R. v. D.G.B. Date:, 2016 BCPC 334

Citation: R. v. D.G.B. Date: 20161104 2016 BCPC 334 File No: 79448-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.G.B. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: T.I. McFadgen Counsel for the Defendant: K.L. Waugh Place of Hearing: Nanaimo , B.C. Date of Hearing: October 12, 2016

Date of Judgment: November 4, 2016 [ 1 ] Ms. B has entered a guilty plea to a charge of trafficking heroin. Mr. McFadgen, for the Crown, seeks a jail sentence of 2 years less a day. Ms. Waugh, for Ms. B, submits that a sentence of 6 - 12 months would be more appropriate. [ 2 ] On September 18, 2015, Ms. B.’s son, then 16 years of age, was in police custody. The police called Ms. B., who came to see her son at the police station. The police left Ms. B. and her son alone in an interview room, but observed them via closed-circuit television. They saw Ms.

B. pass something to her son, and saw her son secrete it in his pants. It is admitted that the object was a “flap” containing a single dose of heroin. [ 3 ] Both Ms. B. and her son are heroin addicts. In September, 2015, Ms. B. was on a methadone maintenance program, and now has a prescription for s uboxone. [ 4 ] Ms. B. has no criminal record. [ 5 ] Counsel inform me that they have been unable to find any previous case with similar facts.

My efforts have been similarly unsuccessful. [ 6 ] Of the many principles of sentencing articulated in the Criminal Code , it seems to me that the most important, in relation to Ms. B., is the “fundamental principle” stated in

section 718.1: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 7 ] Mr. McFadgen says, correctly, that smuggling drugs into jail is a very grave matter. He referred me to R. v. David 2013 NSSC 83 ; [2013] NSJ No. 123 , in which a sentence of 4 years and 9 months was imposed on a prison guard convicted of smuggling significant quantities of hard drugs into prison. The subsequent jurisprudence was reviewed in R. v.

Spence 2014 SKQB 171 ; [2014] SJ No. 372 , in which a sentence of 18 months’ jail was imposed upon an aboriginal liaison officer for smuggling significant quantities of drugs into a Saskatchewan penitentiary. [ 8 ] Ms. B.’s offence was much less grave than that of Mr. David or Ms. Spence. Each of them smuggled significant quantities of drugs into prisons for distribution among the prisoners. The consequences of such activities were described in the following terms in David at paragraphs 30 - 34 : Drugs are currency in a place where there is no money to pay for services.

Because they are hard to smuggle into the inmates, the value of drugs is multiplied by as much as 5 to 10 times its value when sold on the street. Inmates who have drugs to traffic have a form of wealth. It can be used to create debts that must be paid back either in services or on the street. Inside, it can buy enforcers and protection for the inmate drug trafficker. Outside it can create debts that family members may be called upon to pay. The variety of drugs and in particular the

Schedule I drugs seized in this case are consistent with an inmate who is operating a "multi drug marketplace", which would give him enhanced authority and power. In the close quarters of a penal institution drug use lends itself to increased violence. That violence can be directed at other inmates or at the staff. Prisoners who are trying to cope with drug addictions or with the anti-social aspects of their previous drug use should be in a drug free environment when in prison. The availability of drugs inside counteracts that objective.

Ultimately society pays for failed rehabilitation and for the negative consequences on correctional staff. Drugs, especially when taken by needles, present increased health risks to the inmates taking them. Allergic reactions, overdoses, unrecognized incompatibility of drugs ingested can trigger significant health problems, including in extreme cases, death. There was no risk of similar consequences in this case. Ms.

B. smuggled in a single dose of heroin, which was intended to be, and was, consumed by her son immediately upon delivery. [ 9 ] The Court of Appeal recently held that “… the normal range of sentence for a first offence dial-a-dope drug trafficker is between six to nine months incarceration …”: R. v. Voong 2015 BCCA 285 ; [2015] BCJ No. 1335; 325 CCC (3d) 267. Dial-a-dope offences are more grave than other forms of heroin trafficking: R. v. Tran 2007 BCCA 613 ; [2007] BCJ No. 2845. The delivery of a single dose of heroin is a much less grave offence than the conduct of a dial-a-dope business. [ 10 ] Mr.

McFadgen points out that Ms. B. was in a position of trust or authority in relation to her son, and that her breach of trust by feeding his drug addiction is an aggravating factor: Criminal Code ,

section 718.2(iii). Certainly, one must condemn in the strongest terms anyone who supplies narcotics to a child. It is difficult to understand how anyone, even an addict, could contemplate supplying narcotics to her own child. [ 11 ] Taking all of those factors into account, it seems to me that a sentence of 180 days’ jail would adequately reflect the gravity of Ms. B.’s offence. She has been in custody, awaiting sentencing, for 87 days, and so is entitled to credit for 130 days, leaving her with 50 days to serve. [ 12 ] Mr. McFadgen also seeks a lifetime ban on possession of prohibited and restricted weapons and a 10-year ban on possession of other firearms, each under the authority of

section 109 of the Criminal Code , and an order for a DNA sample. Ms. Waugh did not oppose those orders, which are granted.

November 4, 2016 ____________________________ T. Gouge, PCJ