ] Mr. Frederick, if you have any questions about process, things like that, Ms. Thompson, of course, remains available, but do you have any questions for me, sir? [ 65 ] THE ACCUSED: No, not today. [ 66 ] THE COURT: Okay, well, thank you very much. You will be taken into custody now, sir. I do wish you the very best of luck, and that concludes this matter. [ 67 ] THE ACCUSED: Okay. [ 68 ] THE COURT: Thank you, sir. (REASONS CONCLUDED)