R. v. Tessier, 2018 BCPC 212

Citation: R. v. Tessier 2018 BCPC 212 Date: 20180704 File Nos: 50812-C-2 50820-C-2 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT LEE TESSIER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. GUILD Counsel for the Crown: C. Burnett Counsel for the Defendant: J. Dueling Place of Hearing: Vernon , B.C. Date of Hearing: May 28, 2018 Date of Judgment: July 4, 2018 [ 1 ] Robert Lee Tessier has pled guilty on Information 50812-C-2 to three separate offences of possessing illicit drugs for the

purpose of trafficking on September 9, 2016. The drugs were cocaine, methamphetamine, and a mixture of diacetylmorphine (heroin), fentanyl and methamphetamine. On Information 50820-C-2, Mr. Tessier pled guilty to two offences committed on December 2, 2016: trafficking cocaine and trafficking a mixture of diacetylmorphine (heroin), cocaine and fentanyl. [ 2 ] The issue for me to determine is the appropriate sentence to impose for these offences.

On the one hand, drug offences involving fentanyl generally require imposition of a more severe jail sentence because of the grave risks to health and life that drug poses. On the other hand Mr. Tessier, who has been addicted to various substances for most of his life, has made real and substantial progress in rehabilitation while in jail pending the conclusion of these charges. The sentence will depend on a determination of the appropriate range of sentence, the application of the totality principle and whether there are exceptional circumstances that justify a reduction in an otherwise fit sentence.

FACTS 50812-C-2 [ 3 ] On September 9, 2016 police were conducting surveillance in Polson Park and across the street from it at the Polson Park Motel in Vernon, British Columbia. One of the officers involved, wearing plain clothes, was in the park and saw three people approach. To ensure his role was not discovered, he left the park. Upon doing so, a car pulled up at a high rate of speed and stopped quickly. The male driver of the car, Mr.

Tessier, ran aggressively towards him yelling “do you have a [expletive deleted] problem with my employees…”, which caused the officer to step back and identify himself as a police officer. At that point Mr. Tessier was arrested for uttering threats. “[E]mployees” was a reference to the three people seen by the officer in Polson Park. A search of the car revealed a package of drugs referred to by police as a “dealer package”, consisting of a plastic bag with other bags inside it. Of the four inner bags, two contained cocaine, one with 4.6 grams of powder cocaine and the other with 0.5 grams of crack cocaine.

Another baggy had 0.7 grams of methamphetamine. The final bag contained 4.2 grams of the heroin, fentanyl and methamphetamine mix. [ 4 ] There were two women in the car, one in the front passenger seat and one in the rear seat. They each had bags. One of them appeared to be in the process of moving and told police that Mr. Tessier was helping her move. The other woman had a bag with a pellet gun that looked somewhat, though not entirely, like a handgun. The Crown concedes that the bags and contents, including the pellet gun, did not belong to Mr. Tessier. There is no indication that he knew of the pellet gun.

A cell phone that Mr. Tessier was holding was examined, revealing a number of text messages related to the sale of drugs, both for Mr. Tessier selling small quantities to others as well as trying to get drugs from or discussing drugs with his apparent supplier.

After he was arrested for possessing the drugs for the purpose of trafficking and taken to the police station, he was released by the police pursuant to S. 498 of the Criminal Code on a promise to appear without any conditions, with his first court appearance scheduled for October 27, 2016. 50820-C-2 [ 5 ] On November 1, 2016 police obtained information from a source that Mr.

Tessier had a “dial a dope” number and that he and a “Mike Jewels” [phonetic] would supply cocaine, methamphetamine or heroin. “Dial a dope” refers to the sale of illicit drugs by placing orders through a cell phone number, with the drugs then being delivered to the buyer, usually by car, when the drug transaction takes place. The police decided to undertake an investigation to see if they could buy illicit drugs at street level from that phone number and if they were able to do so, then move up the drug supply chain to try to obtain larger quantities.

The police were able to obtain a small quantity of cocaine from a woman after their initial telephone call was answered by a male who identified himself as “Big Joe”. A similar purchase was made the next day and the same woman gave the undercover police officer another number to call. On November 3, a call was made to that number and an arrangement was made to buy more street-level drugs from “Mike Jewels”.

Further street level drug purchases were made by the police and the police plan then changed to using a male undercover police officer to try to buy larger quantities. [ 6 ] That male police officer called the original phone number and spoke with Big Joe. After a number of telephone calls and text messages between them, an arrangement was made to meet where Big Joe would sell half an ounce of cocaine for $800. During that negotiation, Big Joe referred to himself as “Jewel’s boss”.

At the meeting, a female undercover police officer met with Big Joe and another male, Harris, who actually supplied the half ounce of cocaine to the female police officer as agreed. There was conversation about buying more drugs in future and Harris motioned to Big Joe, now known to be Mr. Tessier, and said to call him. Mr. Tessier indicated that the buyers had his phone number and that he was just nervous with new people.

About two weeks later, on December 2, another arrangement was made to buy the same amount of cocaine and 1 gram of heroin. [ 7 ] There were a number of discussions and the undercover officer was directed to meet at the same location as before. After further discussion and negotiation, a car pulled up and Mr. Tessier directed the undercover officer to get in. They drove towards a residence in Vernon, and Mr. Tessier said he was late because somebody in his crew got “ripped off” and that his “main man” had been arrested that morning. “Mike Jewels” (not his real name) had been arrested by police that very morning.

The car arrived at the residence, Mr. Tessier went into it and shortly after came back out and gave two baggies to the undercover officer. One baggie held 14.35 grams of cocaine; the second smaller baggie contained 1.65 grams of what turned out to be a mixture of heroin, fentanyl and cocaine. The officer gave $900 to Mr. Tessier for the drugs. Mr. Tessier was arrested on December 14, 2016 and has been in custody ever since. MR. TESSIER’S CIRCUMSTANCES [ 8 ] The presentence report and the Gladue report both provided considerable background information, and noted that he took full responsibility for his actions.

Together with submissions of his counsel, the court had a full picture of Mr. Tessier’s history. Pre-Sentence Report [ 9 ] Mr. Tessier’s mother was 16 years old when he was born in August of 1976 and passed away at the age of 56 shortly after his arrest in December of 2016. His biological father has not been involved from before he was born. He was raised by his young mother until he was 5 at which time she entered into a common-law relationship with another man. They had two children. His step-father was

physically abusive to Mr. Tessier and his mother lacked parenting skills. His basic needs tended to be neglected. He also reports being sexually abused by his step-father’s brother. All three children were apprehended by the Ministry of Social Services in 1983, when he was 7. Although his step-siblings remained together in care, he was sent to various facilities by himself. [ 10 ] Mr. Tessier moved through numerous family placements, foster homes and adolescent treatment centres in British Columbia and Alberta, often running away from placements and living on the streets.

He was, in effect, institutionalized as a youngster, residing in various facilities with programs designed to house, treat, maintain supervision and control of young people with significant psychiatric and behavioural difficulties, histories of abuse, addiction, mental health, emotional challenges, or as foster care for emotionally distressed children. [ 11 ] In his mid-teens, he went to a family placement in a more remote area near Bridge River, British Columbia, staying there until his early twenties. Around the age of 28 he moved to the Vernon area where he has remained when not in jail, although as Mr.

Tessier notes, he has spent most of his time in jail. There is a noticeable lack of criminal activity between the years of 1995 and 2002, during which time he fathered two sons with Julianne Morrell. Both sons were raised by Ms. Morrell in Kamloops until eight and six year of age, at which time she moved with her boys to Manitoba. One of those sons committed suicide in 2013 at the age of 16. Mr. Tessier had been out of jail for about 7 months and living drug free, working in Alberta when he received news of his son’s death, which led to a relapse. Mr. Tessier is still grieving that loss. As Mr.

Tessier describes it, he began selling drugs and using drugs to avoid the guilt he felt: “ I blamed myself for not being there for him. I basically tried to kill myself.” [ 12 ] Not surprisingly given his upbringing, Mr. Tessier had a grade 9 level of education until he recently met BC Adult Secondary Graduation requirements while in custody. He has never had a driver’s license and says he has no debts, no savings, and he says nothing to show for his life but being “an addict supporting (his) habit”. [ 13 ] With respect to drug use, he became addicted to cocaine before he was fifteen.

The family he lived with illegally grew marihuana to earn money, and he helped with the crop, developing a lifestyle of daily drinking and marihuana use. His uncle was a cocaine addict and introduced that drug to Mr. Tessier, who then began selling drugs to support his addiction before moving to Vernon. He reports having overdosed on heroin, and despite knowing that the drugs he obtained could contain fentanyl, he continued to use them himself, as well as sell them. He started on sub Oxone at his request to treat his addiction shortly after coming in to custody on these matters.

He has, under appropriate supervision and as part of his plan for recovery, reduced that prescription so that he is now no longer taking it. He has applied to attend the North Wind Healing Centre, a 45-day, culturally based residential treatment program, and his plan is to attend and reside at Painted Turtle Lodge, Round Lake Treatment Centre's post - treatment recovery home, after graduating from the North Wind program. [ 14 ] The pre-sentence report also included his criminal record, which includes 4 convictions for similar offences: 2006-06-14: Sec. 5(2) CDSA, Possession of a Sched.

Substance for the Purpose of Trafficking: 3 months & (3 months pre-sentence custody) Vernon, BC 2007-04-18: Sec. 5(1)(3)(

a) CDSA, Traffic in Sched. I Substance, 11 months & (36 days pre-sentence custody) Vernon, BC 2012-02-08: Sec. 5(1) CDSA Traffic in Sched. Substance, 15 months, Vernon, BC 2014-12-17: Sec. 5(2)CDSA, Possession of a Sched. Substance for the Purpose of Trafficking; 662 days jail; Vernon, BC Gladue Factors [ 15 ] Mr. Tessier self-identifies as Metis. His grandfather is Metis from Elk Lake, Ontario. The Metis community have accepted him and are in the process of issuing him a Metis citizenship card. Mr.

Tessier has been attending counselling while in custody with a Registered Psychologist, to address issues stemming from his childhood and grief due to the loss of his son and mother. He has also been attending cognitive-behavioural group treatment. Although there is no reported family history of attending residential schools, I take into account Mr. Tessier’s aboriginal heritage in determining a fit sentence. [ 16 ] Mr. Tessier has been taking

part in cultural and recovery activities at Kamloops Regional Correctional Centre which include attending Aboriginal cultural days and preparing traditional food and medicine. The Aboriginal Restorative Justice, Prevention & Education Program Manager confirmed his application to North Wind Healing Centre and reports that the next intake dates for the 45- day trauma treatment program in 2018 are July 9, September 3, and October 29. SENTENCING POSITIONS Crown [ 17 ] The Crown’s position is that on Information 50812-C-2, Mr.

Tessier should be sentenced to 3 years concurrent for the offences involving cocaine and methamphetamine, and 5 years concurrent for the drug mix containing fentanyl.

On Information 50820-C-2, the Crown submits there should be a 4 year sentence for trafficking the cocaine and a 6 year sentence for trafficking the mixed drug containing fentanyl, concurrent with all other counts, with the sentence being increased because the offences were committed while he was on a form of release for the first offences. [ 18 ] In support of its position, the Crown referred to a report from the British Columbia Coroner’s Service relating to Fentanyl- Detected Illicit Drug Overdose Deaths between January 1, 2012 and March 31, 2018, for all of British Columbia.

That report relates to deaths that resulted from illicit drug use occurring in British Columbia in that timeframe in which fentanyl or its analogues were detected (whether alone or in combination with other drugs). In short, that report shows there has been a steady and alarming increase in the number of drug overdose deaths in which fentanyl has been detected. Although the report cannot ascribe the cause of death to fentanyl, it is equally clear in various reported decisions and the media that fentanyl overdoses have resulted in a far higher number of deaths compared to other hard narcotics ( see R. v.

Kirton , 2018 BCPC 11 for statistics relating to the Vernon area).

[ 19 ] The Crown also referred to a number of cases as well as portions of the judgment in R. v. Smith , 2017 BCCA 112 and argued that Mr. Tessier fell above the 18 to 36 month range set out in that case because of his record and the fact that he supplied drugs to other sellers. I have reviewed and considered Smith and the other cases referred to by the Crown: R. v. Anderson , unreported, Victoria Registry 16937-C-2, April 19, 2017; R. v. Auclair , unreported, Kelowna Registry 86284-1; 86297-1; September 1, 2017; R. v. Forsberg , unreported, Victoria Registry 16738-4-C; 167641-1; September 27, 2017; and R. v.

Shoebridge , unreported, Victoria Registry 169416-2- C; February 21, 2018. [ 20 ] The Crown acknowledges that for most of his life and at all material times in relation to these offences that Mr. Tessier was addicted to hard drugs; that Mr. Tessier funded the cost of his addiction by selling drugs; and that police were aware of that fact. The Crown also acknowledged that Mr. Tessier was willing to plead guilty to a number of the charges he faced from the outset, but an agreement with the Crown could not be reached so a preliminary inquiry was scheduled.

On the date scheduled for the start of the preliminary inquiry, the Crown modified its position and Mr. Tessier pled guilty as noted above, although there was no agreement as to the appropriate sentence. The presentence report was ordered and, later, the Gladue report. This chronology explains the delay in these matters proceeding to sentence. [ 21 ] The Crown also submitted that Mr. Tessier was selling drugs for profit over and above what was required to support his addiction, and that there was a degree of sophistication given that he had employees and there was planning involved.

The Crown also acknowledged that there was no evidence of a stash house or that he was involved in the transportation of drugs to Vernon. Defence [ 22 ] The focus of Mr. Tessier’s submissions was that he had turned his life around, having done everything that could be done while in custody, and provided the evidence to show that turnaround in the form of certificates of completion of programs and letters of support. In particular there are two letters from a correctional officer who has come to know Mr. Tessier over the last 6 ½ years when he has been in custody. That officer stated that Mr.

Tessier had changed from being an entrenched offender to one who truly wanted to change his life for the better. The officer noted that Mr. Tessier had surrounded himself with the more positive people in jail rather than those entrenched in a criminal lifestyle and that the changes he had made were “incredible”, allowing him to work at several jobs and become trusted in the institution. An example of this was that Mr.

Tessier was “one of the few people who walks around unescorted to do his work in different units (including secure and special handling).” The other letters demonstrated the same change in attitude. [ 23 ] Mr. Tessier has made plans about what he will do when he is out of custody to ensure his continued abstinence from drugs. The plans include residential treatment and are referenced in the Gladue report and a letter from the Native Liaison and Spiritual Support Worker that Mr. Tessier has been seeing for counselling and involvement in aboriginal programs while in custody. In addition to Mr.

Tessier’s long standing and severe addiction, the defence noted that no money was seized, that Mr. Tessier had no car, no home and that he “couch surfed” – points made to counter the submissions that Mr. Tessier’s drug selling was sophisticated and that it created profits for him in excess of paying for his addiction. [ 24 ] The defence relied on R. v. Adams, 2017 BCSC 2529 , Smith, supra, R. v. Kukelka , 2010 BCCA 180 and R. v. Ipeelee , 2012 SCC 13 , the pre-sentence report and the Gladue report, and urged a global sentence from time served to a provincial jail term followed by a lengthy period of probation.

Given the very significant changes he has made, Mr. Tessier submitted that exceptional circumstances existed to permit a sentence below the range set out in Smith , supra. Lastly, he submitted that the 6 year sentence was not proportionate to the offences or Mr. Tessier, and was far too great a step-up from his last sentence.

ANALYSIS [ 25 ] The range of sentence for street level trafficking in fentanyl and the principles underlying it can be found in the following excerpts from Smith, supra: “ANALYSIS Sentencing objectives [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 .” … “[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 withfentanyl. Heroin, crystal meth and cocaine can have devastating consequences. They may not kill as often as fentanyl, but very largenumbers of accidental deaths are associated with their consumption (indeed the majority of accidental overdose fatalities involve amixture 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 rangefor street-level dealing in fentanyl turns on the enhanced risks associated with that activity and the individual responsibility of dealersgiven those risks and public knowledge of them.” [Emphasis Added] [26] The range of 18 to 36 months and possibly more includes aggravating factors such as “a substantial record” involving the sale offentanyl, where the offender does not care about the lives he is putting at risk or where the offender is selling drugs above the streetlevel.

To put that range in context, I note that the maximum sentence under the Controlled Drugs and Substances Act is imprisonmentfor life, that ranges are, as noted by defence counsel, not a straight jacket and that exceptional circumstances can mean a sentence is fiteven if outside the range. [27] Three questions arise: - was Mr. Tessier selling at “street level” or higher? - what is the “appropriate range”? and - are there exceptional circumstances in this case? MR. TESSIER’S POSITION IN THE HIERARCHY OF DISTRIBUTION [28] “Dial-a-dope” trafficking falls within street level selling, even for fentanyl (R. v.

Joon, 2017 BCPC 301). No expert evidencewas called to provide an opinion as to Mr. Tessier’s level of distribution. The Crown position was that Mr. Tessier was a step abovestreet level. The defence position was that he was not a mid-level trafficker, that is, someone at a significantly higher level ofdistribution than street level. [29] Mr. Tessier’s position in the hierarchy of distribution was mixed. It is clear from the September 9, 2016 events that he supplied“employees” who sold at the street level.

But I bear in mind the amounts he possessed when he would have been supplying thosepeople: 5.1 grams of cocaine; 0.7 grams of methamphetamine; and 4.2 grams of the drug mix containing fentanyl. [30] That can be contrasted with the facts in R. v. Mani, 2018 BCPC 100. Mr. Mani pled guilty to possessing 7.71 grams ofmethamphetamine wrapped in 28 blue bags, 1.24 grams of heroin in eight clear bags, 2.24 grams of cocaine in seven orange bags, and3.08 grams of cocaine in 17 bags on January 15, 2016, all for the purpose of trafficking. For those offences he was sentenced to a 3month jail term.

He was also sentenced at the same time having pled guilty to the same kind of offences committed on March 26, 2017,when he possessed 12.06 grams of cocaine wrapped in 58 white bags, 17.49 grams of cocaine and fentanyl in 39 orange bags, and 4.43grams of cocaine wrapped in 45 blue bags. For those offences his sentence was 19 months - well within the range set out in Smith, supra,for street level trafficking. In short, although Mr.

Tessier was supplying others for re-sale, the quantities he had to supply them withwere well within amounts held to sell at street level, or for some, even for personal possession. [31] Mr. Tessier was also willing and able to arrange to sell a larger amount of cocaine when presented with the opportunity to do soby police: but he had to get that half ounce of cocaine from someone else while police waited in the car, and he gave it to policeimmediately after getting it. In other words, he acted as a middleman. There is no evidence that the police let Mr.

Tessier know, as partof their undercover ruse, that the purchase was for distribution as opposed to personal use. Accordingly I cannot find that it was for re-distribution. It was still a street level transaction. I also note that the amount of the drug mixture containing fentanyl was considerablyless than the street level supply amount he had in September. From that and, as with the cocaine, no evidence that it was for distribution,I find that he sold that mixture at a street level. [32] In

summary, Mr. Tessier supplied some street level dealers, but also sold at the street level himself, including merely acting as amiddleman for the undercover police officers. In light of all of the above, I place Mr. Tessier at or just above a street level dealer. THE APPROPRIATE RANGE [33] Aggravating facts must be proved by the Crown beyond a reasonable doubt. Mr. Tessier has no record for selling fentanyl, letalone a substantial one. There was no submission that he was indifferent to human life. Since Mr.

Tessier was at or just above streetlevel selling and the quantity he had for redistribution was well within street level quantities, the range in Smith, supra, applies to thoseoffences where he sold a drug mixture that contained fentanyl. [34] I was not referred to cases regarding the range of sentence for the offences not involving fentanyl. In Smith, supra, the courtnoted at paragraph 43 that the range of sentence for street level trafficking in heroin was 6-12 months.

I must also take into account thathe has three prior convictions for drug related offences, the most recent for which he received a sentence of 662 days (about 22 months)in December of 2014. [35] Denunciation and deterrence are the primary objectives when sentencing a person for offences related to the trafficking ofharder drugs (Smith, supra; R. v. Voong, 2015 BCCA 285) but sentencing is an individual exercise with no specific sentencing objectiveautomatically trumping another. It is for the court to identify the sentencing objectives in each case: R. v. Nasogaluak, 2010 SCC 6. Given the changes Mr.

Tessier has made while in custody, I also take note of what was said at paragraph 46 of Voong: “…in R. v. Preston (1990), (BC CA), 47 B.C.L.R. (2d) 273 a five-justice division of this Court examined the generalprinciples of sentencing in the context of possession of heroin offences by a long-time heroin addict, with a lengthy criminal record. Ms.

Preston had made substantial efforts at rehabilitation. Wood J.A., speaking for the Court, said, at 281: The object of the entire criminal justice system, of course, is the protection of society, and I say at once that if incarceration is the onlyway of protecting society from a particular offender, then transitory and expensive though it may be, that form of protection must beinvoked.

But where, as in this case, the danger to society results from the potential of an addict to commit offences to support her habit,and it appears to the court that there is a reasonable chance that she may succeed in an attempt to control her addiction, then it becomesnecessary to consider the ultimate benefit to society if that chance becomes a reality. With respect, that benefit seems obvious. If the chance for rehabilitation becomes a reality, society will be permanently protected fromthe danger which the offender otherwise presents in the fashion described above.

As well, the cost associated with her frequentincarceration will be avoided.” Aggravating and Mitigating Factors [36] I find that his guilty pleas were made early and are a strong indication of acceptance of his offending and remorse. [37] The Crown argued that an aggravating factor in the trafficking offences was that they were committed after Mr. Tessier hadbeen released on a Promise to Appear without any conditions for the first set of offences. Mr.

Tessier made his first scheduled courtappearance on the charges as set out in Information 50812-1 as originally sworn, which did not charge him with possession of anyfentanyl. Accordingly, he was aware he was facing various charges not only when the second offences were committed, but also whenthe police received the tip about the dial-a-dope number.

He was not aware that one of the substances actually contained fentanyl - butthat is not a mitigating factor (Smith, supra, para’s. 26-31). [38] That committing offences while on bail is an aggravating factor is a simple and easily understood proposition if the person isviolating conditions of their release: the person has violated a lawful restriction on their liberty. Without adherence to such restrictionsthere would be anarchy. But that is not the case here because the only conditions in a Promise to Appear pursuant to S. 498(1)(

b) of theCriminal Code (Form 10) are that the person attend court as required and attend as directed for the purposes of the Identification ofCriminals Act. Neither condition was violated. [39] So what other rational basis is there for the conclusion that committing an offence while on a Promise to Appear is aggravating? I understand the Crown’s argument is that there is an increased moral culpability because the person has made a choice to continue tocommit crimes. I accept that general proposition. But for Mr.

Tessier, that proposition is impacted by the fact that he was an addict andfunded his addiction through the selling of drugs. In R. v. Hansen, 2012 BCCA 142, our Court of Appeal said: “[26] I am unable to agree with this characterization of the process of the potential rehabilitation of an individual addicted to drugs. Drug addiction is an illness.

For an addict, using drugs is not a simple “choice” to be either made or not made, but an illness“characterized by a loss of control over the need to consume the substance to which the addiction relates”: Canada (Attorney General) v.PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134). Rehabilitation then, like the treatment of an illness, requiresassistance in order to be effective, and is not a simple matter of “choice” for those afflicted.” [Emphasis Added] [40] Addiction, by definition, is not a choice. Drugs will be consumed by an addict despite negative consequences. That is theillness.

On September 9, it was a virtual certainty that Mr. Tessier would continue to consume illicit drugs, and likely sell them tosupport his addiction, if he was released without any terms to help him stop using drugs. That was a factor police had to consider indetermining if he should be released under s. 498 or s. 503 of the Criminal Code without any conditions or under s. 503 with conditions. There could – and should - have been, as a term of his release, conditions to assist him in stopping his drug use.

The police knew, orought to have known, that he would need those conditions. [41] Long standing addicts are generally poor: they cannot work because of their addiction (see, eg, Canada v. PHS, referencedsupra). The drugs must be paid for, somehow. Almost inevitably, an addict will commit a crime to pay for the drugs, usually by sellingthemselves, selling drugs or stealing. That is part of the steady stream of case in provincial courts. It is not a real choice.

It isinevitable. [42] Any potential increased moral culpability (and resulting increase in sentence) for continuing to sell drugs while on release mustbe viewed in light of Mr. Tessier's inability to stop using drugs as a matter of choice. He had no control over his drug use. If theunderlying rationale for increasing moral culpability is the ability to choose, and the ability to choose is absent, then committing thetrafficking offences while on a form of release is not an aggravating factor. [43] If that conclusion is incorrect, addiction as a cause of criminal activity can lessen moral culpability (see eg. R. v.

Doyle, 2014ONSC 5208). That decreased moral culpability is to be balanced against the increased moral culpability for continuing to commit crimeswhile on a form of release. I would conclude that the increase and decrease in moral culpability effectively cancel each other. [44] With respect to sophistication and excess profits, virtually all drug selling requires planning. There was no “stash house”, nomoney seized on either occasion, Mr. Tessier had no assets and was homeless. Those are all facts indicating an absence of excessprofits.

The Crown was obliged to prove that aggravating fact beyond a reasonable doubt. They have not done so. [45] I also have considered the common law principle referred to as “the Coke rule”, explained, applied and summarized in R. v.Skolnick, (SCC), [1982] 2 SCR 47: “…As subsequently understood, the principle, or perhaps, better, policy was that an accused does not face the jeopardy of an increasedpenalty for a third offence unless he has previously been convicted and sentenced for a second offence. …

The following

summary is in order: [1] The number of convictions per se does not govern in determining whether the Coke rule applies. [2] The general rule is that before a severer penalty can be imposed for a second or subsequent offence, the second or subsequent offence must have been committed after the first or second conviction , as the case may be, and the second or subsequent conviction must have been made after the first or second conviction, as the case may be. [3] Where two offences arising out of the same incident are tried together and convictions are entered on both after trial, they are to be treated as one for the purpose of determining whether a severer penalty applies, either because of a previous conviction or because of a subsequent conviction. [4] The rule operates even where two offences arising out of separate incidents are tried together and convictions are entered at the same time ." [Emphasis added] [ 46 ] Although there has been some debate over whether this rule is limited to statutorily mandated increased sentence, in a decision pre-dating Skolnick , the British Columbia Court of Appeal held it was an error to treat a conviction for an offence as a prior conviction when the person had not been convicted of the first offence before committing the second offence: R. v.

Jung , [1976] B.C.J. No. 147 . There was no statutorily imposed greater sanction for the second offence in that case. Later, in R. v. Johnson , [1998] B.C.J. No. 2924 , the Court of Appeal considered that Skolnick concluded that the Coke rule was a general proposition.

In this case, the principle means that the offences in Information 50812-C-2 are not prior convictions when I consider the sentence for the offences in Information 50820- C-2. [ 47 ] I find the following to be the aggravating and mitigating factors with respect to each set of offences: 50812-C-2 Aggravating Factors Driving while prohibited; aggressive driving; threatening behaviour; supplying other street level traffickers; criminal record; one offence relating to fentanyl; multiple hard narcotics; an ongoing drug selling business.

Mitigating Factors Early guilty pleas; addict; aboriginal; productive time in custody and a changed attitude. 50820-C-2 Aggravating Factors Criminal record; one offence relating to fentanyl; multiple hard narcotics; an ongoing drug selling business; on release for 50812-C-2. Mitigating Factors Early guilty pleas; addict; aboriginal; productive time in custody and a changed attitude. Parity [ 48 ] I have also considered sentences imposed in other cases relating to the sale of fentanyl: R. v. Johal , 2018 BCSC 549 ; Mani , supra, and Kirton, supra .

Of course no case is exactly the same, but they provide some guidance as comparators. [ 49 ] In light of all of the above, I find that the appropriate range of sentence for Mr. Tessier, absent exceptional circumstances, is from 2 ½ to 4 years for the offences in each Information. EXCEPTIONAL CIRCUMSTANCES [ 50 ] What can amount to exceptional circumstances is set out at paragraph 59 of Voong : “[59] In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptional circumstances may include a combination of no 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.

This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There 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 non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met.” [ 51 ] I have also reviewed R. v. Joon, supra, and R. v. Olenik, 2017 BCPC 390 , cases involving and discussing exceptional circumstances. [ 52 ] The relevant facts that can provide a foundation for finding that exceptional circumstances exist in Mr. Tessier’s case are: his

complete change of attitude – a rejection of his criminal mindset; his change of associates, particularly difficult to do in jail; that heworks and is one of a few people trusted in the jail to have unsupervised access to most areas; his stopping drug use; his taking andsuccessfully completing all courses he could while in custody; his concrete plans for treatment of his addiction when he gets out ofcustody; the fact that he wants a lengthy period of probation to assist in his rehabilitation; and the expression of remorse he made andacceptance of his wrongdoing. [53] I find that exceptional circumstances exist – he has turned his life around, as far as possible at this stage.

However, that doesnot mean, as it has in other cases, that no jail sentence is to be imposed. Other factors militate against that, including the fact that hissuccess in dealing with his addiction has been while he has been in custody. That must still be tested when he is out of custody. However, the exceptional circumstances are a factor that can reduce an otherwise fit sentence. SENTENCE LEGAL PRINCIPLES Statutory [54] The purpose and principles of sentencing are set out in sections, 718, 718.1 and 718.2 of the Criminal Code and section 10 (1)of the Controlled Drugs and Substances Act.

Criminal Code 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [55] Other sentencing principles, found in s. 718.2 of the Code, relevant to these proceedings are: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender,… (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) 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. Controlled Drugs and Substances Act 10

(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Partis to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, andtreatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. Proportionality [56]

Section 718.1 of the Code requires that a sentence must be proportional to the seriousness of the offence and degree of offenderresponsibility. Proportionality within the sentencing context was commented on in Ipeelee, supra, at paragraph 37: “[37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — themaintenance of a just, peaceful and safe society through the imposition of just sanctions.

Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity ofthe offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in thejustice system. As Wilson J. expressed in her concurring judgment in Re B.C.

Motor Vehicle Act, (SCC), [1985] 2S.C.R. 486, at p. 533: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence

proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.

In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.“ [ 57 ] More recently, in R. v. Lacasse, 2015 SCC 64 , Wagner, J. stated: “[12] In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be.

In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender . Determining a proportionate sentence is a delicate task.

As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice… [Emphasis Added]” Totality [ 58 ] Since I will impose sentences for more than one offence, after determining the appropriate sentence for each offence, I must take one final look to ensure that the sentence is not crushing and disproportionate to his culpability.

SENTENCE [ 59 ] Taking into account all of the relevant factors, the sentences I would impose, but for exceptional circumstances and the totality principle, are: 50812-C-2 Count 1: 2 years Count 2: 3 years Count 3: 2 years with the sentences to run concurrent with one another. 50820-C-2 Count 1: 2 years Count 2: 2 1/2 years - lower than Count 2 in Information 50812-C-2 because this was a street level transaction and there was a smaller amount of the fentanyl drug combination; with the sentences to run concurrent with one another and consecutive to 50812-C-2. [ 60 ] In my view a total sentence of 5 ½ years is too large a step up from his last conviction.

Although a reduction could be made as a result of exceptional circumstances, based on the totality principle, I reduce the total sentence to 4 years. I will consider the time to credit before concluding how the exceptional circumstances will affect the final sentence. Time To Credit [ 61 ] Mr. Tessier has been in custody since December 14, 2016, which totals 566 days. He will receive credit at the rate of 1.5 days for each day spent on remand, which totals 849 days [2 years 4 months].

Four years, or 1,460 days, less 849 days of time to credit results in a remnant of 611 days, or a little over 20 months. [ 62 ] Mr. Tessier has turned his life around. In recognition of the exceptional circumstances and to foster his rehabilitation, he should be able to enter North Wind Healing Centre this year. Accordingly I reduce his sentence to achieve that outcome.

A jail sentence of a further 165 days will allow him to finalize the details of his treatment plan in custody, hopefully at Guthrie House, and then go to North Wind Healing Centre in October. [ 63 ] Accordingly the sentence I impose is: Information 50812-C-2 Count 1: 1 day with the record to reflect 18 months’ time credited; Count 2: 1 day with the record to reflect 2 years and 4 months’ time credited; Count 3: 1 day with the record to reflect 18 months’ time credited; with the sentences to run concurrent with one another. Information 50820-C-2

Count 1: 165 days; Count 2: 165 days; with the sentences to run concurrent with one another and consecutive to 50812-C-2. [ 64 ] The jail term on Information 50820-C-2 will be followed by a probation Order for a term of 3 years. _______________________ The Honourable J. Guild Provincial Court Judge