R. v. Vu, 2018 BCPC 239

Citation: R. v. Vu 2018 BCPC 239 Date: 20181004 File No: 96867-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TOMMY NHAT HUY VU ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE McQUILLAN Counsel for the Crown: V. Yip Counsel for the Defendant: K. Neurauter Place of Hearing: Port Coquitlam , B.C. Date of Hearing: September 10, 2018 Date of Judgment: October 4, 2018

[ 1 ] Tommy Vu has pleaded guilty to one count of possessing heroin, fentanyl and cocaine for the purposes of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act . He is before the court now to be sentenced. [ 2 ] The Crown is seeking a custodial sentence of two years less a day followed by one year of probation. The defence submits that a fit sentence would be a suspended sentence with three years or probation. Circumstances of the Offence [ 3 ] The circumstances of the offence can be described briefly as follows.

On June 29, 2016 at approximately 8:15 PM, a police officer observed a vehicle driven by an Asian male who was looking at his phone. The vehicle license was queried and the results indicated that the vehicle had recently been noted by police to be engaged in suspicious activities. Consequently the officer followed the vehicle. He observed the vehicle to turn into a driveway across the street from an elementary school. There he observed a female to lean into the driver’s side window briefly. The vehicle then left.

Over the next one hour and 18 minutes, the officer observed the vehicle to travel around engaging in five short meets with individuals. In some of those meets, hand to hand exchanges between the driver and those individuals were observed. These were clearly suggestive of drug transactions. [ 4 ] At 9:33 PM, police pulled over the vehicle and arrested both the driver of the vehicle, being Mr. Vu, and the female passenger. Upon arrest, Mr. Vu was found to possess a wallet containing $405 cash as well as a Ziploc bag containing dime bags. Three cell phones were in the vehicle, with one phone ringing continuously.

Police answered the phone twice and it was apparent that the callers were phoning to purchase drugs. [ 5 ] Two baggies were discovered in the door of the vehicle. One baggie contained 18 pieces of individually wrapped chunks of crack cocaine weighing a total of 7.64 grams. The second baggie contained 25 paper flaps containing a mixture of heroin and fentanyl, with a total weight of 1.75 grams.

The second baggie also contained three smaller baggies which contained different sizes of chunks of crack cocaine, having a total weight of 30.56 grams. [ 6 ] The street value of the heroin and fentanyl was determined to be $500.00. The street value of the crack cocaine was $2495.00. Circumstances of the Offender [ 7 ] Mr. Vu’s personal history and circumstances were set out in a Pre-Sentence Report. Mr. Vu was 20 years old at the time of the offence. He was born in Ontario to parents that separated when he was four years old.

He moved to British Columbia when he was three, but then in third grade was sent back to Ontario to live with an aunt. He appears to have moved back to BC for periods of time but then moved to Montreal in Grade 10 where he remained until he came to BC with his girlfriend a month before this offence occurred. [ 8 ] Mr. Vu’s girlfriend was unable to work due to her immigration status and as such, he felt that he needed to earn an income to support them both. He was offered a job by a friend of a former acquaintance.

He was later surprised to learn that the job was selling drugs, although he does not indicate what he thought the work would be. While he had no previous experience or interest in selling drugs, he said that he decided to give it a try. His counsel also advises that he felt compelled to follow through with this endeavour as otherwise it might not end well, the implication being that there was some threat or compulsion on him. [ 9 ] Mr. Vu has no criminal record or involvement with the criminal justice system.

He completed grade 11 in high school in Quebec, which he says is the final year of school there, but did not receive a graduation certificate because he did not pass French 11. He has not attended any post-secondary education. He recently was employed working on a mushroom farm as a labourer from May to August 2018, which was long after the offence but before sentencing. Prior to that he had no history of employment.

He told the writer of the Pre-Sentence Report that he had largely remained unemployed since the offence because he felt there was no purpose in looking for employment given the possibility of an upcoming term of imprisonment. He is not employed at present. [ 10 ] Mr. Vu has not been diagnosed with any mental health issues, although he appears to struggle with some symptoms of depression, including suicidal ideation, from time to time.

While he was not interested in counselling, prior to sentencing he did commence some counselling sessions with a view to improving his skills for emotional management and decision making. [ 11 ] Although Mr. Vu was, until recently, a regular user of marijuana, there is no suggestion that he suffers from or has previously suffered from a substance abuse problem. [ 12 ] Mr. Vu now appears to have the support of family members, including his mother and sister, both of whom provided letters of support and attended the sentencing hearing, along with other relatives. [ 13 ] Mr.

Vu expressed remorse for his actions, both to the pre-sentence report writer and in court at the sentencing hearing. He also recounted to the pre-Sentence report writer an experience when a former regular client of his suddenly stopped calling him. Despite her instructions to never call her as it was her parents’ phone number, he was concerned and decided to call her, pretending to be a former classmate. He was told by her parents that she had passed away due to a fall. However, he suspected that her death was drug related and he feels responsible for it.

I accept that this is supportive of the sincerity of his remorse. [ 14 ] In addition to the Pre-Sentence Report, the Crown relies on the expert report of Dr. James Kennedy in which he describes the effects of fentanyl on the human body and the ways in which fentanyl is particularly insidious and dangerous. It is 100 times more potent than morphine. A lethal dose of fentanyl is highly variable and often unpredictable.

Even the smallest dose or change in dose of fentanyl is difficult to measure outside of a regulated pharmaceutical laboratory such that a small dose may be greater than thought, with potentially lethal consequences. The mixing of fentanyl with other drugs, whether intentionally or accidentally, increases this risk. [ 15 ] The Crown also refers to Coroners Service reports detailing illicit drug overdose deaths and fentanyl detected overdose deaths in BC between 2008 and 2018. The statistics in those reports show a sharp increase in overdose deaths beginning in 2016.

That increase is mirrored more specifically in Maple Ridge, where Mr. Vu’s offence occurred.

Case Law [ 16 ] The sharp increase in overdose deaths related to Fentanyl in recent years has had innumerable consequences in our society which are a matter of public record and which I need not detail here. Moreover, this emerging crisis has motivated the courts to treat the selling of fentanyl more seriously than in the past. Specifically in R. v. Smith 2017 BCCA 112 , the BC Court of Appeal was asked to re- consider the appropriate sentencing range for first time offenders involved in selling fentanyl.

In concluding that a sentencing range should be increased for offences involving fentanyl, Madam Justice Newbury stated at paragraph 45: [45] I agree with the many judges who have stated that denunciation and deterrence must generally be given primacy in sentencing in cases involving Fentanyl. To this end, I would suggest a normal range beginning at 18 months’ imprisonment, as the Crown suggests. I would place Mr. Smith’s offences at the bottom of this range, in light of the mitigating factors discussed by the court below.

I do not believe it is necessary for us to specify the top of the range, although I would suggest it might well exceed 36 months, especially where the offender has a substantial record involving the sale of Fentanyl or otherwise demonstrates an indifference to the human lives he or she is putting at risk. This is a matter that can be worked out in future cases.

Obviously, the ‘range’ may also increase beyond 36 months, or a different range will apply, where the offender is higher up the chain of sale or distribution. [ 17 ] While Justice Newbury dissented as to the result in Smith , the sentencing range of 18 to 36 months or more was endorsed by the majority of the court and is thus now the applicable range in British Columbia.

To be clear however, sentencing ranges such as this are guidelines, and do not form hard and fast categories that preclude lesser or greater sentences if the circumstances or particular principles in a particular case warrant. [ 18 ] Where the majority departed from Justice Newbury’s dissent was its finding that this new range should not apply to Mr. Smith, given that his offence date was in January 2015, a time when the circumstances regarding the impact of fentanyl on individuals and the community was not necessarily common knowledge.

After assessing the statistical data regarding fentanyl related deaths, Mr, Justice Harris stated at paragraph 63: The resulting picture is one of both a dramatic and rapid escalation in illicit drug deaths in 2015 and 2016, together with a dramatic increase in the proportion of fentanyl-detected deaths within the total.

In my view, the landscape in 2015 and 2016 was transformed and is now qualitatively different from what it had been at the time of the offence in terms of the severity of the crisis and recognition of the role of fentanyl in it. [ 19 ] The court did not however, set out a particular date when an offence would attract this higher sentencing range. [ 20 ] In R. v. Adams 2017 BCSC 2529 , an offender was sentenced for a number of offences, including possession of fentanyl for the purposes of trafficking, with an offence date of April 2016.

After considering the principles set out in Smith , as well as the overdose statistics specific to the Nanaimo region, the court found that it was appropriate to apply the Smith range to this sentence. In doing so however, the court noted that the offender both trafficked in and used illicit drugs, as did his common law partner. As such, he was more likely than most to be aware of the dangers of fentanyl.

The court also noted that the case for a Smith sentence range becomes more compelling the later it falls after the dramatic and rapid escalation in illicit drug deaths in 2015 and 2016. [ 21 ] The Crown also relies on the case of R. v. Lencucha April 18, 2018 BCPC Surrey. In that case, the offence date of for the possession for the purposes of trafficking was October 19, 2016. The court found that this fell within the time period contemplated by the Court of Appeal in Smith .

The sentencing judge then concluded that there were no exceptional circumstances that would take the case outside of the Smith range and she imposed a sentence of 2 years. [ 22 ] The defence relies on several cases in support of its position that the Smith range should not be engaged, and that exceptional circumstances are present which would justify a departure from the regular sentencing range, regardless of which range applies. [ 23 ] The first case relied on by the defence is R. v. Olenik 2017 BCPC 390 .

In that case, the offender was being sentenced for possessing heroin and fentanyl for the purposes of trafficking, with an offence date of July 25, 2016. The sentencing Judge in that case found that since Mr. Olenik’s offence was prior to late 2016, the Smith sentencing range did not apply and accordingly the sentencing range should start at 6 months rather than 18 months.

However, as will be discussed further below, the judge then determined that exceptional circumstances supported a departure from the range, and he received a suspended sentence with 3 years of strict probation. [ 24 ] The defence also relies on R. v. Joon 2017 BCPC 301 . That case involved sentencing for trafficking in fentanyl, with an offence date of January 2016. The sentencing judge found that for fentanyl trafficking offences occurring as of January 2016, the Smith range would apply.

However, as discussed below she found that exceptional circumstances justified departing from that range and imposing a suspended sentence with probation for three years. [ 25 ] Both the Crown and defence rely on the Court of Appeal case of R. v. Voong 2015 BCCA 285 which sets out the circumstances in which may find that exceptional circumstances justify a sentence below the sentencing range. In that case, the court reaffirmed the pre- Smith range of sentence for a first offence dial-a-dope drug trafficker as between six to nine months and upwards to 18 months, absent exceptional circumstances.

Exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of the main principles of deterrence and denunciation by way of a prison sentence. (paragraph 45) [ 26 ] At paragraph 59 the court stated: 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. [27] The court also affirmed that in some cases, a suspended sentence can address both deterrent and denunciatory principles. Atparagraph 61: [61] A suspended sentence can achieve a deterrent effect, as noted above, as well as a denunciatory effect. And, as Esson J.A. statedin Chang, the fact of being arrested, tried and convicted, can also address these principles.

In other words, the stigma of being aconvicted drug trafficker and the consequences of that conviction—for example, restricted ability to travel outside of Canada andexclusion from many forms of employment—may also play a deterrent effect. [28] In dealing with the four offenders in Voong, the Court of Appeal concluded that exceptional circumstances applied to three ofthe four appellants.

Of those three offenders, one had quit drugs and had turned his life around by the sentencing date, one had gotteninvolved with the drug operation to help a friend who found himself owing money to his superiors in the drug trafficking operation, andone had taken significant steps to deal with her addiction and mental health since the offence. The fourth individual was found to nothave met the threshold of exceptional circumstances.

While he had made some efforts to tackle his addiction, he had not been entirelysuccessful as he had relapsed once, and there was a lack of independent verification of his progress. [29] In R. v. Pepper 2015 BCCA 1821, the Court of Appeal said that the threshold is exceptional circumstances, and not highlyexceptional circumstances. [30] Returning to Olenik, where the sentencing judge found that there were exceptional circumstances, the offender was 25 yearsold. He had a positive upbringing. However in high school, he began associating with a negative peer group, using drugs and sellingdrugs.

Since his arrest he was employed as a painter. At the time of his arrest he was spending significant amounts daily on his heroinand cocaine addiction but had since stopped using drugs and remained drug free without the aid of treatment or counselling. He had alsosevered contact with negative associates. He was doing well in his employment and support letters from his employer showed that hewas a valued employee with a promising future. [31] In Joon, the sentencing judge also found the presence of exceptional circumstances in a case involving fentanyl.

In that case,the offender was 19 years old at the time of the offence, with no criminal history. He had begun associating with negative peers fromhigh school which led to his involvement in dial-a-dope trafficking. He had no addiction issues and the trafficking was profit motivated. At the time of sentencing, he had distanced himself from the negative peers, had been fully employed for some time and was in hissecond year of training to become an electrician.

The sentencing judge found that his rehabilitation was well established and supported afinding of exceptional circumstances. [32] Following a review of a number of cases in which exceptional circumstances were considered, the sentencing judge in Joonsaid this: [40] This review of the authorities illustrates that there are many combinations of circumstances which have been found to constituteexceptional circumstances. An offender need not meet all the criteria which have been identified.

As illustrated in Voong, a criminalhistory does not preclude a finding of exceptional circumstances and Pepper illustrates that an offender need not be a youthful adult. There are no particular criteria which appear to me to be determinative except for rehabilitative efforts which are found to be wellestablished.

As Madam Justice Bennet said in Voong “…at the end of the day, there must be something that would lead a sentencingjudge to conclude that the offender had truly turned his or her life around, and that protection of the public was subsequently betterserved by a non-custodial sentence”. [33] Moreover, addiction as an explanation for an offence is not a pre-condition for a finding of exceptional circumstances: R. v.Wong 2016 BCSC 1568. Analysis [34] As in every sentencing case, I must consider the principles set out in sections 718, 718.1 and 718.2 of the Criminal Code, aswell as

section 10 of the Controlled Drugs and Substances Act. [35] Denunciation and deterrence, both general and specific must be central considerations for sentences connected to trafficking inhard drugs, and in particular fentanyl: Smith; Voong. However, the principle of rehabilitation is entitled to considerable weight whensentencing youthful first offenders: R. v. Lui 2014 BCSC 1429 (paragraphs 25-29). [36] In the case before me, I find the mitigating circumstances are Mr.

Vu’s youthfulness, his lack of prior criminal involvement, hisguilty plea, his remorse and his compliance with his bail conditions for the past two years. Although his counsel urged me to considerhis struggles with depression as a mitigating factor, I do not find the support for that proposition to be convincing. He has not beendiagnosed with depression and only a month ago, began seeing a counsellor. That counsellor observed that he had suffered fromsituational depression but that he does not currently experience a diagnosable mental health issue.

I also do not find his assertion ofbeing compelled to continue selling drugs out of fear of consequences if he withdrew to be mitigating. He did not provide such anexplanation to the pre-sentence report writer. Nor did he provide any explanation as to what he thought was the nature of the job that heaccepted before learning that it would be trafficking in drugs. [37] Furthermore, I am not prepared to place any mitigating weight on Mr. Vu’s assertion that he did not know that what he wasselling was fentanyl until after he was arrested.

He further asserted at sentencing that he did not even know what fentanyl was until hisarrest. As stated in Smith at paragraph 30: [30] Although no finding was made in the case at bar that Mr. Smith was “wilfully blind” to the fact that he was in possession ofFentanyl rather than heroin, the case law suggests that even being genuinely mistaken about the true identity of the illegal drug in one’spossession does not serve as a mitigating circumstance in sentencing, provided the offender knew he or she was in possession of anillegal drug: see R. v. Giammarco [2012] O.J.

No. 1053 at paras. 25‒31, aff’d 2014 ONCA 242 . Here, there is no suggestion

Mr. Smith did not know he was in possession of an illegal drug, albeit a different one than the drug he actually had in his possession for sale. To the contrary, he admitted he was trafficking in illegal drugs. He adduced no evidence demonstrating that he took reasonable steps to satisfy himself of his belief that the substance found in his possession was heroin rather than Fentanyl. [ 38 ] I find the aggravating factors in this case to be the fact of this being a dial-a-dope operation, the profit motivation (as opposed to supporting an addiction) and the reasonably large and diverse amounts of drugs in Mr.

Vu’s possession, including most significantly, fentanyl. I also find as aggravating the fact that one of the transactions occurred across the street from an elementary school. This is a statutory aggravating factor prescribed by s. 10(2)(a)(iii) of the CDSA . Although that transaction occurred at 8:15 PM, it is nonetheless a time when children can reasonably be expected to be present at the school grounds and as such, I see no basis to not consider that in aggravation. [ 39 ] I now turn to the question of whether I am required to impose the higher range of sentencing described in Smith for Mr. Vu.

As noted above, the Court of Appeal did not specify the date after which an offence would attract such a sentence. In Joon , an offence date of January 2016 was found to attract such a sentence, as was the case in Adams for an offence date of April 2016. Similarly in Lencucha , the court applied the Smith range to an offence date of October 2016. However, in Olenik the court declined to apply the Smith range for an offence date of July 2016. [ 40 ] Sentencing is at all times an individualized process. I find that the fact that Mr.

Vu had just moved to British Columbia one month before the offence date is relevant to the determination of whether to apply the Smith range to his sentence. He would not necessarily have been aware of the public health crisis in the lower mainland resulting from the proliferation of fentanyl when he came here. I note that in Adams , the evidence that the offender and his spouse were drug addicts supported the sentencing judge’s conclusion that he would have been aware of the steadily increasing number of deaths from overdoses in the community and, in particular, of the dangers associated with fentanyl.

In Joon , the sentencing judge noted a high profile death of a young middle class couple with a child in the community just weeks before the Mr. Joon’s offence date as supportive of the offender’s knowledge of the deadly toll that fentanyl was taking in our society. [ 41 ] Mr. Vu cannot be said to have the same knowledge as was found in those two cases. Under the circumstances, I decline to impose the Smith range in sentencing Mr. Vu. To be clear, I do not mean to suggest that the Crown must show direct knowledge by an offender of the community impact of fentanyl for the Smith range to apply.

However, during this somewhat uncertain transition phase to the Smith range during 2016, I find that it is appropriate to consider Mr. Vu’s particular circumstances and knowledge. Clearly for offences occurring later in 2016, such lack of knowledge ceases to be a consideration for a sentencing judge. [ 42 ] I turn now to the issue of whether there are exceptional circumstances which would support departing from the range of 6 to 18 months for a first offender. I find that there are not.

While his youthfulness is a significant consideration in relation to the principle of rehabilitation, I do not find there is evidence that Mr. Vu has truly turned his life around. While he obtained employment from May to August 2018, this appears to be the first employment he has ever had and he has not sought or obtained employment since that job ended. While he has engaged in some counselling, he had commenced that just one month before the sentencing hearing and had participated in a total of four hours of counselling.

There was no evidence of him otherwise taking steps to turn his life around in the two years since the offence date, beyond breaking up with his girlfriend and apparently distancing himself from negative peers. I am unable to find the exceptional circumstances in this case to justify departing from the typical range of sentences. Sentence [ 43 ] As I find that the totality of the circumstances support Mr. Vu’s offending being at the lower end of the range, I impose a sentence of 6 months in custody. [ 44 ] His custodial sentence will be followed by probation for a period of one year.

The terms of probation will be as follows: 1) You must keep the peace and be of good behaviour; 2) You must appear before the court when required to do so by the court; 3) You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; 4) You must report to a probation officer at 2610 Maryhill Road, Port Coquitlam, BC, within two business days of your release from custody, and you must report thereafter as directed; 5) You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer; 6) You must not possess or consume any substance that is scheduled in the Controlled Drugs and Substances Act unless medically prescribed for you; [ 45 ] Pursuant to s. 109 of the Criminal Code you are prohibited from possessing: a. any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years, and b. any prohibited firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 46 ] There shall be an order of forfeiture of all offence related property. [ 47 ] The Crown also seeks a DNA order.

This is secondary designated offence. After considering the factors set out in s.

487.051(3), I decline to make such an order given that this is a first offence for Mr. Vu, and I would hope and expect that it be his last. [ 48 ] The victim fine surcharge will be payable within 60 days of Mr. Vu’s release from custody. ________________________________ The Honourable Judge R.P. McQuillan Provincial Court of British Columbia