R. v. Demosten Date:, 2017 BCPC 345

Citation: R. v. Demosten Date: 20171025 2017 BCPC 345 File No: 98238-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MERISSA DEMOSTEN DECISION ON JUDICIAL INTERIM RELEASE OF THE HONOURABLE JUDGE P. JANZEN Counsel for the Crown: A. Rice Counsel for the Accused: K. Merrigan Place of Hearing: Port Coquitlam , B.C. Date of Hearing: October 25, 2017 Date of Judgment: October 25, 2017

[ 1 ] THE COURT : Merissa Demosten, you have been charged with 10 counts of very serious drug trafficking offences including trafficking in the drugs fentanyl, cocaine and Alprazolam in association with a criminal organization. You are seeking your release and are prepared to deposit bail in the amount of $25,000. In most cases the onus is on the Crown to persuade me that an accused person should be detained. In your case, the onus is on you to persuade me that you should be released. [ 2 ] The facts that underlie these charges are set out in the written argument of the Crown.

They alleged that you were a member of a criminal organization that, over the period of approximately a year, trafficked in a large number of serious hard drugs including fentanyl and cocaine. The fentanyl that was sold was labelled as oxycontin (oxycodone).

Your role in the organization included picking up drugs from suppliers; receiving reloads of drugs from another member of the organization whose residence was used to store drugs; counting out pills; weighing cocaine and packaging and reloading a number of dial-a-dopers with the drugs to be sold by them; and collecting, counting and reporting on the cash received to Andrew Leach, the boss of the organization. [ 3 ] Over the course of its undercover operation, the police were involved in 40 drug transactions with the organization.

Two such orders were for 200 fentanyl pills each worth $2800 each and one transaction involved 1,000 fentanyl pills being sold for $12,000. [ 4 ] You operated out of an 11th floor suite in a high-rise building in Coquitlam. A search of your suite found reload amounts of drugs and other paraphernalia for drug packaging. Wiretap evidence established who was involved in the organization and the roles that each participant played. You were aware that several dial-a-dopers who were involved in the criminal organization were drug addicts. The Crown noted that in the wiretap evidence Mr.

Leach characterized you as a person with greater authority who was entrusted with more responsibility than any of the others in the business. Leach referred to the drug line as "my business" and threatened other members of the organization with firing. He stated, "I am the authority figure and [Demosten] is an authority figure." While he indicated that you had more authority than the others, he also made clear that he had the power to remove you from the organization. [ 5 ] Complicating the power dynamic in the organization is the fact that you were involved in a romantic relationship with Mr.

Leach during the subject time and that at least one of the other organization members also was involved with Mr. Leach. The wiretap communication between the two of you must be heard through that filter. [ 6 ] On June 25th you complained to a friend about how controlling Mr. Leach was and that he had threatened to hurt you if you cheated on him. The Crown's

summary of the facts states that you felt that you could not leave or stop working for him. [ 7 ] After you were arrested and released near the end of June 2017, you took steps to tackle your challenge with addiction. You went on the methadone program, you left the suite in the high-rise and moved in with Mr. Leach.

That is where you were living when you were arrested in late August. [ 8 ] You claim that the plan was to take up residence with your mother in Vancouver and the delay in doing so was necessary as you needed to transfer your methadone prescription to a location in Vancouver closer to your mother's residence. [ 9 ] I have concluded from all of the evidence that while you played a role of greater responsibility and authority than any of the others in the organization, Andrew Leach was the owner and boss of the business and everyone reported to him and owed their job security to him.

While you lived in a nice apartment, drove a nice car and appeared to have had all of your needs met including your need for drugs, all of the cash from sales and the cash used to secure drugs appeared to belong to Mr. Leach and were stored in his suite or in his family home.

I also note that Andrew Leach has been charged with possession of a large number of prohibited and restricted firearms which secured his role and his authority in the organization. [ 10 ] On June 28th, 2017 when a search warrant was executed, the police found almost $11,000 in cash, 524 fentanyl pills, 537 Xanax pills, 12.17 grams of cocaine, 44.33 grams of methamphetamine and seven cell phones in your suite. [ 11 ] You are 24 years of age. You have no criminal record. You have the support of your mother who is in the courtroom.

Your father has raised bail in the amount of $25,000 with the assistance of other family members, a very significant sum for individuals of limited means. You graduated from high school. You worked until age 22 for the IGA. You progressed quickly from use of Ativan and Zoloft to cocaine and then to oxycontin (oxycodone) and then to fentanyl. [ 12 ] Since your initial arrest and release at the end of June 2017 you have made a concerted effort to address your addiction. You are now on the methadone program.

You have presented a release plan that includes a bail secured by a $25,000 deposit obtained from family members and residence at a recovery facility with stringent terms that could include house arrest. [ 13 ] The Crown seeks your detention on both the secondary and the tertiary grounds and argues that you cannot justify your release on either ground. It points out that drug trafficking as a member of a criminal organization is a systematic and considered decision to engage in and support yourself through a criminal lifestyle that inflicts terrible damage and harm on the public. That harm can be deadly.

You engaged in that lifestyle for a period of a year in which you played a key role in a large number of drug transactions. The drugs you trafficked included fentanyl that you sold as the less potent drug oxycontin (oxycodone), increasing the risk of an accidental and fatal overdose. [ 14 ] The factors that I must consider on the secondary ground are these: R. v. Abdel-Rahman 2010 BCSC 189 : 1. Whether there is a chance that you will commit another offence or interfere with justice if released 2. Whether the risk constitutes a substantial likelihood 3.

Whether the risk would constitute a danger to public safety 4. Whether your detention is necessary because the identified danger cannot be reduced to an acceptable level by bail conditions.

[15] The offence you might commit upon your release is involvement again in some aspect of drug trafficking. Trafficking of harddrugs, including the deadly drug fentanyl, is a very serious offence and the danger to public safety through the trafficking of fentanyl isextreme. Because you suffer from an addiction, if released without a plan it is my view that the risk that you would eventually turn againto drug trafficking to support your own addiction is substantial.

However, it is also my view that the danger that I have identified can bereduced to an acceptable level through your release plan provided that it includes sufficiently stringent terms. Your plan includes yourrelease being secured by a substantial amount of cash raised by your family members. That should act as a deterrent to you offendingupon your release.

Residence in a recovery facility addresses the addiction that underlies your offending conduct and restrictions on yourliberty should further protect the public from the risk of your committing another offence. [16] I now turn to the tertiary ground and the need for you to establish that your release is not necessary to maintain publicconfidence in the administration of justice. [17] The test for the application of the tertiary ground is set out in the Supreme Court of Canada's decision in R. v. St-Cloud 2015SCC 27 , [2015] 2 S.C.R. 328. [18] I must first consider the strength of the Crown's case.

The case appears to be extremely strong. It does not depend upon theevidence of witnesses whose reliability is vulnerable to challenge at trial. It is based on a very substantial quantity of real evidence thatwas obtained through judicially authorized wiretaps and search warrants. Beyond stating that the admissibility of evidence is alwayssubject to challenge and the maxim that much can happen between the cup and the lip, no particular defence was identified by you aspotentially fruitful. [19] The second factor is the gravity of the offence.

Six of the 10 charges against you have a maximum sentence of life in prison anda minimum penalty of one year in prison. I characterize these as very grave offences. [20] The third factor is the circumstances surrounding the commission of the offences. These include circumstances that couldmitigate or aggravate the sentence to be imposed if you are convicted. The Supreme Court of Canada has specifically identified offencescommitted in the context of a criminal organization and offences in which the victims are vulnerable as circumstances of particularconcern.

In this case, it is likely that many of the victims are vulnerable drug addicts. All victims have been made vulnerable by thedeception of selling fentanyl as oxycontin (oxycodone). The offences in this case were committed in the context of a criminalorganization. The offending behaviour of which you are accused was planned and deliberate. It involved a large number of transactionsover a year long period of time. It involved the notoriously sinister drug fentanyl. It involved fentanyl being packaged as somethingmore benign, thereby enhancing the risk of accidental overdose.

Overdose deaths from fentanyl in B.C. is a factor that cannot be ignoredor minimized. [21] On the other hand, you have no criminal record. You are young and made more vulnerable by your own addiction to fentanyl. You were not the shrewd mastermind of a significant business who is personally profiting from the vulnerability and misery of others. That role was played by Andrew Leach. Having said that, you continued for a period of at least a year to play the most significant role inMr. Leach's business after Mr.

Leach himself, aware of the vulnerability of your victims from direct personal experience and content toexploit that vulnerability for personal gain.

While not the chief profiteer, you enjoyed a standard of living that was much higher thanyou would have commanded as a fentanyl addict who was not involved in crimes of this nature, scope and scale. [22] The fourth factor is the length of sentence you will likely face if convicted of these offences, based on the subjective factors thatare to be taken into account as aggravating and mitigating factors to be considered in the determination of a fit and appropriate sentencein your case. [23] The Crown presented cases that suggest that the sentencing range, if convicted, would be between six and 14 years.

The factthat you are young, have no criminal record, suffer from drug addiction and are taking positive steps to address that addiction are allsignificant, mitigating factors that will be taken into account in fashioning a fit sentence in your case if you are convicted. Nonetheless,your sentence, if convicted, is likely to involve a significant jail term in a federal institution. [24] In paragraph 87 of the R. v.

St-Cloud (supra) the Supreme Court of Canada case instructs me that: ... the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. That question must be answered from the perspective of the public, that is: ... a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actualcircumstances of the case.

Also at paragraph 87 the Supreme Court of Canada concludes: ... if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims werevulnerable, pre-trial detention will usually be ordered. [25] Many of your charges are very serious, not only as measured by the maximum penalty they may attract but by the harm thatthey inflict on members of the public and the public at large. Overdose deaths from fentanyl have been declared a public healthemergency in British Columbia. [26] These offences involved very vulnerable victims.

Some are made vulnerable by their addiction. Others are made vulnerable bythe deception of selling the extremely potent opiate fentanyl to look like the far less potent opiate oxycontin (oxycodone), therebyincreasing the risk of overdose death. [27] The evidence against you is overwhelming in its scope and is of a highly reliable nature. A challenge to the admissibility of anyof it is only hypothetical at this time.

[ 28 ] You pointed out that your co-accused Ebrahimi, Hashemi and Ehtesham-Far have all been released with different bail provisions. Andrew Leach has not yet had his bail hearing. You argued that even murderers are released on bail. That may be true but the Supreme Court of Canada in the R. v. St-Cloud (supra) case made clear that the tertiary ground is not to be confined to only certain kinds of charges.

Each case must be considered taking into account all of its circumstances with particular attention being paid to the four identified factors. [ 29 ] I found it instructive to consider the application of the test to the facts of the case before the Supreme Court of Canada in the R. v. St-Cloud (supra) case. Mr. St-Cloud was 20 years of age at the time of the offence. He had no criminal record. He was charged with aggravated assault, an offence that carries a maximum penalty of 14 years and was described as an objectively very serious offence. [ 30 ] The assault was carried out by more than one offender and Mr.

St-Cloud was an active participant in the assault. Despite his youth and lack of a criminal record, it was anticipated that the sentence would likely include a significant term of imprisonment. The assault was described as violent, brutal and heinous. The victim was a bus driver who was serving the public and in a vulnerable position. He suffered severe injuries with lasting consequences on his career and personal life. The case against the accused was very strong and included a videotape and the testimony of several witnesses. [ 31 ] After stating that the four circumstances set out in s. 515(10) (

c) of the Criminal Code of Canada strongly supported detention, the court wrote at paragraph 167: In the face of such a brutal attack that was committed by several people in the middle of the night against a bus driver, a person who was serving the community, and that had serious consequences for the victim’s health and integrity and was captured on a videotape that left no doubt as to the respondent’s active participation in the assault, I believe that the confidence in our justice system of a reasonable member of our society would be undermined if the interim detention of the respondent were not ordered. [ 32 ] The circumstances of your case are quite different but, in my view, are equally compelling.

Mr. St-Cloud, like you, was young and did not have a criminal record. He engaged in a single, apparently unplanned and impulsive act of brutality against an innocent and vulnerable victim who suffered grievous consequences. [ 33 ] Your offences were not acts of personal violence but they involved the distribution to the public of substances, particularly fentanyl, that have resulted in a very large number of overdose deaths in British Columbia. Unlike Mr. St-Cloud's assault, your offences were not impulsive acts in the heat of the moment.

They were considered, deliberate and planned. [ 34 ] You engaged in these offences innumerable times over a period of a year between June 2016 and June 2017 when the death and destruction caused by fentanyl had become notorious in the province of British Columbia. Your offences were committed in the context of a criminal organization. Your victims were made vulnerable by their addiction and by the fact that the fentanyl you were supplying to them was packaged as oxycontin. While your offences are quite different from the aggravated assault committed by Mr.

St-Cloud, I have concluded that the confidence in the justice system of a reasonable member of the public would be just as undermined, if not more so, if your interim detention were not ordered. [ 35 ] Stand up, Ms. Demosten. The onus is on you to persuade me that you should not be detained. You have not met that onus. I have concluded that your detention is necessary to maintain confidence in the administration of justice. You will be detained until dealt with according to law. (RULING RE JUDICIAL INTERIM RELEASE CONCLUDED)