R. v. Rutter Date:, 2016 BCPC 321

Citation: R. v. Rutter Date: 20161018 2016 BCPC 321 File No: 74179-2-C Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ADEN LEE AARON RUTTER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: S. Simpson Counsel for the Defendant: A.E. King, Q.C. Place of Hearing: Nanaimo , B.C. Date of Hearing: September 12, 2016 Date of Judgment: October 18, 2016

The Issue [1] On the second day of trial, Mr. Rutter withdrew his previously entered not guilty pleas and entered guilty pleas to one count oftrafficking in fentanyl and one count of trafficking in cocaine, contrary to

section 5 of the Controlled Drugs & Substances Act RSC 1996,c 19. The Crown seeks a sentence of 8 months imprisonment. Mr. Rutter seeks a suspended sentence and a period of probation. The Facts [2] Mr. Rutter gave evidence at the sentencing hearing. He acknowledged that he had been a partner and active participant in adial-a-dope operation for four to five months before his arrest. He and his partner worked about 8 hours a day, five days a week. Theyhad a vehicle and a cell phone. Customers would call the cell phone and order drugs, which Mr. Rutter and his partner would deliver. Mr.

Rutter’s share of the profits was about $1000 per week, significantly more than he needed to sustain his own drug addiction. [3] Mr. Rutter was arrested on June 4, 2015. When arrested, he was in possession of 35.5 grams of cocaine, valued at $1900 -$3500, and 12 grams of fentanyl, valued at $1400 - $2400. Mr. Rutter said that he believed the fentanyl to be heroin, that it wasdescribed to him by his supplier as heroin, and that he described the fentanyl to his customers as heroin. [4] Mr. Rutter is 22 years of age.

He began to use illicit drugs at age 17 and, by age 20, had become addicted to cocaine, heroinand fentanyl. At the time of his arrest, fentanyl was his drug of choice. He last consumed any of those drugs in October, 2015, and lastconsumed marijuana in November, 2015. He attended a residential program for drug treatment and rehabilitation from November, 2015to January, 2016, and completed the program successfully. He now attends Alcoholics Anonymous meetings regularly. He prefersAlcoholics Anonymous to Narcotics Anonymous because he believes that his addiction to narcotics is driven by his addiction to alcohol.

He has a new intimate partner who is not an addict, and whom he describes as a positive influence in his life. [5] In March, 2016, as a result of a recommendation by the father of his new partner, Mr. Rutter obtained employment at a logsorting operation in Nanaimo, where he works a day shift Monday to Friday and is sometimes called in to work overtime shifts onweekends. His employer describes him as a reliable, hard-working employee with a bright future in the company. [6] Mr. Rutter admits that, in September, 2015, he breached the terms of his bail by possessing and using a cell phone. [7] Mr.

Rutter has no previous criminal record. Fentanyl [8] Fentanyl is an artificial opioid, which is many times more powerful than heroin. A heroin addict who consumes a dose offentanyl, equal in size to the addict’s normal dose of heroin, is likely to overdose and die. That risk is exacerbated if the addict believesthe substance to be heroin rather than fentanyl. [9] Fentanyl overdoses are a serious and rapidly growing problem in British Columbia.

Data published by the British ColumbiaCoroner’s Service indicate that there were 13 deaths in British Columbia caused by fentanyl overdoses in 2012, 49 in 2013, 91 in 2014,153 in 2015 and 238 in the first six months of 2016. Nanaimo is a small city, with less than 5% of British Columbia’s population. In thefirst six months of 2016, Nanaimo suffered 42 deaths caused by fentanyl overdoses, or about 17% of the provincial total. The Jurisprudence [10] Mr. King relies on the decision of Justice Wood, speaking for a unanimous division of five justices, in R. v. Preston (BC CA), [1990] BCJ No. 2886; 47 BCLR (2d) 273.

Justice Wood said (underlining added): While I am content to accept, at least for the purposes of this case, that sentences of incarceration can have a deterrent effect in cases oftrafficking and trafficking related offences, including importing, where the offender or potential offender is not an addict, I have gravedoubts that the same can be said in cases of possession where the offender who is to be specifically deterred, or the potential offenderwho is to benefit from the so-called general deterrent effect of such a sentence, is addicted to the substance in question.

Indeed, [Crowncounsel], in his thoughtful written presentation, conceded that: To speak of deterrence, specific or general, in respect to persons physically and uncontrollably addicted to an illegal substance may notbe entirely an exercise in logic. That is not to say that the deterrent value of a sentence of imprisonment ought to be discounted altogether. It may be, as counselsuggested, that such sentences are effective in preventing some, who would otherwise experiment with such substances, from becomingaddicted.

But in my view the importance of deterrence, as a factor to be taken into consideration when sentencing an addicted heroinuser, must be weighed in light of the illogic inherent in the notion itself. What then is the proper approach for the court to take when sentencing in a case such as this?

When the benefit to be derived to societyas a whole, as a result of the successful rehabilitation of a heroin addict, is balanced against the ultimate futility of the short-termprotection which the community enjoys from a sentence of incarceration, I believe it is right to conclude that the principle of deterrenceshould yield to any reasonable chance of rehabilitation which may show itself to the court imposing sentence.

To give the offender achance to successfully overcome his or her addiction, in such circumstances, is to risk little more than the possibility of failure, with theresult that the cycle of addiction leading to crime leading to incarceration will resume, something that is inevitable, in any event, if thechance is not taken. On the other hand, as has already been pointed out, if the effort succeeds the result is fundamentally worthwhile tosociety as a whole. * * *

A court would only be justified in giving more weight to the possibility of rehabilitation, rather than deterrence, where there is areasonable basis for believing that the motivation for such change is genuine and there is a reasonable possibility that it will succeed. There will undoubtedly be many cases in which no such prospect exists, and in such cases it would be an error in principle to allow thefactor of deterrence to be overshadowed by the illusion of rehabilitation.

I have every confidence in the ability of the trial judges in thisprovince to successfully separate fact from fiction in such matters. [11] I think it important to note that the judgment in Preston was not founded upon a belief that rehabilitation is intrinsically a moreimportant objective of sentencing than denunciation or deterrence. Rather, the rationale of the judgment is pragmatic - it is foundedupon the collective conclusion of the five judges who decided the case that denunciation and deterrence, general or specific, are notoften effective in relation to addicts who commit offences to feed their habits.

If attempts at denunciation and deterrence are often futile,it will be appropriate in many cases to focus on attempts at rehabilitation. [12] However, a different view has been expressed in more recent decisions of the Court of Appeal. In R. v. Cisneros, 2014 BCCA154; [2014] BCJ No. 745 (a dial-a-dope case), Justice Groberman said (underlining added): Madam Justice Ryan's oft-cited discussion of the principle of general deterrence in R. v. Johnson (1996) (BC CA),112 C.C.C. (3d) 225 is apt: The principle of deterrence as a goal of sentencing is embedded in our law. The Supreme Court of Canada has said so in R. v.

C.A.M., (SCC), [1996] 1 S.C.R. 500, the amendments to the Criminal Code specifically refer to it as a sentencing objective (sees. 718(b)). We must assume that deterrent sentences have some effect. It is futile to ask whether a particular sentence will deter others. That question can never be answered. Deterrence operates in a general way. Those that would break the law must know, and law-abiding citizens must be assured, that law-breakers will receive sentences which reflect the seriousness of their crimes. This will detersome potential offenders, it will not deter others.

An individual judge's opinions on the efficacy of general deterrence cannot be allowed to override established principles of sentencing. [13] Preston was referred to as a leading authority in R. v. Glickman, 2011 BCCA 293; [2011] BCJ No. 1355 at paragraphs 26 – 27,31 and in R. v. Datt, 2014 BCCA 484; [2014] BCJ No. 3067 at paragraphs 67 – 79. In each of those cases, the Court held that thesentencing judge erred in failing to give sufficient weight to the offender’s potential for rehabilitation. [14] None of Preston, Glickman or Datt is directly applicable to this case. Ms.

Preston was acquitted of possession for the purposeof trafficking and convicted of simple possession. Mr. Glickman’s offence was fraud, not trafficking. Mr. Datt was exploited as a drugcourier by the operator of a half-way house where Mr. Datt was living. Mr. Datt was “… a low-level dealer with no authority tonegotiate quantity, price or the timing of transactions, and he did not benefit financially in any significant way”. [15] The most recent appellate authority is R. v. Voong, 2015 BCCA 285; [2015] BCJ No. 1335; 325 CCC (3d) 267.

In that case,Justice Bennett said: Those who embark in drug trafficking engage in serious criminal conduct. Absent exceptional circumstances, in British Columbia, theyshould expect to be sent to prison. (paragraph 1) This Court has repeatedly said that general deterrence and denunciation are the main principles to consider when sentencing drugtraffickers. While no one principle "trumps" the other, there are offences and circumstances where one or more principles come to theforefront and generally will be given more weight than others. (paragraph 18) What then is the range of sentence for dial-a-dope traffickers?

We know the statutory range is from a suspended sentence to lifeimprisonment. We also know, from an abundance of cases decided by this Court, that the normal range of sentence for a first offencedial-a-dope drug trafficker is between six to nine months incarceration, and upwards to eighteen months in some cases, absentexceptional circumstances. (paragraph 44, underlining added) In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug sellerwill be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptional circumstancesmay include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict,gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done tothe offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstances that areabove and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to concludethat the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSOsentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. (paragraph 59, underlining added) [16] It is my duty to apply the principles stated in all of the judgments mentioned above. It is therefore necessary to articulate aprinciple which gives effect to each of them. I think that can be done in the following way.

The societal risk resulting from dial-a-dopeoperations (at least in hard drugs) is so pervasive and so serious that it justifies a different approach to sentencing than that stated inPreston (where the conviction was for simple possession) or Glickman (where the offence was fraud). Datt is readily explained as anexample of exceptional circumstances, of the kind described in Voong. So, as was said in Voong, denunciation and deterrence are the

primary objectives of sentencing in dial-a-dope cases and a jail sentence will generally be appropriate for a first-time offender in such a case. [ 17 ] I observe that it is not unusual for a drug trafficker to be an addict, nor for an addict to be a trafficker. Anecdotally, that appears to be the norm, at least in Nanaimo. An addicted trafficker is not an exceptional circumstance. Sentencing in This Case Aggravating Factors [ 18 ] Mr. Rutter was trafficking in a deadly substance, which was rendered more deadly because Mr. Rutter passed it off as heroin. A person who sells narcotics is a danger to society.

A person who sells them without knowing what he is selling is a greater danger to society. It would not be surprising to learn that one or more of the fatal fentanyl overdoses in Nanaimo in 2015 were customers of Mr. Rutter who overdosed because they believed that they were injecting heroin. [ 19 ] The fentanyl trade has recently been described as a public health emergency in British Columbia. There is an active and urgent public debate about how to address that emergency. General denunciation and deterrence may play an important role. [ 20 ] This was not an isolated incident. Mr.

Rutter was actively engaged in the trade on a daily basis for months. He was in possession of significant quantities of fentanyl and cocaine when he was arrested. [ 21 ] Mr. Rutter breached the terms of his bail. Mitigating Factors [ 22 ] Mr. Rutter has no criminal record. [ 23 ] Mr. Rutter entered a guilty plea, although not an early one. [ 24 ] Mr. Rutter is not now using drugs, although he has been abstinent for less than a year. His prognosis must be uncertain at this stage. He is actively engaged in programs to address his addiction. [ 25 ] Mr.

Rutter has been employed steadily for the past six months, and is successful in his work. Analysis [ 26 ] I have considered whether I could achieve the requisite level of denunciation and deterrence by imposing an intermittent sentence of 90 days’ jail on each count. Such sentences would have to be concurrent rather than consecutive: R. v. Clouthier, 2016 ONCA 197 ; [2016] OJ No. 1232; 129 OR (3d) 481. Such a sentence would appear, at first blush, to serve all of the purposes of denunciation, deterrence and rehabilitation. It would enable Mr.

Rutter to continue to perform substantially all of the duties of his employment, and would probably allow him to keep his job. It would also be a meaningful punishment. The problem is that prisoners who receive intermittent sentences are under pressure from other prisoners to smuggle drugs into jail. It is a pervasive problem which causes grave difficulties for corrections officers. Some of those difficulties were described in R. v. David, 2013 NSSC 83 ; [2013] NSJ No. 123 and in R. v. Spence, 2014 SKQB 171 ; [2014] SJ No. 372 . A prisoner, like Mr.

Rutter, who has a history of trafficking and recent connections with drug suppliers, will face greater pressure from other prisoners than an offender without connections in the drug trade. It is likely that a refusal by Mr. Rutter to smuggle drugs into jail would elicit a violent response from other prisoners. I do not think that it would be just to impose a sentence which would require him to choose between: (

i) trafficking narcotics; or (ii) exposing himself to a significant risk of a very serious assault if he refused to do so. [ 27 ] Each of the factors enumerated by Justice Bennett at paragraph 49 of Voong is present in some degree in this case. Mr. Rutter has no record. He has attended treatment (with apparent success) and found steady, responsible employment. During the sentencing hearing, he expressed remorse and an understanding of the harm which his activities have caused to the community. It is always difficult to assess the sincerity of such expressions. In the case of Mr.

Rutter, I think that he does genuinely regret his actions, but that his expressions of remorse are mainly driven by his fear of a prison sentence. I do not think that Justice Bennett intended that the mere presence of those factors should be sufficient to justify a suspended sentence. Rather, the question is whether Mr. Rutter has “… truly turned his … life around, and that the protection of the public [would be] subsequently better served by a non-custodial sentence” (underlining added). [ 28 ] Like any addict, Mr. Rutter is at risk for relapse.

However, he has a year of abstinence, and six months of responsible employment, behind him. Overall, I think that, unless he is sentenced to jail, it is more likely than not that he will continue to be abstinent, employed and a responsible citizen. There is little doubt that a jail sentence would put Mr. Rutter’s rehabilitation at risk. It is likely that, if sentenced to jail, Mr. Rutter will use drugs while in jail and will resume trafficking in them upon his release. Considering only Mr.

Rutter as an individual, the public is more likely to be well protected by a suspended sentence and a period of probation than by a jail sentence. [ 29 ] The more difficult question is whether the deterrent effect which a jail sentence for Mr. Rutter might have on others is a more important factor, from the point of view of public safety, than the risk to Mr. Rutter’s rehabilitation which would result from such a sentence. Unfortunately, I have very little information to assist me in answering that question.

Unlike the medical profession, we who work in the criminal justice system do not measure outcomes and do not follow patients. Intuitively, one would expect jail sentences to be an effective deterrent for some cohorts of offenders and not for others. I am not aware of any reliable source of information about the deterrent effect of jail sentences on drug traffickers. I am mindful of the admonition in Voong and other cases, to the effect that denunciation and deterrence are primary sentencing objectives in drug trafficking cases.

However, that does not assist me when I am trying to weigh the risk to public safety which I believe would result from a jail sentence for Mr. Rutter (because I think that he would be a serious risk to re-offend upon his release) against the reduced risk to public safety which might result if other traffickers and potential

traffickers were deterred by a jail sentence for Mr. Rutter. In the end, I think that the known reduction in risk to public safety which would result, in this individual case, from a suspended sentence and probation is more likely to benefit the public than the unknown benefit of general deterrence which might result from a jail sentence. Disposition [ 30 ] There will be a suspended sentence and a term of three years’ probation, on the following conditions. [ 31 ] Mr.

Rutter must: 1. keep the peace and be of good behaviour and attend court when required to do so by the court; 2. report in person to a probation officer no later than 4:00 p.m. on October 19, 2016, and report thereafter as directed by his probation officer; 3. provide his probation officer with his residential address, and not change that address without first notifying his probation officer; 4. not possess or consume any alcohol, or any controlled substance, as defined by the Controlled Drugs & Substances Act , except in accordance with a valid medical prescription; 5. not possess any drug paraphernalia; 6. not be found on any business premises where alcohol is the primary commodity for sale; 7. attend, participate in, and successfully complete any counselling program to which he is referred by his probation officer, including a full-time attendance program if he is referred to one; 8. not possess any firearms. [ 32 ] Ms.

Simpson sought the following ancillary orders, which Mr. King did not oppose: (

i) a 10-year firearms prohibition under

section 109 of the Criminal Code ; (ii) an order for a DNA sample under

section 487.051 of the Criminal Code ; and (iii) an order for forfeiture of items #2a, 3, 4, and 5 as shown on Exhibit 1 at the sentencing hearing. Those orders are granted. October 18, 2016 ________________________________ T. Gouge, PCJ