R. v. Niederhumer, 2021 BCPC 352

Citation: R. v. Niederhumer 2021 BCPC 352 Date: 20210728 File No: 85701-1, 85712-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. REINER PETER NIEDERHUMER ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE HARVEY Counsel for the Crown: I. McFadgen Counsel for the Defendant: P. Hertzberg Place of Hearing: Nanaimo , B.C. Date of Hearing: July 28, 2021 Date of Judgment: July 28, 2021 INTRODUCTION

INTRODUCTION [ 1 ] The accused, Reiner Niederhumer, previously pled guilty to trafficking in heroin and fentanyl as it relates to Count 1 on Nanaimo indictment 85701 from October 19, 2018, trafficking solely in fentanyl the following day, namely October 20, 2018, as well as simple possession of fentanyl from December the 6, 2018.

All of these offences occurred in the City of Parksville, British Columbia. [ 2 ] The Court has been provided with two pre-sentence reports, along with comprehensive submissions from both the Crown and defence counsel for this accused. [ 3 ] As well, the Crown submitted as Exhibit 2, a report from Dr. James Kennedy, a clinical associate professor from the faculties of Medicine and Pharmaceutical Sciences from the University of British Columbia and St.

Paul's Hospital, dealing with the use, abuse and toxicity of fentanyl by way of a letter dated July 25, 2016. [ 4 ] Exhibit 3 was the British Columbia Coroner Service report on illicit drug toxicity deaths from January 1, 2011 through January 31, 2021. [ 5 ] Finally, both counsel provided the Court with some 13 cases for consideration. Those cases will be referenced later on in these reasons for judgment. [ 6 ] Therefore, the issue for this Court to decide today is what is an appropriate sentence for these three offences?

CIRCUMSTANCES OF THE OFFENCES [ 7 ] Back in October 2018, specifically October 19 and 20, 2018, the Oceanside RCMP detachment was conducting Project Ephilomath which was designed to use an undercover officer to target drug dealers in the Oceanside area. [ 8 ] It is well known to this Court, and not in dispute, that the Oceanside area includes the two seaside communities of Parksville and Qualicum Beach, British Columbia.

It is also well known that these are areas frequented by tourists, not only throughout the summer months, but throughout all times of the year. [ 9 ] The investigation in question targeted a residence located at 1114 Smithers Road in Parksville, B.C. This residence was described as located in a semi-residential area to the west of Highway 19. The area contains residences, commercial, and industrial businesses. [ 10 ] The police targeted this particular area when surveillance had shown a high number of foot traffic in July 2018.

Moreover, there was a female who was revived at that residence in July 2018 from an overdose. And in September 2018 two other male individuals, on two separate occasions, were arrested after leaving that said residence. The police had received complaints from the public about suspected drug dealing at that particular residence. [ 11 ] Therefore, on October 19, 2018, Constable Deschesnes, who was acting in an undercover capacity, attended the residence and attempted to purchase $40 worth of heroin. At 11:44 p.m. the officer attended the residence.

An unknown male opened the door and the officer asked for two points of down. Down is often referred to as a reference for heroin and fentanyl, and two points meaning .2 of a gram. At this point the accused came out of a room inside the residence and the police officer asked him for two points of down. The accused then left briefly, and came back and handed the officer a flap in exchange for the $40, which was offered.

The accused also then gave the officer his cellphone number so he could call back in the event that he came in the future. [ 12 ] The drugs from the flap were analyzed as heroin and fentanyl and weighed 0.17 grams. [ 13 ] The following day, October 20 of 2018, that same officer called the accused's phone at 5:07 p.m. and asked if he could purchase two points of down. The male who answered the phone agreed, and the officer indicated he would be there in 20 minutes. At 5:35 p.m. the officer attended that same residence.

Once again, the officer met with the accused, who was holding a jar with four or five flaps inside. The officer offered the accused $40. The accused indicated the price had gone up to $50, as each flap had 1.5 in it. The officer indicated that he wanted the .2 grams and the accused indicated he needed to change some of the flaps. [ 14 ] As a result, the undercover officer left with one single flap of drugs, and that single flap weighed 0.19 grams. It was analyzed solely as fentanyl. [ 15 ] The accused was arrested as a result of a warrant in the first instance.

He was arrested by Corporal Helgeson of the Oceanside RCMP at 2:30 p.m. in front of his residence at 1114 Smithers Road in Parksville. Upon his arrest he was searched and 3.8 grams of fentanyl were located on his person. Those are essentially the circumstances of the three offences. CIRCUMSTANCES OF THE ACCUSED [ 16 ] The accused is presently 52 years of age and comes before the court with a prior criminal record. The accused's criminal record is set out in the pre-sentence report. That record commences in 1990 with offences of obstruct, assault police officer, and mischief.

The accused's record consists mostly of crimes of dishonesty, though there are breaches of probation as well as assault contained on that record. Many of the thefts, possession of stolen property, and break and enter offences yielded provincial jail sentences. The accused has, by my count, seven convictions for possession of a controlled substance, the most recent being back in 2011.

He has no prior convictions for trafficking in controlled substances. [ 17 ] The pre-sentence report update of March 2021 describes this accused's past history in relation to his family relationship as somewhat difficult for this accused. At the age of 17 his own father was murdered in relation to the selling of drugs. The accused and his brother became closer after the father was murdered and remained close until his brother passed away in 2011. The accused stated he is close with his mother and half-sister.

[ 18 ] The accused often spends his time alone and has been in a number of shelters, including most recently in a shelter of supporting housing near the Nanaimo Regional Hospital on Boundary Crescent here in this city. [ 19 ] The accused did complete part way through grade 11 in high school and has expressed an interest in the field of counselling, but acknowledges current substance usage would prevent him from doing so. [ 20 ] The accused has had some employment in the past, but has not gainfully worked since 1991.

Currently the accused is unemployed and collects a monthly persons with disability payment. [ 21 ] As of March 2021 the accused stated he has never attended counselling for his mental health and was not taking medication. Also as of March 2021 the accused reported to the pre-sentence report author to using marihuana and fentanyl or heroin daily, using approximately .5 grams of heroin/fentanyl, but he may use more or less, depending on his stress level.

He also stated to the author of the pre-sentence report that he relies on opiates to function, as it gives him a reason to get out of bed each morning. [ 22 ] The accused has had kidney disease, which was diagnosed in 2010, requiring dialysis at the Nanaimo Regional General Hospital three times a week. He essentially, as I am told, has the function of one kidney. [ 23 ] Most recently it appears that the accused has begun using a fentanyl patch, prescribed by Dr.

Kenny through Trew Beginnings, which is a medicated adhesive transdermal patch that delivers a specific dose of fentanyl through the skin three times a week when he attends the hospital for dialysis. [ 24 ] As of March 2021, the accused further informed the pre-sentence report author that he is focused on his detox plan and that he will go from there in terms of ongoing counselling or treatment. [ 25 ] As to the accused's attitude and understanding regarding his offending behaviour, the writer of the pre-sentence report in March 2021, Ms.

Berma indicated that the accused seems to lack insight into his offences, as he justified and minimized his actions by stating he does not sell to children, steal from others, or act violently. Moreover, the accused acknowledged his responsibility for his behaviour, but continues to lack insight into his offending. As he mentioned, he does not view selling drugs as a criminal offence. [ 26 ] Lastly, the accused admitted to selling drugs to the author of the pre-sentence report in order to support his own habit and to pay bills.

POSITION OF THE CROWN [ 27 ] The Crown seeks a global jail sentence of two years less a day incarceration for these offences. [ 28 ] The Crown requests the breakdown of each count as follows: On Information 85701 on Count 1, trafficking of heroin and fentanyl, two years less a day incarceration. On Count 2, trafficking in fentanyl only, two years less a day incarceration concurrent to Count 1.

On Information 85712, possession of fentanyl, 30 days' incarceration concurrent to Information 85701, for a total sentence of two years less a day. [ 29 ] The Crown stressed the type of the controlled substance, namely fentanyl and heroin, but there was also trafficking to an undercover officer on the date in question on 85701.

The Crown respectfully submitted that the paramount sentencing consideration in this particular case is denunciation of the unlawful conduct and also deterring this accused and others from trafficking in this highly addictive and dangerous drug. [ 30 ] The Crown also argued that separating the accused from society to prevent the continuation of offences, and promoting a sense of responsibility in the accused in acknowledging the harm done to victims in the community, is a relevant consideration, given this accused's record.

The Crown also takes into account the accused's current circumstances. [ 31 ] In reviewing the Crown's authorities, it is the Crown's position that the accused should be somewhat above the low end of the range, set out in the 2017 decision of R. v. Smith from our British Columbia Court of Appeal. The Crown argued and acknowledged that harsh sentences for trafficking in hard-core

Schedule I drugs will not deter some individuals from trafficking. However, denunciation and deterrence are rationed based principles of sentencing a judge must consider. [ 32 ] The Crown also conceded that sentencing is an individualized process. Ranges of sentences are not to be "straightjackets" for judges in determining what is the appropriate sentence in each particular case. Rather, an appropriate sentence must take all of the relevant factors into account.

It must consider the particular circumstances of each specific case and the circumstances of the offender. [ 33 ] The Crown also highlighted the number of overdose deaths in British Columbia. In 2018 it was 1549 individuals. In 2020 that number increased to 1726 persons.

So far 2018 was the second most deadliest on record in this Province, and it is well-known that the Province of British Columbia is still in a serious public health emergency because of the tragic opioid crisis, which unfortunately seems only to be increasing in the early stages of the data from 2021. [ 34 ] The Crown also stressed that by the time the accused offended more than two years after the health emergency order was declared, a drug trafficker would be well aware of the potential lethal consequences of his actions. [ 35 ] The Crown further argued that this accused has already said to have had kidney disease at the time of his offending behaviour, so his health issues are not recent. [ 36 ] While the accused has also expressed an interest in attending counselling, he has not done so.

The Crown argued that the accused has not turned his life around in a significant way. [ 37 ] Moreover, the accused continued to use drugs after his offending. To that end, the accused started using opiates at the age of 21.

He uses marihuana and fentanyl/heroin daily as of March 2021. Moreover, there does not appear to be any indication that the accusedhas commenced any drug treatment program. [38] The accused's reporting since his release in December 2018 has been inconsistent.

It has been described in the pre-sentencereport overall by the writer as "poor". [39] Therefore, as the accused lacks insight and minimized his actions for the offending by stating he does not sell to children etc., asset out on page 7 and 8 of the pre-sentence report, or does he sell drugs -- or does he view selling drugs as a criminal offence, as set outon page 8 of the presentence report, as a consequence the Crown stressed that the trafficking in heroin and fentanyl was subject to themaximum of life sentence of imprisonment. [40] Both substances are

Schedule I listed substances under the Controlled Drugs and Substances Act; these, particularly fentanyl, themost devastating and destroying substances in our communities. [41] The Crown acknowledged that whilst the accused has no prior convictions for trafficking in these offences, he was sellingfentanyl, or a mixture of heroin and fentanyl to an undercover officer in a semi-residential area in Parksville on multiple occasions. POSITION OF THE DEFENCE [42] The Defence submitted that a more appropriate sentence for this accused would be one of a conditional sentence ofimprisonment.

The Defence highlighted the fact that this accused has had no offending since his arrest in December 2018, and his lastconviction was in 2014. [43] The accused is, as Defence counsel stated, now on a fentanyl patch and is hopeful to get some counselling through the NanaimoRegional General Hospital.

Defence counsel suggested that his client would have difficulty attending many treatment centres because ofhis dialysis situation involving his kidney. [44] The Defence highlighted the difficulties that this accused has had, but despite those difficulties he has not come to the attention ofthe authorities since his arrest date of December 6, 2018. [45] The Defence argued it has been some 32 months since his offending behaviour and that the COVID-19 pandemic has limited hisclient's ability to take any meaningful steps.

His own counsel indicated in submissions "he", that being the accused, "can't continueusing street drugs because they'll kill him." [46] Defence counsel also strongly indicated that a conditional sentence order is not a "get out of jail free card", and that a properlycrafted conditional sentence order with terms including a curfew and mobility restrictions can meet the principles of sentencing, as wellas that sentence ought to be followed by a probation order with a term akin to a Rogers Order as being an appropriate condition followinga conditional sentence order. [47] Lastly, counsel for this accused did not argue that his client would not likely see out his sentence if he was served a custodialsentence, due to his kidney disease.

THE LAW AND SUPPORTING AUTHORITIES [48] In relation to Information 85701 the offences of trafficking in heroin and fentanyl are punishable by up to life imprisonment. [49] Counsel provided the following authorities, which have been canvassed, many of which I am familiar with. They were asfollows: [50] Firstly from the Crown: 1. R. v. Smith, 2017 BCCA 112; 2. R. v. Voong, 2015 BCCA 285; 3. R. v. Kodimyala, 2020 BCCA 275; 4. R. v. Schneider, 2019 BCCA 310; and 5. R. v. Young, 2021 BCPC 6. [51] The Defence provided the following case authorities: 6. R. v. Chen, 2021 BCSC 697; 7. R. v. Berry, 2011 ONSC 8016; 8. R. v.

Russell and Grenfal, 2000 BCSC 27; 9. R. v. Nguyen, , a B.C. Supreme Court decision; 10. R. v. Scott, 2013 NSCA 28; 11. R. v. Shusterman, 2012 BCSC 362;

12. R. v. Manhas, 2014 BCPC 192 ; and 13. R. v. Howard, 2021 BCPC 167 , a decision of my brother Judge Jetté earlier this month in Surrey Provincial Court. [ 52 ] As indicated, I have reviewed all of those, or canvassed all of those cases in coming to my decision in this matter. PRINCIPLES OF SENTENCING [ 53 ] The Court is guided by s. 718 , 718.1 , and 718.2 of the Criminal Code as well as s. 10 of the Controlled Drugs and Substances Act .

I do not purport to reiterate those sections in full, except for the purposes of the case law that in cases such as trafficking in drugs as fentanyl, denunciation and deterrence must be the Court's primary objective. The Court must also consider rehabilitation of the offender and all other sanctions that are reasonable in the circumstances. There is no statutory minimum penalty for any of these counts, but the maximum sentence for each count is one of life imprisonment. AGGRAVATING AND MITIGATING FACTORS [ 54 ] Firstly, the aggravating factors in this case I find are as follows: 1.

In regards to Counts 1 and 2 in particular on Information 85701, the very nature of the offences which involve the trafficking in heroin and fentanyl; 2. The fact that the accused had provided the undercover officer with his telephone number to purchase further illicit substances the following day; 3. The accused's complete lack of insight into his offending, which demonstrates a complete disregard for the safety of the community, particularly the smaller Oceanside area community on Vancouver Island; 4.

The accused has taken no meaningful steps to attend for treatment or counselling to his underlying addiction, particularly pre- COVID-19 pandemic, some 15 months to and when that was declared by this Province. [ 55 ] Secondly, the mitigating factors in this case I find are as follows: 1. The accused was addicted to drugs at the time of the offences; 2. The accused has pled guilty and therefore saved the necessity of a trial on these matters; 3. It appears that this accused is at least open to attending for counselling or treatment and has just recently started on the fentanyl patch; and 4.

The accused does have a medical condition which requires him to have dialysis three times a week at the Nanaimo Regional General Hospital. WHAT IS A FIT AND APPROPRIATE SENTENCE IN THIS CASE? [ 56 ] It is my view that upon review of all of the case authorities, including R. v. Howard , a decision of my brother Judge Jetté most recently pronounced earlier this month, this accused's circumstances are completely different, which distinguishes him from that decision that Ms. Howard received.

Moreover, this Court has had insufficient evidence by which to offer a significant reduction in the sentence it could otherwise imposed by this Court. Moreover, I have no doubt that Corrections will continue to do all they can to protect everyone's safety in these unprecedented times, including this accused who requires ongoing dialysis. [ 57 ] Thus, it is my view this accused clearly falls within a range of sentence that is stipulated for drug trafficking in serious

Schedule I offences such as heroin and fentanyl, which is the range set out in R. v. Smith .

That range mainly is 18 months' imprisonment - 3 years in a penitentiary. [ 58 ] It is my view that upon considering the principles of sentencing, as they apply to the particular circumstances of this accused, and to the particular circumstances of the offending behaviour, which involve the trafficking of those often deadly substances to an undercover officer with little to no insight into his offending behaviour post-offending, the accused had at least 15 months to take meaningful steps and did nothing to address his underlying concerns.

I appreciate he is moving in that direction and will accordingly give him some credit for that. [ 59 ] It is my sincere hope that with appropriate treatment and commitment by this accused in an institutional setting he can become a law-abiding citizen who can break the cycle of his drug addiction. However, that choice will remain with him and him alone. [ 60 ] Too many people have lost their lives due to behaviour such as this accused engaged in with the undercover officer in October 2018. I am not suggesting for one moment that this accused is responsible for the direct death of anyone.

However, a strong message must be sent to other individuals who, in like circumstances of this accused, as stated by Madam Justice Bennett in R. v. Voong at paragraph 1 : 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. [ 61 ] There is no doubt in my mind that the moral culpability of this accused is very high on the facts of this case. The accused knew he was in possession of heroin and fentanyl and was actively trafficking in those serious illicit substances on October 19th and 20th, 2018.

I also accept that in this particular case, general deterrence and denunciation must be a paramount consideration. I must also, of course, consider the rehabilitation of this accused.

[ 62 ] I am also extremely mindful that every accused is different from those involved in other cases and that the sentence must be crafted with this particular offender in mind, having regard to all the circumstances along with the principles of sentencing I must follow. Other cases are a useful guide and help to formulate ranges of sentences.

Accordingly, I do take into account all this accused's personal background and circumstances in coming to my decision in this matter. [ 63 ] That being said, upon a careful reflection of the case authorities, particularly appellate authorities, there is a consistent theme: Persons who engage in the trafficking of fentanyl must know there will be significant consequences should they pursue such criminal activity. [ 64 ] With respect, I cannot agree with the submissions of defence counsel, which ask this Court to accede to essentially jail to be served in the community by way of a conditional sentence order.

On the particular facts of this case, that would be an unfit sentence in my view. Moreover, I am concerned about the accused's overall compliance whilst on release into the community, as with his reporting in general. [ 65 ] I acknowledge that whilst a conditional sentence is now an available option as a sentence pursuant to the R. v. Chen , decision of Mr. Justice Schultes from April of this year, I cannot find that this accused, on the facts of this case, warrants the imposition of a custodial sentence to be served in the community by way of a conditional sentence order.

To do so would be inappropriate and unfit in all of the circumstances. [ 66 ] To further emphasize my concerns in this matter regarding a conditional sentence order, this accused's complete lack of insight into his offending behaviour is very disturbing and one that ought not to be treated lightly. DISPOSITION [ 67 ] Accordingly, taking all the factors into consideration, it is my view that whilst I agree that the accused must serve a sentence in the range as set out in R. v.

Smith , it is my view that he can be sentenced, because of the gap in his most recent record since 2014 to his offending date in 2018, to one of 18 months of imprisonment on Counts 1 and 2, to be served concurrently on Information 85701. [ 68 ] On 85712, on Count 1 there will be a sentence of 30 days' imprisonment concurrent to both counts on 85701. [ 69 ] In addition, I make the following ancillary orders: 1. Counts 1 and 2 on Information 85701 are secondary designated offences.

After considering the factors set out in s. 487.051(3) of the Criminal Code , I am satisfied it is in the best interests of the administration of justice to make an order in Form 5.04 authorizing the taking of samples of bodily substances from Reiner Peter Niederhumer for the purpose of registration in the DNA national databank. The samples will be taken from you while you are in jail and you must submit to the taking of the samples; and 2. Secondly, there will be a mandatory s. 109 Criminal Code firearms prohibition.

This is a lifetime prohibition for prohibited, restricted firearms, and a 10-year prohibition for non-restricted firearms. [ 70 ] Mr. Niederhumer, I wish you success in getting the help you need, whether that is at the Nanaimo Regional Correctional Centre, at the Guthrie House Program, or in another institutional setting. It is my sincere hope that you can deal with the issues of your underlying behaviour so we will not see you back before the Court again sir. [ 71 ] Lastly, I will be remiss not to thank counsel for their very helpful and thorough submissions with respect to this matter.