R. v. Greenlees, 2019 BCPC 3

Citation: R. v. Greenlees 2019 BCPC 3 Date: 20190115 File Nos: 168283-2-C; 168283-3-A; 168283-4-A; 168290-2-C Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DANIEL KENNETH GREENLEES REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.M. McKIMM Counsel for the Crown: S.M. Simpson Counsel for the Defendant: C. Massey Place of Hearing: Victoria , B.C. Dates of Hearing: October 15, 2018 and January 2, 2019 Date of Sentence: January 15, 201 9 INTRODUCTION [ 1 ] At trial the accused was convicted of one count of possession of narcotics for the purpose of trafficking.

Subsequent to that he entered guilty pleas before the court to a separate count of possession of narcotics, to wit heroin and fentanyl, for the purpose of

trafficking as well as one charge of breach of his recognizance and one charge of failing to attend court. The issue for the court today is a fit and appropriate sentence globally for all of those charges. FACTS Information 168283-2-C Possession for the Purpose of Trafficking April 13, 2016: [ 2 ] On April 13, 2016, police were patrolling an area well known for street drug trafficking and in close proximity to a large homeless shelter in downtown Victoria. They observed what they believed to be a drug transaction involving the accused and two others.

While they were mistaken with respect to their observations, it did give them reasonable and probable grounds to affect the arrest of the accused. During the course of the arrest, the accused was observed to discard a small package into some nearby bushes. When the package was retrieved it contained four yellow bags containing a mixture of heroin and fentanyl of a value of $50 each. [ 3 ] Also found on the accused at the time of his arrest was a digital scale with residue on it, $670 in cash, three bags of cocaine with a total weight of 1.3 g, and a crack pipe.

He also had other empty baggies in his pockets consistent with those used to traffic in narcotics. Also in his affects were rudimentary pink Post-it notes which had symbols similar to the accused tattoos and a phone number. That phone number was for the cellular telephone found in the accused’s possession of the time of the arrest. The only inference from the evidence is that these Post-it notes were used by the accused as business cards for others wishing to buy narcotics. [ 4 ] The accused pled guilty to possession of a controlled substance to wit heroin and fentanyl for the purpose of trafficking.

Information 168290-2-C Possession for the Purpose of Trafficking April 16, 2016: [ 5 ] Three days after his arrest the same officers who arrested the accused on April 13 th phoned the number on the pink Post-it notes and asked the individual who answered the phone whether they could acquire heroin. The individual answering the phone agreed to provide the heroin as requested and was asked by the officers to attend at a location in downtown Victoria which is frequented by residents in the street community but is also in close proximity to a large movie theatre.

When the officers met with the accused they immediately arrested him for trafficking a controlled substance. [ 6 ] They found on his person three baggies containing a total of .8 g of fentanyl mixed with caffeine together with $190 in his wallet. He also possessed more of the pink Post-it notes and the cell phone.

The Crown described this transaction as part of a dial-a- dope operation. [ 7 ] The accused launched a Charter challenge with respect to the admissibility of the evidence found during the course of this arrest which application was unsuccessful. [ 8 ] Following the court's ruling that the narcotics in question were admissible, the accused immediately changed his plea to one of guilty. Information 168283-3-A Breach of Recognizance: [ 9 ] Following his arrest, the accused was released on a recognizance which included a weekly reporting condition.

On a number of occasions in the summer of 2017, he failed to report as directed. The accused pled guilty to the one count on this information. Information 168283-4-A Failure to Attend Court: [ 10 ] The first trial date in this matter was set for October 10, 2017. The accused failed to attend court on that date and the court was advised by the accused’s counsel that he lost touch with the accused some months earlier. A second trial date was ultimately set at which time the accused also failed to attend court as required. Sometime thereafter, he was taken into custody and detained pending this trial.

The accused pled guilty to the one count on this information. ISSUE [ 11 ] The broad issue in this matter is what is the fit and appropriate sentence for these offenses? Of particular concern is: i. Whether the increased range of sentencing pronounced in R. v. Smith 2017 BCCA 112 should apply in the case at bar. ii. Whether the trafficking in question falls under the rubric of a dial-a-dope operation and is thereby more aggravated. iii. Whether the circumstances of the offender and the offense are such that he ought to receive enhanced mitigation as a result of there being extraordinary circumstances.

Position of the Parties Position of the Crown [ 12 ] The crown seeks a sentence of 36 months globally for all of these offenses. They ask the court to impose the new range of sentences for the trafficking of fentanyl as captured in the Smith decision. They submit that this is a dial-a-dope operation and is therefore more aggravated. Position of the defence [ 13 ] The defence says that the sentence of ten months in custody globally is the appropriate range of sentence.

They submit that these offenses took place before the Smith range ought to apply and that therefore the accused is entitled to the range of sentence beginning at six months for this offense. They also submit that the personal circumstances of the accused are such that he falls under the

rubric of exceptional circumstances and therefore the full effect of neither the Smith range or the pre- Smith range should apply. Analysis i. Should the Accused be sentenced under the Smith range of sentences for trafficking fentanyl? [ 14 ] There is absolutely no doubt that the introduction of fentanyl on a wide scale is wreaking havoc in our community. A great deal of material was put before the court outlining the horrors that this drug has had on the population. At the time of these offenses, addicts were not seeking the use of fentanyl, an opioid said to be 100 times stronger than morphine.

It is now well known that even the tiniest quantity of fentanyl can have tragic and fatal consequences. A report from the BC's Corners Service from April 2018, shows that 73.5% of all overdose deaths in 2016 and 2017 involved fentanyl.

One must combine this with the statistic that in 2014 our province sustained 368 overdose deaths, in 2015 that number had leapt to 523, by 2016 it had jumped to 992 and by 2017 it had grown to a staggering 1,449 deaths. [ 15 ] The material filed also shows that more overdoses occurred in the days following income assistance payments than all other days combined for the year 2017 and 2018. The natural inference from that it is these deaths are occurring in the most vulnerable of our populations.

In response to this epidemic, on April 14, 2016, the Provincial Health Officer took the extraordinary step of declaring the fentanyl crisis as a public health emergency under section 52(2) of the Public Health Act S.B.C. 2008 Ch. 28 Sec. 52(2).

There is no question that by early 2016, the dangers and fatal consequences of the trafficking of fentanyl were widely known. [ 16 ] In response to this crisis, the British Columbia Court of Appeal took the relatively unusual step of deciding that the previously established range of sentences for trafficking in a controlled substance was simply inadequate in the face of the fentanyl crisis. On January 27, 2017, eight months after the offenses in question, they issued their ruling in R. v.

Smith 2017 BCCA 112 which effectively increased the range of sentence for those trafficking in fentanyl from six to 18 months to 18 to 36 months. In his judgment Mr. Justice Harris writes: [48] … I agree that it would be 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 paragraph 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. Heroine, 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 wreck 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 individual responsibility of dealers given those risks and public knowledge of them. [ 17 ] There's no question that had Mr. Greenlees committed these offenses following the ruling in Smith that the appropriate range of sentence would have been 18 to 36 months.

The issue for this court however is whether, because these offenses were committed in April 2016, he ought to be sentenced pursuant to the Smith range. Mr. Smith committed his offenses in January 2015. The material filed before this court confirms that by January 2015 fentanyl had emerged, "as a public health emergency in this province…” ( Smith at paragraph 11 ). On the other hand, the notoriety of the fentanyl crisis had not reached its full expression until at least April 2016 when the public health emergency was declared. [ 18 ] Dealing with this issue Mr.

Justice Harris for the majority writes: [53] …A proportionate sentence is one which is proportionate to the gravity of the offense and the degree of responsibility of the offender: see paragraph 53 (citing R. v. Lacasse 2015 SCC 64 ), quoted by my colleague at paragraph 24. This involves, in my view, an assessment of the circumstances of the offense at the time it was committed. Evaluating the circumstances of an offense may well involve assessing changes in social circumstances, public knowledge and changes in societal and judicial knowledge and attitudes about certain offenses.

I agree with the substance of the point made by Mr. Justice Code in R. vs. Nurm, 2011 ONSC 4874 [54] Material facts about the public health crisis associated with fentanyl have been evolving rapidly in recent years. They have evolved significantly since Mr. Smith committed the offense in January 2015. I think that evolution is relevant to the question of whether the sentence imposed on Mr. Smith is demonstrably unfit given the circumstances that existed at the time he committed the offense.

I turn, therefore, to the evidence that was before the sentencing judge bearing on the proportionate sentence at the time of the offense was committed and what that evidence supports in terms of an appropriate sentencing range in current circumstances. [ 19 ] In Smith , the court determined that it was not an error of law to sentence Mr. Smith for trafficking fentanyl in January 2015 pursuant to the range of sentencing for trafficking in narcotics at the time of the offense.

Indeed the court made it clear that a sentence which did not impose the Smith range would become demonstrably unfit only if it occurred late in 2016: Since January 2015, there have been a number of changes which would render at the sentence imposed on Mr. Smith demonstrably unfit had the offense occurred later, particularly if it had occurred in late 2016 .

Smith at paragraph 61. Emphasis Added. [20] I agree with counsel for the Crown that the language in Smith leaves open the possibility that offenders who committed theiroffenses earlier in 2016 might well be subject to the range of sentence proposed in Smith, but to do so only means that the court wouldnot necessarily be committing reversible error, not that that sentence would necessarily be correct. In my view a more cautious approachto sentencing those who traffic fentanyl is appropriate. Given that Mr.

Greenlees was a man living on the streets, with a significantlycompromised intellectual capacity, I'm not satisfied that at the time he committed these offenses he was well aware of the crisis involvedin trafficking fentanyl. In my view, therefore, it is more appropriate to sentence him as he would've been sentenced had he pled guilty atthe time of the offense. I'm not prepared to apply the Smith range in this instance. ii.

Do the facts in the case at bar constitute a dial-a-dope operation thereby attracting a more aggravated sentence? [21] A dial-a-dope operation involves individuals who use cellular telephones to receive orders for narcotics. Those individuals thendeliver the illegal narcotics to the buyers anywhere in the city or locale. In R. v. Dickey 2016 BCCA 177 , 2016 BCJ 815, theCourt of Appeal described the concept this way: 28 Dial-a-dope drug selling, being essentially ordering delivery of illicit substances by phone, facilitates the ease of obtaining drugsin communities and the infiltration of a criminal trade.

It is a crime that requires forethought and planning, a cell phone, a drug supplier,packaging materials, sometimes measuring equipment, and usually a vehicle. Like any trafficking offence under s. 5(3)(

a) of the Act, itis punishable by life in prison. The range of appropriate sentences for first-time offenders in dial-a-dope drug offences in this provincehas most recently been stated by this Court in R. v. Voong, 2015 BCCA 285, where suspended sentences were upheld.

There (paras. 44and 59), the established range was said to be between six and nine months in prison and upwards to 18 months in some cases dependingon the aggravating factors in any given instance. [22] The two key points distinguishing the dial-a-dope operation are the ease of access and the fact of infiltration, furthermore itconnotes a level of sophistication and planning. While the use of a cellular telephone was originally considered a mark of sophistication,it can no longer be said that the presence of a cellular telephone in the possession of a citizen is anything other than ordinary.

Furthermore there is no indication here that the accused had any meaningful ability to disseminate narcotics in response to a phone callany further than within a few blocks within the downtown core. [23] Crown counsel sought to distinguish the dial-a-dope operation from the purchase of narcotics from any one of the open airmarkets where such drugs are available. She indicated that there was one such market within half a block of where the accused wasarrested for the second time.

Furthermore, it was the police who directed the accused to where to travel to in order for the transactionand arrest to be made, a location well known and frequented by the street community in Victoria. [24] There are markers of sophistication, however, such as the presence of scales and unused packaging material at the time of thefirst arrest and the use of the Post-it notes as calling cards, but in my view these put the offender at the very lowest end of the range ofsentences for dial-a-dope operation.

Indeed if it were not for the fact that the narcotic was fentanyl, the range for these offenses wouldhave been below that for dial-a-dope sentences. Of course, the first offense was not a dial-a-dope offense at all. iii. Are the circumstances of the offender such that they ought to be considered extraordinary and as such the usual rangeof sentences do not apply? [25] At the time of these offenses, Mr. Greenlees was 23 years of age, he is now 26.

He has a relatively minor criminal record: June 2010 Possession of Stolen Property Conditional DischargeOctober 2014 Breach of Undertaking Conditional DischargeFebruary 2016 Breach of Probation Suspended sentence for 12 months [26] Sadly Mr. Greenlees suffers from a severe cognitive disability. He suffers from depression, anxiety and cognitive impairment. Some of his mental health struggles appear to be organic and some as a result of a closed head injury.

His physician in an applicationfor disability benefits described his barriers in this way: The severity of this patients combined diagnosis leave him severely disabled – heis unable to do his ADL (Activity of Daily Life) independently. He is severely limited in terms of social functioning. Ultimately he isdescribed as having little or no executive functioning. [27] He struggled through school and though he had the support of his mother, his father was a negative influence and introducedhim to drugs and alcohol at an early age. He left home in 2010 and his struggles with addiction continued and escalated.

He has beenthe victim of two separate violent assaults while living on the streets, most recently being struck in the head with a baseball bat in May of2017. [28] While the court is sympathetic to Mr. Greenlees’ struggles, I do not think they amount to exceptional circumstances. There isno link between his mental health struggles and his decision to traffic in narcotics.

I accept that they do support the conclusion that hemay not have been as aware as he ought to have been about the dangers of the drugs he was selling and therefore avoid the effects of theSmith range of sentences, but his circumstances are not such as I find them extraordinary such that he ought to be relieved of the fulleffect of the law as it was prior to Smith. [29] In my view there needs to be something more before the court than the bald assertion that the accused suffers from mentalhealth struggles before he or she is entitled to the benefit of extraordinary circumstances analysis.

There was no pre-sentence report andthe material provided by way of submissions was inadequate to make any sort of connection or nexus between the mental healthstruggles and the criminal behaviour. There is no evidence that he was prayed upon by others, that, as a result of his deficits he wasunable to resist the criminal behaviour or less capable of understanding the consequences of that behaviour. Mr. Greenlees has helddown many different jobs and has enjoyed the support of his mother throughout his life. He has found low cost housing which may beless than ideal, but is adequate in the circumstances.

He has the capacity to create the calling cards to promote his business as well as toorganize himself sufficiently to carry out his criminal behaviour. He is selling drugs to support his own habit, but clearly, given the

quantity of cash found on him on both occasions he is able to do far more than that. [ 30 ] In my view Mr. Greenlees is subject to the range of sentence imposed prior to the new range created in Smith . [ 31 ] In the first instance there was no suggestion that he was involved in a dial-a-dope operation, but clearly he was possessing narcotics and particularly fentanyl for the purpose of trafficking. On the second instance he was clearly trafficking in narcotics and possessed the narcotics for that purpose. [ 32 ] It is highly aggravating on both of those allegations that the narcotic was fentanyl.

It is aggravating that on the second instance he was also on a judicial interim release following his arrest on the first allegation. [ 33 ] In mitigation he has entered guilty pleas on three of the four allegations. He is still a young man and the court must not lose focus on rehabilitation. His previous criminal history is relatively minor and not cognate. Both of the offenses involved small levels of narcotic, albeit fentanyl. It is certainly mitigating that he suffers from a significantly impaired mental condition which is not sufficient to refer to it as extraordinary circumstances.

In my view it does lessen his culpability for these offenses. [ 34 ] Considering the principals of proportionality (718.1) and restraint (718.2(d) & (

e) and the many authorities put before me, I find the appropriate sentence is as follows: • Information 168283-2-C: 90 days; • Information 168290-2-C: 220 days consecutive; • Information 168283-3-A: 7 days concurrent; and • Information 168283-4-A: 30 days concurrent. [ 35 ] The two process offenses are to be served concurrently because they are more a product of Mr. Greenlees intellectual deficits rather than a real desire to avoid his responsibility. [ 36 ] Mr.

Greenlees has served 216 days in custody and is entitled to credit at a rate of one in a half to one for a total credit of 324 days, for a total sentence of zero days new time. [ 37 ] Much was made of the efforts that Mr. Greenlees has made to find a better path going forward. He is clean of his addiction at this time and has turned to the support of the chapel to help him move forward. He has reconnected with his mother and members of his family in a significant way. They are supporting him now though they have made it clear to the court that they do so only because of the significant work that Mr.

Greenlees has done to earn their support. That being the case of a probation order to support his on-going prosocial lifestyle. [ 38 ] The terms of that order will require him to continue counselling and continue abstinence. BY THE COURT _________________________________ The Honourable Judge D.M. McKimm