R. v. Davies, 2019 BCPC 107

Citation: R. v. Davies 2019 BCPC 107 Date: 20190530 File No: 64681-3-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. COLTON DAVIES REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: X. Zheng Counsel for the Defendant: R. Fowler QC Place of Hearing: North Vancouver , B.C. Dates of Hearing: January 11, April 1 and May 30, 2019 Date of Judgment: May 30, 2019

[ 1 ] On March 31 st 2018, Colton Bram Davies pleaded guilty to one count of possessing cocaine for the purpose of trafficking and one count of possessing fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . He also entered a guilty plea to one count of simple possession of cocaine, contrary to s. 5(1) of the CDSA . All of the offences occurred on June 13 th 2017 in North Vancouver.

Circumstances of the Offences [ 2 ] The accused first came to the attention of the police in early 2017 when a vehicle he was using was connected to suspicious activity believed to be related to drug dealing. A tracking warrant was obtained in April. Between April 28 th and June 6 th , the vehicle was frequently tracked catching the first morning ferry from the Sunshine Coast and spending the day driving around the North Shore and on occasion into Vancouver and Burnaby. At times Mr. Davies would drive on to the ferry and at other times he was picked up in Horseshoe Bay by others who were driving the vehicle.

He returned on a ferry that would allow him to be home in time to comply with a curfew. [ 3 ] The curfew was a term of judicial interim release imposed in August of 2016 in relation to an outstanding charge of a serious nature. He was to be inside his residence between the hours of 10:00 p.m. to 7:00 a.m. daily. He was in breach of the curfew each morning as he was leaving home at 5:30 a.m. but was compliant in the evenings. He was detained on the matter before the court after his arrest on June 13 th 2017 and was released on April 18 th 2018 after the other charges were stayed by the Crown.

The existence of the previous charge is relevant only to illustrate that he continued to offend by trafficking while before the court facing serious charges. [ 4 ] In May of 2017 the vehicle was stopped. It was being driven by the co-accused, Mr. Derycke. Mr. Davies attended the stop and advised the police he was Mr. Derycke’s “boss”. The address given as their residence was [omitted for publication] which was later found to be the stash house. [ 5 ] On June 2 nd , Mr. Davies became the subject of surveillance.

He and the co-accused were observed leaving the stash house and engaging for several days in behaviour consistent with dial-a-dope trafficking. Between June 6 th and 13 th , he was observed engaging in a number of short meets. One of the buyers was arrested on the 13 th , following which Mr. Davies was stopped in the vehicle and arrested. [ 6 ] The total amount of drugs and other offence related items seized from his vehicle, the stash house and his residence on the Sunshine Coast is consistent with a mid-level trafficking operation.

There were over 30 grams of cocaine, 9.53 grams of Fentanyl mixed with a Fentanyl derivative and caffeine, $2,774 in cash, several cell phones, scales, cutting agents, score sheets and the rental agreement, in Mr. Davies name, for the stash house in North Vancouver. Most of the drugs were packaged in small quantities consistent with street level sales. No quantitative analysis was done to determine the amount of Fentanyl contained in the substance which analyzed as containing Fentanyl and Fentanyl derivative.

Antecedents of the Offender [ 7 ] The Court had the benefit of a Pre-Sentence Report which was positive and also thorough submissions by counsel for Mr. Davies. I have also reviewed a number of letters of reference and support which reflect that the offender is an otherwise kind, generous and caring person with great potential to do well in his life and to be a contributing member of society. [ 8 ] Mr. Davies had an unfortunate upbringing characterized by substance abuse and violence between his parents, violence against him and his two siblings and later violence between his mother and a partner.

As a young teen, he returned to live with his father who was then sober. He left his father’s home at age 18 and remained estranged from his father and siblings until his recent incarceration. At that point, the family came together to support him and they continue to support him. He now resides with his sister who is seen to be a very positive influence. [ 9 ] Mr. Davies experienced bullying in high school and attempted suicide on several occasions. He took medication for anxiety and depression but more recently has relied on his sobriety, spiritual practices and exercise to address these issues.

His substance abuse began in his early teens and his drugs of choice were cocaine, steroids and alcohol. He has not pursued any treatment since age 19. [ 10 ] Mr. Davies was 23 at the time of the offences and is now 25 years of age. He has no criminal history. He graduated from high school and went to college for one year where he studied kinesiology. He went on to engage in various forms of employment and is a journeyman fiberglasser.

He has no cognitive or health challenges. [ 11 ] The defence submissions on sentence suggested that up to the early spring of 2017 he had been working seasonally as a fiberglasser in pulp mills in BC and Alberta. However, the PSR reflects that he was obtaining permission to work in the lower mainland. The only concern his supervisor had with respect to his compliance was being unable to confirm his alleged employment which is now explained by his ongoing involvement in the offences before the court.

A letter was filed which outlines that he has been offered periods of employment as a fiberglasser over the spring, summer and fall of 2019. [ 12 ] In submissions, Mr. Davies was said to be abusing cocaine, crack, methamphetamine, MDMA, GHB, alcohol and steroids at the time of the offences. In the PSR, he reported being addicted to cocaine, alcohol and steroids. When he was released on strict bail terms in August of 2016, he returned to the Sunshine Coast to live with his sister. There is no information in his sister’s letters, or any of the letters, to support Mr.

Davies’ submission that he has, at any time in his life, suffered from a significant addiction to alcohol or illicit substances; in particular during the period he was engaged in trafficking. There is a reference in the PSR to his attendance at “a few sessions” for “alcohol and drug addiction” when he was 19. Only a small amount of cocaine was found in the residence he was sharing with his sister. [ 13 ] I accept he has abused substances throughout his life.

However, whatever dependency he may have had has not been significant enough to have been commented on by those who know him, impaired his ability to work or pursue education or to participate as an

active principal in a mid-level dial-a-dope trafficking scheme. I note he obtained his certification as a fitness trainer in the spring of 2017 concurrent with engaging in the offences before the court. It is clear that he stopped the use of all street drugs and steroids as of the time he went into custody and has been abstinent since. [ 14 ] Mr. Davies no longer associates with negative peers. He has a pro-social partner and spends his time with her and with his family. He practices Buddhism, which he began to pursue in custody, and otherwise engages in fitness related activities.

He is involved in kick boxing and volunteers as a personal trainer for a fitness class for people with Parkinson’s. Since his release in April of 2018, he has been attempting to develop his own business as a fitness trainer. He has taken a course in sports nutrition and hopes to open a retail store selling dietary supplements and other health related items. Mr. Davies is remorseful and according to the preparer of the PSR, demonstrates “vast” insight into the harm caused by illicit drugs, in particular, Fentanyl and other forms of opioids. He wishes to perform Community Work hours to make reparations to society.

He has also developed insight into the choices he made which led him to engage in trafficking and drug abuse. [ 15 ] The evidence and the submissions satisfy me that the ten months he spent in custody motivated him to develop a better understanding of his past choices and challenges and to reorient his life in a fully prosocial direction. The primary change in his life since being arrested is abstinence from alcohol, cocaine and steroids. Should he remain clean and sober, there is a high probability that Mr. Davies will not commit further offences of any kind in the future.

Positions of Counsel [ 16 ] The Crown submits the Court should impose a sentence of 32 months jail less credit for 464 days (15 months and 10 days) reflecting 309 days actual time served. They also ask the court to impose s. 109 Firearms prohibition for 10 years, to require Mr. Davies to provide a DNA sample on a secondary ground basis and for forfeiture of the drug related property and money seized. [ 17 ] Counsel for Mr. Davies asks the court to impose one day imprisonment taking into account the just over 15 months credit for time served and to place Mr.

Davies on probation for two years with terms to assist in his continued rehabilitation and to allow him to make reparation to the community. Issues [ 18 ] The primary issue for determination is whether Mr. Davies should receive a sentence in accord with the range of sentence of 18 to 36 months as set out in R. v. Smith 2017 BCCA 112 or whether the circumstances of this offender and this offence are exceptional, as described in R. v. Voong 2015 BCCA 285 , and therefore justify a sentence outside of that range.

I must consider what weight I should give to the fact that this offender has already spent ten actual months in custody and in the year since his release has made significant progress toward his rehabilitation. I must determine whether it is in accord with all the principles of sentence and society’s interest to interrupt that progress by returning him to prison at all or for up to 16.5 months if I accede to the Crown’s position.

Aggravating and Mitigating Factors [ 19 ] The Crown filed recent information from the Coroners Service to establish that the concerns addressed in Smith regarding the epidemic of Fentanyl related overdose deaths continues unabated. [ 20 ] The aggravating factors are that Mr. Davies knowingly trafficked in Fentanyl and did so by way of a dial-a-dope operation. I find his primary motivation was profit. I find he was directing a mid-level operation and had rented a specific premise from which to operate. He had another person working for him in the operation. His involvement was ongoing.

He committed the offences while on judicial interim release relating to a serious offence. [ 21 ] The mitigating circumstances are that he entered a guilty plea in this matter shortly after the other outstanding charges were dealt with. He has no prior criminal history and is a relatively youthful first time offender. He has effectively addressed his rehabilitation by becoming clean and sober. He enjoys support from his family and his community.

He has been subject to bail conditions for a year and has been fully compliant. [ 22 ] The Crown took the position, in both their initial submissions and in reply, that Mr. Davies was not an addict and his primary motivation for trafficking was profit. They pointed to the factors I have already noted which demonstrate that Mr. Davies was functioning well at the time of the offences. Mr. Fowler made submissions on the issue of the offender’s addiction and there is a reference to Mr. Davies reporting an addiction in the PSR as well. However, Mr.

Davies did not seek to have a hearing to establish this mitigating factor. I find Mr. Davies failed to prove to the balance of probability that his primary motivation for engaging in his offending conduct was to feed an addiction. There is also no suggestion he was facing difficult financial or other life circumstances. He was able to live with his sister and well able to pursue legitimate and well paid employment. The Law [ 23 ] I am indebted to the thorough and helpful submissions made by Ms. Zheng for the Federal Crown and Mr. Fowler on behalf of Mr. Davies. In particular, Mr. Fowler’s

summary of the relevant sentencing law was so thorough and concise I have relied on it in the preparation of these reasons. [ 24 ] The principles of sentence are set out in ss. 718, 718.1 and s. 781.2. I have considered all of these provisions carefully. [ 25 ] I have also considered s. 10 of the CDSA which also addresses the need to encourage rehabilitation while acknowledging the harm done to victims and the community. [ 26 ] The determination of a fit and appropriate sentence is an individualized exercise in which all of the circumstances of the offence and offender must be considered. In R. v. Lacasse 2015 SCC 64 at paragraph 58 , the Court said:

[58] There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is initself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot bedisregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purelymathematical calculation. It involves a variety of factors that are difficult to define with precision.

This is why it may happen that asentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is notdemonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specificcircumstances of each case. LeBel J. commented as follows on this subject: A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, asentence falling outside the regular range of appropriate sentences is not necessarily unfit.

Regard must be had to all the circumstances ofthe offence and the offender, and to the needs of the community in which the offence occurred. (Nasogaluak, at para. 44) [27] At paragraph 4, the Court said: [4] One of the main objectives of Canadian criminal law is the rehabilitation of offenders.

Rehabilitation is one of the fundamental moralvalues that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentencesthat are just and appropriate. [28] At paragraph 57 (in part), the Court described the proper consideration of the range of sentence: … Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principlesand objectives of sentencing.

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed inthe past, which serve in any given case as guides for the application of all the relevant principles and objectives.

However, they shouldnot be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges,who must still exercise their discretion in each case: Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to pastdecisions that the “range”, as it were, must be expanded. The fundamental point is that a “range” is not a straitjacket to the exercise ofdiscretion of a sentencing judge. (R. v. Keepness, 2010 SKCA 69 , 359 Sask. R. 34, at para. 24) [29] In R. v.

Voong 2015 BCCA 285, the Court addressed exceptional circumstances which may justify a departure from a range ofsentence. At paragraphs 45 and 46 Madam Justice Bennett found: [45] The exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of the mainprinciples of deterrence and denunciation by way of a prison sentence. [46] For example, in R. v.

Preston (1990), (BC CA), 47 B.C.L.R. (2d) 273 a five-justice division of this Courtexamined the general principles of sentencing in the context of possession of heroin offences by a long-time heroin addict, with a lengthycriminal record. Ms. Preston had made substantial efforts at rehabilitation.

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

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

As well, the cost associated with her frequentincarceration will be avoided. [30] Further, at paragraph 59, the Court found: [59] In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drugseller 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. [31] In R. v. Dragani 2018 BCCA 225, the Court addressed exceptional circumstances as they were described in Voong and went onto say at paragraphs 73 and 74: [73] The Crown relies on R. v. Burnett, 2017 MBCA 122 . There, the Court noted that the principle of exceptionalcircumstances is separate and apart from a sentencing judge’s general discretion to depart downward or upward from a starting point orsentencing range (para. 24).

Findings of exceptional circumstances occur in only the “clearest of cases”, when there are “multiplemitigating factors” of significance (para. 29). Sentencing judges should not conflate “sympathetic circumstances” with “exceptionalcircumstances” (para. 33).

[74] That said, a judge can order a sentence outside the range as long as it is in accordance with the principles and objectives ofsentencing: a sentence outside the range is not necessarily unfit: R. v. Nasogaluak, 2010 SCC 6 at para. 44; Lacasse at paras.57-61.

Where there is an arguable case of exceptional circumstances, two inquiries are commonly emphasized: (1) has the offenderconcretely demonstrated that he or she has turned his or her life around since his or her arrest, and (2) would the fundamental purpose ofsentencing as set out in s. 718 of the Criminal Code be better served by a custodial or non-custodial sentence: Burnett at para. 30. [32] With respect to the weight to be given to successful efforts at rehabilitation, the Court in R. v.

Nohr 2013 BCSC 2145 atparagraph 55 said: [55] Although perhaps slightly dated decisions, Cain and Preston make it clear that where there are real and substantial grounds tobelieve an offender is effecting his rehabilitation, the principle of rehabilitation can be given paramountcy or at the very least equallyshared emphasis as deterrence and denunciation. It is through the realized rehabilitation of an offender that protection of the public isactually best achieved. Mr. Nohr, on his own initiative and with the support of his family, has taken considerable steps toward effectinghis rehabilitation.

Any sentence imposed upon him ought not to sacrifice his rehabilitation and the ultimate protection of the public forparamount emphasis of the often more amorphous principles of deterrence and denunciation. [33] In R. v. Ansari 2008 BCSC 1709, the Court addressed the principle of restraint as it relates to first time offenders: [20] The principle of restraint imbues the law I must apply. In terms that apply to this case, the Ontario Court of Appeal in R. v.Hamelin (1999), (QC CA), 135 C.C.C. (3d) 228, took note of an older case, R. v.

Vandale (1974), (ON CA), 21 C.C.C. (2d) 250, in observing: A first sentence of imprisonment especially for a first offender should be as short as possible and tailored to the individual circumstancesof the accused rather than solely for the purpose of general deterrence. Range of Sentence [34] I will deal first with authorities relied on by the Crown. In Smith, a sentence of 18 months imprisonment was imposed on a 59year old male. His indigenous background was not found to reduce his culpability. He was raised in the Yukon and had the benefit of anintact and healthy family.

He was self-supporting and had worked in various jobs throughout his life until he was injured and becameaddicted to Tylenol 3. He was found to have engaged in trafficking to feed his addiction. He had no criminal record. He reoffended afterhis arrest on the predicate offences by possessing drugs for the purpose of trafficking and for breach of an area restriction. However, hehad no entries on his criminal record at the time of the original sentencing. [35] The Court found the sentencing judge had erred as the sentence was manifestly unfit and below an appropriate range ofsentence. The Court did not find Mr.

Smith’s circumstances to be exceptional. [36] The range of sentence established in Smith took into account a number of cases from across Canada dealing with first timeoffenders who were engaged in street level dealing of Fentanyl. At para 45, Madam Justice Newbury said: [45] I agree with the many judges who have stated that denunciation and deterrence must generally be given primacy in sentencing incases involving Fentanyl. To this end, I would suggest a normal range beginning at 18 months’ imprisonment, as the Crown suggests. Iwould place Mr.

Smith’s offences at the bottom of this range, in light of the mitigating factors discussed by the court below. I do notbelieve it is necessary for us to specify the top of the range, although I would suggest it might well exceed 36 months, especially wherethe offender has a substantial record involving the sale of Fentanyl or otherwise demonstrates an indifference to the human lives he or sheis putting at risk. This is a matter that can be worked out in future cases.

Obviously, the ‘range’ may also increase beyond 36 months, ora different range will apply, where the offender is higher up the chain of sale or distribution. [37] The sentence imposed in Smith is of some guidance but can be distinguished from this matter given Mr. Davies’ mid-levelinvolvement and that he was not trafficking solely to support an addiction. [38] In R. v. Mann 2018 BCCA 265, two brothers were found to have run a small unsophisticated dial-a-dope trafficking operation.They pleaded guilty.

They knowingly trafficked in Fentanyl which they processed themselves in a crude manner resulting in lethalconcentrations. One reported being addicted to Fentanyl but was not found to be trafficking solely to feed his own addiction. Both werevery young adults with no criminal histories and were otherwise healthy, employed and enjoyed the support of family and friends. A fouryear sentence was imposed on the non-addicted younger brother as well as on the older addicted brother for the Fentanyl traffickingoffences. Each was also sentenced for other offences involving threats and a firearm.

The older brother was also sentenced for traffickingin Carfentanyl. The sentences imposed took into account the principle of totality. [39] In R. v. Johnson 2017 BCPC 251, a 28 year old pleaded guilty to dial-a-dope trafficking in various substances includingFentanyl. He suffered from bi-polar disorder and was found to be trafficking to feed his addiction. A sentence of two and a half yearswas imposed. The offender was serving a conditional sentence at the time of his arrest. [40] In R. v.

Kirton 2018 BCPC 11, a sentence of two years was imposed on a 27 year old street level dial-a-dope trafficker who solddrugs containing Fentanyl. The offender pleaded guilty. He had no criminal history. He had an 18 month old son he was supporting wholived with the child’s mother. He had many positive letters of support. He was of Metis ancestry but this was not found to reduce hisculpability. He was not an addict and was trafficking for profit in order to supplement his income from employment. He was wilfullyblind to the likelihood the drugs he was selling contained Fentanyl.

He was not found to be a changed person or one who had truly turnedhis life around. [41] R. v. Shusterman 2012 BCSC 362 illustrates that a one year sentence was found to be a fit sentence for trafficking in crackcocaine for a 25 year old non-addict with a lengthy record. [42] The Crown also relied on R. v. Dosanjh, May 31st 2016, Dhillon PCJ (unreported) Vancouver Provincial Court Registry No.

233063-1-TP, to highlight that for the Court to find exceptional circumstances as described in Voong , the sentencing judge must be able conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. [ 43 ] In R. v. Hendrickson 2017 BCSC 176 , the offender was involved in a dial-a-dope operation and was trafficking to feed his addiction. He was not charged with trafficking in Fentanyl. He was 24 years old and had no criminal history.

He had not pursued counselling and had been non-compliant with reporting on bail. The Court found that while the offender was to be commended for ceasing the use of drugs and pursuing employment, his circumstances were not exceptional and imposed a sentence of 6 months jail. [ 44 ] In my view, the authorities for the Crown support a range of sentence for a mid-level Fentanyl trafficker who is not trafficking solely to feed a habit and has no criminal history to be 30 to 48 months or beyond depending on the circumstances.

I find this to be appropriate, taking into account the upper end of the range set out in Smith for low level traffickers. Based on the authorities just reviewed, low level dealers of Fentanyl who are addicts have received sentences of 24 to 36 months, while in Mann a sentence of 48 months was imposed for a mid-level trafficker albeit in more aggravated circumstances given their utter disregard for the lives of those using their product. [ 45 ] Learned counsel for Mr. Davies provided the Court with a number of authorities to assist in determining an appropriate range of sentence. They were: R. v.

Ameeri , 2016 BCSC 1187 ; R. v. Homan , 2017 BCSC 2503 ; R. v. Malenovic , 2017 BCPC 274 ; R. v. Naccarato , 2017 BCSC 645 ; R. v. Olenik , 2017 BCPC 390 ; R. v. Orr and Lai , 2015 BCPC 206 ; R. v. Rutter , 2016 BCPC 321 ; R. v. Rutter , 2017 BCCA 193 ; R. v. Sentes , 2017 BCSC 290 ; R. v. Vena , 2017 BCPC 62 ; R. v. Vu , 2018 BCPC 239 . [ 46 ] The cases of Ameeri , Orr and Lai and Sentes are of limited assistance with respect to parity as they do not involve trafficking in Fentanyl.

Malenovic, Naccarato, Olenik, Rutter, and Vena all involve Fentanyl trafficking but were decided before Smith or involved offences which occurred at a time prior to when the Smith range applies. All of these authorities provide guidance with respect to the application of Voong and all the principles of sentence to youthful adults with no or limited records who engaged in mid or low level dial- a-dope trafficking or couriered drugs but had addressed their rehabilitation before sentence.

However, in my view, these cases do not assist in determining a post Smith range for a mid-level primarily profit motivated trafficker of Fentanyl. [ 47 ] Homan was decided after Smith and the offences occurred at a time when the Smith range was applicable. I infer Mr. Homan was in his late 40’s or older with no criminal history. He had been self-supporting until he was injured on the job and prescribed opiates for pain. He eventually became addicted to heroin. He engaged in street level dial-a-dope trafficking in order to feed his addiction. His offence occurred in April of 2016.

He did not knowingly traffic in Fentanyl. He was found to have established exceptional circumstances which supported imposition of a sentence below the Smith range being 5.5 months of time served and probation for one year. Analysis [ 48 ] As noted above, the primary issue for determination is whether, in all the circumstances, a sentence below the range set out in Smith , which applies to low or street level trafficking, is fit and appropriate for this offender who was involved in a mid-level trafficking operation.

Because the offender is a relatively youthful adult first offender, the court must address how to balance of the need for general deterrence and denunciation against the need to exercise restraint, acknowledge the importance of the offender’s rehabilitation, consider any potential for reparation and determine what disposition will best serve to protect the public and also meet the fundamental principle of proportionality. [ 49 ] The authorities I have reviewed do not find that factors required to establish exceptional circumstances are any different for an offender in matters involving trafficking in Fentanyl, as opposed to other illicit substances. [ 50 ] In R. v.

Joon 2017 BCPC 301 , I found that an offender need not establish that they were trafficking to feed an addiction to meet the test for exceptional circumstances. In that matter, the exceptional circumstances were founded on the very young age of Mr. Joon at the time of the offence and his efforts to truly turn his life around after his arrest. [ 51 ] Although only four years older than Mr. Joon, at the time he committed these offences, Mr. Davies had lived independent of his parents, been to college for a year, worked in the oil patch and become a journeyman. Mr.

Davies had a good life at the time he engaged in trafficking. He had a home with his sister, education, employment, the support of family and friends and good health. It is much to his credit that he has ceased using drugs of any kind, is pursuing a healthy life style, is employed and is engaged in a spiritual practice. However, I find he cannot be found to have “truly turned his life around” by ceasing to abuse drugs. [ 52 ] I have been mindful of the caution in Dragani that, when deciding if there are exceptional circumstance, I should not conflate that concept with an offenders “sympathetic circumstances”.

Indeed, I find the prospect of returning Mr. Davies to custody given his efforts at rehabilitation to elicit great sympathy. I find my duty to apply the law as I have found it to be to the circumstances as I have found them very troubling. I deeply regret that the sentence I find I must impose may potentially interfere with Mr. Davies’ rehabilitation and might well cause him harm. I have carefully considered whether the public interest would be best served by not returning Mr. Davies to custody.

Regrettably, I find the public interest requires I impose a strongly deterrent and denunciatory sentence. [ 53 ] The authorities make clear that being ignorant or wilfully blind to trafficking in Fentanyl is not mitigating. However, I find that knowingly trafficking in Fentanyl must be seen to significantly elevate an offender’s moral culpability. Mr. Davies’ moral culpability in profiting from the sale of a substance he well knew to be deadly is very high.

There is simply no reasonable explanation for his failure in judgement in this regard, or for his callous disregard for the lives of those he trafficked to, except that his desire for easy money and easy access to drugs vanquished his humanity. I accept Mr. Davies takes full responsibility for his depraved conduct and that his insight and understanding of his moral failing is sincere and deep.

I hope he will bear the loss of his liberty with dignity and continue in his efforts to make reparations to his community and to become a fully realized human being. [ 54 ] Having considered all the circumstances of the offence and this offender, the principles of sentence and the authorities, I find that the circumstances do not sufficiently engage the principles of sentence to overcome the application of the main principles of deterrence and denunciation. In the absence of exceptional circumstances, those who willingly and knowingly sell a substance with the

clear potential to kill must be denounced and the courts must send the strongest of messages to anyone who might consider engaging in such a heinous act that they will lose their liberty for a substantial time. I find a sentence of 15 months and 10 days to be demonstrably unfit as it is well below the appropriate range of sentence. I find such a sentence would not be proportional to the gravity of the offence and would not serve to properly protect the public. [ 55 ] I find the sentence suggested by Crown counsel to be fair and appropriately reflects all of the mitigating circumstances and the need for restraint.

But for their position, I would have imposed a sentence above the upper range set out in Smith . [ 56 ] I impose a term of incarceration, concurrent on all counts, of 32 months. I am granting credit for 16 months reflecting just over10 months of actual time served. This will result in 16 months of new time. [ 57 ] On counts 1 & 2, there will be a 10 year firearms prohibition pursuant to s. 109, a DNA sample on a secondary ground basis and forfeiture. _____________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia