R. v. Fitzpatrick Date:, 2017 BCPC 319

Citation: R. v. Fitzpatrick Date: 20170906 2017 BCPC 319 File No: 82462-1, 83442-7B Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SELINA HANNAH FITZPATRICK REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Crown: K. Jansen Counsel for the Accused: R. Randhawa Place of Hearing: Abbotsford , B.C. Date of Hearing: August 9, 2017 Date of Sentence: September 6, 2017 [ 1 ] THE COURT: By way of introduction, these are my reasons for sentence in the case of R. v. Selena Hannah Fitzpatrick, files 82462-1 and 83442-7B.

[ 2 ] Ms. Fitzpatrick has pled guilty to one count of unlawfully possessing cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act . That offence is indictable. She has also pled guilty to a breach of a probation order by failing to report as directed contrary to s. 733.1(1) of the Criminal Code . [ 3 ] The maximum penalty for possession for the purpose of trafficking in a

Schedule 1 substance, such as cocaine, is life imprisonment. As a result of amendments to the Criminal Code in 2012, a conditional sentence order, sometimes referred to as “jail in the community” is no longer available for this type of offence. [ 4 ] As will be set out in more detail further, Ms. Fitzpatrick was involved in a dial-a-dope operation. In the opening comments of the case of R. v. Voong , 2015, BCCA 285 , our court of appeal has stated that: Those who embark in drug trafficking engage in serious criminal conduct.

Absent exceptional circumstances, in British Columbia they should expect to be sent to prison. [ 5 ] The Federal Crown submits that Ms. Fitzpatrick should be sent to jail for six to nine months for the PPT offence and concedes that the lower end of the range is appropriate here. The Provincial Crown seeks a seven-day consecutive jail sentence for the breach of failing to report. In stark contrast to those positions, defence counsel argues that Ms. Fitzpatrick’s case is one comprised of exceptional circumstances.

Accordingly, it is submitted that she ought to receive an 18-month suspended sentence with probation conditions. CIRCUMSTANCES OF THE OFFENCES [ 6 ] On January 3rd, 2015 in Mission, B.C., Ms. Fitzpatrick is observed to be engaged in street level trafficking of cocaine out of the passenger seat of a motor vehicle driven and owned by Ronald Mattiuz. It appears that Mr. Mattiuz will be walking out of this courtroom a free man once this matter is concluded. The police observed several "meets" whereby a person runs up to Ms. Fitzpatrick’s side of the vehicle and engages in hand-to-hand transactions.

During one such transaction, a customer requested the purchase of "60 soft," i.e. powder cocaine, and money was exchanged. [ 7 ] When the police ultimately pulled the suspect vehicle over, a search was conducted. Pre-packaged cocaine appeared to be on Ms. Fitzpatrick’s lap. Ms. Fitzpatrick’s purse was searched and a LG cell phone was located. Four individually wrapped pieces of cocaine totalling 1.4 grams was found with an approximate value of $160. The purse also contained $660 in currency and 9.4 grams of marihuana. A black scale and Ziploc bags were also discovered.

The cell phone rang during the search and someone was requesting “40 soft." In short, Ms. Fitzpatrick was involved in a low-level dial-a-dope operation. VICTIM IMPACT [ 8 ] Of course, I do not have any individual victim impact statements in this case. The victims are really members of the public who are drug addicted and who are seeking easy access to feed their habit. [ 9 ] At paragraph 16 of the Voong case, as cited above, it is noted that dial-a-dope cases involve a customer calling a cell number, placing an order and then the dealer travels to a location for the drug exchange.

To quote directly from that paragraph: …the drugs can be obtained with the ease of home delivery. This type of trafficking is particularly insidious, and permits the drug trade to infiltrate communities to a greater degree. [ 10 ] I do bear in mind that Ms. Fitzpatrick is herself a drug user and she needed the trafficking money to support her own drug habit. I was, nevertheless, concerned in the Pre-Sentence Report at page 4 when she said, at least initially, that "It was not her problem if people wanted to buy drugs from her." Later she appears to have some greater understanding of her actions.

CIRCUMSTANCES OF THE OFFENDER [ 11 ] Ms. Fitzpatrick’s Pre-Sentence Report is not entirely positive, but it provides some insight as to how her desperation and vulnerability towards drugs blinded her judgment. [ 12 ] Ms. Fitzpatrick is a 25-year-old-woman. She was primarily raised by her father and she experienced emotional instability due to the absence of a mother, however she did have a stable and supportive childhood. She now says she is a responsible person with most of her time spent doing schoolwork or looking for work. I have heard more recently she is involved with her drug rehabilitation. [ 13 ] Ms.

Fitzpatrick was introduced to illicit drugs, especially cocaine and ecstasy, at the early age of 13. She has struggled with drug and alcohol addiction throughout her life with short periods of abstinence. She now says she has abstained from illicit drugs for several months and she has removed herself from negative associates. I take it that Mr. Mattiuz was one of those negative associates. [ 14 ] Her criminal record is unrelated to this trafficking offence. She had an impaired conviction in 2013.

In August of 2016 she received a conviction for taking a vehicle without owner’s consent, uttering threats and possession of stolen property. A few days later she received a conviction for similar offences. Notably, Ms. Fitzpatrick was placed on a probation order in September of 2016 and she was on that probation order when she failed to report. I acknowledge that the 2016 offences postdate at least the trafficking offence. [ 15 ] I also take into account that Ms. Fitzpatrick has aboriginal heritage. Her mother belonged to a reserve near Kitimat, B.C. Ms.

Fitzpatrick has no knowledge of her culture but has participated in sweat lodge ceremonies. I recognize that under s. 718.2 (

b) of the Criminal Code , all available sanctions other than imprisonment that are reasonable in these circumstances should be considered, particularly where I am sentencing an aboriginal offender. [ 16 ] As I alluded to earlier, not all aspects of the Pre-Sentence Report are positive. Ms. Fitzpatrick’s performance under community supervision "may be viewed as less than satisfactory." She has failed to attend many probation appointments and she has now pled guilty to a failure to report charge. Moreover, at the time the report was written on June 9th, 2017, Ms. Fitzpatrick was not receptive to

interventions such as a treatment facility. I am told by defence counsel that Ms. Fitzpatrick is now open to attending treatment. She is on the methadone program. She is also signed up for a six-week Thinking Leads To Change program. Further, I have just been informed today that Ms. Fitzpatrick is now residing at Step By Step Recovery House in Delta, B.C. She plans to later attend Aurora House, a treatment centre. SENTENCING PRINCIPLES [ 17 ] The relevant Criminal Code provisions relating to the principles of sentencing are found in s. 718 and following in the Code .

I must balance the need for denunciation and deterrence as against the requirement for rehabilitation. My sentence must be proportionate to the offence. I must consider mitigating and aggravating factors. I must also take into account Gladue factors in this case. [ 18 ] When dealing with dial-a-dope offences specifically, our Court of Appeal has repeatedly said that general deterrence and denunciation are the main principles to consider when sentencing drug traffickers (see para. 18 of the Voong case).

I am also acutely aware that the normal range of sentence for a first offence dial-a-dope drug trafficker is between six to nine months and upwards to 18 months (see para. 44 of Voong ). [ 19 ] That all being said, our Court of Appeal has recognized that there may be "exceptional circumstances" which could allow for a suspended sentence in the right circumstances.

Even though Parliament has taken away the option for a conditional sentence order, if exceptional circumstances exist, the dial-a-dope trafficker could receive a suspended sentence because such a sentence can achieve a deterrent as well as a denunciating effect. I quote directly from our Court of Appeal at paragraph 59 of Voong : In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptional circumstances may 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 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 circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to 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. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available. Thus, it will be the rare case where the standard of exceptional circumstances is met.

APPLICATION TO THE CASE AT BAR [ 20 ] I must first decide if Ms. Fitzpatrick’s situation is one which contains "exceptional circumstances," such that a suspended sentence could be available. I have concluded that although Ms. Fitzpatrick may be turning a corner in her life, her circumstances are not exceptional as defined by the case law. I have considered the following: 1. Ms. Fitzpatrick has no record for drug trafficking but she does have a criminal record including recent entries in 2016. Moreover, she committed a breach by failing to report while on probation. 2. Ms.

Fitzpatrick has begun her journey towards rehabilitation but there are few objective markers of success. In fact, her comments in the Pre-Sentence Report suggests she was not receptive to treatment as recently as June of this year. I appreciate she is now expressing interest in treatment and she is attending Step By Step Recovery Home in Delta. She is also on the methadone program. However, these are, in my view, only the first steps towards rehabilitation. 3. As to her remorse and acknowledgement of the harm done to society as a result of her offence, Ms. Fitzpatrick’s responses are mixed.

She initially says in the Pre-Sentence Report that she was not directly harming anyone and it was not her problem if people wanted to buy drugs from her. She later acknowledges that drugs blinded her judgment but her appreciation of the offence appears somewhat limited. 4. For me to grant a suspended sentence, I must be convinced that Ms. Fitzpatrick has truly turned her life around. She is not there yet. In fact, she is just turning the corner and I hope she succeeds. The intent to get treatment, the signing up for the TLC course, these are a good start but Ms.

Fitzpatrick has a recent history of missing her probation appointments. She has not completed any form of drug treatment at this stage. Her efforts are not the same as those cited in the cases as "exceptional circumstances." [ 21 ] Nevertheless, when I consider the mitigating factors in this case and Ms. Fitzpatrick’s aboriginal heritage, I am satisfied that her jail sentence should, in fact, be below the low range. Her crimes were largely a result of drug addiction and a poor choice of boyfriend. She has no prior convictions for drug offences.

She is hopefully turning a corner in her life now. [ 22 ] Taking into account all the sentencing principles, I am satisfied that she should serve a four-month jail sentence for possession for the purpose of trafficking offence and a three-day consecutive jail sentence for the breach. Ms. Fitzpatrick, I am going to ask that you please stand up. [ 23 ] You are sentenced to four months jail under Count 1 of Information 82462-1, the PPT offence.

You are sentenced to three days jail under Count 1 of Information 83442-B7, the breach and that is consecutive to the first jail sentence. (SUBMISSIONS BY COUNSEL) [ 24 ] There will be the following ancillary orders, ma’am. 1. A s.109 prohibition. You are prohibited from possessing (

a) any firearm other than a prohibited firearm, restricted firearm and any crossbow, restricted weapon, ammunition, explosive substance, for a period of 10 years; and (

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

2. There will be a secondary DNA order. Count 1 of 82462-1 is a secondary DNA offence. Samples of your DNA will be taken from you while you are in jail. 3. There will be a forfeiture order of all items seized. 4. With respect to the victim fine surcharge, unless I hear otherwise, the victim fine surcharge will be paid forthwith. Having found that you are having no ability to pay it and are in default, you will serve two days for the indictable PPT count and one day for the breach count. Those sentences will be concurrent to any jail sentences I have uttered. (SUBMISSIONS BY COUNSEL) [ 25 ] THE COURT: All right.

Yes. I will amend the jail sentence to say you are sentenced to three days jail less two days time served under Count 1 of Information 83442-B7, the breach, and that is consecutive to the first jail sentence. G.J. BROWN Provincial Court Judge