R. v. Perkins, 2018 BCSC 1055

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Perkins, 2018 BCSC 1055 Date: 20180604 Docket: 65704-3 65705-3 Registry: Chilliwack Regina v. Corey Jim Perkins Before: The Honourable Mr. Justice Ehrcke Oral Reasons for Sentence Counsel for the Crown: C. Fast O. Bick Counsel for the Accused: D. Markovitz Place and Date of Hearing: Vancouver, B.C. April 19, 20, 2018 May 17, 2018 Place and Date of Judgment: Vancouver, B.C.

June 4, 2018 INTRODUCTION [ 1 ] THE COURT : The accused, Corey Jim Perkins, appears before me for imposition of sentence on two indictments all relating to his activities at or near Abbotsford, British Columbia, on December 15, 2014. [ 2 ] On Indictment Number 65705-3, Mr. Perkins pleaded not guilty and was subsequently convicted on March 12, 2018, of all 10 counts. The facts are set out in my reasons for conviction which are indexed at 2018 BCSC 823 . [ 3 ] At a separate trial on Indictment Number 65704-3, Mr.

Perkins pleaded not guilty and was subsequently convicted on April 19, 2018, of all four counts. [ 4 ] Counts 1 and 2 of Indictment Number 65705-3 are for possession of cocaine and fentanyl, respectively, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19, [ CDSA ]. [ 5 ] Count 3 is for the unlawful and unauthorized possession of a loaded restricted CZ95 handgun contrary to s. 95(1) of the Criminal Code . [ 6 ] Count 4 is for the unlawful and unauthorized possession of a loaded prohibited Charter Arms revolver contrary to s. 95(1) of the Criminal Code . [ 7 ] Count 5, as amended, is for the unlawful and unauthorized possession of an unloaded restricted Sig-Sauer handgun together with readily accessible ammunition that is capable of being discharged in the firearm contrary to s. 95(1) of the Criminal Code . [ 8 ] Count 6 is for the unlawful and unauthorized possession of a loaded prohibited Mauser pistol contrary to s. 95(1) of the Criminal Code . [ 9 ] Count 7 is for the unlawful and unauthorized possession of an unloaded prohibited sawed-off shotgun together with readily accessible ammunition contrary to s. 95(1) of the Criminal Code . [ 10 ] Count 8 is for the unlawful and unauthorized possession of a prohibited firearm, restricted firearm, or non-restricted firearm, to wit, a CZ75 handgun, an .380 Bersa Charter Arms revolver, a Sig-Sauer handgun, a Rohm revolver, a Ruger revolver, a Sterling submachinegun, a CZ-858 semiautomatic rifle, a Stevens sawn-off shotgun, a Simonov SKS semiautomatic rifle, a Kel-Tec semiautomatic rifle, and a Mauser pistol, contrary to s. 92(1) of the Criminal Code . [ 11 ] Count 9 is for the unlawful and unauthorized possession of prohibited devices including a detachable cartridge magazine compatible with a CZ75 handgun, a detachable cartridge magazine compatible with a CZ-858 semiautomatic rifle, a detachable cartridge magazine compatible with a Kel-Tec semiautomatic rifle, and a detachable cartridge magazine compatible with a Sterling submachinegun contrary to s. 92(2) of the Criminal Code .

[ 12 ] Count 10 is for the unlawful and unauthorized possession of prohibited devices, to wit, two silencers, contrary to s. 91(2) of the Criminal Code . [ 13 ] The convictions on these charges relate to items the police found on or about December 15, 2014, as a result of executing warrants at four locations: a Canada Post outlet in the Peoples Drug Mart at 1945 McCallum Road, Abbotsford, British Columbia (the “Canada Post Outlet”); Storage Locker Number 1108 of Trans Canada Self Storage, 2992 Pinegrove Street, Abbotsford, British Columbia (the “Storage Locker”); a barn at 29939 Taylor Road, Abbotsford, British Columbia (the “Taylor Road Barn”); and a residence at 34329 Green Avenue, Abbotsford, British Columbia (the “Green Avenue Residence”). [ 14 ] The four convictions on Indictment Number 65704-3 are for offences contrary to s. 117.01(1) of the Criminal Code .

They refer to the firearms, prohibited devices, and ammunition referred to in Counts 3 through 10 of the other indictment, but in this case, the charges relate to the fact that, on the date in question, Mr. Perkins was bound by a court order prohibiting him from possessing such items. [ 15 ] This is because on January 27, 2009, Mr. Perkins was sentenced by Provincial Court Judge Daniel in Calgary, Alberta, to five years' imprisonment on six counts of trafficking, producing, and possessing a

Schedule I substance for the purpose of trafficking, and as part of that sentence, an order was made pursuant to s. 109(1) of the Criminal Code which prohibited Mr.

Perkins from having in his possession any firearm, crossbow, prohibited weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance for a period of 10 years. [ 16 ] The firearms listed in Count 1 of Indictment 65704-3 are the same as those in Counts 3, 4, 5, 6, 7, and 8 of the Indictment 65705-3. [ 17 ] The prohibited devices, being detachable cartridge magazines, listed in Count 2 of Indictment 65704-3, are the same as those in Count 9 of Indictment 65705-3. [ 18 ] The prohibited devices, being two silencers, listed in Count 3 of Indictment 65704-3, are the same as those in Count 10 of Indictment 65705-3. [ 19 ] With respect to the charge of possession of ammunition in Count 4 of Indictment 65704-3, a number of counts on Indictment 65705-3 referred to possession of loaded firearms or unloaded firearms together with readily accessible ammunition, but in addition, the evidence established that the police found ammunition in a desk drawer in the loft area of the barn at 29939 Taylor Road in Abbotsford, British Columbia, namely: • a box of 50 American Eagle .357 ammunition; • a box of 50 Blazer Brass .45 auto pistol ammunition; • two boxes of 50 reloaded .357 magnum pistol ammunition; • a box of 50 reloaded nine millimetre pistol ammunition; • a Ziploc bag containing 50 nine millimetre pistol ammunition; • two times 10 round strips of 7.62 rifle ammunition; • a box containing 44 shotgun shells; and • a green army tin containing 7.62 ammunition.

SUMMARY OF CHARGES [ 20 ] As previously mentioned, a full account of the circumstances of the convictions may be found in my reasons for conviction on Indictment Number 65704-3, but it will be useful here to summarize briefly the matters for which Mr. Perkins is to be sentenced. [ 21 ] Mr. Perkins has been found to have been in possession of items at a number of locations. [ 22 ] At the Canada Post Outlet, Mr. Perkins was observed mailing a package that contained 48 grams of rock cocaine, 134 grams of powder cocaine, and 200 tablets containing fentanyl. [ 23 ] In Mr.

Perkins' Mercedes automobile, police found $5,000 in $20 bills and 3.6 grams of a substance containing a mixture of fentanyl and a derivative of fentanyl. [ 24 ] In the Storage Locker, Mr. Perkins had 10 firearms, some with serial numbers ground off, as well as prohibited devices, and a large quantity of ammunition. A safe inside the Storage Locker contained nine clear plastic bags of rock cocaine each weighing about 25 grams. [ 25 ] In the Taylor Road Barn, police found a loaded Mauser pistol that Mr. Perkins kept on a shelf over the doorway. In the drawer of a desk, Mr.

Perkins had over 300 rounds of ammunition for his various firearms. Large quantities of materials for packaging and for cutting drugs were in the barn. Police found 545.5 grams of cocaine, 959 fentanyl pills, and 28 grams of fentanyl and derivatives. [ 26 ] In Mr. Perkins' residence, he had a Sig-Sauer handgun with ammunition, a holster, and over $5,000 in cash.

[ 27 ] According to the expert evidence of Cst. Young who testified on the sentencing proceedings, the total street value of the illegal drugs found at all locations would be between $94,530 and $134,128. Altogether, there were over 1,000 pills containing fentanyl and almost a kilogram of cocaine. I agree with the Crown's submission that this indicates Mr. Perkins was operating at the distributor level. THE CIRCUMSTANCES OF THE ACCUSED [ 28 ] Corey Jim Perkins is 31 years old. He was 27 at the time of these offences.

As set out in the pre-sentence report that was prepared by the Corrections Branch for this matter, he was born in Abbotsford and had a strong relationship with his parents and his younger sister when he was growing up. He was not subject to any physical or emotional abuse in the family, and his family have been supportive of him while in custody. His father, mother, and sister have all signed a letter of support that was marked as an exhibit on sentence. They say that he played many sports and excelled in high school.

They express the view that he has matured over the last two years and that he has talked about taking some business courses. [ 29 ] Corey Perkins graduated from high school in 2005, but did not complete any post-secondary education. According to the pre- sentence report, he had "pro-social" friends during high school, but stopped caring because classes were not challenging for him. He graduated six months early. [ 30 ] From 2007 to 2009, Mr. Perkins resided in Calgary, Alberta, where he was in a relationship that produced a son. According to the letter of support from his parents, Mr.

Perkins has recently spoken of wanting to provide for his son and to be involved in his life. [ 31 ] The pre-sentence report indicates that Mr. Perkins began experimenting with drugs socially when he was in high school, but it did not cause him any issues. The author of the pre-sentence report went on to write: Mr. Perkins stated he used heroin and fentanyl after December 2014 until he went into custody. His immediate family stated they never suspected Mr. Perkins misused any substances.

They all agreed that if he did misuse substances, he was a functioning addict and it was not evident in his daily functioning at work or in his personal life. [ 32 ] As mentioned earlier, Mr. Perkins has a criminal record, having been convicted of six drug offences on January 27, 2009 in Calgary, for which he was sentenced to five years' imprisonment. He was paroled in November 2009, but was re-committed as a parole violator in April 2010. He obtained his statutory release on October 3, 2012, but was recommitted as a statutory release violator on April 5, 2013.

THE PRINCIPLES OF SENTENCING [ 33 ] The principles of sentencing have evolved in Canadian common law and are now largely codified in

Part XXIII of the Criminal Code . [ 34 ]

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. As set out in s. 718 , the objectives of sentencing include the denunciation of unlawful conduct, deterrence of the offender and others from committing further offences, separation of the offender from society where necessary, rehabilitation of the offender, reparation for harm done, and promotion of a sense of responsibility in the offender, including acknowledgment of the harm done. [ 35 ]

Section 718.1 articulates the most basic principle of sentencing, namely that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 36 ]

Section 718.2 sets out a number of specific principles. A sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. An offender should not be deprived of liberty if a less restrictive sanction is appropriate. All reasonable sanctions other than imprisonment should be considered, if they are reasonable and consistent with the harm done. Where consecutive sentences are imposed, the total sentence should not be unduly long or harsh.

A sentence should be increased or reduced to take account of any aggravating or mitigating circumstances. [ 37 ] Additional principles of sentencing in relation to drug offences are set out in s. 10 of the Controlled Drugs and Substances Act . Section 10(1) refers to the importance of encouraging rehabilitation and treatment in appropriate circumstances. TIME IN CUSTODY [ 38 ] Mr. Perkins has been in custody on these charges since May 11, 2016. That is a little over two years. He should receive credit at a rate of 1.5:1 for a total of 38 months' credit.

POSITION OF THE PARTIES [ 39 ] The drug offences charged under the CDSA in Counts 1 and 2 of Indictment Number 65705-3 carry a maximum penalty of life imprisonment. The charges under s. 95(1) of the Criminal Code in Counts 3 to 7 have a maximum penalty of 10 years, as do the charges in Counts 8 and 9 under s. 92 of the Criminal Code . The offence in Count 10 under s. 91 has a maximum of five years' imprisonment. [ 40 ] The four charges under s. 117.01(1) of the Criminal Code on Indictment Number 65704-3 carry a maximum penalty of 10 years' imprisonment.

[41] The position of the Crown is that in the circumstances of this case the primary sentencing objectives must be deterrence,denunciation, and protection of the public. [42] With respect to the charges of possession for the purpose of trafficking, the Crown submits that the fit sentence on Count 2 inrelation to fentanyl would be nine years, and the sentence on Count 1 in relation to cocaine should be eight years concurrent to Count 2. [43] With respect to the firearms offences, the Crown submits that the sentence on Counts 3, 4, 5, 6, and 7 should be nine yearsconcurrent to each other, but consecutive to Count 1. [44] The Crown submits that the sentence on Count 8 should be four years concurrent to Count 3, and on each of Counts 9 and 10should be one year concurrent to Count 3. [45] With respect to Indictment Number 65704-3, the Crown submits that the sentence on each of the four counts should be one yearconsecutive to the sentence on Indictment Number 65705-3. [46] The totality of these sentences would be 19 years.

In consideration of the principle that consecutive sentences should not beunduly harsh, the Crown submits that the total sentence should be reduced to 17 years before the application of credit for time in pre-sentence custody. [47] The position of the defence is that to impose a sentence of the length suggested by the Crown would have a devastating effecton Mr. Perkins and that it would crush any chance of his rehabilitation. The defence submits that Mr.

Perkins is still a relatively youngman and, despite his record and the seriousness of the charges, it would be wrong for the court to impose a sentence that gave no weightto rehabilitation as a sentencing objective. The defence submits that the sentence on the firearms offences should be concurrent, notconsecutive, to the drug offences, and that the global sentence for all the offences should be 48 to 54 months, less credit for the time inpre-sentence custody. THE MITIGATING AND AGGRAVATINGCIRCUMSTANCES [48] The mitigating factors in this case include Mr.

Perkins' relatively young age, the fact that he has a son with whom he wishes tomaintain a relationship, the fact that he appears to be intelligent and capable of contributing to society if he chooses to do so, and the factthat he does not appear to be an incurable drug addict. It is also a positive feature of this case that he has the support of his family. [49] The aggravating circumstances include Mr. Perkins' criminal record. After being sentenced to five years' imprisonment, hefound himself being re-incarcerated because of parole and mandatory supervision violations.

Then, less than one year after his five-yearsentence expired, he committed the present offences. That is not a basis for having great optimism about his prospects for rehabilitation. [50] With respect specifically to the present drug offences, aggravating circumstances include the quantity and the nature of thedrugs involved. Mr. Perkins was clearly not a low-level drug dealer.

Our Court of Appeal has recognized the catastrophic harm that drugssuch as fentanyl cause to vulnerable members of our society. [51] With respect to the firearms offences, the number of firearms and the quantity of ammunition is a grave concern. Although Ihave no evidence before me as to the reason for Mr. Perkins' possession of these items, their quantity could accurately be described as anarsenal.

As well, the fact that the serial numbers on five of the firearms had been obliterated is a sinister circumstance, as it suggests thatwhoever would ultimately use them would want to hinder the ability of the police to trace them. Many of the items were prohibited orrestricted, and in addition, Mr. Perkins was bound by a court order not to possess them. [52] I agree with the Crown's submission that the firearm offences are separate from the drug offences and that they pose a separatebut equally grave danger to society.

In view of this circumstance, the fact that the sentences for the drug offences and for the firearmsserve a different legally-protected interest, it is appropriate to make the sentences on the firearms offences consecutive to the drugoffences: see R. v. Crevier, 2015 ONCA 619, at para. 129. THE CASE LAW [53] The Crown and defence have submitted a joint book and some other authorities which include the following cases: Pushpanathan v. Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982; R. v. Smith, 2017BCCA 112; R. v. Mann and Mann, 2017 BCPC 401; R. v. Herrell, 2014 BCCA 114; R. v.

McCormick, 2017 BCPC 22; R. v. Toth, 2017BCSC 501; R. v. Johal, 2018 BCSC 549; R. v. Butler, 2017 BCPC 315; R. v. Davidson, 2014 BCSC 269; R. v. Terezakis, 2006 BCSC915; R. v. Pham, 2002 BCCA 560; R. v. Fraser, 2011 BCSC 559; R. v. Nur, 2015 SCC 15; R. v. Holt, 2015 BCCA 302; R. v. Borecky,2013 BCCA 163; R. v. Swales, 2016 BCCA 502; R. v. Zhu, 2013 BCCA 416; R. v. Powers, 2015 BCSC 2115; R. v. Picco, 2017 ABPC305; R. v. Vellani, 2017 BCSC 2521; R. v. Nazarek, 2018 BCSC 259; R. v. Olenik, 2017 BCPC 390; R. v. Fisher, 2017 ONCJ 831; R. v.Wiwchar, 2015 BCSC 1702; and R. v.

Terezakis, 2010 BCCA 268. [54] I have reviewed the cases submitted by both the Crown and the defence. They cover a wide range of circumstances, both of theoffences and of the offenders, and as one would expect, the sentences vary accordingly. [55] For example, in McCormick, the offender, who had a related record, pleaded guilty to trafficking and possession of a very largequantity of fentanyl, cocaine, and other drugs for the purpose of trafficking and received a sentence of 14 years, which the trial judgesaid would have been 16 but for a reduction based on the totality principle.

[ 56 ] In Pham , Lambert J.A. of our Court of Appeal noted that the range of sentence has changed very much over the last 30 years, and upheld a sentence of eight years, after giving one year credit for pre-sentence custody. [ 57 ] At the other end of the scale, in Olenik , a 26-year-old drug-addicted offender with no criminal record was given a suspended sentence and probation for three years. [ 58 ] While the cases provide useful guidance in determining a range of sentence that is comparable to the sentences imposed on similar offenders in similar circumstances, at the end of the day, every case is unique, and the sentence I impose must be one that is a fit sentence for this particular offence and this particular offender. [ 59 ] I do not propose to repeat in these reasons counsels’ helpful submissions in respect of all the cases that have been presented.

I am well aware of the range of sentence that they reflect for the various circumstances they represent. [ 60 ] I will, however, refer to a few of the cases for the principles that have been articulated in them. [ 61 ] Dealing first with the drug offences, I take note of the comments of Cory J. in Pushpanathan v. Canada . Although he dissented in the result, his observations on the societal costs of drug trafficking remain relevant. At paras. 89 to 91, he said: 89 The costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering.

They include direct costs such as health care and law enforcement, and indirect costs of lost productivity. 90 In Canada, the total cost to society of substance abuse has been estimated to be $18.45 billion annually (Canadian Centre on Substance Abuse, The Costs of Substance Abuse in Canada: Highlights (1996), at p. 2). Of this amount, the cost flowing from illicit drugs is $1.4 billion ( McKenzie , supra , at p. 227). In 1992 there were 732 deaths, 7,095 hospitalizations and 58,571 hospital days in Canada attributable to illicit drugs ( ibid ., p. 91).

Mortality from illicit drugs is less than for alcohol and tobacco, but tends to involve younger victims ( Costs of Substance Abuse in Canada , supra , at p. 6). 91 These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly a matter of grave concern in Canada, as it is throughout the world. [ 62 ] In terms of range, reference must be made to the decision in R. v.

Smith , where our Court of Appeal discussed the necessity of re-setting the range for street-level trafficking of opiate drugs, especially fentanyl. [ 63 ] In Smith , Harris J.A. wrote for the majority at paras. 48 to 50: [48] I have had the privilege of reading the draft reasons for judgment of my colleague, Madam Justice Newbury.

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. [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. [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. [ 64 ] Mr.

Justice Harris went on to say at paras. 60 to 65: [60] As I see the matter, as matters stood in January 2015, there may well have been good reason for a sentencing judge to consider imposing a sentence that would have reflected an increased sentencing range for street-level dealing in fentanyl above that of other dangerous drugs. Cases from other jurisdictions suggesting a higher range were available as comparators. It is not clear how much of an increase in the range would have been justified at that time, though as instructed by Lacasse that would have been a matter for the sentencing judge.

Equally, in my view, it would not have been an error in principle for a judge to have continued to select the same sentencing range applicable to other dangerous drugs. Illicit trafficking in fentanyl was a serious problem, but still an emerging one and knowledge about it recent. There was considerable latitude in those circumstances open to sentencing judges to craft an appropriate response. Indeed, I have no doubt, either, that a significantly higher sentence for Mr.

Smith would have been fit, but I am unable to conclude that the sentence that was imposed was so unreasonable given the prevailing circumstances that existed in January 2015 as to warrant appellate interference on the basis that it is demonstrably unfit as a manifestly inadequate sentence. The threshold for appellate interference is very high, and I am not persuaded it was crossed in this case.

[61] Since January 2015, there have been a number of changes which would render the sentence imposed on Mr. Smith demonstrably unfit had the offence occurred later, particularly if it had occurred late in 2016. [62] First, in February 2015 a major public health campaign was launched in the media. This campaign “Know Your Source” appears to have been explicitly targeted at the drug-using public and included posters distributed in high-risk areas.

In addition, or as part of the same campaign, it is unclear, the BC Centre for Disease Control partnered with the RCMP and the Vancouver Police Department in initiating a public message campaign intended to increase awareness of fentanyl-related overdoses and recommended precautionary strategies. In my view, the inevitably heightened public awareness of the risks associated with illicit fentanyl must increase the responsibility or culpability of anyone dealing in the product. [63] Second, the numbers of fentanyl detected deaths in British Columbia and the Lower Mainland continued to grow at a frightening rate.

The magnitude of the public health crisis increased dramatically. The evidence accepted by the sentencing judge demonstrates an explosion in the number of illicit drug overdose deaths in 2015 and 2016 and the proportion of those deaths in which fentanyl was detected. Whereas in 2014 fentanyl-detected deaths amounted to 25% of illicit drug deaths – by 2016 the percentage had risen to 60%. In addition, the absolute number of illicit drug deaths increased dramatically.

According to the September 2014 Report (BC DUAP Report) the number of accidental illicit drug deaths in each year between 2011 and 2013 remained reasonably constant. There were 278 deaths in 2011, 261 in 2012, and 299 in 2013. In the first eight months of 2014, the number of accidental illicit drug deaths was 211, consistent with the earlier years: see p. 68, table 5.10. Within those absolute numbers, however, the proportion of fentanyl-detected deaths had increased to 25% by 2014. The sentencing judge noted that in 2015 there were 397 illicit drug deaths and over 600 in the first 10 months of 2016.

The resulting picture is one of both a dramatic and rapid escalation in illicit drug deaths in 2015 and 2016, together with a dramatic increase in the proportion of fentanyl-detected deaths within the total.

In my view, the landscape in 2015 and 2016 was transformed and is now qualitatively different from what it had been at the time of the offence in terms of the severity of the crisis and recognition of the role of fentanyl in it. [64] Thirdly, as a result of the forgoing it is most doubtful, in my view, that the statement that “the role of fentanyl in overall illicit drug overdose deaths cannot be determined at this time” (August 2015), would accurately reflect the state of opinion today.

The role of fentanyl in overall illicit drug overdose deaths seems perfectly clear. [65] In sum, the continuing escalation in the number of fentanyl-detected deaths, the enormity of the total numbers of accidental overdosing, the increasing percentage of fentanyl detected deaths as a proportion of the total, and the currently ubiquitous awareness of the risks posed by illicit fentanyl, in combination, justify a recognition of a very substantial increase in the sentencing range applicable to street-level dealing in fentanyl. I agree that the range proposed by my colleague is appropriate.

As I hope I have made clear, I differ only in respect of whether the sentence imposed on Mr. Smith was demonstrably unfit in light of the relevant circumstances as they existed at the time he committed the offence, all of which bear on his responsibility in crafting a proportionate sentence. Accordingly, I would not disturb the sentence. [ 65 ] The range Mr. Justice Harris referred to in para. 65 is the range suggested by Madam Justice Newbury at para. 45: [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. [ 66 ] Defence counsel does not disagree that Smith affects the range for future cases, but he submits that the increased range does not apply to cases that occurred in December 2014. He submits that the new range of sentence in Smith can have no application to the present offences, since they were committed in mid-December 2014.

In this regard, he relies particularly on the decision in Johal , where Kent J. imposed a sentence of two years less one day plus probation because there, the offence of possession for the purpose of trafficking in fentanyl had occurred in August 2015. Unlike Mr. Perkins, however, Mr. Johal had no criminal record, and that is a very significant distinguishing feature. [ 67 ] Smith , too, is distinguishable from the present case, as it dealt with the range of sentence for street-level distribution. That is a far cry from the nature of the offences committed by Mr. Perkins. Mr.

Perkins was caught mailing drugs to another city in British Columbia. He possessed a very large quantity of drugs in several locations. He had materials for cutting the drugs, packaging them, and mailing them. He was a great deal higher up the chain of sale or distribution than was Mr. Smith, and a substantial sentence of imprisonment, is called for notwithstanding the date of the offences. [ 68 ] In all the circumstances, both of Mr.

Perkins personally and of the offences he committed, and particularly in light of the fact that he committed these offences shortly after completing a previous five-year sentence for drug offences, I am satisfied that a fit sentence for both Counts 1 and 2 of Indictment Number 65705-3 would be seven years' imprisonment, concurrent to each other. [ 69 ] With respect to the firearms offences, the comments of Harris J.A. at paras. 21 to 23 of R. v. Zhu are apposite: [21] Firearms are a scourge in our society. The possession and use of firearms poses unacceptable risks to the public and the police.

There is no doubt that both must be protected from the illegal possession and risk of use of unlawful firearms. The importance attached to this imperative was emphasized by Madam Justice D. Smith in R. v. Guha , 2012 BCCA 423 , particularly at paras. 28-30. She said at para. 30: In short, firearms, and in particular handguns, are extremely dangerous when possessed for an illicit purpose. That purpose can only be to threaten or inflict serious bodily harm or death. Sentences for these types of offences must reflect society’s absolute rejection of such unacceptable conduct.

[22] Here, the appellant had an arsenal of weapons at his disposal. They were clearly intended for an illicit purpose. One had a bullet in the chamber. All three were loaded with multiple bullets. Even though there was no evidence that the appellant had threatened to use the weapons or used them, they were clearly tools of a violent trade in which firearms are frequently used. At the time of the offences, Mr. Zhu was subject to a firearms prohibition order.

He also had a previous conviction for a firearms offence, although somewhat dated, but one which was not irrelevant to the matter, for which he received a jail sentence. [23] I would not interfere with the sentences of seven years in these circumstances. [ 70 ] The comments of Mr. Justice Harris were referred to with approval in R. v. Swales , where our Court of Appeal upheld a total sentence of 15 years for a combination of drug and firearms offences. [ 71 ] I would also refer to the judgment of Griffin J., as she then was, in R. v.

Powers , where she conveniently summarized some of the recent case law relating to firearms sentencing. She wrote at paras. 72 to 75: [72] In Zhu the offender was found asleep in bed with two loaded guns, and in the closet was another loaded gun. He was involved in the drug trade and also convicted of conspiracy to export drugs. He had a prior conviction for a firearms offence for which he served a custodial sentence, and was subject to a firearms prohibition at the time of the offences.

The Court of Appeal did not interfere with the sentencing judge’s sentence of 7 years on the firearms offence, consecutive to the drug conspiracy charges. The Court of Appeal described the three guns as an “arsenal”, at para. 22. [73] Another case where the offender was involved in both the drugs trade and the possession of firearms is Swales . There were 12 handguns and ammunition and silencers seized from a safe in an apartment used by the offender and others as a storehouse, as well as a large quantity of drugs.

The Court considered the dangerous nature of the collection of guns and ammunition and silencers, and held that a fit sentence for the firearms offences, if considered alone, would be 9 years. [74] In Wiwchar , the evidence did not establish that the offender was engaged in other criminal activity. Like the present case there was a significant quantity of firearms, ammunition, and prohibited devices.

However, unlike the present case, the offender had an extensive criminal record, including many violent offences, and was under a firearms prohibition at the time of the offences. [75] Bowden J. of this Court in Wiwchar at para. 41 considered that the Court of Appeal in Holt realigned the range of sentencing for firearms offences in BC, not just changing the bottom end from 18 to 30 months, but likewise the top end increasing it from 7.5 years to 9 years.

He considered the offender’s possession of 14 restricted and prohibited firearms plus prohibited devices in an apartment acting as a safe house where there was an aura of criminality as justifying a sentence of 7 years, and possession of two firearms, one of which was a loaded restricted firearm, as justifying a consecutive sentence of 6 years. The Court also considered appropriate a one year sentence for breach of a firearms prohibition.

Applying the totality principle the total sentence was reduced to 10 years. [ 72 ] The case of Wiwchar is particularly instructive because it involved similar kinds and numbers of firearms as the present case. As well, the offender there was of about the same age as Mr. Perkins, and like him, he had a high school education, and he had the support of his family. A significant distinguishing feature is that Mr.

Wiwchar had a longer criminal record. [ 73 ] With respect to Indictment Number 65705-3, I am satisfied that a fit sentence on each of Counts 3, 4, 5, 6, and 7 would be six years' imprisonment, concurrent to each other, but consecutive to the drug offences in Counts 1 and 2.

A fit sentence for Count 8 is four years concurrent with Count 3, while a fit sentence on each of Counts 9 and 10 is one year concurrent with Count 3. [ 74 ] With respect to Indictment Number 65704-3, the appropriate sentence on all four counts is one year concurrent with each other, but consecutive to the sentence on Indictment Number 65705-3. [ 75 ] The result is a global sentence totalling 14 years. Applying the principle that consecutive sentences must not be unduly harsh, and taking account of the need to encourage Mr.

Perkins' rehabilitation, I would reduce the total sentence to one of 12 years, by reducing the sentence on Counts 1 and 2 of Indictment Number 65704-3 to six years each and by reducing the sentence on Counts 3, 4, 5, 6, and 7 to five years each. [ 76 ] From this total, a deduction must be made to give Mr. Perkins 38 months' credit for the 755 days he has spent in pre-sentence custody on these charges. [ 77 ] I would accomplish this by applying the 38 months' credit to the sentences on Counts 1 and 2, effectively reducing those sentences from six years to two years and 10 months.

SUMMARY [ 78 ] To summarize, the sentence on Indictment Number 65705-3, after applying the principle of totality and after giving Mr. Perkins 38 months' credit for his time in pre-sentence custody, is as follows: • Count 1 is a sentence of two years and 10 months' imprisonment. • Count 2 is a sentence of two years and 10 months' imprisonment concurrent with Count 1. • Count 3 is a sentence of five years' imprisonment consecutive to Counts 1 and 2. • Count 4 is a sentence of five years' imprisonment consecutive to Counts 1 and 2, but concurrent to Count 3. • Count 5 is a sentence of five years' imprisonment consecutive to Counts 1 and 2, but concurrent to Count 3.

• Count 6 is a sentence of five years' imprisonment consecutive to Counts 1 and 2, but concurrent to Count 3. • Count 7 is a sentence of five years' imprisonment consecutive to Counts 1 and 2, but concurrent to Count 3. • Count 8 is a sentence of four years' imprisonment consecutive to Counts 1 and 2, but concurrent to Count 3. • Count 9 is a sentence of one-year imprisonment consecutive to Counts 1 and 2, but concurrent to Count 3. • Count 10 is a sentence of one-year imprisonment consecutive to Counts 1 and 2, but concurrent to Count 3. [ 79 ] On Indictment Number 65705-3, the sentence of all four counts is one-year imprisonment concurrent with each other, but consecutive to the sentence on Indictment Number 65704-3.

CONCLUSION [ 80 ] Mr. Perkins, would you please stand. [ 81 ] Your counsel has submitted that the global sentence for all the offences in this case should be 48 to 54 months before considering credit for the time you have spent in pre-sentence custody. As I have explained above, that submission is not realistic, especially in light of the fact that these offences were committed shortly after you finished a five-year sentence from Alberta. The sentence in the present case clearly must be significantly greater than your previous sentence of five years.

The question is how much greater. [ 82 ] For the reasons set out above, on these offences, I sentence you to a total of eight years and 10 months' imprisonment. which includes a credit of 38 months for the time you have spent in pre-sentence custody. Were it not for that credit, your total sentence would have been 12 years. In my view, no shorter sentence would be adequate to express society's denunciation of these crimes and to deter you and others from committing similar offences.

It is my hope, however, that this sentence is sufficiently moderate to preserve your incentive for rehabilitation. [ 83 ] Pursuant to s. 109(1) of the Criminal Code , a firearms prohibition order is mandatory upon conviction for these offences, and because of your previous convictions, s. 109(3) requires that it be a lifetime prohibition.

There shall be an order in the terms of s. 109(3) prohibiting you from possessing any firearm, crossbow, restricted weapon, ammunition, and explosive substance for life. [ 84 ] The Crown also seeks an order under s. 487.051(3) of the Criminal Code for the provision of samples for DNA analysis. Your counsel has told me that you do not object to this order.

The offences of which you have been convicted are secondary designated offences, and I am satisfied that it is in the interests of the administration of justice to make a DNA order under s. 487.051(3) (b), considering the circumstances of the offence and the impact on the accused's privacy and security of the person.

Accordingly, there shall be an order in Form 5.04 for the provision of samples for DNA analysis. [ 85 ] Finally, pursuant to s. 737 of the Criminal Code , you are required to pay a $200 victim surcharge on each of the 14 counts, for a total of $2,800 within two months after your warrant of committal expires. The Honourable Mr. Justice W.F. Ehrcke