R. v. Tom, 2018 BCPC 87

Citation: R. v. Tom 2018 BCPC 87 Date: 20180326 File No: 44141-1, 44141-2-C, 44143-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARRYL BRYAN TOM REASONS FOR SENTENCE OF THE HONOURABLE JUDGE POTHECARY Counsel for the Crown: A. Murray Counsel for the Defendant: B. Gilson, Q.C. Place of Hearing: Prince George , B.C. Date of Hearing: March 26, 2018 Date of Judgment: March 26, 2018 [ 1 ] THE COURT: Mr. Tom has pleaded guilty to a charge of possession of fentanyl for the purpose of trafficking.

It is common ground that fentanyl is considered a complete scourge. [ 2 ] I should add that this is a guilty plea that was entered after the primary Crown witness had testified. I do not find the fact that he had that witness testify to be adverse in any way to his ability to get some benefit from the fact of having pleaded guilty. Mr. Tom

was in such a difficult state at the time of this incident that he really had no specific memory of it and, until he could hear more detail from the officer about what was going on and determine if he knew who the officer was, et cetera, he was not in a position to be able to give instructions to his counsel that this was appropriately dealt with by way of guilty plea. [ 3 ] As I was saying, fentanyl is a scourge. It is one that is still not being managed despite all the efforts and energy and all the conversations that we hear in the news on a daily basis.

I come from the Lower Mainland where we get almost weekly reports on the number of deaths, certainly monthly, how many more have died. This year we are running ahead of last year which was well ahead of the year before. It is not being effectively addressed. [ 4 ] I hear people speak of increased penalties. There is one politician in a country neighbouring to Canada who is now calling for the death penalty for traffickers of drugs. It demonstrates the levels of ignorance that exist at the highest levels of government. In Canada, there is talk of a better approach. We have to see it still.

The education part amongst the public has increased. The information flow has increased, but I do not see that really getting down to the people like Mr. Tom who have been living on the street, who have been completely caught up in the life of a fentanyl addict. [ 5 ] For him, one of the more startling pieces of evidence I did hear was just how incredibly sick he was from it, how physically impacted he was, down to, I guess, barely half of his normal weight. Now seeing him after he has been in custody for some many months he has regained at least some physical health.

He has got a way to go because he also has some other serious health problems. [ 6 ] The Court of Appeal has been clear that the range needed to be increased from what judges were imposing in the past. The decision of R. v. Smith , which is 2017 BCCA 112 , is the leading case setting the range and

interpretations of how it should be applied by trial judges. There is some room for flexibility in terms of very exceptional cases. This, as counsel has conceded, is not a case that falls within "exceptional" in terms of the meaning of Smith , but in terms of other directives from the Supreme Court of Canada, in particular, Gladue and Ipeelee , there remains some room for flexibility taking into account the impact of the background of Mr. Tom and his family and how that has resulted in some challenges for him. [ 7 ] The mitigating factors with regard to this matter I find to be the guilty plea.

At this stage, it is understandable that it was when it was and it was appropriate in the circumstances. The intention as stated now by Mr. Tom is that he is ready to try to work on getting help and accepting help. More importantly, he knows where to get it and now he has got to accept it. He tells me he is ready to do that. The Gladue and Ipeelee factors are also worthy of consideration in this sentencing. [ 8 ] Aggravating, of course, is that it is fentanyl, but that is taken into account by the range that has now been addressed in Smith .

I should say mitigating, as well, is the fact that he was a user and addict himself who got himself thoroughly entangled in the drug life in this city, I gather, including tripping around with people who are notorious for being difficult people to deal with. [ 9 ] I should say in mitigation, as well, that I am impressed by his recognition of the help that he has had and that some of the people that he has dealt with, including the police officer in this circumstance.

He recognizes the officer was simply doing his job and he accepts that the officer is an honest and honourable person who has come to court to give the evidence as it is his job to do. [ 10 ] Aggravating is the record that Mr. Tom has, though I note that a substantial part of that record is for breaches rather than substantive offences. Nonetheless it is worrisome. He has previous drug convictions. They relate to simple possession and, in the scheme of things, I do not take them as being particularly serious, particularly in terms of what I am told of the life that Mr.

Tom was leading in the most recent years. [ 11 ] Weighing all of that, including the principles that are stated in the cases, this is a matter where I am going to accede to the submission of defence counsel. The sentence to be imposed in this case is one of 18 months. I am told that he has served 251 days of actual time and that he should then be also credited for 126 days which is a total credit of 377 days; that is roughly 12-and-a-half months. With respect, then, to the balance of the sentence to be served, that is five-and-a-half months. [ 12 ] I am not going to place him on a probation order.

I would have done in many circumstances. Looking at the record and Mr. Tom's circumstances and what he has told me today, he knows what he needs to do to save his own life and to move forward in a healthy way. I am accepting what he has told me that he can do this, that he is ready to do it now. [ 13 ] I am ordering that he provide a sample of his DNA for the purpose of the DNA databank. That sample will be taken by the sheriffs. [ 14 ] Pursuant to s. 109 of the Criminal Code , I am making a firearms prohibition order.

I am ordering that you not possess, either personally or through another person, any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosive substance or anything that resembles a weapon or firearm or any related authorizations, licences, or registration certificates. That is now a lifetime prohibition. So you cannot have any of those items for your life. [ 15 ] With respect to the $60, I am ordering that that be forfeited. There were other items seized and I will direct those be returned to you. [ 16 ] What

section number is the forfeiture? Section? [ 17 ] MS. MURRAY: It is s. 16 of the -- [ 18 ] THE COURT: Sixteen? [ 19 ] MS. MURRAY: -- Controlled Drugs and Substances Act , Your Honour. [ 20 ] THE COURT: Thank you. Yes.

[ 21 ] With respect to the victim fine surcharge, you are not in a position to be paying that. I am ordering that that be paid forthwith and, in lieu of payment, that you serve one day in custody. That day is today and it is concurrent to the other sentence I have imposed. [ 22 ] The remaining count is stayed, is it? [ 23 ] MS. MURRAY: That is correct, Your Honour. [ 24 ] THE COURT: Thank you. (REASONS FOR SENTENCE CONCLUDED)