R. v. McEwen, 2019 BCPC 265

Citation: R. v. McEwen 2019 BCPC 265 Date: 20191001 File Nos: 233707-3-C, 233707-4- A Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LAURA HOLLY MCEWEN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: T. Warren Counsel for the Defendant: L. Fumano Place of Hearing: Vancouver , B.C. Date of Hearing: October 1, 2019 Date of Sentence: October 1, 2019 Introduction

[ 1 ] THE COURT: Ms. McEwen was convicted of possessing methamphetamine, cocaine, heroin, and fentanyl for the purpose of trafficking. The Crown argues that an appropriate sentence is a four-year custodial sentence and, if the court determines that the range established in R. v. Smith , 2017 BCCA 112 , does not apply to Ms. McEwen's circumstances, then the Crown seeks a sentence of two- and-a-half years. Counsel for Ms. McEwen argues that Ms.

McEwen's circumstances are exceptional and the court can consider a suspended sentence and, in the alternative, counsel advocates for a sentence in the range of six to 12 months. [ 2 ] The court has had the benefit of a presentence report with a Gladue component, letters filed on behalf of Ms. McEwen, and the able submissions of counsel. The task for this court is to impose a sentence that is fit and appropriate. Circumstances of the Offences [ 3 ] On July 30th, 2016, the police searched a satchel possessed by Ms.

McEwen and inside they located 29.15 grams of methamphetamine, 4.5 grams of marihuana, 8.25 grams of rock cocaine, 8.57 grams of heroin, fentanyl, and methamphetamine, 23.81 grams of powder cocaine, and 1.25 grams of heroin and fentanyl. These drugs were in various baggies and in varying weights. Some of the powder cocaine was located within 16 separate folded flaps. Further details regarding Ms. McEwen's arrest can be found in R. v. McEwen , 2018 BCPC 339 . Ms. McEwen's Background [ 4 ] Ms. McEwen is 50 years old and she is a member of the South Okanagan Band. Ms.

McEwen's parents separated when she was an infant and, as a result, she lived with her mother. At the age of two, Ms. McEwen was placed into the primary care of her grandmother. This was because her mother abused alcohol and was incapable of properly caring for her. At the age of 11 and because of her frequently running away, Ms. McEwen was placed into foster care. [ 5 ] Ms. McEwen described her childhood as broken and sad. She reported to the writer of her presentence report that she was traumatized by her brother, that she was sexually abused by a stepfather, and sexually assaulted when she was 19. Ms.

McEwen was never married and is currently single. In 1992, Ms. McEwen was living in Keremeos and her home was destroyed by fire. Sadly, and tragically, she lost two of her children in the fire and her efforts to escape the blaze resulted in a miscarriage of the unborn child which she was carrying. [ 6 ] Ms. McEwen has an adult daughter who lives in White Rock and Ms. McEwen is making efforts to build a relationship with her. Ms. McEwen has worked at a variety of jobs and she has taken courses in hairdressing, hospitality, and flagging. Despite her training, Ms.

McEwen has not worked since the loss of her children. She supports herself with disability benefits and she makes extra money by dog-sitting. [ 7 ] As for substance misuse, Ms. McEwen started using marihuana at 11 and this escalated to her using heroin. She reports she has used every drug available and that her drug use was at its prominence in her youth when she was dating a drug dealer. When questioned about her drug use, Ms. McEwen informed the presentence report writer that she had not used any substances in the past five years. [ 8 ] As for criminal history, Ms.

McEwen's record commences in 1986 with convictions for assault with a weapon, impaired driving, theft, assaulting a police officer, assault, breaching probation, possessing a drug for the purpose of trafficking (three offences), trafficking, possession of a controlled substance, and possession of stolen property. Her last offence occurred in August of 2005. [ 9 ] Several letters were filed on Ms. McEwen's behalf. These letters speak to the contributions that Ms. McEwen makes within her community, particularly in the building where she lives.

In this regard, she tells people not to use drugs, she helps keep the common areas clean, and she assists in keeping order. Some of the letters described her as friendly, straight forward, inspirational, and caring. In

summary, Ms. McEwen's character has entrenched her into the hearts of the souls of those that share her rooming house. It is hard to reconcile her criminal record and the current offences before the court with the person described in those letters. [ 10 ] What is absent from the materials is evidence to show that Ms. McEwen has turned her life around and that her situation falls on the spectrum of exceptional. In fact, contradictory information has been received about her drug use.

At times, this court has heard that she uses drugs on a sporadic basis and at other times there has been a denial of drug use in the past five years. Sentencing Principles [ 11 ] Determining a fit and appropriate sentence requires the court to consider the purposes and principles of sentencing as articulated in s. 718 to 718.2 of the Criminal Code . A court must also consider s. 10 of the Controlled Drugs and Substances Act . [ 12 ] Turning to the above, absent exceptional circumstances, denunciation and deterrence are the primary sentencing objectives for offences related to drug trafficking.

This principle becomes more pressing when dealing with fentanyl. Recently, in R. v. Schneider , 2019 BCCA 310 , the court commented at paragraph 10: This Court has commented on the need to keep the sentencing goals of general deterrence and denunciation paramount when sentencing offenders involved in the trafficking of fentanyl, due to its deadly nature and the escalating crisis it presents in our communities .. [ 13 ] Despite my comments and quoting of R. v. Schneider , I also recognize that consideration must be given to whether or not the range in Smith applies.

Further, despite the above, there are rare circumstances where the offender has turned his or her life around such that the protection of the public is better served by supporting the offender's continued rehabilitation: R. v. Voong , 2015 BCCA 285 , at paragraph 59 . [ 14 ] I recognize that any sentence imposed must be proportionate to the gravity of the offence and Ms. McEwen's degree of responsibility. This is a fundamental principle of sentencing and it is found at s. 718.1 of the Criminal Code . In this regard, Ms. McEwen's offences were serious.

The drugs she possessed were highly addictive and in this case fentanyl which is often lethal. I note the maximum penalty available for trafficking offences involving cocaine, methamphetamine, heroin, or fentanyl is life imprisonment.

[ 15 ] As for her degree of moral responsibility, I recognize the historical mistreatment that Indigenous persons have suffered, specifically, residential school, racism, colonialism, abject poverty, and barriers to basic supports has operated to reduce some of Ms. McEwen's moral responsibility: R. v. Ipeelee , paragraph 73. [ 16 ] As for the aggravating and mitigating factors, I note Ms. McEwen has a dated and related criminal record. I observe the quantity and variety of drugs that she possessed.

I also note the area where her offence took place, specifically, the centre of the Downtown Eastside which can be described as a vulnerable wasteland perpetrated by the drug abuse. More notably, it is also the epicentre of the opioid crisis populated with some of the most vulnerable people in society. [ 17 ] In mitigation, I note the letters provided and acknowledge Ms. McEwen's positive influence on those that share housing with her. [ 18 ] Counsel argued that Ms. McEwen's performance on bail is mitigating. With respect, in my view, the circumstances of the instant matter do not support such a conclusion.

I say this because she had minimal conditions of bail and because one is expected to comply with their bail conditions and to be law-abiding. It makes little sense in these circumstances to reduce a sentence on the basis that she complied with the law. [ 19 ] One issue which must be addressed is that the Crown responded to the submissions that Ms. McEwen has performed well on bail by referring to an incident wherein subsequent to her being charged in this matter, the police executed a search warrant in relation to Ms. McEwen's room.

During this search warrant, the police recovered drugs, cash, guns, and explosives. In considering an appropriate sentence for Ms. McEwen, I have decided to exercise my discretion and not consider the matter related to the search warrant. I do so because Ms. McEwen has yet to be charged with any offence related to that matter.

Moreover, I acknowledge the submissions of her counsel that there are issues relating to proving those allegations against her and, finally, I see little merit in that they would not assist in driving the sentencing considerations in this matter. [ 20 ] I have considered the cases filed by counsel: R. v. Joon , 2017 BCPC 301 ; R. v. Kim , 2017 BCSC 578 ; R. v. Malenovic , 2017 BCPC 274 ; R. v. McClain , 2018 BCPC 369 ; R. v. Naccarato , 2017 BCSC 645 ; R. v. Oates , 2015 BCCA 259 ; R. v. Olenik , 2017 BCPC 390 ; R. v. Pepper , 2015 BCCA 476 ; R. v. Rutter , 2017 BCCA 193 ; R. v. Smallboy , 2018 BCPC 383 ; R. v.

Voong , 2015 BCCA 285 ; R. v. Johal , 2018 BCSC 549 ; R. v. Vellani , 2017 BCSC 2521 ; R. v. Smith , 2017 BCCA 112 ; R. v. Begon , 2017 BCSC 757 ; R. v. Lloyd , 2014 BCCA 224 ; R. v. Shusterman , 2012 BCSC 362 ; R. v. Walkley , 2009 BCCA 87 . [ 21 ] Though the cases cited have some similarities, sentencing is an individualized exercise and the sentence imposed must consider the unique circumstances of the individual offender before the court. [ 22 ] Turning to the issue of whether the range established in Smith is applicable to Ms. McEwen.

In considering this issue, I note that Smith established the range for fentanyl offences to be at 18 months to beyond 36 months for those offences that are occurring in late 2016. This date represents when the breadth and severity of the fentanyl-detected deaths became widely known or, as stated by the Court of Appeal, "transformed the landscape." [ 23 ] In R. v. Johal , 2018 BCSC 549 , Mr. Justice Kent canvassed several decisions on when the Smith range takes effect. I observe in that case the offence date was August 2015 and the Smith range was not applied. Similarly, in R. v.

Olenik , 2017 BCPC 390 , where the offence date was July 25, 2016, the court declined to impose the Smith range on the basis that it occurred before late 2016. For the sake of judicial agreement, noting the offence in this matter, July 30th, 2016, I decline to impose the Smith range. [ 24 ] As for sentences, I note for fentanyl matters that predate 2016, the range is six to 12 months, see Smith and R. v. Vellan i , 2017 BCSC 2521 , at paragraph 4 . Conclusion [ 25 ] In my view, the sentence imposed must denounce and deter Ms. McEwen and others. I do not see a strong need for rehabilitation.

I say this because the court has not received any objective evidence suggesting that her offence was related to drug addiction or mental health issues. Moreover, her last substantive offence was in 2005, hence, a gap of nine years. This gap with the other information suggests little need, if any, for a rehabilitative-focused sentence. [ 26 ] I find that Ms. McEwen's offences were serious and that her moral culpability is attenuated by her Indigenous heritage. I am mindful of the Gladue factors and the historical mistreatment of Indigenous persons.

I recognize the need to reduce the number of incarcerated Indigenous offenders, but I also recognize that this means meaningful alternatives to custody and a reduction of sentence when one imports proportionality. I note counsel has not provided the court with any submissions designed to support Ms. McEwen's Indigenous heritage as an alternative to custody. [ 27 ] Unfortunately, a consideration of all of the factors leads me to conclude that a sentence in the range of six months to one year would be unfit.

In my view, it would not adequately address denunciation and deterrence nor would it be proportional to the seriousness of the offence and the lessened moral culpability. Further, there are no reasons justifying a reduced sentence which would represent a marked departure from the range. Notably, I do not see exceptional circumstances or anything to indicate a turning of her life around.

I say this because the court has not been provided with insight into what caused her offending or contributed to her offending, but for some recognition of her Indigenous heritage. [ 28 ] Despite the above, I find that the sentence suggested by the Crown does not properly recognize the positives that Ms. McEwen gives to the community. Further, it fails to recognize her reduced level of blameworthiness and does not acknowledge her break in her criminal record. [ 29 ] In my view, a fit and appropriate sentence is a sentence of 15 months.

This sentence reflects the serious nature of the drugs involved, the location, the quantity, and her criminal record while appreciating the breaks in her criminal record while acknowledging her Indigenous heritage. Were it not for her Indigenous heritage, the gap in the record, and the positives that she brings to her

community, the sentence imposed would have been notably higher. Ancillary Orders [ 30 ] The forfeiture order sought by the Crown of the offence-related items, I take it there is no issue on that? [ 31 ] MR. FUMANO: No, Your Honour. [ 32 ] THE COURT: All right, no issue on that. That is granted. [ 33 ] Pursuant to s. 487.051(3)(b), DNA is a secondary order and I must consider what is in the best interests of the administration of justice. In doing that, I must look at what she has been convicted of, the circumstances of the offences, and her criminal history.

When I look at the offences that she has been found guilty of, possessing a large quantity of drugs for the purpose of trafficking, I combine that with an awareness that drug trafficking frequently involves weapons and violence and also acknowledging in her varied record, wherein there is some violence. I acknowledge that I also must consider her security of her person and her privacy interests and, in doing so, I am cognizant that the taking of a sample is minimally intrusive and that the results are guarded by statute.

In the circumstances, it is my view that the best interests of the administration of justice outweigh her privacy and security rights and I order that a sample of her DNA be taken. [ 34 ] Pursuant to s. 109, I impose a lifetime ban of all weapons set out within that section. [ 35 ] MS. WARREN: Thank you, Your Honour, and the Crown directs a stay of proceedings with respect to the 4-A information. I believe that is before the court. (REASONS CONCLUDED)