R. v. Roberts, 2023 BCPC 165

Citation: 2023 BCPC 165 R. v. Roberts Date: 20230601 File Nos: 91107-3-C; 91107-6- A Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REX v. CODY RYAN ROBERTS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A. TAM Counsel for the Crown: J.M. Le Dressay Counsel for the Defendant: D. Johnson Place of Hearing: Kelowna , B.C. Date of Hearing: May 1, 2023

Date of Sentence: June 1, 2023 Introduction [ 1 ] Mr. Roberts is before the Court for sentencing. The matter proceeded to a trial at which Mr. Roberts applied for the exclusion of evidence on the basis that his ss.8, 9, and 10 rights under the Charter were breached. The Court dismissed the application, after which Mr. Roberts pled guilty to the following two counts on the information: • Possession of a loaded prohibited or restricted firearm without being the holder of an authorization or licence; • Possession of fentanyl and carfentanyl for the purpose of trafficking.

Relevant Facts [ 2 ] The background to the investigation are detailed in the voir dire decision ( 2023 BCPC 118 ). But in short, following a traffic stop, Mr. Roberts’ vehicle was searched by the police. Mr. Roberts was the driver. The investigators discovered the following controlled substances in the vehicle: • 3.7 grams of cocaine • 28.4 grams of methamphetamine • 6.73 grams of fentanyl/carfentanyl [ 3 ] In addition, a loaded 45-calibre handgun was found underneath the driver’s seat.

There was approximately $8,000 cash onboard, a baton, brass knuckles, a scale, and a substance known to be a cutting agent for selling cocaine. Personal Circumstances [ 4 ] Mr. Roberts is 35 years old. He comes to court with no criminal record. He was diagnosed with depression since childhood and has been struggling with it since. He graduated from high school and has been employed mostly in the construction field, including a significant period as a heavy machinery operator. Approximately 5 years ago, Mr. Roberts started using opiates both recreationally and as a means to self-medicate.

An addiction soon followed. Mr. Roberts reports that he has been clean and sober for about a year and a half. The index offences occurred 4 years ago. [ 5 ] Mr. Roberts has a common law partner, and also has the support of his aunt, uncle, brother and sister. He has been in custody since July 2022. Principles of Sentencing [ 6 ] In cases of this nature, higher courts have time and again emphasized that the principles of general deterrence and denunciation play a dominant role in sentencing. The opioid crisis continues to plague our communities and the death toll continues to rise.

An appropriate sentence is one that properly reflects the gravity of the offence, the harm that this activity causes to our society, and the courts’ condemnation of same. Like-minded individuals will also need to be dissuaded from engaging in drug-trafficking. Similarly, gun violence is becoming increasingly alarming in Canadian cities. The fact that illegal gun possession is coupled with drug trafficking activity calls out for a strong and effective sentence so that a proper message could be conveyed. [ 7 ] Having said that, the principles of rehabilitation and totality still have their role to play. Mr.

Roberts is not an old man and comes to court without a previous record. He has been sober for a year and a half and there is prospect at rehabilitation. Additionally, the Court must see to it that the aggregate sentence not be unduly harsh. Aggravating Circumstances [ 8 ] Mr. Roberts was in possession of a significant quantity of drugs. This alone is an aggravating factor. Moreover, he was in possession of a substance that was a mixture of fentanyl and carfentanyl. Courts in the past have had occasion to comment on the extreme toxic nature of carfentanyl and how that factor needs to be reflected in the sentence.

In R. v. Mann , 2018 BCCA 265 , the Court of Appeal commented at para. 27: [27] Carfentanil is about 100 times more potent than fentanyl and 10,000 times more potent than morphine. Due to its extreme toxicity, carfentanil has no safe or beneficial human use, even within the medical community in highly controlled environments. Its sole use appears to be as a large animal tranquilizing agent. Sgt. Boechler said there is “no way to effectively and safely try to mix [carfentanil] for any sort of street-level distribution”.

A user of carfentanil will likely go into immediate overdose and require the administration of naloxone. While Sgt. Boechler was not aware of any case in which a drug user specifically requested carfentanil, he noted that there would be no way for a user to determine whether the product they were purchasing contained carfentanil.

He testified that the introduction of carfentanil into illicit substances sold on the street has significantly increased overdose deaths in British Columbia. [ 9 ] The court then went onto affirm that it was open to the sentencing judge to impose a higher sentence for carfentanyl (as opposed to fentanyl) to reflect the fact that this was a more serious offence (at para. 81 of Mann ). [ 10 ] With respect to the firearm offence, Mr. Roberts kept it loaded under the driver’s seat of his car. This was readily accessible and

obviously presented a significant danger for the public. The court in Mann , supra , quoted from the sentencing decision cited as 2017 BCPC 401 . At para. 70 of the sentencing decision, my brother Judge Solomon wrote: …In my view, there are different legally protected interests at stake in the case at bar. Controlled drugs carry the potential of human misery and violence due to the nature of the drug trade, but firearms represent not merely the potential for violence but actual capacity for immediate and lethal violence.

On the facts of this case, the firearm and drug offences, specifically the possession for purpose of trafficking offences, have different legally protected interests and should result in consecutive sentences. Moreover, a loaded handgun, in combination with a drug business, particularly located in close proximity to the drugs, is a serious aggravating factor on both the possession for purpose of trafficking charge and the firearm charge.

At paragraph 57 of Crevier, cited above, the court accepts, as this court does, that while possession of a firearm is dangerous and, in and of itself, it is more so when combined with possession of illicit drugs. [ 11 ] As a result of the seriously aggravating factor as described above, and the fact that the offences addressed different legally protected interests, Judge Solomon imposed consecutive sentences for the drug and firearm offences. This analysis was ultimately upheld on appeal. Mitigating Circumstances [ 12 ] As alluded to above, Mr. Roberts comes to court with no previous history.

He has the support of his common law partner, as well as some family members. In the past, he has been capable of leading a productive and contributing life. He also says he has maintained sobriety for the last year and a half. Position of the Parties [ 13 ] The Crown asks the court to impose a 2 year sentence for the drug offence, which would be consistent with the range set out in R. v. Smith , 2017 BCCA 112 . The Crown then sought a consecutive sentence of 3 years for the firearm offence.

However, in light of the principle of totality, the Crown concedes that it is open to this Court to reduce the 3 year sentence to 2 years, rendering an effective global sentence of 4 years for the two offences. [ 14 ] The defence asks the Court to impose a global sentence of 3 years, less any time Mr. Roberts has already served in custody waiting for his trial. [ 15 ] The Crown relies primarily on Mann . The defence did not offer any authorities. A fit Sentence [ 16 ] In R. v. Smith , the BC Court of Appeal set out a range of 18 months to 36 months for a first-time trafficker of fentanyl.

In that decision, the Court emphasized the need for general deterrence and denunciation in the context of the opioid crisis and the extremely toxic nature of the substance. Smith was decided in 2017. To my knowledge, it has not been modified in any significant way. Indeed, the Court of Appeal confirmed the Smith range as recently as R. v.

Ellis 2022 BCCA 278 , while reminding judges that the sentencing is an individualized process and that sentencing ranges are not meant to straightjacket a judge when imposing an appropriate sentence. [ 17 ] With the applicable principles in mind, adjusted for aggravating and mitigating circumstances, I do not see anything in this case that should take it out of the Smith range for the drug offence. In fact, in my view, the circumstances justify a sentence at the upper end of the range. Mr. Roberts was trafficking carfentanyl, which is inherently a more dangerous substance.

The correlation between this drug and the rate of overdose deaths in our communities elevates the gravity of the offence and Mr. Roberts’ responsibility. Further, the quantity of substance in Mr. Roberts’ possession was not insignificant. Along with the presence of approximately $8,000 in cash, I conclude that Mr. Roberts’ drug-trafficking activity went beyond that required merely to sustain his own drug habit. In other words, there was an element of personal financial gain to this enterprise. Lastly, he was engaged in this activity while armed with a loaded handgun.

All of these factors militate in favour of a result at the higher end of the Smith range, notwithstanding the fact that Mr. Roberts comes to court with no record, and has been ostensibly sober for the last year and a half. Consequently, Mr. Roberts will be sentenced to 32 months for the drug charge. [ 18 ] Turning to the firearm offence, this too, warrants a significant punishment to rightfully denounce the conduct and to deter others from doing same. In this case, the circumstances were aggravated in that the loaded handgun was recklessly kept underneath the driver seat, in a way that made it readily accessible.

The significant danger that poses to the public is obvious. Furthermore, during the traffic stop, Mr. Roberts was observed to be fumbling around underneath the driver’s seat with his hand, exactly where the firearm was kept. While I accept the defence contention that Mr. Roberts was more likely looking for his registration document, and had no intention of reaching for the gun, his action nevertheless created an extremely dangerous situation, not only for himself, but for the investigating officers as well as the surrounding public. The arresting officer simply could not have known what Mr.

Roberts’ intentions were when Mr. Roberts failed to comply with the officer’s demands to show his hands. Moreover, Mr. Roberts was in possession of other weapons, including brass knuckles, which is a prohibited weapon. [ 19 ] In the result, a proper sentence for the gun offence is that of 2 years.

And like Judge Solomon and many other judges who concluded that the firearm offence warrants additional punishment beyond that imposed for the drug offence, I, too conclude that the principles of general deterrence and denunciation require that the firearm sentence be made consecutive. [ 20 ] Having said all of that, the Court needs to bear in mind the principle of totality. The above two sentences, while justified on their own, would result in almost a 5-year sentence in the aggregate. In my view, given that Mr.

Roberts has no previous history and is only 35 years old, a 56-month sentence at this stage may be excessive. For that reason, the Court is prepared to temper the end result by reducing the firearm offence to one year. [ 21 ] Counsel are in agreement that, after receiving credit for time he has already spent in custody, Mr. Roberts has served the equivalent of a 16.5 month sentence. For clarity of these reasons, I allocate 1.5 days for every day he has spent in custody pre-trial.

Summary and Conclusion [ 22 ] For the reasons stated above, I would have sentenced Mr. Roberts to 32 months for the offence of possession of fentanyl and carfentanyl for the purpose of trafficking (Count 5). I will give him credit for 16.5 months for the time he has spent in pre-trial custody, the net result is a 15.5 month sentence on Count 5. [ 23 ] With respect to the firearm offence (Count 4), the sentence is 12 months, which is to be served consecutively to Count 5. [ 24 ] In addition, there will be a firearm prohibition under s.109. [ 25 ] There will also be a DNA order.

Both of these offences are secondary offences, but I conclude that it is in the interest of the administration of justice for a DNA sample to be taken from Mr. Roberts. ___________________ The Honourable A. Tam Provincial Court Judge