R. v. Kirton Date:, 2018 BCPC 11

Citation: R. v. Kirton Date: 20180131 2018 BCPC 11 File No: 50839-2-C Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DANA JOHN KIRTON REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Crown: Clarke Burnett Counsel for the Defendant: Jonathan Avis Place of Hearing: Vernon , B.C. Date of Hearing: January 10, 2018 Date of Judgment: January 31, 2018

[ 1 ] Dana John Kirton has pleaded guilty to possessing a mixture of heroin and fentanyl for the purpose of trafficking, on June 2, 2017 in Coldstream, BC. He is before the court today for sentencing. [ 2 ] The Crown is seeking a sentence of 30 months incarceration, while counsel for Mr. Kirton urges me to consider a sentence of between six and 12 months, to be followed by a term of probation. There are certain ancillary orders. [ 3 ] The Crown has proceeded by indictment.

The maximum sentence is life imprisonment, and a conditional sentence order is not permitted by law. [ 4 ] The issue that I must decide is what combination of penalties will make a fair and fit sentence for someone like Mr. Kirton, who possesses drugs like fentanyl and heroin for the purpose of trafficking them in our community. [ 5 ] I will begin by reviewing the circumstances of the offence, and then Mr. Kirton’s personal circumstances.

I will speak briefly of the objectives and principles of sentencing, including the range of sentence established by the Court of Appeal for sentences like this and the circumstances in which a sentencing judge can impose a sentence below that range. I will conclude by a consideration of the aggravating and mitigating circumstances in Mr. Kirton’s case, and then impose sentence on him.

Circumstances of the Offence [ 6 ] In the spring of 2017, the RCMP in Vernon received information that a drug trafficker was using a Dodge Ram pickup truck to deliver drugs to purchasers in Vernon and Coldstream, in what is sometimes referred to as a dial-a-dope operation. [ 7 ] On May 31, 2017 they conducted surveillance of the pickup truck. Between 5:00 PM and 1:00 AM the following day, the surveillance officers observed an unusual pattern of activity. On 11 different occasions, the pickup truck stopped briefly at a variety of locations around Vernon.

Pedestrians entered and then quickly exited the passenger seat of the pickup truck. The meetings were concluded in under a minute. The police officers believed that the pedestrians were buying drugs from the driver of the pickup. [ 8 ] On June 1, 2017 the police continued the surveillance. They observed 7 more stops that were similar to the stops they had observed the previous day. Between 5:00 PM and 9:10 PM on June 2, 2017, the police observed a further 7 stops. The driver on all three days was Mr. Kirton. [ 9 ] At 9:10 PM on June 2, the police determined that they had reasonable grounds to arrest Mr. Kirton.

He was arrested without incident. When they searched the pickup truck, they found a number of weapons inside, including two collapsible batons and one pair of weighted gloves. The weights would allow anyone wearing the gloves to strike another person with greater force. They also found a knife wedged between the driver’s seat and the centre console. The blade of the knife was approximately 10 inches long. The police also found three cellular telephones, $738.55 in cash, and 29 separately packaged bags of drugs. [ 10 ] Finally, there were 20 packages of crack cocaine, weighing over 5g in total.

There were nine packages containing a mix of fentanyl and heroin, weighing over 1g in total. Photographs of the drugs and the weapons were marked as exhibits at the sentence hearing. [ 11 ] Mr. Kirton was released shortly after his arrest, and has been free on bail since then. He pleaded guilty at an early opportunity, before this matter had proceeded to a preliminary hearing or trial. Mr. Kirton’s Circumstances [ 12 ] I learned of Mr. Kirton’s circumstances through the submissions of his counsel, Mr.

Avis, through a pre-sentence report that was carefully written by Diane Peterson of Vernon Community Corrections, and through the character letters provided by members of Mr. Kirton’s family and others that know him in the community. [ 13 ] Mr. Kirton is 27 years old, and is the youngest of two children. He has lived most of his life in our community here in Vernon. He told Ms. Peterson that he always had a good home. Although his relationship with his father was difficult at times as a result of his father’s substance abuse, Mr. Kirton described his mother as the best mother in the world. [ 14 ] Mr.

Kirton was bullied in high school, and withdrew in grade 10. He has worked as a concrete finisher in the years since then. [ 15 ] Mr. Kirton still resides with his mother. He is in a dating relationship with a young woman, and they have a son who is 18 months old. The child lives with Mr. Kirton’s girlfriend. He has begun paying child support. [ 16 ] I have read carefully all 10 of the character letters provided by Mr. Kirton. His sister describes him as the best brother she could ever ask for. The mother of his son describes him as an amazing father, and says that these crimes are out of character for him.

His mother describes him as kind and loving. The friends and neighbours who wrote the other letters offered similar opinions. Mr. Kirton has a circle of friends and family that hold him in high regard. [ 17 ] Mr. Kirton uses cocaine recreationally. Prior to his appearance in court, he had made an appointment with a drug counsellor at the First Nations Friendship Centre, but I was advised that he had not attended that appointment because it slipped his mind. [ 18 ] Mr. Kirton’s father was of Métis ancestry. Although Mr.

Kirton himself has had little involvement to date in any First Nations community, it is not hard to see in his father’s substance abuse the reflections of the aftermath of the historical mistreatment of our aboriginal communities. [ 19 ] The reason that Mr. Kirton engaged in drug trafficking was to supplement the income he was earning as a concrete finisher. He had bills and debts that he could not pay, and he needed the money. Through his counsel, Mr. Kirton told me that his supplier told him

that the drugs were heroin, but he conceded that he was reckless for selling heroin when it was widely known in Vernon that heroin was often laced with fentanyl. [ 20 ] Mr. Kirton has no criminal record. [ 21 ] In addition to the submissions of his counsel and the other material provided, Mr. Kirton addressed me himself. He said that he was aware of the mistakes he had made, and promised that he would not be back in a courtroom again.

Impact on Our Community [ 22 ] It is important to recognize that there is no evidence whatsoever that any of the members of our community died from a drug overdose caused by the fentanyl sold by Mr. Kirton. At the same time, it is impossible to ignore the number of Vernon residents who have died from drug overdoses in recent months. [ 23 ] During the submissions for the Crown in this matter, Mr. Burnett provided me with provincial statistics that illustrated the impact of fentanyl across BC.

I asked if it would be possible to obtain statistics detailing the loss of life in our community in particular, and he was kind enough to do so. [ 24 ] In a document entitled, “Illicit Drug Deaths in British Columbia”, which will be filed as an exhibit in this matter, the British Columbia Coroner’s Service reported the increases in deaths from drug overdoses in Vernon. The coroner reported 6 overdose deaths in Vernon in 2014, 8 overdose deaths in 2015, 12 overdoes deaths in 2016 and 17 overdose deaths in the first 10 months of 2017.

I note that the report does not refer specifically to deaths from fentanyl overdose but rather refers to deaths by overdose of all opiates, but also that the report notes that fentanyl was present in 83% of all drug overdose deaths. [ 25 ] The numbers bear out what has been clear for some time. The introduction of fentanyl into our community has led to a rapid increase in the number of deaths by drug overdose. [ 26 ] What the numbers do not show is that the dead are our neighbours, and that every one of them had a circle of friends and family just like Mr. Kirton’s. Their loss is our loss.

Principles and Objectives of Sentencing [ 27 ] The statutory principles and objectives of sentencing are set out in

section 10 of the Controlled Drugs and Substances Act and in sections 718 through 718.2 of the Criminal Code .

The fundamental purpose of sentencing is to contribute to respect for the law, and the maintenance of a just, peaceful and safe society; to impose just sanctions to denounce unlawful conduct; to deter the offender and others from committing offences; to separate offenders from society where that is necessary; to assist in the offender’s rehabilitation; to provide reparations; and to promote a sense of responsibility and acknowledgement of harm done. [ 28 ] The sentence imposed must be proportionate to the gravity of the offence and the offender’s moral culpability.

Both aggravating and mitigating factors must be taken into account. The sentence must be rationally related to the sentences imposed for similar offences committed by similar offenders. A sentence of incarceration should be imposed with restraint, and ordered only where the circumstances make it necessary. Circumstances of Aboriginal Offenders [ 29 ] In addition, given Mr. Kirton’s Métis heritage, I must bear in mind the principles expressed in

section 718.2 (

e) of the Criminal Code , which call for particular attention to be paid to the circumstances of aboriginal offenders. The historical treatment of our Métis communities likely had some impact on Mr. Kirton through his father, regardless of the extent of Mr. Kirton’s personal engagement with those communities. Fentanyl and Recklessness as to the Nature of the Substance [ 30 ] Mr. Kirton asserted through counsel that he did not know that the drugs he was selling contained fentanyl, although he was reckless with respect to that fact.

He argues that this lowers his degree of criminal responsibility for possessing the drug for the purpose of trafficking. [ 31 ] The case authorities do not bear that out. In her dissenting reasons in R. v. Smith , 2017 BCCA 112 Madam Justice Newbury cited R. v. Herrell, 2014 BCCA 114 at para 17 for the proposition that a seller of illegal drugs must be assumed to recognize an inherent risk that the composition of the drugs might be unknown. At para 30, she cited R. v.

Giammarco [2012] OJ No. 1053 at paras 25-31 , aff’d 2014 ONCA 242 for the proposition that even being genuinely mistaken about the type of illegal drug in one’s possession did not serve as a mitigating circumstance in sentencing, if the offender knew that he or she was in possession of an illegal drug. Range of Sentence, and Departures from the Range [ 32 ] In R. v. Smith ( supra) , the Court of Appeal identified a sentencing range for street level dealing in fentanyl. That range begins at 18 months imprisonment, and might exceed 36 months.

That range is materially higher than the sentencing range applicable to other dangerous drugs such as heroin, which is often said to start at 6 months. It reflects the primacy of denunciation and deterrence in the sentencing of people who choose to traffic in deadly drugs like fentanyl. [ 33 ] In establishing that range for dealing in fentanyl, the Court of Appeal was not attempting to restrict the discretion of sentencing judges to impose sentences lower than 18 months where there were exceptional circumstances (see, for example, para. 46). In this case, in fact, Mr.

Kirton argues that his circumstances are exceptional, and that a sentence in the range of 6 to 12 months would be appropriate.

[ 34 ] What might amount to “exceptional circumstances” in a case of street-level or dial-a-dope drug trafficking was addressed in R. v. Voong , 2015 BCCA 285 . At paragraph 59, the Court said that exceptional circumstances might include the absence of a criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught.

The Court said at para. 59, “[t]here must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a noncustodial sentence.” [ 35 ] The Honourable Judge Challenger found that exceptional circumstances existed in R. v. Joon , 2017 BCPC 301 . That case involved a 19-year-old accused with no criminal record who engaged in trafficking in fentanyl for profit.

Following his arrest, he lived a pro-social and contributing life, and his rehabilitation was well-established by the time of sentencing. The Court found there was no need to specifically deter him or to protect the public. Judge Challenger found that his very young age must carry greater weight than his lack of any pressing need for drugs or money or the absence of emotional or psychological afflictions in his life and suspended the passing of sentence for three years rather than imposing a sentence of incarceration. [ 36 ] Mr. Justice Pearlman came to a similar conclusion in R. v. Naccarato , 2017 BCSC 645 .

Ms. Naccarato was a 24-year-old drug courier, who travelled from Victoria to Surrey where she picked up a package containing 58g of heroin laced with fentanyl. She was arrested 10 minutes later. She was addicted to crystal methamphetamine, but also motivated by financial gain. She had transported heroin from the Lower Mainland to Victoria on at least one previous occasion, but she had no criminal record. Following her arrest, Ms. Naccarato successfully completed a 90 day residential treatment program for her addictions.

She also participated in cognitive behavioural therapy for relapse prevention, and was an active participant in Narcotics Anonymous. At the time of sentencing, she had been drug-free and steadily employed for a year. The Court concluded, “Ms. Naccarato is an offender who has turned her life around.” The Court suspended the passing of sentence, and placed her on probation. [ 37 ] Last month, the Honourable Judge Harris also imposed a suspended sentence in a case of possession of fentanyl for the purpose of trafficking in R. v. Olenik , 2017 BCPC 390 .

The case involved a 25-year-old offender with no criminal record whose crime was fuelled by a dependency on illegal drugs. Following his arrest, Mr. Olenik moved away from negative influences, excelled at his employment and formed positive relationships. Judge Harris described him as “a changed person.” He suspended the passing of sentence and placed him on probation for three years. [ 38 ] I have considered these cases carefully. Mr. Kirton continues to enjoy the respect of his friends and family and he has undoubtedly suffered a high level of anxiety with respect to the outcome of this sentencing proceeding.

However, as a father and at the age of 27, he is no longer a young man like Mr. Joon. He has not followed through on pursuing counselling, the way that Ms. Naccarato did. Although he told the author of the presentence report that he was making an effort to “choose” who he was friends with, it is difficult to find evidence that he has proactively cut ties with antisocial influences, the way that Mr. Olenik did. I find myself unable to describe Mr. Kirton as a changed person, or as someone who has truly turned his life around.

I am satisfied that there are no exceptional circumstances in this case justifying a departure from the range of sentence set out by the Court of Appeal in R. v. Smith (supra) . Aggravating and Mitigating Factors [ 39 ] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to Mr. Kirton or to the crime he committed. [ 40 ] In this case, there are several clear mitigating factors. They include Mr. Kirton’s early guilty plea, which is an indication of some remorse. They also include the absence of a criminal record and his previous good character.

They include the fact that he continues to enjoy the support of his family, that he has obligations towards that family and in particular towards his young son, and that he has in the past been a productive member of the community. [ 41 ] But there are aggravating factors as well, and the aggravating factors are stark. In order of increasing seriousness, they are: 1. The number and frequency of the transactions observed by the police. 2. The motive for the crime, which was purely financial greed, rather than the overpowering need to service an addiction. 3.

The presence at the time of his arrest of a number of weapons, including the large knife. 4. The nature of the drugs in his possession, particularly fentanyl, and the impact that drug has had on our community. [ 42 ] Those aggravating factors require a sentence in excess of the low end of the range identified in R. v. Smith . [ 43 ] Mr. Kirton, would you stand please? [ 44 ] I will deal with the ancillary orders, before imposing the sentence of incarceration. [ 45 ] There will be a weapons prohibition. Pursuant to

section 109 of the Criminal Code , you are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 46 ] Possession of a controlled substance for the purpose of trafficking is a secondary designated offence. After considering the factors set out in

section 487.051 (3), I am satisfied that it is in the best interest of the administration of justice to make an order in Form 5.04 authorizing the taking of samples of bodily substances from you for the purpose of registration in the national DNA databank. The samples will be taken from you while you are in jail and you must submit to the taking of samples. [ 47 ] Pursuant to

section 16 of the Controlled Drugs and Substances Act , I am satisfied on a balance of probabilities that the items

listed in the draft Forfeiture Order are offence related property in relation to the offence of which you have been convicted and I order that they be forfeited to her Majesty to be disposed of in accordance with the directions of the Ministry of Public Works and Government Services. [ 48 ] The victim surcharge will be payable in the amount and at the time set by regulation. [ 49 ] Following your release from custody, you will be on probation. The term of the probation order will be 12 months. The conditions of the order will be drawn from the Provincial Standard Picklist and will be as follows: 1.

You must keep the peace and be of good behaviour. 2. You must appear before the court when required to do so by the court. 3. You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. (2001) 4.

You must report in person to a probation officer at the Vernon Community Corrections Office within two business days after your release from custody, unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different time frame. After that you must report as directed by the probation officer. (2104) 5. When first reporting to the probation officer, you must inform him or her of your residential address and phone number. You must not change your residence or phone number without written permission from your probation officer. (2201) 6.

You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer. (2501) 7. You must not possess any knife, except for the immediate preparation or eating of food, or for purposes directly and immediately related to your employment. (2616) [ 50 ] Finally, I must deal with the jail sentence. There is no pre-sentence custody to take into account.

Having considered all of the factors I have referred to in these Reasons, I have concluded that a just sentence to impose upon you is a sentence of incarceration for two years less one day. _______________________ The Honourable R. Hewson Provincial Court Judge