R. v. Strickland Date:, 2011 BCPC 102

Citation: R. v. Strickland Date: 20110428 2011 BCPC 0102 File Nos: 193394-4-A, 201969-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KEITH WILLIAM STRICKLAND EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE H. DHILLON Counsel for the Crown: C. Fast Counsel for the Defendant: A. Ip Place of Hearing: Vancouver, B.C.

Date of Judgment: April 28, 2011 [ 1 ] THE COURT: On March 17, 2011, Keith Strickland was found guilty after a trial of the unlawful possession of various and specific controlled drugs and substances for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . Convictions were recorded under nine separate counts of the indictment against Mr.

Strickland relating to his possession for the purpose of trafficking of cocaine, ecstasy, methamphetamine, psilocybin, cannabis, ketamine, GHB, LSD, and cannabis resin. [ 2 ] The circumstances of the offence are that a hotel room at the Park Inn & Suites on West Broadway in Vancouver was found by police to contain numerous illicit drugs and substances along with a significant amount of cash and drug paraphernalia.

The full details of the evidence can be found in reasons for conviction filed March 17, 2011, under Court File 201969. [ 3 ] The total approximate value of the drugs was estimated at $43,000 and accepted as such by the court based on expert trial testimony. [ 4 ] At this sentencing, Mr. Strickland submitted that there was an issue as to the estimated value because the drugs were not trafficked to generate maximum profit.

He submitted that the drugs were not sold at the highest values because of his view that such drugs should be decriminalized. [ 5 ] Even accepting that is his motivation, it does not detract from the fact that such drugs do have a market value, and that market value was the evidence that the court received at trial, so I accept, as a general proposition, that the value of the drugs was, in respect of the market value, $43,000, an approximate value. [ 6 ] According to the evidence, the highest value in drugs found in the hotel room related to

Schedule III drugs, including ecstasy, having a value of $18,000 in pill and powder form; GHB and LSD tabs of about $8,190. The next highest values were in

Schedule I drugs of cocaine at $6,400 and methamphetamine of $4,950 and, following thereafter, other drugs with lower values ascribed to them. [ 7 ] Over $7,000 in cash and coins was also found in the room, along with items necessary to carry out trafficking operations, such as an electronic paper money counter, weigh scales, vacuum heat sealer, empty gelatin capsules, plastic Ziploc-style bags, and various and numerous large and small containers consistent with the storage and transport of drugs and drug paraphernalia.

[8] The evidence showed that the hotel room contained all the elements to support and conduct a sophisticated drug-traffickingoperation. [9] The case was a circumstantial one, and it was based on evidence connecting the accused to the room and its contents. [10] The circumstances of the offender are that is he aged 42 and born in Toronto. He has been a B.C. resident since about 1996. Hehas an adult daughter and a mother in the Maritimes. He has obtained his GED and has worked in recent years in business and Internetadvertising.

He is self-described as a functioning addict who has used crystal methamphetamine and used and trafficked inmethamphetamine as well as other drugs. [11] He is also self-described as motivated to see the decriminalization of drugs. However, in my view, motivation cannot be amitigating factor for sentencing. [12] The Crown position on sentencing is that the offence calls for a sentence of incarceration of two years' duration.

The Crown alsoseeks a s. 109 weapons prohibition, a discretionary DNA order, as well as an order of forfeiture. [13] The defence position is that a fit sentence should be in the provincial range of 18 months to two years less a day. [14] The case authorities submitted to court include the following: R. v. Paper, 2010 ONCJ 88, aff'd 2011 ONCA 56, in which a two-year sentence was imposed after a guilty plea for a "drug boutique" operation by a first-time offender for possession for the purpose oftrafficking in methamphetamine, and a concurrent sentence was imposed for other counts.

A probation order of two years followed, aswell as other ancillary orders. [15] R. v. Bishop, 2010 BCSC 1840, resulted in a 15-month sentence of imprisonment imposed after trial on a 53-year-old first-timeoffender in the context of mitigating circumstances. The value of drugs in that case was between $19,000 and $26,000. [16] R. v. Christie, 2009 BCPC 97, resulted in a sentence of two years for possession for the purpose of trafficking in ecstasy, havinga value of $9,000. This sentence was imposed following a guilty plea by a young accused with a prior related record. [17] R. v.

Scharf, Vancouver Registry No. 1761343-C2, was pronounced on June 17, 2008, by the Honourable Judge McMillan. Thesentence was 15 months' custody after trial for an offender with a prior record. [18] R. v. Au, 2006 BCCA 533, which was a Crown appeal from a 54-month sentence. In 2005, drugs were found which amounted tofour kilograms of methamphetamine for which a 42-month sentence was ultimately imposed by the B.C. Court of Appeal, and a furtheroffence of February 2006 resulted in a consecutive sentence of 24 months.

The drugs in the second related offence were four kilogramsof ecstasy, a significant amount of drugs calling for consecutive sentences in the federal penitentiary range. [19] R. v.

Biery and O'Brian, 2002 BCCA 552, was a case in which an 18-month custodial sentence was upheld by the Court ofAppeal for two addicts in their early thirties with no prior convictions and each of whom had entered guilty pleas. [20] Those cases, in my view, aptly canvass the range of sentences available depending on the circumstances of the case and thecircumstances of the offender. [21] The court is required to apply the principles of sentencing found in ss. 718 to 718.2 of the Criminal Code, as well as s. 10(1) ofthe Controlled Drugs and Substances Act.

It is within this legislative framework that the court must proceed with sentencing as anindividualized process with the circumstances of the offence and that of the offender to be taken into account in determining a fitsentence in all the circumstances. [22] The maximum sentence for offences under s. 5(2) of the CDSA is life imprisonment for

Schedule I drugs, 10 years maximum forSchedule III drugs, and five years less a day for cannabis, a

Schedule II substance. [23] The key sentencing principles in drug-trafficking offences remain deterrence, denunciation, and protection of the public. Thenegative impact of drug trafficking on the social and economic fabric of society is well known and the subject of judicial commentary inmany cases. [24] As referenced in R. v. Paper, citing R. v. Pearson, the sweep of drug trafficking is broad. Addiction imperils health and humanproductivity. It raises law enforcement costs when crimes are committed to sell drugs or committed by persons under the influence ofdrugs or to obtain drugs: see R. v.

Pearson (1992), (SCC), 77 C.C.C. (3d) 124, as cited in R. v.

Paper at para. 58. [25] Rehabilitation of the offender is a relevant objective, but when the offender is not an addict in dire or debilitating circumstancesand is not trafficking to support an addiction habit, rehabilitation must give way to denunciation, general deterrence, and the protectionof the public. [26] Under s. 718.2, the court must address the aggravating and mitigating circumstances and the principles of parity, proportionality,and totality and craft the least restrictive sanction that is fit in all the circumstances. [27] The aggravating circumstances in this case, I find, are that it was a sophisticated trafficking operation that was commercial innature.

It was not a cottage industry, as submitted, but a drugstore-style operation where Mr. Strickland possessed a broad variety ofdrugs, including the high dollar value of drugs under

Schedule I, such as methamphetamine. The enterprise was indicative of anoperation with systematic planning and execution of that scheme over the long term. [28] It is an aggravating factor that Mr. Strickland was on bail for a prior drug offence to which he has now entered guilty pleas andfor which he is to be sentenced. [29] As to mitigating circumstances, I do accept, as proffered today in evidence, that he has assisted as a chaplain's assistant in an

interfaith mediation program in his custodial facility. He is taking some positive steps to try to craft an approach to his lifestyle choices that may assist him in future, but these are just preliminary steps at this point in time. [ 30 ] The case law indicates that given the nature and quality of the drugs and the operation conducted out of the hotel room, the least restrictive sanction is one that must be one of imprisonment. I do not find that Mr.

Strickland is arguing for anything less but that the imprisonment should be one that fits within a provincial range of sentence. [ 31 ] I find that the cases that I have summarized set out the appropriate range of sentence, and I also find that the Crown's position of a two-year sentence is amply supported by the facts in this case. Almost all of the cases at the lower end of the 15- or 18-month range have significant mitigating factors or far fewer aggravating factors. I do not accept that the case of R. v. Biery and O'Brian and the 18- month sentence imposed is consonant with Mr.

Strickland's case because in R. v. Biery and O'Brian , there was a guilty plea and there was the lack of a criminal record for each accused in that case. Those accused were also much younger and considered to be serious drug addicts. I do not accept that as a functioning addict, Mr. Strickland could fall into that category of persons who are so addicted to drugs that they have to traffic in drugs simply to support their habit. [ 32 ] The fact is that Mr. Strickland has involved himself with a drug-trafficking lifestyle in recent years.

It is, as I indicated, not merely a cottage industry for him or a hobby to advance his motivation to seek decriminalization. It is much more than that. It is a serious enterprise which must bring with it a sentence in the federal range. [ 33 ] Would you stand, please, Mr.

Strickland? [ 34 ] For the foregoing reasons, sir, I impose a sentence of two years, which I find is a just and fit sentence for the offence and for your personal circumstances. [ 35 ] I am also imposing a weapons prohibition under s. 109(2) which would prohibit the possession of any weapon, prohibited device, ammunition, and explosives, which is to continue in effect until 10 years after your release from imprisonment, and I also prohibit for your life the possession of weapons and devices under s. 109(2) (b) . [ 36 ] I am imposing a DNA order, which is discretionary, and I will require that you submit to the taking of any number of samples of bodily substances reasonably required for forensic DNA analysis because I am satisfied it is in the best interests of the administration of justice that you do so.

I have considered the offence, the circumstances of its commission, and the impact of such an order on your privacy and security, and I find the order to be merited on the facts in this case. [ 37 ] I have signed the forfeiture order which has been presented to court to which you do not object, so therefore forfeiture will be made in accordance with the terms and provisions of that order. [ 38 ] For the breach charge under File 193394, I impose a sentence of 45 days concurrent with the two-year sentence that I have imposed. [ 39 ] With respect to the victim fine surcharge, I am going to waive such a surcharge because I do not anticipate that you will be in any position to pay that surcharge in any quick or timely manner. [ 40 ] So that is the sentence I have imposed.

Is there anything that I left unstated that ought to be addressed by the court? Mr. Fast? [ 41 ] MR. FAST: Nothing from the Crown's perspective. [ 42 ] THE COURT: All right. Mr. Ip? [ 43 ] MR. IP: No, thank you, Your Honour. [ 44 ] THE COURT: All right. Thank you, Mr. Strickland, and I wish you the best of luck as you navigate your way once you are through the criminal justice system. Thank you. (REASONS CONCLUDED)