IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           David Keith Christie appears before me for the purposes of sentencing after entering guilty pleas to the allegation that on or about August 31, 2015, at or near Surrey, in the Province of British Columbia, did unlawfully traffic in a controlled substance, to wit:  Cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act, and further that on or about August 31, 2015, at or near the City of Surrey, in the Province of British Columbia, did unlawfully possess a substance, to wit:  Cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.

[2]           Crown Counsel is seeking a six to nine-month period of incarceration, and Defence counsel is seeking a 24 to 36-month period of probation in the form of a suspended sentence or, alternatively, a 90-day intermittent sentence to be followed by a probation order.

[3]           By way of antecedents, Mr. Christie was actively engaged in what is commonly referred to as a dial-a-dope operation on August 31, 2015, in Surrey, British Columbia, wherein he was contacted by an undercover officer, met the officer in a predetermined location, and sold the undercover officer one gram of powder cocaine for $80.00.  When his vehicle was stopped, and Mr. Christie was arrested, the search incidental to arrest produced a Blackberry mobile phone; a lighter; three sets of money in the sums of $36.00, $520.00, and $100.70; 17 packages of heroin, totalling 1.52 grams, with a street value of $340.00; five packages of powder cocaine, totalling 3.4 grams; nine packages of powder cocaine, totalling 2.88 grams; six packages of crack cocaine, totalling 1.14 grams; and two packages totalling one gram, with the cocaine in both forms having a street value of $840.00.  A total of 39 baggies of hard drugs were located.

[4]           Mr. Christie appears before this Court with a Criminal Record including entries from 2014, which include two theft under and a wilfully resist or obstruct peace officer entries.

[5]           The Court had the benefit of a Pre-Sentence Report which has been carefully reviewed, noting that Mr. Christie spent his childhood in a home wherein his father would abuse his mother.  He lived between residences of friends for a long period of time as a young adult and, at one point in time, a former girlfriend drove over one of his legs during a break up, and as a result of the injuries sustained, Mr. Christie became addicted to Oxycodone and thereafter heroin.  Until two years ago, he was living with a girlfriend; however, she learned of his substance abuse and since such time he has again been staying with various friends, and extremely recently entered into recovery houses, including Back on Track for two weeks in June, 2017 and Inner Visions for three days prior to such.  He has a high school education, and self-reported that his last job was “selling drugs” prior to the offence date, and as of the sentencing date, Mr. Christie has been on social assistance.  He self-reported that he was using heroin on a daily basis for the past five years and had been clean eight days prior to reporting for his first interview for the report in June, 2017, which meant that Mr. Christie was still using drugs while in a recovery house.  He has attempted detox five times and reports memory problems.  He reported that he was compliant on his previous Court Orders, however, the Pre-Sentence Report notes on page 4 that “…he reported inconsistently, and although he kept in contact with his Probation Officer, he missed appointments frequently.”  The Pre-Sentence Report indicates that Mr. Christie has poor insight into the index offences, and most notably stated that he was what he described as a “scapegoat” by his drug dealer, however, later in the report he said that he is remorseful.  I will acknowledge that at the end of counsel submissions, Mr. Christie apologized to his family and to the Court.  His counsel has advised today that he is on the methadone programme.

[6]           Section 718 of the Criminal Code of Canada articulates the fundamental principles of sentencing, which is to protect the community and to contribute in a positive manner to a just, peaceful, and safe society, by imposing just sanctions that include objectives such as denouncing unlawful conduct and the harm done to the victim or the community, deterrence, denunciation, rehabilitation, and to promote a sense of responsibility in the offender, and an acknowledgement to the harm done to the community and its values.  Any sentence must be in proportion to the gravity of the offence and the degree of responsibility of the offender.  There is no “one sentence fits all” pattern, and sentencing is an art, wherein the Court must consider the Criminal Code of Canada principles of sentencing, case law of similar offences with a similar fact pattern, and the circumstances of the offender, including, where applicable, if the offender is Indigenous, and all aggravating and mitigating factors unique to the matter before the Court.  I have also considered that this is a sentencing under the Controlled Drugs Substances Act.

[7]           Crown Counsel seeks to rely upon R. v. Oates, 2015 BCCA 259, wherein the British Columbia Court of Appeal addressed the sentencing in a dial-a-dope operation.  At paragraph 4, the Court noted:

[8]           In the Oates matter, Mr. Oates was 31 years of age and sold $40.00 of crack cocaine in a dial-a-dope operation to an undercover officer.  A search incidental to arrest produced five bags of heroin.  Mr. Oates was on probation at the time of the offence.  He had a criminal record; however, none had been drug offences.  He entered a guilty plea, a positive Pre-Sentence Report, and admitted that his motivation was for financial gain.  The Oates decision does address the availability of a suspended sentence in a dial-a-dope operation and further addresses the sophistication in a dial-a-dope operation, wherein, similar to Mr. Christie, it involves an enterprise wherein the undercover operator phoned Mr. Christie on a mobile device, there was an agreed upon meet at a particular time, date, and location, wherein the drug would be sold by Mr. Christie, and the undercover operator furnished Mr. Christie with $80.00.  It is a business enterprise that does require planning and active participation on the part of Mr. Christie in exchange for monetary gain and/or for the availability of hard drugs for Mr. Christie’s personal addiction.  Dial-a-dope operations have a negative impact on a community and are contrary to the values of this community as a whole.  In R. v. Franklin, 2001 BCSC 706, Mr. Justice Henderson, in 2001, articulated the impact of a dial-a-dope operation which comments stand just as strong and valid today as they were in 2001, wherein at paragraphs 47 and 48 he stated:

[9]           The Court of Appeal in Oates, supra, did refer to R. v. Gill, 2013 BCCA 320 and R. v. Cisneros, 2014 BCCA 154, wherein when a Court is balancing rehabilitation, deterrence and denunciation in a dial-a-dope operation, there is a stronger emphasis upon both deterrence and denunciation.  The amount of that emphasis, of course, depends on each case before the Court.  In balancing the principles of sentencing, a suspended sentence can be considered and should not be automatically precluded, given the individual factors in each case before the court.  In Oates, the Court held at paragraph 27, “It is fair to say that the normal range for sentence for a first time drug offender trafficking in a dial-a-dope operation in serious drugs includes a jail sentence in a range starting somewhere around six months.”

[10]        Crown Counsel additionally seeks to rely upon R. v. Fargo, [2015] B.C.J. No. 872, wherein there was a guilty plea to one gram of cocaine.  Mr. Fargo was 25 years of age at the time of the arrest, had no criminal record, was unemployed, and sold cocaine to support his addiction to cocaine.  The Court did not find that a six-month period of incarceration was demonstrably unfit and the sentence was upheld.

[11]        Defence counsel is relying upon a number of cases of which I will review.  In R. v. Voong, 2015 BCCA 285, the British Columbia Court of Appeal noted the well-established position that drug trafficking is a serious criminal offence and, absent any exceptional circumstances, an offender should be incarcerated, and that both deterrence and denunciation are to be weighed more so than rehabilitation; however, that quantum of weight is to be determined on a case-by-case basis.  The Court reviewed the principles of sentencing both in general terms and as articulated in s. 718 of the Criminal Code of Canada, including that sentencing will fall within a range, and there can be circumstances that will take a matter outside of that articulated range.  In addition, the Court articulated that a suspended sentence is available if there are exceptional mitigating circumstances, noting an example as being if the accused took marked and notable steps towards overcoming the addiction.  I am not convinced in the matter before me that Mr. Christie has done so.  I am mindful, however, to consider the protection of society and the reintegration of the offender into the community in crafting any sentence.  Sentencing falls within a range, and within that range the individual circumstances must be applied, and that may allow a sentence to be considered outside of a range.  I am not convinced that Mr. Christie presents himself before me with any circumstances or facts that would take his sentence to be out of the ordinary range of sentencing.  I am mindful that a suspended sentence can achieve, in some circumstances, a deterrent effect, however, when I carefully apply the mitigating and aggravating factors before me, I am not convinced that the principles of sentencing can be achieved with a suspended sentence.  In R. v. Lopez, 2016 BCSC 2543, Mr. Lopez appeared before the British Columbia Supreme Court for sentencing in meth.  The distinguishing factor in the Lopez matter is that Mr. Lopez, on his own initiative, actively sought out and maintained addiction counselling within months of the offence up to the date of sentencing.  He was proactive in addressing his own rehabilitation to himself and to the community as a whole, and the decision noted that Mr. Lopez was insightful into the offence and the impact.  Mr. Lopez was of a Metis background; however, I will note, it appears to have not been given any weight.  His Mother committed suicide, and he had been clean for seven months prior to sentencing.  Of particular note at paragraph 49, the Court cited R. v. Ahmed, 2001 BCCA 504, which states:  “…In a case involving trafficking in hard drugs, there must be some significant factor or factors relating to the background of the offender, his underlying reasons for trafficking or his pre-sentence efforts at rehabilitation that would support the imposition of a conditional sentence.”  I am aware that a CSO is not available and that Defence is seeking a suspended sentence in the form of a lengthy probation order or an intermittent sentence, to be followed by a probation order.  I have noted and considered in both Lopez, supra, and the Criminal Code provisions, a suspended sentence or in the alternative, an intermittent sentence.  The Court of Appeal cited R. v. D.E.S.M.,1992 CanLII 6009 (BCCA), and at paragraph 66 of the Lopez decision stated from D.E.S.M.:

[12]        In the February 2017 British Columbia Supreme Court decision of R. v. Van Der Walt, 2017 BCSC 557, Ms. Van Der Walt appeared before the Court regarding a dial-a-dope matter.  She had no criminal record, was 28 years of age, had a tragic upbringing of being sexually assaulted, had not received any assistance in addressing that trauma, and she was in poor health.  The factors, however, that brought the Van Der Walt matter to being a suspended sentence were that there was a delay in executing the arrest warrant; she was able to remove herself from the drug trade involvement before the execution of the arrest warrant; her poor health; and that she had secured legitimate employment post offence.  The arrest was related to cocaine, whereas Mr. Christie has been arrested for powder cocaine, crack cocaine and heroin.  The time from the offence to sentencing was a time used by Ms. Van Der Walt to put her life together, cease her engagement in drugs, and have meaningful, secure employment despite her poor health.  Mr. Christie has not taken those committed steps, and anything has been extremely late in the day on the eve of a Pre-Sentence Report, and has been spotty at best.  Paragraph 23 of Van Der Walt articulated “exceptional circumstances”, none of which are before me.

[13]        In R. v. Naccarato, 2017 BCSC 645, the accused was convicted of one count of possession of heroin for the purpose of trafficking.  The accused had no criminal record.  A Pre-Sentence Report indicated that she was physically abused by her father when she was a child; she attended a residential treatment programme and successfully completed that programme some full nine months prior to sentencing; she had been gainfully employed full time for the past five years; she had been clean of drugs for a one-year period; and she continued to engage in cognitive behavioural therapy proactively to prevent any relapse; and attended NA twice per week.  The distinction in the Naccarto matter is that that decision, and many cases referred to within it, cite decisions that specifically addressed the fentanyl crisis in this province, or matters, again, such as the Lopez decision, where an offender took proactive and committed steps towards rehabilitation.  At paragraph 92 of the Naccarto decision, that Court specifically sets out that “the exceptional circumstances in this case include the significant and continuing efforts that Ms. Naccarto has made towards her rehabilitation”.  Again, those efforts were noted already.  In Naccarto, the Court was mindful of the fentanyl crisis in this province, but the factors before the Court were extremely strong in addressing those “exceptional circumstances”, as articulated by our Court of Appeal.

[14]        In R. v. Aldina, 2016 BCPC 123, the Crown sought a 14-month period of incarceration, as Mr. Aldina had a serious criminal record, there was a lack of interest in the court process, there was not a committed effort to rehabilitation, and a lack of insight; whereas Mr. Aldina sought a suspended sentence.  The unique circumstances that my colleague Judge Rideout found for Mr. Aldina included that he was living on the Vancouver Downtown Eastside, the value of the meth was $15.00 that was to be used to buy a videogame at a local flea market, and that years (in plural) had passed since the date of the offence.  Mr. Aldina had secured employment and was in the methadone programme at the time of sentencing.  A further British Columbia Provincial Court decision is from Judge Sudeyko, with the decision of R. v. Krause, 2015 BCPC 305, wherein Mr. Krause sold just over two grams of cocaine in three separate transactions in a dial-a-dope operation.  The unique circumstances in the Krause decision include that Mr. Krause removed himself from the drug lifestyle prior to any police intervention, there had been a considerable delay from the date of the offence to charge approval, his Mother had MS, and he had largely been steadily employed for a long period of time.  It is recognized that the British Columbia Court of Appeal can find that a suspended sentence with probation is a fit sentence, and similarly, a period of intermittent incarceration to be followed by a probation order, however, each decision concurrently applies the principle that there must be “exceptional circumstances”, and there is sufficient case law to identify some of those circumstances to include no criminal record, significant and concrete steps towards rehabilitation, gainful, secure and maintained employment, remorse and an acknowledgment to the harm done, including to the community as a whole; and while this is not exhaustive, there must be unique circumstances that would take the sentencing outside of a normal range of incarceration.  The unique circumstances found in the Krause decision included the small transactions which the Court concluded was an extremely brief involvement in the drug trade, that there was no criminal record, and that the offender was young.  However, what distinguishes the Krause decision is that in Krause, Judge Sudeyko placed considerable emphasis on the fact that Mr. Krause had taken active steps in rehabilitation prior to any police involvement.  That circumstance is not before me with Mr. Christie.  There is a fleeting and late in the day commencement of some self-directed rehabilitation by Mr. Christie that commenced on the eve of the preparation of the Pre-Sentence Report and, as of sentencing, was not consistent nor completed nor well on its way.

[15]        Finally, in R. v. Ghataurah and Huynh, a January 2016 unreported decision of Judge Brownstone, in the Surrey Registry of the Provincial Court of British Columbia, wherein Mr. Huynh pled guilty to two counts of trafficking in cocaine, he was 23 years of age, had no criminal record, had steady employment, was active in his church for 18 months prior to sentencing, and expressed remorse both in the Court and in the Pre-Sentence Report.  Mr. Ghataurah was 21 at the time of the offence, had no criminal record, and was commencing studies at Kwantlen.  Judge Brownstone found exceptional circumstances, those being that there was a degree of impulsivity in their actions and that they were each young.  However, what was omitted in the decision was an acknowledgement that has been articulated at the British Columbia Court of Appeal is that engaging in dial-a-dope is an aggravating factor.  I have carefully considered the submissions of both counsel, considered the sentencing provisions both within the Criminal Code and the Controlled Drugs and Substances Act, reviewed the Pre-Sentence Report, read all of the case law prepared and submitted by both counsel, considered the circumstances that bring Mr. Christie before me and his own circumstances.  Sentencing is crafted by every judge to ensure that the principles of sentencing are acknowledged and applied, that the unique factors of each accused before the Court must be carefully considered, and that one sentence or one range does not fit all, the values of the community must be acknowledged, and case law, particularly at the higher levels of our Courts, must be considered, and if not applied, then reasons for such should be addressed.  It is very clear that the Franklin, decision from 2001 echoes true to this day.  Dial-a-dope operations require planning and the active involvement of the person, including a mobile phone, drugs, and an active participation in receiving that telephone call or communication, taking an order, meeting at a pre-determined location, and the selling of the drug.  It is regrettable that despite the words of Mr. Justice Henderson in the Franklin decision, that dial-a-dope operations continue to this day, some 16 years later, in virtually the same manner and creating the same harm to the community as a whole.  This community does not support nor endorse dial-a-dope operations.  It took a concerted effort on the part of Mr. Christie to have a mobile telephone, make the number known and available to those to whom he wished to sell; he had powder cocaine, crack cocaine, and heroin on him for sale; he had cash on him in various quantities; he had 39 baggies for sale on him at the time of the arrest; and he was an active participant in the dial-a-dope operation taking the telephone call from the undercover officer and meeting the officer at a pre-determined location and carrying out the transaction.  There was planning in his involvement and this was neither fleeting nor impulsive.  He was an active and known participant in the dial-a-dope operation in the community for the undercover officer to contact him.  The pre-determined meet was at a suburban mall in this community where both adults and children frequent.  I have considered the mitigating factors before me that Mr. Christie is relatively young, that he was in the throes of a long term addiction, that this is a guilty plea, and that he started some very limited form of recovery on the eve of the Pre-Sentence Report.  So, too, I have considered the aggravating factors of the criminal record, that this is a dial-a-dope operation wherein Mr. Christie was clearly in control, that this community has no tolerance for such business enterprises, that there is no gainful employment or evidence of residential treatment steps to support an intermittent sentence, and that Mr. Christie was found in possession of a number of baggies of powder cocaine, crack cocaine and heroin, all of which are commonly referred to as “hard drugs”.  The principles of sentencing require an individualized balancing of rehabilitation, deterrence and denunciation.  In doing so, I do not believe that this can be accomplished by a suspended sentence or an intermittent sentence.  There is no gainful employment.  There are no active or concerted, committed, long term and consistent steps towards rehabilitation.  Mr. Christie was engaged in this illegal business enterprise that he carried out in a community, wherein he included a meet for a buy in a suburban mall frequented by both adults and children.  His participation was not fleeting.  The number of baggies on him and monies at the time of the arrest is troubling, in that it contained a multiplicity of “hard drugs” totalling some 39 baggies.  I am unable to find anything that would bring any sentence to be imposed outside of what can be defined as “exceptional circumstances” in the matter before me.  I accept the sound reasoning in the Oates, supra, decision of this Court of Appeal and those decisions thereafter, wherein there must be an emphasis on deterrence and denunciation.  I am not convinced that the principles of sentencing can be fulfilled neither by a suspended sentence in the form of a probation order nor by an intermittent sentence to include a probation order.  I am mindful that this is a guilty plea and that Mr. Christie is an addict, and that he has apologized on the day of sentencing.  However, there is nothing before me that would bring Mr. Christie’s sentence to be imposed outside of the range, that being a six-month period of incarceration.  He has no meaningful employment, he continued to engage in his addiction post arrest, he has a criminal record, and his participation in a limited and unsuccessful rehabilitation treatment commenced on the eve of the Pre-Sentence Report.  Defence counsel has endeavoured to convince me that the list of “exceptional circumstances” is not exhaustive, and I will agree, however, Mr. Christie has not even met those “exceptional circumstances” defined by our British Columbia Court of Appeal.

[16]        I will impose a sentence of a period of incarceration of six months.  There will be a s. 109 of the Criminal Code of Canada 10-year firearms prohibition, there will be a DNA Order, and there will be a forfeiture Order.