R. v. Horvath, 2021 BCPC 60

Citation: R. v. Horvath 2021 BCPC 60 Date: 20210226 File No: 64331-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. JORDAN ANTHONY RAMOS DANA MIKAEL HENDRICK SCHAPER-KOTTER DARCY HORVATH LUCAS BENJAMIN THIESSEN KYLE HARROWER BAN ON PUBLICATION PURSUANT TO s. 517(1) CCC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. GAFFAR (Re Accused Horvath) Counsel for the Crown: S. Charles Counsel for the Accused: A. Lagemaat

Place of Hearing: Surrey , B.C. Dates of Hearing: June 11, 2018; November 26, 27, 2019 Date of Sentence: February 26, 2021 INTRODUCTION [ 1 ] Darcy Horvath has entered seven guilty pleas. Some of the guilty pleas relate to the possession for the purposes of trafficking of heroin and fentantyl; cocaine; and a drug known as TFMPP (which is a form of Ecstasy and stands for trifluoromethylphenylpiperazine).

His other guilty pleas relate to the possession of three firearms and a firearm sound suppressor. [ 2 ] The police investigation began in late 2014 and culminated on 26 February 2015, when the police executed search warrants on two apartments, three storage lockers, and a truck. As a result, various large quantities of drugs, drug fillers, drug paraphernalia, and firearms were located and seized by the police. [ 3 ] Mr. Horvath was arrested on 26 February 2015, but not charged and placed in custody until a year later. Five people were initially charged. [ 4 ] Mr.

Charles, for the Crown, submits that the circumstances of the offences and sentencing factors require a sentence of five years for the drug matters, and three years consecutive for the firearms-related matters. Accordingly, the Crown seeks a global sentence of eight years in custody, less time served. [ 5 ] The defence argues that Mr. Horvath's personal circumstances, past and present, permit a much lower sentence than eight years in custody. Mr. Lagemaat, for the defence, submits that an appropriate sentence is 3.5 to four years for the drug matters, and 2.5 to three years concurrent for the firearms matters.

Therefore, the defence seeks a global sentence of four years less time served. [ 6 ] This sentencing poses some challenges. While there are some agreed facts, other facts are in dispute relating to: 1. Mr. Horvath's role in the drug operation; 2. Whether some aggravating and mitigating factors apply to Mr. Horvath; and, 3. Whether the firearms sentence should be served at the same time as the drug sentence, or immediately afterwards. [ 7 ] The parties agree that a custodial sentence is appropriate given the nature and seriousness of the offences. At the end of the day, I must decide how long a sentence Mr.

Horvath must serve in custody, given the circumstances of this offence and his background. Case Authorities [ 8 ] I am required to provide a list of the cases that I have considered and that were presented to me. I have provided a copy of the list of cases to counsel and a copy is now filed in the court file. I will now refer to individual cases without their citations. If a transcript of this decision is ordered, the list of case authorities filed in the court file will form Appendix A to these oral reasons. Evidence [ 9 ] I have also reviewed numerous exhibits filed on sentencing: 1.

The Crown's list of "Drugs Seized in the Investigation" of Mr. Horvath, and a list of drug values (based on the Crowns' expert opinion); 2. The Crown's book of photographs of the various locations of items seized in this case; 3. Various activity logs for the three storage lockers from October 2014 through February 2015; 4. The Crown's expert opinion report of Sgt. Shepard, dated 25 November 2015, regarding the significance of the quantity and types of drugs seized in this investigation; 5.

The Crown's book of materials containing public health, police and Coroner reports concerning the effects, proliferation and impact of fentanyl on public health; 6. Mr. Horvath's Pre-Sentence Report, dated 20 November 2019; 7. The psychological assessment of Dr. E. Lopes, dated 4 September 2019; and 8. Information provided by Ms. Horvath during this hearing. While I have reviewed all the materials and case decisions, I do not intend to refer extensively to each and every one submitted on sentencing, in these reasons. OFFENCES [ 10 ] I will now provide a brief overview of the offences and the offender.

I have accepted the following as facts unless otherwise indicated. I will begin with the overall context of the offences. OVERALL CONTEXT OF OFFENCES

[ 11 ] In 2014, the police were investigating various individuals regarding a drug operation. The primary target of the investigation was Clayton Eheler, who was arrested in November 2014. He has since been sentenced by the Honourable Judge R. Browning to nine years in custody, after being convicted of possession for the purposes of trafficking involving approximately nine kilograms (in total) of cocaine and crack cocaine, in the context of a production enterprise. That decision is currently under appeal before the BC Court of Appeal. [ 12 ] After Mr.

Eheler's arrest, the investigation continued to follow persons previously seen associating with Mr. Eheler, including those who were eventually charged in this matter. [ 13 ] From December 2014 through February 2015, Mr. Horvath visited an apartment where two of his co-accused lived on Nowell Street. I will now refer to that residence as "Nowell Street". The police surveilled Mr. Horvath as he went back and forth regularly from Nowell Street to a condominium apartment on McIntosh Drive, which I will now refer to as "McIntosh Manor". Both apartments are in Chilliwack, British Columbia.

In addition, the police also identified three storage lockers in Chilliwack relating to some of the accused. [ 14 ] On 26 February 2015, search warrants were executed at the two residences and three storage lockers. Mr. Horvath was arrested at one of the storage lockers and the police searched his truck. [ 15 ] The following individuals were arrested and charged (with Mr. Horvath) for several drug and firearms offences between January 14 and February 26, 2015: 1. Dana Mikael Schaper-Kotter – who has also pled guilty to two drug offences.

I sentenced him to 4.5 years in custody, less time served, on 6 March 2020. 2. Kyle Harrower – who also pled guilty to two drug offences in this matter. I accepted a joint submission for 18 months less enhanced credit for time served for a remaining sentence of eight months 20 days. 3. Lucas Thiessen – on whose charges I entered a judicial stay of proceedings in 2018. I stayed his proceedings after finding that his constitutional right to have a trial within a reasonable time had been violated. 4. Jordan Ramos – whose charges were stayed by the Crown much earlier in these proceedings.

AGREED FACTS ON SENTENCING [ 16 ] I turn now to the agreed facts on sentencing. The parties agreed upon the following facts on sentencing: 1. For overall context, this drug operation was sophisticated. It was a mid-level drug distribution operation. 2. Mr. Horvath was a "runner" in this drug operation. He moved "product", i.e., drugs and related items, from one location to another. Mr. Horvath brought items to and from the lockers to McIntosh Manor. He did not direct nor control this operation. 3. Mr. Horvath's truck was seen at McIntosh Manor for an unknown period of time on 22 December 2014.

He was not seen at McIntosh Manor until later, on 20 January 2015. 4. Mr. Horvath rented three lockers in his own name, as follows: (

a) He rented the Sure-Lock Mini Storage locker (which I will now refer to as "Sure-Lock Mini") on 8 October 2014. At some point, Mr. Schaper-Kotter's name was placed on the locker documents as a person authorized to access the locker. Surveillance first saw Mr. Horvath at this locker on 26 January 2015. I accept as a fact that this locker was last accessed on 12 February 2015. (

b) Mr. Horvath rented the M Y Mini Storage locker (which I will now refer to as "M Y Mini") on 30 January 2015. It was last accessed on 26 February 2015 from 12:35 p.m. to 12:38 p.m., prior to Mr. Horvath's arrest at a different location within the next hour. (

c) Mr. Horvath rented the Access Mini Storage locker (which I will now refer to as "Access Mini") on 10 February 2015. Mr. Horvath last accessed the locker from 1:03 p.m. to 1:06 p.m. on 26 February 2015, immediately before his arrest outside this locker storage facility. His co-accused, Mr. Harrower, was present. 5. Mr. Horvath's vehicle was parked outside Access Mini when he was arrested on 26 February 2015. 6. The amounts and values of the various drugs and drug-related substances. 7. The nature of the various firearms and related items. Drugs in Mr. Horvath’s Truck [ 17 ] I turn now to the drugs in Mr.

Horvath's truck. Several drugs were located in his truck. He has entered guilty pleas to possessing (for the purpose of trafficking) only three of those substances located in the truck. The items that relate directly to the guilty pleas are as follows: 1. Fentanyl products that totalled 347.7 grams (valued at $37,500). The fentanyl alone equalled 333 grams. The fentanyl combined with heroin equalled 140.7 grams; 2. Crack cocaine in the amount of 2.06 kilograms (valued at $200,000); and 3. TFMPP in the amount of 2.581 kilograms (valued at $100,000).

[ 18 ] The Crown's expert attributed approximate values to the drugs for both the Lower Mainland and Northern BC. Given that it has not been established how much of the drugs would be distributed to Northern BC, I decline to attribute the Northern BC values. I find that the value of drugs located in Mr. Horvath's vehicle – that are subject to guilty pleas – totals $337,500. Firearms in the Sure Lock Mini Storage Locker [ 19 ] I turn now to the firearms in the Sure-Lock Mini Storage locker. A number of firearms were located in that locker. Mr.

Horvath has entered guilty pleas to possessing only three of those firearms and one related device.

The items that relate directly to the guilty pleas are as follows: 1. a Smith & Wesson 9mm handgun with readily accessible ammunition capable of being discharged; this is a restricted weapon; 2. a Smith & Wesson 357 magnum revolver with readily accessible ammunition capable of being discharged; this is a prohibited weapon; 3. a firearm sound suppresser, also called a silencer, attachment for a 9mm firearm called a Compact Fabryka Broni BRS 99; this is a prohibited device; [and] 4. an SKS automatic rifle with readily accessible ammunition capable of being discharged.

CROWN’S ADDITIONAL SUBMISSIONS ON OVERALL CONTEXT [ 20 ] The Crown provided additional submissions in the overall context. In lengthy submissions, the Crown sought to show the overall picture of the drug operation. Given that the following information falls outside the offences that are subject to Mr. Horvath's guilty pleas, the Crown agrees that none of this information can be considered as an aggravating feature on sentencing. On that basis, I have considered this information. I have not used this additional information as a basis to increase any sentence imposed. Mr.

Horvath’s Truck [ 21 ] In addition to the items that are subject to the guilty pleas, the police also located 709.1 grams of MDMA and 874 grams of crystal methamphetamine in Mr. Horvath's truck. The Crown's expert valued these drugs with a total of $107,000. Storage Lockers [ 22 ] The Sure-Lock Mini Storage locker contained several other firearms, another sound suppressor attachment and a large amount of drug fillers. The M Y Mini Storage locker contained only money, in the amount of $40,000.

The Access Mini Storage locker contained a moderate amount of pharmaceutical-type drugs (a.k.a. counterfeit Oxycontin), as well as a large amount of TFMPP (a.k.a. Ecstasy). McIntosh Manor & Nowell Street Residences [ 23 ] The apartment in McIntosh Manor contained a very large amount of heroin, cocaine, methamphetamine, marihuana, drug fillers and fentanyl combined with other drugs. The total value of these drugs was estimated to be $430,000.

The photographs of this apartment show little furniture but many utensils for drug packaging at McIntosh Manor. [ 24 ] The Crown made lengthy submissions about the Nowell Street residence, where Mr. Lucas Thiessen and Mr. Schaper-Kotter lived. I found only the following facts to be relevant to Mr. Horvath in the overall context: 1. No drugs were located at Nowell Street. 2. $60,000 was found in Mr. Lucas Thiessen's bedroom. 3. A piece of paper in the kitchen contained the locker number and access code to the M Y Mini locker. 4. Mr.

Horvath frequently visited Nowell Street before attending at the lockers or McIntosh Manor. FACTS IN DISPUTE [ 25 ] I turn now to the facts in dispute. Whether Mr. Horvath’s Role Qualifies as “Mid-Level” [ 26 ] The key fact in dispute is whether Mr. Horvath's role in this mid-level drug operation is a corresponding mid-level role or, given that he was a "runner" of products between locations, the lowest role in the drug trade. For the reasons that follow, I find that Mr.

Horvath's role is at the mid-level but at the lowest level at the mid-level. [ 27 ] I agree with both counsel that he was just a runner who moved things from one place to another. I also agree that he was not involved in setting up the mid-level operation, nor distributing drugs to any buyers in the Lower Mainland or elsewhere. Mr. Horvath was not involved in mixing or processing the drugs. He was only in McIntosh Manor for short periods of time. He simply made deliveries. [ 28 ] Although he put storage lockers in his name, the Crown agreed that others had access to the lockers.

The records appear to show that people accessed them frequently but do not show that Mr. Horvath was the person frequently accessing the lockers. I find that key operators at the mid-level or higher levels tend to insulate themselves. Their names are rarely on items that could link them to sophisticated drug operations.

[ 29 ] I agree with the defence that Mr. Horvath knew about the drugs and firearms. However, I accept that he did not know the quantities of all the drugs and the calibre of the firearms. In any event, Mr. Horvath has not entered guilty pleas regarding all the drugs and firearms-related item. I do not attribute the materials and drugs found at McIntosh Manor to Mr. Horvath but I accept that Mr. Horvath brought some of those items to McIntosh Manor. [ 30 ] I agree with the Crown that Mr. Horvath's physical actions and his menial jobs may appear similar to a street-level drug runner. However, Mr.

Horvath's degree of responsibility is not as a runner at street level. His job was menial but he was carrying multiple kilograms of drugs. The quantities of drugs are too substantial for street-level running. Once a person is carrying or delivering kilogram-level drug amounts, that person is not outside the mid-level. That person has been entrusted with a substantial amount of drugs. That means that the operators of this drug operation trusted him. He was within the circle of trust. [ 31 ] While Mr. Horvath might have been performing menial tasks, he had key access to McIntosh Manor and access to the lockers.

In February 2015, he was seen more frequently doing his job without others present. [ 32 ] On 26 February 2015, when Mr. Horvath and Mr. Harrower attended at Access Mini just before their arrest, they exited Mr. Horvath's vehicle and ran to the locker. They returned, running, with full bags to Mr. Horvath's vehicle. From their hurried movements, it appears that they were alerted (at some point) to the police activities. I agree with the Crown that Mr. Horvath would not have normally moved such large amounts of drugs at one time into his vehicle. By his conduct, I conclude that Mr.

Horvath intended to preserve the drugs. I am unable to conclude whether he was directed by others in this operation to do so or made that decision on his own. [ 33 ] The three firearms and sound suppressor located at Sure-Lock Mini which ground his guilty pleas were under Mr. Horvath's control because he had access to that locker. Their presence in the midst of a mid-level drug operation suggests that Mr. Horvath was well aware of the dangerous nature of the operation in which he worked. [ 34 ] The total value of the drugs to which Mr. Horvath has pled guilty was $337,500. These drugs were directly under Mr.

Horvath's control when he hurriedly moved them to his vehicle. This high value of drugs shows the level of trust placed in Mr. Horvath by those who operated this drug enterprise. [ 35 ] Both parties agree that Mr. Horvath was not the operating mind of this operation. In my reasons on Mr. Schaper-Kotter's sentencing, I found that Mr. Schaper-Kotter's role was lower than Mr. Lucas Thiessen's role but at a higher level than Mr. Horvath's role and Mr. Harrower's role. I also found that Mr. Horvath's involvement with the lockers placed him on a level more similar to Mr. Harrower's involvement. [ 36 ] Mr.

Horvath denies processing or packaging the drugs. I accept that Mr. Horvath did not participate in setting up, organizing or controlling this drug operation. He played a limited role. He was not required to have knowledge of all the items seized for the purposes of sentencing. He was permitted to see and control access to those three firearms and drugs in his guilty pleas. [ 37 ] His role is not the same as a street-level runner whose role is clearly fixed at the lowest end of the drug trade spectrum because they only handle small amounts of drugs and have minimal engagement in the overall operation.

A street-level runner is not the same as a mid-level runner, who has more control of and access to more significant parts of the operation. [ 38 ] While the parties agree that the operation was sophisticated, I find that Mr. Horvath's role was not, in itself, sophisticated for the following reasons: 1. He rented the lockers in his own and easily discoverable name; 2. His activities were highly visible, particularly on CCTV; 3. There was no evidence he was involved in mixing or processing the drugs; and 4.

There is no evidence that he was aware of or involved in the operation's drug distribution to Northern British Columbia or elsewhere. Therefore, Mr. Horvath's role was menial, but still fixed at the mid-level because he was entrusted with handling larger amounts of drugs in a sophisticated mid-level operation. His role as a "runner" of materials and drugs only places him at the lowest position of the mid- level operation. MR. HORVATH’S BACKGROUND [ 39 ] I turn now to his background. I have considered the pre-sentence report, the psychological report, and Ms.

Horvath's information to the court at the end of the proceedings, as well as the submissions of counsel. [ 40 ] Mr. Horvath was 22 years old at the time of these offences. He is now approximately 28 years old. He had a supportive and loving upbringing. INDIGENOUS BACKGROUND [ 41 ] Mr. Horvath and his mother are registered members of the Peguis First Nation which emanates from Winnipeg, Manitoba. His extended family currently resides on traditional territory of the Skowkale First Nation. Unfortunately, Mr. Horvath's grandmother was placed in a residential-type institution when she was four years old, when Mr.

Horvath's great-grandmother died. [ 42 ] Mr. Horvath's mother was told that her grandfather was a "drunken Indian" and unable to raise her own mother. Neither Mr. Horvath nor his mother was ever involved or participated in any indigenous traditions, practices or programs. [ 43 ] I do not have the benefit of a Gladue report for the sentencing. There appeared to be some confusion. I ordered a full Gladue

report on 11 June 2018, upon counsel's request. During the sentencing hearing, the defence raised a concern about Mr. Horvath's grandmother's current dementia and inability to relate to her childhood experiences. This concern is valid. However, I am still unaware of why the report was not prepared. [ 44 ] It may have been helpful to receive information about the particular circumstances, conditions and impact of colonization on the Peguis First Nation. In deciding to proceed without that information, I have accepted Mr. Lagemaat's indication that the defence wished to proceed without the Gladue report.

MENTAL HEALTH [ 45 ] When he was 16 years old, Mr. Horvath began to experience mental health issues leading to depression and aggressive behaviour. His school teacher, counsellor and family agreed that Mr. Horvath had "a follower" personality. His school counsellor became concerned about Mr. Horvath's conduct and contacted a health agency concerned with children and the early signs of psychosis. I am uncertain how Mr. Horvath was assessed, but the family received information from a doctor that Mr. Horvath was experiencing Obsessive Compulsive Disorder. [ 46 ] The doctor referred Mr.

Horvath to a counselling program which helped somewhat, but Mr. Horvath began to drink alcohol and use drugs. Mr. Horvath was placed on medication for a period of time. Unfortunately, he discontinued the medication due to its side effects. [ 47 ] When he was between 18 and 19 years old, he made "stupid" choices and his conduct changed. He began drinking more alcohol and using cocaine. When he was 20 years old, his misuse of alcohol and drugs increased in Fort St. John.

He was spending all of his money on alcohol and drugs. [ 48 ] When he was 21 years old, after breaking up with his girlfriend, his depression increased, and he became involved with others who supported his drug use. In other words, his drug abuse increased along with his involvement with people in the drug trade. [ 49 ] When he was 22 years old, he was a full-blown alcohol and drug addict in Chilliwack. In 2016, he expressed suicidal ideation while in custody and was kept under observation for several days (in February 2016). [ 50 ] Mr.

Horvath relied on friends and family to help him financially while he was using drugs. [ 51 ] In court, his mother spoke about trying to help Mr. Horvath financially, paying his drug debts so that Mr. Horvath would not be beaten. She recalls him being in hospital at one point. She described the "awful years" living with her son, who was different and always asked for money for "strange" reasons. EDUCATION AND EMPLOYMENT [ 52 ] Mr. Horvath did not finish high school and left school in grade 12 to work. He worked for WeldCor Gas and Supply for approximately one year before moving to Fort St. John.

When he was 20 years old, he worked as an apprentice welder in Fort St. John but never completed his apprenticeship. [ 53 ] Between the ages of 23 and 25, he lived between Chilliwack and Coquitlam, depending on the location of his work. He worked in construction and demolition, starting as a labourer and moving up to a lead hand, and then to the foreman position. He has qualified for and obtained the necessary demolition tickets to work in this industry. [ 54 ] At the age of 25, he moved back home. When he was 26, he worked as a subcontractor in the demolition industry for approximately six months.

He then worked consistently as a labourer for construction, moving and demolition companies. [ 55 ] His short-term goals are to seek certification as a heavy equipment operator. His long-term goal is to (possibly) open his own demolition company. AGGRAVATING AND MITIGATING CIRCUMSTANCES [ 56 ] I turn now to the aggravating and mitigating circumstances. AGGRAVATING CIRCUMSTANCES [ 57 ] I will begin with the aggravating circumstances. Nature, Variety and Quantity of Drugs [ 58 ] Following the parties' agreement, I find that the nature, variety and quantity of drugs that Mr.

Horvath handled are each a highly aggravating factor in this case. These types of drugs in their varieties and quantities were all inherently dangerous. They inflicted devastation on drug users and addicts. [ 59 ] The lethal presence of fentanyl cannot be ignored. I will deal with how the presence of fentanyl impacts both the community and Mr. Horvath's degree of responsibility later in this decision.

Sophistication of the Drug Operation [ 60 ] The parties agree that this drug operation was sophisticated, particularly given the use of three separate lockers containing different components of the operation, and a separate site for drug mixing. Combination of Firearms and Drugs

[ 61 ] I cannot consider the mere presence of firearms and drugs (individually) as aggravating circumstances because they form the gravamen of the offences to which Mr. Horvath has pled guilty. [ 62 ] However, I can consider the discovery of several firearms (in the locker) in combination with the drugs (in Mr. Horvath's truck) in the midst of this drug operation as an aggravating factor. The Crown submits that the combination of drugs and firearms is an aggravating factor but not to the highest degree, as there was no evidence that the relevant firearms were actively being used in this drug operation.

I agree. [ 63 ] In the Ontario Court of Appeal decision in Wong at para. 11, the court stated: The courts have repeatedly emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community. The social ills, including associated criminal conduct, fuelled by this combination is now well recognized. [ 64 ] Our community in British Columbia (particularly Surrey, Abbotsford and Chilliwack) is no stranger to the continuing tragedy of violence and death caused by guns used in the drug trade and drug trade-related conflict.

However, I note that the presence of the firearms in this context is less aggravating because the gun was not found out in public, in a vehicle or on the person of anyone associated to this matter. Accordingly, the imminent risk to the public and law enforcement is slightly decreased. The firearms were secured in the locker, albeit improperly stored. Other persons involved in this drug operation had access to this locker. [ 65 ] Due to the facts in this case, the Crown argues that this aggravating factor is limited by the facts in this case and, as a result, Mr.

Horvath's sentence should not increase on this basis. I am prepared to agree. Risk Assessment [ 66 ] I have assessed Mr. Horvath's risk for re-offending and to the public. I consider Mr. Horvath's risk to be low as long as he does not use drugs. The psychologist notes the following: Mr. Horvath had no prior history of antisocial behaviour. His risk has been lowered by his return to sobriety. According to the psychological test results, the HCR-20 Version 3, Mr. Horvath presents a low risk for violence. Despite the seriousness of the offences, Mr. Horvath is not presently seen as a danger to the community.

MITIGATING CIRCUMSTANCES [ 67 ] I turn now to the mitigating circumstances. [ 68 ] The Crown points to discrepancies between Mr. Horvath's comments, his mother's information to the report writers, and some of the video and surveillance evidence. Mr. Charles argues that Mr. Horvath did not tell the truth, albeit about some minor things. Those discrepancies relate to, for example, his finances since his release and household expenses. Therefore, Mr. Charles argues that I should attribute little weight to Mr. Horvath's statements concerning more serious matters, such as his involvement in these offences.

In particular, the Crown argues that Mr. Horvath has not demonstrated actual remorse, insight and acceptance of responsibility. [ 69 ] The defence responds that Mr. Horvath was interviewed in the summer of 2019, while his parents were interviewed a few weeks before the pre-sentence report was issued on 20 November 2019. Mr. Lagemaat essentially points out that Mr. Horvath and his mother appeared to be speaking about different time periods and had different perspectives about what the writers were asking them. [ 70 ] I have considered the extent to which I can rely on Mr. Horvath's statements to other people.

I have viewed his comments in light of other information provided by both counsel, his mother, the report writers and Mr. Horvath himself. I have also considered the facts not in dispute in this sentencing. I have accepted some (but not all) of his comments to report writers, as indicated throughout this decision. I have accepted all of his personal comments to the court at the conclusion of the hearing. Guilty Plea [ 71 ] I find that Mr. Horvath's guilty plea is a mitigating circumstance. I acknowledge that the Crown argued that Mr. Horvath's guilty plea was not mitigating in these circumstances. Mr.

Charles referred to the R.M. decision at para. 6, which lists two main reasons why guilty pleas are mitigating. First, guilty pleas represent an acknowledgement of responsibility, a sign of remorse and a step towards rehabilitation. Second, guilty pleas save valuable court resources. I add that they also save witnesses from having to testify. [ 72 ] Contrary to the Crown's submission, I find that Mr. Horvath entered his guilty plea at a sufficiently early time. Every accused is entitled to challenge the admissibility of evidence, if appropriate. Up to the point of his guilty plea, Mr.

Horvath had not consumed any additional court resources for voir dires . His guilty pleas were entered before any trial evidence was called. Mr. Horvath saved court resources by not making any pre-trial applications and by entering his guilty plea prior to the start of trial. [ 73 ] I accept the defence submission that these guilty pleas were a monumental acceptance of responsibility. Mr. Horvath knew what was in the lockers and in the bags he was carrying. [ 74 ] I accept that Mr. Horvath continued to minimize somewhat his involvement in these offences to the report writers.

However, he is not wrong in pointing out that other individuals took advantage of him to facilitate this drug operation. These individuals were not addicted to illicit substances. While they clearly used him, Mr. Horvath established that he was able and willing to carry out his tasks. Mr. Horvath's visits to both the lockers and McIntosh Manor were generally brief. On the day of his arrest, he was left, literally, holding the bag. [ 75 ] I find that Mr. Horvath has accepted responsibility for the items specified in the guilty pleas, which include the serious nature and quantities of the drugs, and firearms.

I am not prepared to ignore the information provided by the pre-sentence report writer that Mr.

Horvath was able to express his understanding of the impact of his conduct and the consequences of his conduct on the community. Iaccept this information. His acceptance of responsibility is not perfect but it is sufficient to qualify as a mitigating factor. [76] The pre-sentence report indicates that Mr. Horvath has been able to maintain employment, based on work availability, andremain off drugs since his release from custody. Mr. Horvath indicated that he has been drug-free since February 2015. There is noevidence to the contrary.

These efforts enhance his acknowledgement of responsibility and qualify as steps towards rehabilitation. Remorse [77] I find that Mr. Horvath has expressed sincere remorse for his conduct. I am unable to accept the Crown's submission that Mr.Horvath lacks remorse or sincere remorse. I accept the pre-sentence report writer's comments, that in the summer of 2019, Mr. Horvathwas able to appropriately express remorse for his actions. Also, Mr. Horvath and his mother spoke to the court at the end ofsubmissions. I was able to view their manner and listen to the words they spoke.

I accept their information concerning Mr. Horvath'sbackground and personality, as well as his remorse. I accept that Mr. Horvath's remorse is genuine. Youthfulness [78] Mr. Horvath's youthfulness at the time of the offences is a mitigating factor. He was 22 years old at the time. I am guided bythe BC Court of Appeal in Gill at para. 16, with regards to the sentencing of youthful offenders for serious matters: As the Supreme Court of Canada emphasized in R. v. Proulx, 2001 SCR 61, incarceration generally fails to rehabilitate offenders andreintegrate them into society.

For younger offenders generally, rehabilitation holds out the best long term prospect for protection of thepublic. For a young person, maximum sentences may undermine prospects of rehabilitation. Despite the paucity of backgroundinformation given to the sentencing judge, the prospects of rehabilitation could not be ignored in view of his age and limited record. Theobjectives of denunciation and specific and general deterrence did not require a maximum sentence of incarceration. [79] More recently, the Supreme Court of Canada in the Lacasse decision at para. 134, made similar observations.

It noted furtherthat: This principle is even more important in the case of a young person with no criminal record. [citation given in the extract] The court also endorsed the introductory statements made in the decision of R. v. Leask (1996), (MB CA), 113 Man.R. (2d) 265 (C.A.), at para. 3: The transition from statutorily defined young person to adult should not be marked by an immediate abandonment of rehabilitation as theprimary goal in cases where the prospect of successful rehabilitation is real. [80] Although Mr.

Horvath was older than a "statutorily defined young person" who is under 18 years old, he was sufficientlyyouthful and immature to receive this mitigating factor. Lack of Criminal Record [81] I find that Mr. Horvath's lack of a criminal record is a mitigating circumstance. The absence of a criminal record is remarkablegiven Mr. Horvath's previous and longstanding addiction. [82] The Crown argued that Mr. Horvath's lack of criminal record in these circumstances should not be a mitigating factor becausehe was engaged in drug use by the time he was 20 years old, which was still a crime.

The Crown cites the R.M. decision at para. 23,which stated that the absence of a criminal record may have little significance if the first offence occurred over the course of severalyears or where "the offence is a series of acts, planned and carried out over a lengthy period." [83] The assumption of previous good character arising from the absence of a criminal record may be a mitigating factor that lowers asentence.

The decision of R.M. at paras. 20 through 22, reviews the rationales for this factor. [84] First, I may conclude that the offender was previously of good character because they did not have a criminal record. Therefore,I may conclude that the criminal behavior was essentially out of character or isolated, lessening its reoccurrence. [85] Second, a first-time offender has not yet been penalized for their conduct, which may have a corrective effect. In other words, afirst-time offender has not yet had to face, in a dramatic and personal way, the condemnation of their conduct from the community andthe courts.

Therefore, a first-time offender may be (to some degree) less culpable than someone who has already been censored orpenalized for their conduct, yet repeated it. [86] Third, these rationales will not apply equally to all first-time offenders as a person with no criminal record may not necessarily bea person of good character. [87] Fourth, a lack of a criminal record is generally a mitigating factor but may be afforded little weight where the significant gravityof the offence invests the offender with a high degree of responsibility. [88] However, the court in the R.M. decision did not stop its analysis at that point.

At para. 24, it noted that the second rationale forgranting mitigation for a first-time offender continued to apply to the accused, R.M., who sexually victimized a child over eight years. The court stated: R.M. had not yet had the wake-up call of a conviction. [89] The proper context for the court's decision is found at para. 25:

In my view the absence of a prior conviction, even in cases involving offending over a long period of time, may be relevant to the particular moral culpability of the offender and the potential for a less onerous sentence to effect rehabilitation. Accordingly, the status of the first-time offender may be given some weight. [ 90 ] I decline to follow the Crown's reasoning that, as a drug addict using illegal substances, he cannot receive first-time offender mitigation.

This submission does not reflect the law regarding drug addiction. [ 91 ] The Supreme Court of Canada has expressly confirmed that drug addiction is a health issue. In the Canada (Attorney General) v. PHS Community Services Society decision at paras. 99 through 101, the Supreme Court of Canada upheld the trial judge's finding that drug addiction is an illness characterized by a loss of control over the need to consume the substance to which the drug user is addicted.

Canada (Attorney General), in that case, did not contest that fact at trial nor on appeal. [ 92 ] I have not ignored the uncontested surveillance evidence about Mr. Horvath's visits to the locker and McIntosh Manor in January and February of 2015. I do not consider this time period to be sufficiently long to deprive him of the mitigating effect of his first-time offender status. He has shown that his involvement in the drug trade has not reoccurred. He has made efforts to rehabilitate himself. His arrest had a corrective effect on him. He has not yet been penalized for his conduct.

He is facing the severe consequences of his actions in a dramatic and personal way. I am unable to accept that the severity of his offences removes this mitigating factor due to Mr. Horvath's addiction, Indigenous background and his role in this drug operation. Mental Health Issues [ 93 ] Based largely on his mother's detailed information about Mr. Horvath's mental health at various points in his life, I accept that Mr. Horvath suffered (to some degree) from depression, anxiety and Obsessive Compulsive Disorder at the time of these offences. In the psychological report, the psychologist found that Mr.

Horvath may have previously suffered from anxiety and Obsessive Compulsive Disorder in the past. [ 94 ] While the psychologist did not conclude that Mr. Horvath currently suffers from a mental illness, I accept Ms. Horvath's information that her son continues to display obsessive and compulsive behaviour. For example, he continues to turn lights on and off for several minutes every night he is with his parents. He bangs the water taps closed several times a day. Insight and Rehabilitative Efforts [ 95 ] I find that Mr.

Horvath has shown somewhat limited insight and understanding of the consequences of his actions. I do not agree with the Crown that Mr. Horvath minimized his conduct and denied a full scope of his involvement when speaking to the pre-sentence and psychological report writers. I do not accept that he "blamed" his drug use and bad associations for his conduct. I find that he was trying to explain, in very basic terms, why he committed these crimes. [ 96 ] The Crown views this explanation as a denial of full responsibility and a lack of insight. The psychologist commented that Mr.

Horvath provided a somewhat edited or minimized version of events regarding his participation in events. [ 97 ] I view the psychologist's comment with a great deal of caution. The psychologist was exposed to information that does not form the basis of the guilty plea. Therefore, it is the court - not the psychologist - who is better equipped to assess whether Mr. Horvath has minimized his role.

In addition, the court does not expect an accused to recite every detail of his involvement in an event during such an assessment, particularly when the guilty pleas only apply to some charges. [ 98 ] Having insight is not always the same as accepting responsibility. [ 99 ] Mr. Horvath has accepted responsibility for his criminal conduct by entering his guilty pleas. His insight or understanding about why he committed the offences is different. If a person has insight into their behaviour, that person may find themselves in a better position for rehabilitation and prevent future criminal conduct.

Lack of insight can impact the court's assessment of the risk posed by an offender for reoffending or to the public. Mr. Horvath submits that he has successfully rehabilitated himself. It is clear that his family continues to support him. They have limited means and Mr. Horvath could not access residential drug treatment or recovery programs. [ 100 ] I accept the information from Mr. Horvath and his mother that Mr. Horvath has not used drugs since 26 February 2015. I have not received any evidence to the contrary. This is significant because Mr. Horvath was not charged on this matter until a year later.

He has been out of custody since 14 November 2017 [sic]. [ 101 ] Mr. Horvath appears to have worked in numerous jobs after his release from custody. While some of his employment may have been short-lived, he continued to seek out and obtain employment. At certain points, he earned promotions due to his determination and work ethic. I accept that he linked his continued sobriety with his continued employment. Thus far, he has succeeded. [ 102 ] His mother stated that Mr. Horvath has taken the court-ordered prohibition on drug and alcohol use seriously while on bail.

His personality has changed dramatically since his initial arrest. He offers to drive those who are inebriated. He has done volunteer work collecting several bags of coats that he gave out during the winter. [ 103 ] The Crown argues that his failure to take drug addiction counselling means that he has failed to make rehabilitative efforts. This perspective is contradicted by the psychologist who states: However, of importance is that he seems to have made efforts at changing his life around since then...moreover, given that Mr.

Horvath does not seem to have a prior history of anti-social behaviour, it is possible that his risk has been mitigated by his return to sobriety. The fact that he has been clean for many years is a positive turn of events. In the end, the psychologist concluded that Mr. Horvath posed a low risk of reoffending at that point, based on all the information

available to him and the absence of a prior criminal involvement. [ 104 ] In this case, I sincerely congratulate Mr. Horvath in maintaining a drug-free lifestyle since February 2015. I encourage Mr. Horvath's efforts. While I endorse the need for proper counselling, I acknowledge that Mr. Horvath has succeeded in managing his addiction for approximately five to six years, at the time of the sentencing hearing. He has tried to manage his addiction through continuous employment. [ 105 ] The problem arises when there is no employment, or stress in his personal or work life. Mr.

Horvath has to learn to deal with the actual stressors and factors that led to his drug addiction. He must learn relapse prevention, especially when he faces life obstacles. He needs more tools. While he has insight into the consequences of his actions, he needs to acquire further insight about why he fell into drug use and how to prevent it in the future. [ 106 ] He has informed the pre-sentence report writer that he is prepared to take counselling. He must deliver on that promise for his parents' sake, if not his own.

If he makes efforts to obtain those tools, he will remain a low risk for reoffending and strengthen his rehabilitation. Community Support [ 107 ] I find that Mr. Horvath's family provided increased support since his arrest. Mr. Horvath's case has lasted for several years. His parents have been in court before me for most (if not all) appearances. During this sentencing proceeding, Ms. Horvath underwent serious surgery. She insisted on attending court during the sentencing proceedings, despite her own physical pain and discomfort. On behalf of her family, Ms.

Horvath spoke in court about their understanding that Mr. Horvath needed to face the consequences of his actions. She also expressed their continued support for Mr. Horvath. ANALYSIS LEGAL PRINCIPLES [ 108 ] I turn now to my analysis and I will begin with the legal principles. There are many legal principles that I must apply to sentencing that are contained in s. 718 through 718.2 of the Criminal Code . I have considered them all. Some of them may overlap. Impact on the Community [ 109 ] First, I will deal with the impact on the community.

Drugs [ 110 ] Whether or not an offender is addicted to drugs, these offences have a clear and serious impact on the community. The sale of uncontrolled illegal drugs by those who only seek to make money, regardless of the misery they cause to vulnerable drug addicts, has exploded into a full-blown and deadly health crisis. Fentanyl [ 111 ] While Mr. Horvath may have been "only a runner" in a sophisticated operation, his participation enabled others to provide the deadly drug fentanyl to a relatively unsuspecting population.

I repeat my comments in the Schaper-Kotter decision at paras. 133 and 134: I could quote from the many expert reports that I considered during these proceedings concerning the devastating effects of even a small amount of fentanyl. I believe I can summarize them succinctly: People are dying in overwhelming numbers. We must stop it. [134] Vulnerable drug users, first responders, police and medical officers and innocent civilians can be unwittingly exposed to the small but deadly effects of fentanyl.

The impact of the other drugs involved in this particular case on the community is also reflected in crime, violence and death. Firearms [ 112 ] I turn now to the gun possession and firearms matter. Gun possession is not a victimless crime. The BC Court of Appeal in the Zhu decision at para. 21 clearly stated that: Firearms are a scourge in our society. The possession and use of firearms poses unacceptable risks to the public and the police. There is no doubt that both must be protected from the illegal possession and risk of use of unlawful firearms.

Accordingly, denunciation and general deterrence loom large in this sentencing. Denunciation and Deterrence [ 113 ] The Crown argues, and the defence acknowledges, that denunciation and general deterrence require a custodial sentence. Clearly, I must impose a sentence that reflects the community's condemnation of Mr. Horvath's conduct. I must also impose a sentence that serves to deter others from similar conduct.

However, general deterrence is attenuated when dealing with drug addicts who may mentally lack judgment and whose ability to weigh the consequences of their actions fluctuates unpredictably. [ 114 ] When assessing the need for denunciation and general deterrence, I acknowledge that I am bound by the principle of restraint and proportionality as explained in the Supreme Court of Canada case of Lacasse at para. 133. Both the Crown and the defence agree that a term of imprisonment is necessary. However, s. 718.2 para. (

d) requires that: “It should be the lightest possible sanction in the circumstances”.

Separation from Society [ 115 ] In considering the degree to which Mr. Horvath must be separated from society, I note that no violence is alleged in the circumstances surrounding these offences. His incarceration is not necessary to separate him from society or for public protection. Specific Deterrence and Rehabilitation [ 116 ] Mr. Horvath's specific deterrence has been demonstrated by his conduct since 26 February 2015. Over the past five years, at the time of this sentencing, Mr. Horvath has not been convicted of any other offences. He has not violated his bail terms.

He has abstained from using illegal drugs. In the J.L.H. decision at para. 27, the BC Court of Appeal continues to emphasize: ...the importance of considering whether there is a reasonable chance that the offender may succeed in an attempt to control his addiction in order to avoid imposing a sentence that addresses the protection of the public at the expense of rehabilitation. His rehabilitation provides the greatest assurance he will not commit similar offences and provides greater protection for the public. He seems motivated to continue to change his life.

Proportionality [ 117 ] I turn now to the all important question of proportionality. The sentence should be proportionate to the seriousness of the offences and Mr. Horvath's degree of responsibility. Gravity/Seriousness of the Offences [ 118 ] Both parties agree that the gravity of these offences falls on the more serious, high end of the spectrum. I characterize the seriousness of these firearms-related and hard drug offences as significant.

As I stated in the Schaper-Kotter decision at para. 140: The court in Smith at para. 44 referred to the Canadian Centre on Substance Abuse, which identified British Columbia as one of the worst, if not the worst, for problems of fentanyl abuse in Canada. Degree of Responsibility [ 119 ] Several factors may affect Mr. Horvath's degree of responsibility, to varying degrees: 1) his motivation; 2) his knowledge about the presence of fentanyl; 3) his addiction; and 4) his Métis background. Motivation [ 120 ] I find that Mr. Horvath's motivation was to support his drug habit.

The Crown characterized nightly inebriation by drugs and alcohol as the lifestyle supported by his work as a runner. I describe it as an addict working to support, in particular, his addiction to cocaine. I agree with the defence that Mr. Horvath was not motivated by financial gain for its own sake. He was motivated to work in this operation in order to receive free drugs or money for his own drug use. The Crown does not dispute that Mr. Horvath made little to no money from his activities. Knowledge of Fentanyl Effects [ 121 ] I am unable to accept that Mr.

Horvath fully understood, in January and February 2015, the devastating effects of fentanyl for the following reasons: The degree to which Mr. Horvath knew he was handling fentanyl, and its dangers, impact his degree of responsibility.

In the Smith decision at para. 49 the court stated: Recognizing a different and markedly higher sentencing range for street-level dealing in fentanyl turns on the enhanced risks associated with that activity and the individual responsibility of dealers given those risks and public knowledge of them. [ 122 ] I make similar findings here as I did in the Schaper-Kotter decision at paras. 143 through 147. I find Mr.

Horvath's moral responsibility is not so much linked to whether he knew he was handling the product fentanyl and related drug combinations (he did - particularly since he delivered to McIntosh Manor on more than one occasion) but whether he was fully aware of the dangers of fentanyl at that time. His degree of responsibility must be assessed at the time of the offences, not in retrospect. [ 123 ] The BC Court of Appeal in the Smith decision at paras. 54 through 59 acknowledges that the public health crises relating to fentanyl evolved rapidly and dramatically after January 2015.

The role of fentanyl in the overall, devastating increase in illicit drug overdose deaths did not become more fully known by the public until approximately November 2016. The presence of fentanyl in this case elevates Mr. Horvath's degree of responsibility somewhat, but not to the same level as a person who was fully aware of the dangers of fentanyl in late November 2016 and onwards. Addiction [ 124 ] Overall, I find that his addiction lowers his degree of responsibility to a good extent, but remains overshadowed by the serious nature of the offences. I have considered Mr.

Horvath's drug addiction in the context of his degree of responsibility rather than a mitigating factor. This is the approach taken by Hinkson, J.A. (as he then was) in the J.L.H. decision. [ 125 ] The Crown in this case eventually acknowledged that Mr. Horvath was addicted to cocaine at the time of these offences and that drug addiction was an illness. However, the Crown also argued that Mr. Horvath "chose" to stop using drugs and maintain sobriety without rehabilitation, recovery or counselling programs. I note the response of Mr.

Justice Hinkson to such a statement at para. 26 in the J.L.H. decision: 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". (Reference to the Canada (Attorney General) v. PHS Community Services Society decision.) [ 126 ] The Supreme Court of Canada in the Canada (Attorney General) v.

PHS Community Services Society decision at para. 101 clearly stated: The ability to make some choices...does not negate the trial judge’s findings on the record before him that addiction is a disease in which the central feature is impaired control over the use of the addictive substance. [ 127 ] Ms. Horvath provided information to the court about her son's addiction. He began drug use around age 16. She described her son as someone who followed the lead of others. She said that this description was echoed by his teachers and others at the school.

She described the "years lost to drugs" and how they would pay his drug debts so he would not be beaten up. She also told me how they lived with someone who was dramatically different from the son they knew. She also told us Mr. Horvath always asked for money for strange reasons. Most importantly, she observed that Mr. Horvath and his personality changed dramatically after his arrest on these matters. [ 128 ] While I accept that Mr. Horvath was addicted to cocaine in early 2015, I do not find that he was "drunk and high" all the time as claimed by Mr. Horvath in his pre-sentence and psychological reports.

I agree with the Crown that he was able to sufficiently function such that the drug operators trusted and relied upon him. I would not have expected the drug operation to employ him if he could not function, despite his drug and alcohol dependency. I do not expect that the bar was very high, however. [ 129 ] The Crown argues that any mitigating effect of the addiction is simply overwhelmed by the sheer large amounts of drugs as well as the variety, type and imputed high values.

If I understand the Crown's submission correctly, the Crown argued that an offender's drug addiction cannot reduce his degree of responsibility unless the scale of the drug offence involves drug amounts that are similar to those used by the addict. [ 130 ] The Crown relies on para. 16 in the Rile decision, which states that less punitive measures may apply to an offender involved in lower-end trafficking to support an addiction. The court in the Rile decision at para. 24 also stated that the mitigating factor of the offender's addiction was overwhelmed by the commercial nature of the offender's crime.

The comments of the Honourable Judge B.A. Allen in Rile, at first glance, have some merit. There will be cases where the magnitude of the drug operation or products will outweigh any lowering of responsibility because of addiction. [ 131 ] However, I find that I must balance those comments with the BC Court of Appeal in the J.L.H. decision and the Supreme Court of Canada in the Canada (Attorney General) v.

PHS Community Services Society decision: i.e., Drug addiction impairs the thinking process of the addict, causes them to lose control of their ability to stop using drugs and impairs the addict's ability to foresee the consequences of their actions. The law is clear that an essential component for responsibility is the ability to properly control one's actions as well as understand the consequences of those actions. [ 132 ] While Mr. Horvath performed a necessary role in this operation, it was still a menial one.

His drug addiction made him compliant in following the directions of others, even though they placed him at greater risk of discovery while shielding themselves. Mr. Horvath's activities were easy to monitor. He was expendable. [ 133 ] I accept his mother's information to the court and, to some extent, Mr. Horvath's information to the report writers about his drug use. I accept that he was sometimes paid in drugs and otherwise funded his drug use by working. This is an easy way for drug distributors to pay menial workers.

Indigenous Considerations [ 134 ] I turn now to his Indigenous circumstances. [ 135 ] In considering Mr. Horvath's circumstances, I must pay particular attention to his Métis background in accordance with s. 718.2 (

e) of the Criminal Code and such cases as Ipeelee . The constrained circumstances of Indigenous offenders may diminish their degree of responsibility, as mentioned in the Ipeelee decision at para. 73. I take judicial notice of the history of colonization, displacement and residential schools. This history continues to translate into lower educational levels, lower incomes, displacement, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Indigenous peoples. [ 136 ] From the limited information provided to me, I accept that Mr.

Horvath's maternal family belonged to the Peguis First Nations, which is the largest indigenous First Nation in Manitoba. I infer that Mr. Horvath's great-grandmother was institutionalized at an extremely young age. I also accept that his great-grandfather suffered from alcohol issues and faced racism. I am prepared to accept that Mr. Horvath's extended family history experienced trauma, racism, residential institutionalization, separation of family members, denigrating treatment by others, displacement and substance abuse issues. Mr.

Horvath's limited education level, lower ability to earn income, and substance abuse reflect the inter-generational effect of this history. [ 137 ] The seriousness of these offences limits my ability to consider other more creative sentencing options that might assist in restoring a sense of balance to Mr. Horvath and the community. However, I had considered the systemic and background factors relating to Mr. Horvath that may have played a

part in bringing Mr. Horvath before the courts, as well as how those factors might impact his sentencing. SENTENCE CALCULATION [ 138 ] I turn now to my calculation of sentence. The parties agreed on the general range for sentences regarding drugs of this magnitude, and firearms. The parties' positions were not far apart. The dispute is whether Mr. Horvath should receive his firearms sentence after the drug sentences (i.e., is consecutively) or at the same time of his drug sentences (i.e., is concurrently).

Concurrent vs. Consecutive Sentence [ 139 ] I must consider whether Mr. Horvath should serve his sentences at the same time or one after the other. [ 140 ] The test for imposing concurrent or consecutive sentences is well known.

Section 718.2(4)(

c) permits me to impose consecutive sentences when an offender is convicted of more than one offence. Concurrent sentences may be imposed where there is a reasonably close connection between the offences, such as in time and place. I must consider whether the offending conduct was part of a linked series of acts within a single endeavour as described in the Li decision at para. 42.

I may also consider whether offences committed at the same time also engaged different legal interests as described in the Lee decision at paras. 18 to 19. [ 141 ] In different decisions, the courts have imposed either concurrent or consecutive sentences for offences involving drugs and firearms. Counsel provided me with many examples. I am not required to impose a consecutive sentence in all cases, which is affirmed in the Borecky decision at para. 25 and the Mann decision at paras. 83 through 85.

Even though these offences involve drugs and firearms, it remains open for me to impose concurrent sentences as confirmed in the Lee decision at para. 19. Overall, I must consider the impact of the total sentence in making my decision. [ 142 ] As many cases have found, firearms and drugs are inherently dangerous in different ways. It is common knowledge that drug traffickers frequently use firearms to violently protect and enforce drug operations. However, I have accepted the Crown's submissions that there is no evidence that the relevant firearms were actively being used in this drug operation.

I have found that they were locked in a storage locker, accessed by others. There is no evidence that Mr. Horvath touched any of the firearms. As a runner, he delivered drug products to and from storage lockers. [ 143 ] On the facts before me, I decline to find that different legal interests apply. I find that the firearms and drugs were stored in the same place at the same time, linked in a single endeavour. The sentences will be concurrent. Range of Sentence (Drugs) [ 144 ] The BC Court of Appeal in the Carillo decision at para. 31 reminds us all that determining a fit sentence is not a science.

I find that an appropriate sentence to strongly reflect denunciation, deterrence and the aggravating factors alone falls closer to the six to seven- year range. However, the combined mitigating factors, rehabilitation and those affecting Mr. Horvath's degree of responsibility, reduce that range. I make this decision after considering the case authorities I have reviewed. [ 145 ] The parties have provided a number of cases related to the applicable range of sentences.

As I said in the Schaper-Kotter decision at para. 158, the Supreme Court of Canada in the Lacasse decision (at para. 72) and the BC Court of Appeal in the Smith decision (at para. 35) indicate that ranges are mainly used to ensure parity between sentences. Ranges are merely guidelines that should not be considered averages or straightjackets. [ 146 ] The range of sentence varies with the context, amounts and kinds of drugs involved. An important aspect for sentencing Mr. Horvath on the drug matters involves the presence of fentanyl.

Given the Crown's position during the Schaper-Kotter decision, I conducted a detailed analysis at paras. 158 through 166 of that [ Smith ] decision regarding how the timing of offences - and the accused's knowledge about the extreme dangers of fentanyl - impacted the sentencing ranges for drug matters. I do not intend to repeat that analysis here. As a result of that [ Smith ] decision, the range was increased because the severity of fentanyl use became more fully known in and around November 2016. [ 147 ] Mr. Horvath's situation is different, in that his offences occurred before November 2016.

He is a first-time offender, but cannot be considered a street-level drug trafficker. [ 148 ] The best way to describe the type of sentence range that I must consider was discussed by Madam Justice Ker in the Toth decision at para. 84. She identifies a range between 28 months and seven years' custody for a serious, sustained and relatively sophisticated mid- level operation: i.e., a supplier to street-level dealers. Mr. Horvath's particular circumstances impact where he falls on that scale. [ 149 ] The Crown's cases contained sentencing ranges from three to seven years.

All of the cases involved convictions for firearms, which I find inflates any sentence for a drug conviction, particularly those involving fentanyl. Many of the Crown's cases reflected offences after November 2016; e.g., Mann and Lee . The other cases before November 2016 involved much older accused with criminal records; e.g., Swales and Perkins. Some accused were addicts, some were not. However, the cases had several important distinguishing features.

Some cases had larger amounts of drugs or the presence of carfentanil, larger roles in the drug operation, fewer prospects for rehabilitation and current or dated criminal records. None of the accused had an Indigenous background. [ 150 ] The defence cases are limited. The Delchev decision involved a much smaller amount of drugs.

The Nazarek decision involved higher amounts of drugs, including fentanyl, during the relevant time period but not to the level in this case. [ 151 ] The higher sentences in the Crown's cases express the strong need for denunciation and deterrence, as well as the aggravating factors that apply in this case. However, many (if not most) of those cases do not reflect the wide range of mitigating factors and diminished degree of responsibility of Mr. Horvath. As a result, I conclude that the appropriate sentence for the drug matters is four years, before applying any credit for time served.

Range of Sentences (Firearms) [ 152 ] I will now determine the sentences for the firearms-related offences. After reviewing the case authorities, I find that the applicable range, in the circumstances of these offences and the offender, is 2.5 to three years for the following reasons. [ 153 ] In the Nur decision at para. 82, the Supreme Court of Canada essentially identified the following general sentencing ranges for general types of firearms-related offenders:

1. Three years or greater time in custody, depending on the circumstances of the case, for the "outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade". This is called the "true crime context". 2. Three years in custody for the vast majority of these offences. 3. Under three years in custody for an offender whose conduct is less serious and poses less danger, and 4.

Under three years in custody for the licensed and responsible gun owner who made a mistake. [ 154 ] Based in part on the Nur decision, the Holt decision at para. 19 called for a realignment of the sentencing range in 2015. The BC Court of Appeal endorsed something close to 2.5 to three years' incarceration as the bottom end of the range for firearms possession in the midst of a "true crime" or "criminal" context. [ 155 ] The Crown argues that Mr. Horvath falls within the "true crime context".

The Crown's cases reflect a range from three to five years in cases where the courts found that the firearms were present in a true crime context. [ 156 ] My findings are based on the firearms context in this case. There is no evidence that the relevant firearms were actively being used in this drug operation, which is conceded by the Crown. I found that they were locked in a storage locker, accessed by others. There is no evidence that Mr. Horvath touched any of the firearms. [ 157 ] Consequently, I impose a sentence of 2.5 years on Mr.

Horvath, after considering the need for denunciation and deterrence as well as the aggravating and mitigating circumstances, Mr. Horvath's degree of responsibility, and prospects for rehabilitation. SENTENCE TIME SERVED CALCULATIONS [ 158 ] I turn now to the imposition of sentence. Before doing so, I need to confirm the time served for Mr. Horvath. (DISCUSSION) [ 159 ] THE COURT: I have heard submissions regarding the time served. There appears to have been some confusion between counsel, his parents and the court regarding the time spent by Mr.

Horvath in custody after his arrest on 16 February 2016. [ 160 ] It is now my understanding that Mr. Horvath remained in custody for 16 days before he perfected his bail and was released into the community. Therefore, I now correct any statements in this decision that refer to Mr. Horvath being placed in custody on 16 February 2016 and released on 14 November 2017. He was not in custody during that entire period. The correct statement is that Mr. Horvath was in custody for 16 actual days after his arrest on 16 February 2016. [ 161 ] CNSL S.

CHARLES: Pardon me, Your Honour, February 17. [ 162 ] THE COURT: Sorry, on the 17? [ 163 ] CNSL S. CHARLES: February 17. Thank you very much. [ 164 ] THE COURT: So again, I am going to need to correct my statement of a second ago, where I referred to time spent by Mr. Horvath in custody after his arrest on 16 February 2016; that should read “17th of February 2016”. [ 165 ] Therefore, Mr. Horvath has spent 16 actual days in custody. The law in this case requires that I credit him 1.5 days for each day he served in custody up to this point. Therefore, he is entitled to credit for 24 days of time served.

CONCLUSION [ 166 ] The sentence will be as follows. DRUG OFFENCES [ 167 ] Mr. Horvath, on 1. Count 17, possession of heroin and fentanyl for the purposes of trafficking, 2. Count 19, possession of cocaine for the purpose of trafficking, and 3. Count 21, possession of TFMPP for the purpose of trafficking, you are sentenced to, before consideration of time served, four years (which is equivalent to 1,460 days) before applying enhanced credit of time served of 24 days, for a remaining sentence of 1,436 days.

For clarity, that amounts to three years, 341 days (or three years, 11 months and six days). [ 168 ] All three counts are concurrent to each other and all other sentences. FIREARMS OFFENCES [ 169 ] With regards to Counts 5, 6, 9 and 13 relating to the possession of the specified three firearms, and a sound suppressor), you are sentenced to 2.5 years in custody (which is the equivalent of 30 months). The sentence will be 912 days before applying enhanced credit

for time served of 24 days, for a remaining sentence of 888 days. For clarity, that amounts to two years, 158 days (or two years, five months). [ 170 ] All three counts are concurrent to each other and all other sentences. ANCILLARY ORDERS [ 171 ] The Crown seeks a number of ancillary orders. Firearms Prohibition [ 172 ] First, the Crown seeks a s. 109 Criminal Code firearms prohibition for a 10-year period. I make that order regarding Counts 5, 6, 9 and 13 for a 10-year period starting today. [ 173 ] You must not be in possession, either personally or through another person, any weapon as defined by the Criminal Code including

a) firearms and crossbows,

b) ammunition or prohibited ammunition,

c) prohibited or restricted weapons,

d) prohibited devices or

e) explosive substances. DNA Order [ 174 ] I am making a DNA order pursuant to s. 487.051(3)(b). This is a discretionary order. I find that a DNA sample from Mr. Horvath is required in the circumstances of this case and the nature of the offences. I find that it is in the best interests of the administration of justice. Forfeiture Order [ 175 ] The last matter is the Crown's application for a forfeiture order. (DISCUSSION) [ 176 ] THE COURT: I make that order. (DISCUSSION) [ 177 ] THE COURT: I am making an order that a sample of DNA will be taken from Mr.

Horvath before he is released from the courthouse today and transferred to a correctional facility. (DISCUSSION) APPENDIX “A” – LIST OF CASE AUTHOURITIES [ 178 ] Mr. Charles, for the Crown, provided several cases but relied upon the following cases in his submissions: 1. R. v. R.M. , 2019 BCCA 409 2. R. v. Davies , 2019 BCCA 369 ; affirming (30 May 2019), North Vancouver 64681-3-C (BCPC) 3. R. v. Lloyd , 2019 BCCA 128 4. R. v. Lee , 2018 BCCA 428 5. R. v. Mann , 2018 BCCA 265 6. R. v. Perkins , 2018 BCSC 1055 7. R. v. Smith , 2017 BCCA 112 8. R. v. Holt , 2015 BCCA 302 9. R. v. McCormick , 2017 BCPC 22 10. R. v.

Swales , 2016 BCCA 502 11. R. v. Rile , 2016 ONSC 7991 . [ 179 ] Mr. Lagemaat, for the Defence, referred to some of the Crown’s cases as well as the following cases:

1. R. v. Nazarek, 2018 BCSC 1357 2. R. v. Delchev, 2014 ONCA 448 3. R. v. Borecky, 2013 BCCA 163 4. R. v. Hansen, 2012 BCCA 142 5. R. v. Collins, 2011 ONCA 182 [180] I have also considered the following cases: 1. R. v. Nur, 2015 SCC 15 2. R. v. Lacasse,2015 SCC 64 3. R. v. Ipeelee, 2012 SCC 13 4. Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 5. R. v. C.A.M., (SCC), 1996 S.C.J. No. 28 6. R. v. Zhu, 2013 BCCA 416 7. R. v. J.L.H, 2012 BCCA 142 8. R. v. Carillo, 2015 BCCA 192. 9. R. v. Gill, 2006 BCCA 127 10. R. v. Li, 2009 BCCA 85 11. R. v. G.P.W., 1998 BCJ No. 838 (BCCA) 12. R. v.

Wong, 2012 ONCA 767 13. The companion decision of R. v. Schaper-Kotter, (March 26, 2020), Chilliwack Registry File No. 64331-1 (BCPC) 14. R. v. Johnson, [1996] N.B.J. No. 478 (N.B.C.A.).