R. v. Large Date:, 2016 BCPC 340

Citation: R. v. Large Date: 20161012 2016 BCPC 340 File Nos: 29590-2-C; 29590-3-A Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TODD ALEXANDER LARGE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. T. DOULIS Counsel for the Crown: J. B. Deschamps Counsel for the Defendant: B. Fritzpatrick Place of Hearing: Fort St. John , B.C. Date of Hearing: September 23, 2016 Date of Judgment: October 12, 2016 [ 1 ] By way of Information 29590-2-C, Mr. Todd Alexander Large was charged with one Count of unlawfully trafficking in

controlled substances, namely cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA"). [2] By Information 29590-3-A, Mr. Todd Alexander Large was in breach of an undertaking or recognizance to a peace officer byfailing to report to a bail supervisor as directed, contrary s. 145.3 of the Criminal Code. [3] On September 23, 2016, Mr. Large pled guilty to these two offences in Fort St. John, B.C., and proceeded to a sentencehearing. I reserved my decision and the sentence is being imposed today in accordance with the following reasons for judgment.

ISSUE [4] The Crown and Defence agree that for the offence of breaching an undertaking or recognizance to a peace officer as chargedunder Information 29590-3-A, the appropriate sentence is one day in jail, time served. [5] The salient issue I must determine is the appropriate sentence to be imposed on Mr. Large for trafficking in cocaine in thecircumstances of the offence having regard to his personal circumstances. CIRCUMSTANCES OF THE OFFENCE [6] In late April 2014, the Fort St. John RCMP detachment implemented an undercover operation to investigate street level drugtrafficking in the community.

During this operation police investigators made contact with suspected drug dealers through a dial-a-dopephone number provided to the police by informants or other officers. Between April 25, 2014 and April 27, 2014, the officers called thisnumber and arranged to have drugs delivered to an agreed location. The officers were able to arrange to purchase crack cocaine fromtwo different individuals, one of whom was Mr.

Large. [7] On April 27, 2014, the undercover police officer called the dial-a-dope telephone number and arranged with an unknown maleto purchase $240 worth of “hard” which in street argot means crack cocaine. An undercover officer tried to arrange a meeting at theNorthwood Inn, which the unknown male rejected in favour of the Fort St. John motor cross track. This locale was later changed to astreet near the Fort St. John BCSPCA.

The male with whom the undercover officer spoke on the phone asked the officer to let himknow if any vehicles passed him because that would be suspicious. [8] The undercover officer went to the agreed meeting place. At about 1:05 a.m., Mr. Large drove up in a dark Volkswagen Jetta,a vehicle registered in his own name. Mr. Bagan occupied the passenger seat. The undercover officer handed Mr. Large $240 who gavethe money to his passenger, Mr. Bagan. Mr. Bagan spit out three rocks of crack cocaine wrapped in cellophane. Mr. Large gave theofficer three rocks of crack cocaine. The undercover officer said Mr.

Bagan’s cheeks looked “stuffed.” [9] Mr. Large was arrested on May 3, 2014, and released on bail. He has been in custody since August 12, 2016. CIRCUMSTANCES OF THE OFFENDER [10] Mr. Large was born on May 12, 1994, in Fort St. John. He grew up and went to school in Taylor and Fort St. John. On April27, 2014, the date of s. 5(1) CDSA offence, Mr. Large was 19 years old, soon to be 20. He has no criminal record. He says he becameinvolved in the drug trade through his association with high school friends. Ten years ago, Mr.

Large’s father became ill with a serioushereditary disease that left him incapable of working. Mr. Large and his mother assumed the burden of supporting the family and caringfor his father. Mr. Large had worked in various jobs in the Fort St. John area since leaving high school. He does have his H2S ticketsand first aid certification. He hopes to work in the oil industry upon his release from jail. [11] Although Mr. Large had been on bail, he says he lost his job in construction because of the restrictive provisions of the terms ofhis recognizance which the bail supervisor would not agree to adjust. [12] Mr.

Large expresses remorse for the evil he has visited on his community by participating in a dial-a-dope operation. POSITION OF THE PARTIES [13] The Crown asks the Court to sentence Mr. Large to six to nine months’ jail for the s. 5(1) CDSA offence (drug trafficking). Insupport of this position, the Crown cites R. v.

Voong, 2015 BCCA 285 , which recognized that drug trafficking is seriouscriminal conduct and held that absent exceptional circumstances, a sentencing judge ought to impose a sentence of six to nine months'incarceration for first offence dial-a-dope offenders. [14] The Defence seeks a sentence of 90 days and relies on the post-Voong decision of R. v. Pepper, 2015 BCCA 476. PURPOSE AND PRINCIPLES OF SENTENCING [15] Section 5(1) of the CDSA prohibits any person from trafficking in or possessing a “substance included in

Schedule I, II, III orIV” of the CDSA, for the purpose of trafficking. [16] Cocaine is a substance listed in

Schedule I of the CDSA and engages section 5(3)(

a) of the CDSA which imposes a maximumpunishment of life imprisonment. [17] Both the CDSA and the Criminal Code mandate certain principles applicable to sentencing.

Section 10 of the CDSA states: Purpose of sentencing 10

(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this

Part isto 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.

[18] With respect to offences not subject to mandatory minimum punishment, the court is required to consider any relevantaggravating factors that are said to include but not limited to: 1. involvement of a weapon or violence, proximity to schools or other places frequented by persons under the age of 18, ortrafficking to such underage persons; 2. previous conviction of a designated substance offence; or 3. involving an underage person in the commission of the offence. [19]

Section 718 of the Criminal Code provides the fundamental purpose of sentencing is to contribute, along with crime preventioninitiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing justice sanctions that have one ormore of the following objectives: (1) to denounce unlawful conduct; (2) to deter the offender and other persons from committingoffences; (3) to separate offenders from society, where necessary; (4) to assist in rehabilitating offenders; (5) to provide reparations forharm done to victims or community; and (6) to promote a sense of responsibility in offenders and acknowledgement of the harm done tovictims and the community. [20]

Section 718.1 of the Code underlines as a fundamental principle that a sentence must be proportionate to the gravity of theoffence and the degree of responsibility of the offender. In R. v. Ipeelee, 2012 SCC 13 , the Supreme Court held (at para. 36)the principle of proportionality had a constitutional dimension in sections 12 and 7 of the Charter. Also see: R. v. Lacasse, 2015 SCC 64. [21]

Section 718.2 requires courts to consider certain other sentencing principles as well, including: a. a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender; b. a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances(the "parity principle"); 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 should be considered. [22] In R. v.

Lacasse, 2015 SCC 64 , Wagner J., for the majority, comments on the principle that the severity of thesentence will increase with the seriousness of the crime and its consequences and with moral blameworthiness of the offender. He statesin part: 53. This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, whichprovides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentencewill therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle.

Proportionality is determined both onan individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparisonwith sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must bereconciled for a sentence to be proportionate: s. 718.2(

a) and (

b) of the Criminal Code. SENENCING PRECEDENTS [23] In R. v. Lloyd, 2016 SCC 13 at para 26), McLachlin C.J. commented that

Schedule I drugs, such as cocaine, heroin ormethamphetamines, are “highly addictive and inflict great harm on individuals and society. Trafficking in these drugs is rightlyconsidered a serious offence.” [24] In R. v. Dickey, 2016 BCCA 177 , Mr. Justice Lowry, for the unanimous court, described the dial-a-dope enterpriseand its social impact as follows: [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. . . . [25] The Crown relies on R. v. Voong, 2015 BCCA 285 , R. v. Rastgoei, 2008 BCCA 242, R. v. Gillespie, 2015 BCCA 290,R. v. Biernaczyk, 2011 BCPC 176, and R. v. Codd, 2002 BCCA 456 . The Defence relies on R. v. Pepper, 2015 BCCA 476. [26] I have also reviewed and considered the post-Voong decisions of: R. v. Cisneros, 2014 BCCA 154, R. v. Dickey, 2016 BCCA177 , R. v. Ameeri, 2016 BCSC 118. R. v. Chamberlain, 2016 BCSC 379 (CanLII, R. v.

Abude, 2016 BCSC 543 , R. v.Batista, 2016 BCSC 572 , R. v. Currie, 2016 BCSC 828 , R. v. Wong, 2016 BCSC 1568 . Crown Authorities

[27] In Voong the Court of Appeal affirmed the availability of a suspended sentence and probation for dial-a-dope offences. MadamJustice Bennett, for the majority, made the following comments about this type of offence and the sentence it attracts: a. “Those who embark in drug trafficking engage in serious criminal conduct. Absent exceptional circumstances, in BritishColumbia, they should expect to be sent to prison.” (para. 1); b.

Dial-a-dope trafficking is “particularly insidious”, because it permits the drug trade to infiltrate communities to a greater degree. “A customer calls a cell phone number, places an order and the dealer travels to a location for the drug exchange to take place. In otherwords, the drugs can be obtained with the ease of home delivery” (para. 16, citing, Henderson J., in R. v. Franklin, 2001 BCSC 70); c. General deterrence and denunciation are given more weight than other sentencing principles when sentencing drug traffickers(para. 18); d.

Absent exceptional circumstances, the normal range of sentence for dial-a-dope traffickers is between six to nine monthsincarceration, and, in some cases, upwards to eighteen months (paras. 44 and 58 citing R. v. Cisnerous, 2014 BCCA 154); e. Dial-a-dope method of trafficking is an aggravating factor in sentencing. Other aggravating factors are: (

a) the number ofoffences; (

b) the period over which the offences are spread; (

c) whether the trafficking was solely for profit and not to support anaddiction; (

d) where the trafficking takes place near a school in a neighbourhood where there are persistent drug problems (para. 49,citing R. v. Ahmed, 2001 BCCA 504). [28] Bennett, J. summarizes the law in B.C. for sentences in dial-a-dope operations at para. 59: [59] In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dopedrug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptionalcircumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation forthe drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed toharm 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 circumstancesthat are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge toconclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served bya non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded thatCSO sentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. [29] In this case, neither Crown nor Defence counsel have suggested that a suspended sentence is appropriate, however the appellatecourt’s direction on what constitutes exceptional circumstances is relevant to whether Mr. Large should receive a sentence outside the sixto nine months’ range. [30] Voong was handed down shortly after the Court of Appeal’s decision in R. v. Oates, 2015 BCCA 259.

In Oates, the 31 yearsold offender had prior non-drug-related convictions for driving while prohibited, causing a disturbance, and for mischief. Mr. Oates wason probation when he sold $40 of crack cocaine to an undercover police officer who had contacted him through a dial-a-dope telephonenumber (See: R. v. Gillespie, 2015 BCCA 290 ). [31] Mr. Oates pled guilty to one count of trafficking in cocaine contrary to s. 5(1) of the CDSA. The court suspended any sentenceto provide Mr.

Oates with "a second chance" to show the court and the community his illegal activities were behind him, that he wouldcontinue with his rehabilitation and would become productive in society. The 36-month probation order included a 9:00 p.m. to 5:00a.m. curfew for the first six months and required Mr. Oates perform 40 hours of community service. [32] The Crown appealed and the Court of Appeal set aside the suspended sentence and imposed in its place a jail term of six monthsfollowed by 18 months’ probation. The Court acknowledged that Mr.

Oates was unlikely to reoffend but noted that "the predominantquestion is not rehabilitation but the safety and protection of the community at large through deterring others from engaging in thisbehaviour." The Court noted the sophisticated structure of the dial-a-dope trafficking business model and that denunciation anddeterrence must be the "primary objectives in imposing sentences of trafficking in this manner.” It continued: While this jurisprudence does not mean that such offences will always attract a jail sentence, recognizing that each case must be decidedwith reference to the individual circumstances, it does mean that at the first step, denunciation and deterrence are the major players in thesentencing considerations. (See: :para. 20) [33] In R. v.

Rastgoei, 2008 BCCA 242 , the B.C. Court of Appeal allowed a Crown appeal from an 18-month conditionalsentence (“CSO”) imposed on an offender following a guilty plea, and substituted a 12-month prison sentence. Although only 21 yearsold and without a criminal record, Mr. Rastgoei had been involved in a five-month dial-a-dope operation. He committed 26 breaches ofhis bail conditions including 10 dial-a-dope transactions while on bail for the same offence. He was not an addict and engaged in thedrug trade purely for profit. In fact, he took a leading role in the drug transactions. Mr. Justice Bauman describes Mr.

Rastgoei as a“young man engaged in repeated cocaine trafficking transaction over a significant period of time in a role which can only be described asentrepreneurial” (para. 52). [34] The Court of Appeal discussed the evils of a dial-a-dope operation as noted in R. v. Franklin, 2001 BCSC 706 and R. v. Tran,2007 BCCA 405. Dial-a-dope operations are difficult for the police to detect and make highly addictive drugs such as cocaine morereadily accessible. Dial-a-dope operations are a more aggravated form of the drug trade. Mr. Justice Bauman canvassed a number ofauthorities from the B.C.

Court of Appeal which consider the following factors in sentencing an offender for trafficking using a dial-a-dope business model: (

a) the degree of sophistication of the enterprise; (

b) the degree of marketing required to sustain the business; (c)the level of planning and committed endeavour involved; (

d) the extra difficulty that may be posed for police investigation; and (

e) theprofit aspect which is often present in cases involving such schemes.

[35] The appellate authorities canvassed in Rastagoei show it is well-established that deterrence and denunciation are essentialobjectives in cases involving hard drugs such as cocaine, heroin, and methamphetamines. The appellate courts noted that while someCSOs have been imposed in cocaine trafficking cases, but CSOs have not been favoured, especially in dial-a-dope trafficking operations(para. 38). A dial-a-dope operation is an aggravating circumstance in drug trafficking offences. [36] In R. v.

Gillespie, 2015 BCCA 290, the 25 year old offender appealed a six month custodial sentence for trafficking in cocaine. Mr. Gillespie was arrested when delivering cocaine to a customer as a favour to his girlfriend who was running a dial-a-dope business. Unfortunately for Mr. Gillespie, the customer was an undercover police officer. The police later discovered cocaine, MDMA, andEcstasy packaged for sale in Mr. Gillespie’s car together with his girlfriend’s cell phone.

The girlfriend, who had no criminal record,pleaded guilty to two counts of trafficking for which she received an 18-month CSO. [37] Because the offences occurred prior to the amendments to s 742.1 of the Criminal Code, a CSO was also available to Mr.Gillespie. Nevertheless, the sentencing judge, relying on Cisneros and R. v. Alves, 2013 2075, rejected the defence’s submission. Thejudge was unable to find any special or extraordinary circumstances which would justify a sentence other than real custody. Mitigatingfactors included a guilty plea, remorse, and efforts at rehabilitation.

The principle aggravating factor was the dial-a-dope operationtrafficking in cocaine. In imposing a six month jail sentence, the sentencing judge expressed the view it was at the low end of thesentencing range because of the mitigating circumstances. [38] In dismissing the appeal, Madam Justice Newberry accepts that Mr. Gillespie was unlikely to engage in illegal drug traffickingagain. Nevertheless, the predominant question was not rehabilitation but the safety and protection of the community. Justice Newberrystates: [16]. . . . Although one might infer that [Mr.

Gillespie] is unlikely to engage in illegal drug trafficking again, the fact remains that that hedid engage in a dial-a-dope operation simply to assist his girlfriend and thus showed himself willing to disseminate cocaine and otherdrugs in the community.

Illegal drugs continue to be a scourge in many British Columbia communities, including Victoria, and this courthas indicated that denunciation and deterrence must continue to play a strong role in the sentencing of dial-a-dope offenders. [39] The Court found the sentencing judge erred in determining she ‘had no choice’ but to impose a sentence of six months’imprisonment. Still, in dismissing the appeal, Justice Newberry commented the sentence was clearly within the appropriate range andnot demonstrably unfit. [40] The defence distinguishes Gillespie on the fact that Mr. Gillespie had a criminal record.

Also, the inventory of drugs found inMr. Gillespie’s vehicle at the time of his arrest suggested this was not intended to be an isolated transaction. [41] R. v. Biernaczyk, 2011 BCPC 176, is a sentencing decision of Judge Baird Ellan of this Court. Mr. Biernaczyk was a mid-levelparticipant in the drug trade on the Sunshine Coast. When apprehended on the ferry, he had on his possession 126.2 grams of powderand crack cocaine worth over $10,000, drug trafficking paraphernalia and $2000 in cash. He was convicted of possessing cocaine for thepurposes of trafficking. The Crown did not establish Mr.

Biernaczyk was involved in a dial-a-dope enterprise or selling cocaine when hewas arrested. At the time of the offence, Mr. Biernaczyk was 24 years old without a criminal record. Judge Baird Ellan referred to R. v.Holt, 2008 BCPC 72 , R. v. Vanqerano, 2000 BCCA 343 and R. v. Codd, 2002 BCCA 456, for the principle thatcommunity standards or local conditions are relevant to the concept of deterrence. Specifically, deterrence is important where thetrafficking offence occurred in a small community (paras. 17-19). Judge Baird Ellan sentenced Mr. Biernaczyk to one year in jail. [42] R. v.

Codd, 2002 BCCA 456 , is a defence appeal from a 17 month jail sentence imposed by Judge Daley of the FortSt. John Provincial Court for possessing cocaine for the purpose of trafficking. Mr. Codd pled guilty. He was 39 years old with threeprior convictions for drug trafficking and on probation at the time of the offence. When passing sentence Judge Daley commented on theimportance of deterrence given the prevalence of drugs and drug related problems in Fort St. John. Chief Judge Finch, on behalf of theunanimous appellate court, dismissed Mr. Codd’s appeal. Defence Authorities [43] The Defence relies on R. v.

Pepper, 2015 BCCA 476, a decision post-dating Oates and Voong. In Pepper, the unanimousappellate court allowed the appeal from a six month custodial sentence for possession of cocaine for the purpose of trafficking andtrafficking in a controlled substance. The Court of Appeal found the Provincial Court sentencing judge erred when applying a standardof “highly exceptional circumstances” rather than “exceptional circumstances” to justify departing from the usual range of jail sentenceof six to nine months for a first time drug offender.

The judge had determined that a 90 month intermittent sentence was fit, but thatOates precluded her from imposing a jail sentence less than six months. The Court of Appeal set aside the six month jail sentence andsubstituted the 90 day intermittent sentence. [44] Mr. Pepper was found to be in possession of 31 flaps, each containing .4 grams of cocaine, for a total of 12.4 grams. He alsohad cash totalling $1,030. The evidence indicated Mr. Pepper was engaged in a dial-a-dope enterprise. Mr. Pepper was 40 years old atthe time of sentencing.

He had three children, two with his former wife and one with his new common-law spouse. At the time of theoffence, he was unemployed, drinking excessively and using drugs heavily. He was pressured into working for his drug dealer to pay offa drug debt. There was no evidence to suggest that Mr. Pepper had engaged in the offence other than on the date of his arrest. Thesentencing judge found mitigating Mr. Pepper’s remorse, steady work history, community and family support. The judge also took intoaccount the impact of a prison term on Mr. Pepper’s children and their mothers who regarded him as an excellent father.

The judgefound aggravating Mr. Pepper’s involvement in a dial-a-dope operation, the nature of the drug being trafficked, the number oftransactions and Mr. Pepper’s financial motivation for engaging in the offence. [45] The Court of Appeal accepted a constellation of factors including Mr. Pepper’s divorce, heavy consumption of drugs andalcohol, guilty plea, remorse, strong community support and rehabilitation constituted exceptional circumstances.

As indicated above,the Court of Appeal found the sentencing judge had erred in understanding that Oates precluded her from imposing the 90 dayintermittent sentence she thought fit because it fell outside the normal range of a sentence for drug trafficking.

Additional Post-Voong Authorities [46] Pepper was considered but not followed in R. v. Abude, 2016 BCSC 543 . Mr. Abude was charged with one count oftrafficking in cocaine. He was caught selling cocaine to undercover officers on eight different occasions over a three-month period. Intotal, Mr. Abude sold 52 grams of cocaine for $3,890. He was 25 years old at the time of the offence with no criminal record. As theoffence occurred prior November 20, 2012, when the

Section 742.1 was amended by s. 34 of the Safe Streets and Communities Act, S.C.2012, c. 1; a conditional sentence was still available for an indictable offence punishable by life imprisonment. The sentencing judgefound mitigating the fact that Mr. Abude was a relatively young man, he was genuinely remorseful, he was using the profits to supporthis family and he had stopped selling drugs on his own initiative prior to his arrest. The sentencing judge found aggravating the dial-a-dope modality for trafficking, the number of transactions, the amount of cocaine sold and the profits gained.

Justice Ehrcke also tookinto account that because Mr. Abude was not a Canadian citizen he might be subject to a removal order from Canada as a consequence ofhis conviction and that an appeal of such an order is only possible if the sentence is less than six months (Sections 36 and 64,Immigration and Refugee Protection Act, S.C. 2001, c. 27). The sentencing judge accepted this collateral consequence of Mr. Abude’sconviction as a circumstance which could justify a slightly lower sentence than would otherwise be imposed for this offence andsentenced him to six months’ jail less one day. [47] In R. v.

Ameeri, 2016 BCSC 1187, Justice Kent sentenced the offender to 90 days in jail for trafficking in heroin over a 41 dayperiod. He found aggravating the number of transactions, the profit motive, Mr. Ameeri’s criminal record, and the fact he used his ownhome as a stash house for a dial-a-dope operation. “The accused was deliberately participating in criminal activity the perniciousconsequences of which to society are widespread and well-known and in respect of which the accused has expressed no meaningfulremorse nor, indeed, even acknowledged any harm he was done to the community” (para.39).

On the mitigating side of the equation,Mr. Ameeri pled guilty, he was only 23 at the time of the offence he had no police involvement in the three years since the offence orbreach of bail conditions, he had turned away from the criminal element with whom he had previously associated, and he was nowemployed full time and contributing to his family household. Also relevant was that if subject to a lengthy jail sentence, Mr. Ameerimight suffer harsh immigration consequences such as removal from Canada. [48] In R. v.

Dickey, 2016 BCCA 177 , the Court of Appeal dismissed a Crown appeal of three sentencing decisions fortrafficking, or possession for the purpose of trafficking in cocaine. The two main issues before the appellate court were: (

a) whether thesentencing judge erred in finding the minimum statutorily prescribed sentence was constitutionally of no force or effect (for infringing s.12 of the Charter as being cruel and unusual punishment and not demonstrably justified under s.(1)); and (

b) whether the sentences theydid impose were demonstrably unfit. [49] The sentencing judge found Mr. Dickey to be a low level dial-a-dope dealer in a small and unsophisticated operation in Quesnel,B.C. He did not use a vehicle. He did not target or involve young people in the operation. When arrested Mr. Dickey had no morecocaine than an addict would use in a day. He had no other drugs or drug paraphernalia. Mr. Dickey was 27 years old at the time of theoffence with an unrelated criminal record. He used cocaine to relieve pain following knee surgery for a work place accident.

He becameaddicted and turned to selling drugs to support his addiction. By the time of his sentencing he had succeeded in overcoming hisaddiction.

He obtained steady employment at the local mill and presented the court with letters of support from several friends andfamily members attesting to his character, his work ethic, and the positive changes in his life following his arrest. [50] As the appellate court summarized, the sentencing judge “recognized the cases involving dial-a-dope operations differedmarkedly with respect to the amount of drugs involved, the number and circumstances of transactions, the diversity of offenders, andtheir criminal records” (para. 45). The sentencing judge suspended the passing of sentence on Mr.

Dickey, imposed a probation period of20 months, and ordered him to perform 50 hours of community service. [51] In R. v. Wong, 2016 BCSC 1568 , Justice Johnson imposed a suspended sentence on a first time offender involved in adial-a-dope operation. Mr. Wong was only 18 at the time of the offence. Although not an addict, Mr. Wong had taken objectivelyidentifiable steps toward rehabilitation. Mr. Wong “completely changed his life around”; he was gainfully employed, he showedremorse and acknowledged the harm done to his family and community by his offending conduct. Justice Johnson applied Voong eventhough Mr.

Wong was not an addict. He states: [34] In my view, the public is better protected here by not exposing Mr. Wong to the sort of people he is going to meet if he goes tojail. They are likely the kind of people that led him astray in the first place. The public will also be better served if Mr.

Wong continuesalong the path he now is on, being a useful and productive member of society, and he can contribute further to the public good and, atthe same time, meet the objective or one of the objectives of sentencing set out in s. 718; that is, promotion of a sense of responsibility inoffenders and acknowledgment of the harm done to victims, and under sub (e), to provide reparations for harm done to victims or to thecommunity through a suspended sentence and community work service. [52] In addition to those authorities discussed in this decision, I have read and considered the recent sentencing decisions of the B.C.Supreme Court in R. v.

Charette, 2016 BCSC 1275, R. v. Harrison, 2016 BCSC 1131 and R. v. Galye, 2016 BCSC 1154 . Ihave also reviewed and found helpful the following decisions of this court in R. v. Parenteau, 2016 BCPC 88 , R. v. Truong,2016 BCPC 224 and R. v. Madison, 2015 BCPC 323 . DISCUSSION [53] Considering the factors in this case I am somewhat hampered by the lack of a pre-sentence report or corroboratingdocumentation or evidence from third parties. Aggravating Factors

[ 54 ] Mr. Large committed a serious offence. He was selling crack cocaine, a particularly harmful and addictive drug, and that he was doing is in a dial-a-dope operation. The dial-a-dope modality of trafficking is aggravating. As Justice Johnson says in Wong : [7] These are all dial-a-dope decisions. They have in common that dial-a-dope drug schemes, and these are findings of various judges, both of this court and the Court of Appeal, are insidious, in part because they make drugs broadly available.

They are attractive because dial-a-dope deliveries pose less ostensible risk to the buyers who do not need to go where traffickers congregate in order to get access to their drugs. They are also perhaps or arguably somewhat less easy to detect and stop by the police. [ 55 ] It is not clear to me if Mr. Large owned, or managed, or supervised the dial-a-dope operation or whether he was merely a worker taking direction. From submissions of counsel I gleaned that when he was 19 years old, Mr. Large, in the company of Mr. Bagan, sold three rocks of crack cocaine to an undercover officer on April 27, 2014.

He did so in the context of a dial-a-dope operation using his own vehicle. I gather from Mr. Large’s submissions that Mr. Bagan was a friend from high school. I do not know what role, if any, Mr. Large played in initiating the dial-a-dope operation or how deeply entrenched he became in the drug trade. I do not know if anyone other than Mr. Large and Mr. Bagan were involved in the operation. I surmise it was a low-level dial-a-dope operation operating in Fort St. John in late April 2014, in which Mr. Large participated at a street level. [ 56 ] In this regard, the circumstances of Mr.

Large’s offence are distinguishable from those in the oft-cited decision in R. v. Cisneros , 2014 BCCA 154 . Mr. Cisneros was 27 at the time of his arrest. He was charged with one count of possession of cocaine for the purpose of trafficking in a dial-a-dope operation. He was not a drug addict and had no criminal record. He was gainfully employed, but sold drugs for the preceding 10 years to augment his income. The police found in his possession 25 rocks of cocaine and 29 baggies of heroin. The sentencing judge suspended Mr.

Cisneros’ sentence and imposed a one year term of probation, which included a three month curfew. The Court of Appeal allowed the Crown appeal and substituted a sentence of six months’ jail. [ 57 ] In this case, there is an absence of aggravating factors such as targeting or involving young people in the dial-a-dope operation. ( See: s. 5(3) (a)(ii)(

A) CDSA , Dickey , citing R. v. Ahmed , 2001 BCCA 504 , and R. v. Williams , 1996 CanLll 3271 (BCCA), at para. 29). There is no evidence that any young person other than the dealers themselves who were directly affected by this criminal activity. Neither is there evidence of violence or weapons used. [ 58 ] I have summarized below the presence of the statutory aggravating factors set out in s. 10(2) of the CDSA as well as those enumerated in Ahmed as adopted in Voong : Factor Application to Mr.

Large’s case number of offences one period over which the offences are spread one day (April 27, 2014) w hether the trafficking was solely for profit and not to support an addiction the drugs were sold for profit. Mr. Large was not an addict drug been trafficked crack cocaine - a

Schedule I drug where the trafficking takes place the trafficking did not take place near a school grounds or any other public place usually frequented by persons under the age of 18 carried, used or threatened to use a weapon no weapons were carried, used or threatened used or threated to use violence no violence was used or threatened age of the person to whom the drugs were trafficked The drugs were not trafficked to anyone under the age of 18 previous convictions for designated substance offence Mr.

Large had no criminal record for any offences used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, a designated substance offence no one under the age of 18 was involved in the commission of the offence Mitigating

[59] Mr. Large was a young first time offender. He was 19 at the time of the offence, with no criminal record. In R. v. Currie, 2016BCSC 828, Madam Justice Hyslop (at paras. 81 and 82) refers to R. v. Nakamura, 2012 BCSC 327 , in which Justice Romillycanvasses the authorities on sentencing youthful offenders. The authorities remind sentencing judges reformation and rehabilitation isimportant for first offenders and they should carefully consider other dispositions available before imposing a custodial sentence. [60] Mr.

Large says he was drawn into trafficking through his association with friends he met in high school. He also says he helpedhis mother care for his ailing father and implied he used profits from his drug sales to provide financial support to his family. [61] Mr. Large was not an addict and therefore not entitled to the leniency which courts accord to low-level street dealers whobecame engaged in the drug trade because of their own addictions: (See: R. v. Chamberlain, 2016 BCSC 370 (at paragraphs 44-46). [62] Mr. Large’s guilty plea is a mitigating factor, albeit somewhat late in the day.

As Justice Johnson notes in Wong, at para. 25:“He does not get as much credit, because it was not an early or the earliest reasonable time, but it is still a mitigating factor.” [63] Mr. Large had no criminal record. Although the absence of a criminal record is ordinarily a neutral factor in sentencing, in drugtrafficking cases, such as Dickey (at para. 59) and Wong (at para. 25), the absence of a criminal record is mitigating. [64] Although at the sentencing hearing Mr.

Large expressed remorse for conducting a dial-a-dope operation in his homecommunity, he has not demonstrated that remorse in an objectively identifiable way. In R. v. Batista, 2016 BCSC 572, Mr. JusticeBrown discusses what it means to show remorse for criminal actions. He cited the following passage from the B.C. Court of Appeal inR. v. Anderson, (BC CA): [45] The factor of "remorse" is often important.

Insofar as it might be suggested that the court should regard those who come before itin a submissive or contrite manner as deserving of more lenient treatment than those who accept their predicament with whateverfortitude they are able to summon, there would be little in this factor which could assist the sentencing judge.

But to the extent that anaccused person is able to demonstrate that he or she has, since the commission of a crime, come to realize the gravity of the conduct, andas a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of furtheroffending, the existence of remorse in this sense obviously has much importance. [46] The capacity of human beings who have erred to recognize the magnitude of their wrongdoing, and to redeem themselves, offersthe only possibility that those who have committed crimes may again become contributing members of the community, rather than itsburden for the rest of their lives. [Emphasis in original.] [65] Unlike the offenders in Wong, Dickey, Voong or Batista, Mr.

Large has not established that he has moved on in his life anddisassociated himself from his criminal lifestyle. I am not convinced his professed remorse or commitment to change is not simplysomething he says to try to get a lesser sentence. Mr. Large has not demonstrated that since the commission of the trafficking offence hehas manifestly changed his attitude or imposed some self-discipline. He has not provided this Court with evidence his expressions ofpersonal remorse are meaningful and deserving of significant weight.

What is a fit sentence? [66] In regard to the principles of sentencing set out in s. 718 of the Criminal Code, the primary sentence objectives in this case aredenunciation, general and specific deterrence, rehabilitation, and the promotion of a sense of responsibility in Mr. Large andacknowledgment of the harm he caused the community through his drug trafficking. [67] The Crown and Defence agree that in his case, a custodial sentence is appropriate. I concur. Mr. Large was not a low-levelstreet dealer who had become ensnared in the drug trade because of his own addiction.

Although two years has passed since hisoffending and his sentencing, I am not satisfied he has taken measurable steps to change and rehabilitate. [68] However, a custodial sentence that is longer than what is necessary to serve the objectives of sentencing can be dispiriting foran offender and discourage rehabilitation. Although I do not accept Mr. Large’s professed commitment to rehabilitation has crystalizedinto enduring change, he is young and this is his first offence. His prospects for rehabilitation are good and deserve significant weight.

Iconsider apropos Justice Brown’s comments (at para. 65) in Batista: ”He was at a time in his life when he was acting irresponsibly,exercising appallingly poor judgment, and still could be regarded as a somewhat youthful offender, not in the sense of adolescent, butcertainly not into thirties, in that range.” [69] I find the circumstances exceptional in this case. Mr. Large was a young man without a criminal record. The offence involvedone transaction on one day, and although it was committed in the context of a dial-a-dope operation, it was without violence and did notinvolve persons under the age of 18.

Were it not for these factors, it is my view that a fit and appropriate sentence would beincarceration for a much longer period. [70] I have considered the circumstances of the offence and the offender as presented to me at the sentencing hearing in light of thelegislative principles of sentencing. I have also taken guidance from the applicable authorities which I have reviewed and discussed inthese reasons for sentence. I find that exceptional circumstances do exist and that a 90 day custodial sentence is appropriate in this case.Mr.

Large has been on fairly onerous bail conditions for two years, which terms included a curfew. I am of the view that a further 12months’ probation will suffice. PRE-SENTENCE CUSTODY [71] Mr. Large has been in pre-sentence custody on this offence since August 12, 2016. The Crown agrees he is entitled to enhanced

credit at the rate of 1:5:1 for the time he has spent in pre-sentence custody pursuant to R. v. Summers, 2014 SCC 26 . As of thedate of this decision, Mr. Large has spent 61 in jail as of October 12, 2016, and is entitled to 91 days of enhanced pre-sentence credit. DISPOSITION [72] Mr. Large has pled guilty to Count 1 on Information 29590-2-C for breaching his recognizance. I accept his guilty plea and findhim guilty of that offence. Pursuant to the joint submission I sentence him to one day jail. [73] Mr.

Large has pled guilty to Count 1 on Information 29590-2-C for unlawfully trafficking in cocaine, a controlled substance. Iaccept his guilty plea and find him guilty of that offence. I sentence Mr. Large to 90 days jail, consecutive to the one day imposed underInformation 29520-3-A, breaching his recognizance. [74] Mr. Large is entitled to credit for pre-sentence custody since August 12, 2016, at a ratio of 1:1.5. [75] Mr. Large’s jail sentence will be followed by a Probation Order for 12 months with the following terms and conditions: a. You shall keep the peace and be of good behavior. b.

You shall appear before the court when required to do so by the court. c. You shall notify the court or the Probation Officer in advance of any change of name, or address, and promptly notify the court orthe Probation Officer of any change of employment or occupation. d. Within 72 hours after completing your jail sentence you shall report in person to a Probation Officer at the Probation Officelocated in Fort St. John, B.C., and after that you shall report as and when directed by the Probation Officer. e.

After your first reporting to the Probation Officer further reporting may include reporting by telephone, at the discretion of theProbation Officer. f. When first reporting to the Probation Officer, you shall inform him/her of your present residential address and phone number,and you shall not change your address or phone number at any time without first obtaining the written consent of the Probation Officer. g. You shall not possess any controlled substance within the meaning of

section 2 of the Controlled Drugs and SubstancesAct, except as prescribed for you by a physician, and then only in the dosages prescribed by the licensed physician. h. You will not own or possess a cellular telephone, except one phone that is registered in your name, and you will provide thenumber of that cellular telephone to your probation officer. You will not change that number except with the written permission of yourprobation officer. i. You shall provide your CSO supervisor with a copy of your monthly cellular telephone bills with details of all telephone and textactivity.

Any peace officer may also obtain a copy of your monthly cellular phone bills from your CSO supervisor. j. You shall attend, participate in and successfully complete any assessment, counselling or program as directed by the ProbationOfficer. k. Under the direction and supervision of the Probation Officer you shall successfully complete 50 hours of community work, whichshall be performed at a rate of no fewer than 5 hours per month. [76] I direct that Mr. Large be given a copy of the Probation Order and that it be explained to him as set out in s. 732.1(5) ofthe Criminal Code.

Ancillary Orders [77] Section 5(1) of the CDSA represents a secondary designated offence under s. 487.051(3) and s. 487.04 of the CriminalCode and therefore the sentencing judge has discretion whether to make an order authorizing the taking of bodily substances from theoffender if satisfied that it is in the best interests of the administration of justice to do so.

Section 487.051(3) of the CriminalCode indicates that in determining whether or not to issue a DNA order, the court must consider the offender’s “privacy and security”. [78] The Crown asks the Court to make a DNA order, which the Defence opposes. [79] I have considered s. 487.051 and the B.C. Court of Appeal’s decisions in R. v. Durham, 2007 BCCA 190 , R. v. Awasis,2009 BCCA 134 , and R. v. Fryer, 2008 BCCA 37, which discuss the importance and value of the DNA bank and the minimalintrusion of the DNA order on an offender’s privacy and personal security.

In Durham, the majority held that in most cases a DNAorder will be made upon the Crown’s request. [80] I have considered Mr. Large’s background, the trafficking offence for which he is being sentenced and the circumstances of thatoffence, as well as his privacy rights, and his right to the security of the person. I have balanced those considerations against the bestinterests of the administration of justice. I find a DNA order is appropriate. Pursuant to s. 487.051(3)(

b) of the Criminal Code, I make anorder in Form 5.04 authorizing the taking of the number of samples of bodily substances by any Peace Officer for the Province of BritishColumbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank fromTodd Alexander Large by November 30, 2016.

[ 81 ] Count 1 on Information 29590-C-2-C also attracts a mandatory firearms prohibition pursuant to s. 109 of the Code. I order that Todd Alexander Large is prohibited from possessing: a. any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance for a period of 5 years, and b. any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for the rest of your life.

VICTIM FINE SURCHARGE [ 82 ] The victim fine surcharge shall apply in relation to your guilty pleas to trafficking in cocaine and to breach of probation. You shall have 60 days to pay the victim fine surcharge. Should payment of the victim fine surcharge pose a personal financial hardship you may apply under s. 737(5) of the Criminal Code to seek relief. ______________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia