IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Butler pled guilty to; possession of cocaine and fentanyl for the purpose of trafficking, breaching his recognizance by possessing a weapon, and obstructing a police officer.

[2]           A sentencing hearing was held and the Crown argued that the appropriate sentences should be; a 20 month custodial sentence plus probation for the drug offence, and a concurrent 30 day sentence for the breach of a recognizance, as well as concurrent 30 day sentence for obstructing a police officer.  The Crown also sought a DNA order, a Forfeiture order and a life time weapons prohibition pursuant to s.109 of the Criminal Code.

[3]           Counsel for Mr. Butler argued that an appropriate sentence is a total sentence of 14 months less the time that Mr. Butler has served in pre-sentence custody.

[4]           Counsel are in agreement that Mr. Butler has spent 102 days in pre-sentence custody and thus he is entitled to enhanced pre-sentence custody of 153 days.

[5]           The task for this court is to impose a sentence that is fit and appropriate bearing in mind the jurisprudence, the applicable statues, the circumstances of the offences and Mr. Butler’s unique circumstances.

[6]           On December 1, 2016, a witness saw Mr. Butler and an unknown male fighting.  During the altercation the witness saw Mr. Butler brandish a knife and punch the male. 

[7]           The police were called and when they arrived they arrested Mr. Butler.  The police searched him and they located the following items: some drugs, a digital scale, a $50.00 bill, a knife, a knife sharpener, a Blackberry phone and a sheath.  With respect to the drugs, the police located a zip lock bag containing 26 smaller zip lock bags each containing a mixture of fentanyl and cocaine, and 8 smaller zip lock bags containing methamphetamine.  In total Mr. Butler was in possession of 8.3 grams of a cocaine/fentanyl mixture and 7.2 grams of methamphetamine.

[8]           Of note is, as a result of the above incident, Mr. Butler was arrested and charged with possession of a dangerous weapon.  He remained in custody and on December 14, 2016, he was sentenced to the time that he had already served and he was placed on probation.  At the time of this offence, Mr. Butler was bound by three probation orders.

[9]           The drug charges were not sworn until April 27, 2017, at which point a warrant was issued for Mr. Butler’s arrest.  Mr. Butler was arrested on the warrant and he was released on a recognizance.  Mr. Butler breached the conditions of his recognizance which led to the additional charges that are set out below.

[10]        In the early morning hours of August 11, 2017, the police saw a male, later identified as Mr. Butler, riding a bicycle in the west lane of the 1100 block of Howe Street.  The police believed that Mr. Butler was committing an offence as he was not wearing a helmet.  The police stopped Mr. Butler and he identified himself as George Smith.  Mr. Butler then fled on his bike which resulted in pursuit, whereby Mr. Butler was eventually stopped in the laneway of the 1200 block of Granville Street. 

[11]        Once stopped, the police searched Mr. Butler and they located the following items; a folding knife, ten .22 calibre rounds of ammunition, and an expandable baton.  The possession of the baton was a violation of Mr. Butler’s recognizance in that he was not to possess any weapons.  Also of note is, the possession of the ammunition was a violation of a ten year weapons prohibition order that Mr. Butler received in March of 2013.  At the time of these offences Mr. Butler was bound by four probation orders and he was wanted on a section 524 warrant for violating a condition of his recognizance by not residing at a drug recovery house.

[12]        Mr. Butler is 41 years old.  He was born and raised in Ontario.  He was the subject of neglect and mistreatment.  When he was 16 years old Mr. Butler was convicted for the first time and thereafter he has amassed 74 convictions.  Of these convictions nine are for breaches of court orders.  I also observe that he has two drug convictions and two convictions for obstructing a peace officer.

[13]        Counsel for Mr. Butler advised the court that much of Mr. Butler’s criminal record is the product of a long standing drug addiction which Mr. Butler is determined to defeat.  In this regard, Mr. Butler like many who suffer from addictions, has tried on a number of occasions to overcome his addiction.  Specifically, Mr. Butler successfully completed a Drug Treatment Court program which required three months of sobriety.  He has also been a resident in residential recovery houses, and while in custody, Mr. Butler participated in the Essential Skills to Success program wherein he completed Substance Abuse Education, levels 1 and 2.

[14]        With respect to the offenses before the Court, Mr. Butler’s counsel advised they were committed for the purpose of Mr. Butler supporting himself.  Further, the offences were committed at the street level, they were devoid of sophistication and at a time when Mr. Butler was practically homeless.

[15]        The fundamental principles of sentencing are stated in s. 718 of the Criminal Code:

[16]        Section 718.1 of the Code states that the fundamental principle of sentencing is:

[17]        Section 10(1) Controlled Drugs and Substances Act, S.C. 1996, c. 19, establishes the purpose of sentencing for drug offences.  The section states:

[18]        Additional sentencing principles are found in s. 718.2 of the Code; the relevant portions read as follows:

[19]        The authorities are clear; denunciation and deterrence are the primary principles when sentencing an offender for offences related to drug trafficking.  Despite this, I recognize that no one principle automatically “trumps” the others, however, drug trafficking is an offence where absent exceptional circumstances the foremost important principles are denunciation and deterrence: R. v. Smith, 2017 BCCA 112; R. v. Voong, 2015 BCCA 285; R. v. Cruezot, 2017 BCSC 1075.

[20]        The enhanced need for the objectives of denunciation and deterrence in those cases involving fentanyl was commented on by Mr. Justice Jenkins in Creuzot at paragraph 39:

[21]        Acknowledging that denunciation and deterrence are pressing sentencing objectives in the instant matter, I do see a glimmer of hope in that Mr. Butler may overcome his addiction and thereby rehabilitate himself.  I arrive at this conclusion because; Mr. Butler has had periods of sobriety, he has participated in the Drug Treatment Court, he has taken some substance abuse education and he has a 7 year old son for whom he wishes to connect with.  Despite these observations, I appreciate Mr. Butler’s rehabilitative path will likely be long and marked with deviation; nevertheless, I am of a view that the sentence imposed should have some rehabilitative objectives.

[22]        As to the issue of proportionality, the trafficking of any schedule 1 drug is a serious offence and the Act provides for the maximum sentence of life imprisonment.  Moreover, the seriousness of trafficking in a drug wherein the offender knows or suspects there is a possibility that the drug contains fentanyl is amplified many times over.  Sadly, the reason for this is that the number of fentanyl related deaths has increased so dramatically that a public health emergency has been declared.  

[23]        Mr. Butler’s moral responsibility is found in his participation in the illicit drug trade knowing (as will be addressed later) there was a strong likelihood that what he was selling was a mixture of cocaine and fentanyl.  As such, his degree of moral culpability is heightened.

[24]        Mr. Butler’s circumstances and the circumstances of his offences are aggravating.  First, when Mr. Butler committed his offences he was bound by a number of probation orders and he was wanted on a warrant.  Probation orders are not simply pieces of paper; rather, they are orders of a court designed to assist with an offender’s rehabilitation, all with the ultimate goal of protecting of the public.  Essentially, public protection through rehabilitation.

[25]        Second, Mr. Butler’s criminal record is aggravating.  In this regard, he has one conviction for a drug offence which pre-dates the date of his offences in the instant matter.  He also has related convictions for obstructing a peace officer and breaching court orders.

[26]        Third, the drugs involved are schedule 1 substances.  They are highly addictive with the additional concern that the use of fentanyl is frequently fatal.

[27]        Mr. Butler’s guilty plea is substantially mitigating.  In this regard, he has saved the state the time and expense associated with a trial.  His pleas also demonstrate a degree of remorse and they are a waiver of his constitutional right to have the Crown prove the allegations against him beyond a reasonable doubt.  A further point of mitigation is Mr. Butler’s efforts while in custody.  To this end, Mr. Butler has completed two levels of a substance abuse education program. 

[28]        Counsel for Mr. Butler submitted that, the absence of evidence showing Mr. Butler knew the cocaine he possessed was mixed with fentanyl is mitigating.  In support of the proposition that the lack of knowledge regarding the presence of fentanyl is mitigating, counsel referred the Court to Mr. Justice Harris’ comments for the majority in Smith at paragraph 66 which reads:

[29]        The issue of an offender’s state of knowledge regarding the presence of fentanyl was also discussed by Mr. Justice Jenkins in Creuzot, at paragraphs 68 - 70:

[30]        In R. v. Henry, 2017 BCSC 1627, the accused was sentenced for the possession of fentanyl for the purpose of trafficking.  In discussing the offender’s state of knowledge regarding the presence of fentanyl, Mr. Justice Brown commented at paragraphs 71 - 75:

[31]        I need not address the issue of whether or not the absence of knowledge regarding the presence of fentanyl is a mitigating factor because I find that Mr. Butler knew (or wilfully blinded himself) to the fact that he was in possession of fentanyl.  My finding is based in part, on a judicial inference derived from the extensive local media coverage, the social media and news reports regarding fentanyl being mixed with street drugs.  In fact, I observe that for well in excess of a year, the news has been replete with warnings regarding fentanyl.  I also have observed that the downtown eastside has been peppered with poster campaigns regarding the dangers of fentanyl.  Hence, it would be impossible to be within the downtown eastside and not have some awareness regarding fentanyl and its presence in street drugs.  Contributing to my finding regarding Mr. Butler’s knowledge, are his comments during the sentencing hearing where he indicated that it was impossible to sell drugs without fentanyl being present.  Finally, and significantly, Mr. Butler pled guilty to possessing fentanyl and cocaine for the purpose of trafficking.  Hence, his plea is an acknowledgement of knowledge.  As such there is no doubt that Mr. Butler knew he possessed fentanyl and cocaine.

[32]        In Smith, and in dissent, Madam Justice Newberry set the sentencing range for drug offences involving fentanyl at 18 months and possibly exceeding 36 months of imprisonment.  This range was accepted by the majority: See paragraphs 45 and 48.

[33]        Despite accepting the range established by Madam Justice Newberry, the majority declined to sentence Mr. Smith to a sentence that fell within the range.  The majority reasoned when Mr. Smith committed his offence (January 20, 2015) that his sentence was consistent with the public’s knowledge regarding the dangers of fentanyl at the time of at the time of his offence and to impose a sentence reflective of the public’s knowledge at the time of sentencing would render the sentence demonstrably unfit. 

[34]        As to the issue of when it can be said that the public was well informed regarding the dangers of fentanyl, Mr. Justice Harris in paragraph 61 of Smith, referred to the time period of late 2016.

[35]        Despite the range set out in Smith, I am mindful that a sentencing range is not inflexible and there are circumstances where a sentencing judge can depart from the range.  In this regard, in R. v. Rutter, 2017 BCCA 193, Madam Justice Fenlon, writing for the Court observed at paragraph 4:

[36]        Counsel for Mr. Butler placed R. v. Creuzot, 2017 BCSC 1075, before the court as an example of a case where an offender received a 14 month sentence for possession of cocaine, heroin and methamphetamine for the purpose of trafficking.  Traces of fentanyl were found in the heroin and unlike the case at bar Mr. Creuzot did not plead guilty to possessing fentanyl for the purpose of trafficking.  Moreover, Mr. Creuzot’s offence date was July 30, 2015, which was when the public’s knowledge regarding the role of fentanyl in illicit drug overdose deaths was unclear.  As such, Mr. Creuzot’s sentence was based on the state of the public’s knowledge at the time of his offence and not at the time of sentencing.

[37]        Counsel for Mr. Butler also relied on R. v. Vena, 2017 BCPC 62, a decision of the Honourable Judge Challenger.  There the offender was sentenced to 14 months imprisonment and he pled guilty to trafficking in cocaine and possession of cocaine and heroin for the purpose of trafficking.  The offences were committed in the context of a dial-a-dope operation and fentanyl was found in the drugs seized.  I find the case to be distinguishable from the case at bar.  First, Judge Challenger noted there was no evidence that the accused knew what he was selling contained fentanyl.  In contrast, and in the instant matter, I find as a fact that Mr. Butler wilfully blinded himself to the presence of fentanyl.

[38]        Further distinctions are, Mr. Vena was sentenced prior to the Court of Appeal’s decision in Smith and his offence was committed before the public became aware of the role that fentanyl played in drug overdoses.  Third, Judge Challenger found that Mr. Vena had taken great strides towards rehabilitation.  

[39]        Another decision of interest is R. v. Malenovic, 2017 BCPC 274.  In this case Mr. Malenovic was sentenced to six months imprisonment for possessing a mixture of fentanyl and heroine, as well as cocaine and heroin for the purpose of trafficking.

[40]        In his reasons for sentence, the Honourable Judge McQuillan declined to impose the range established in Smith because the offence date was September 2015, thus, the offences were before the issues regarding fentanyl became widely known by the public.  As such, the case is distinguishable.

[41]        Mr. Butler’s offence of possessing heroin and fentanyl for the purpose of trafficking occurred on December 1, 2016, and I am satisfied he committed his offence at a time when the public was well aware of the dangers associated to fentanyl.  As such and following Smith, I find the applicable sentencing range to be imprisonment for 18 months and possibly exceeding 36 months.

[42]        With respect to the offence of possessing cocaine and fentanyl for the purpose of trafficking, I sentence Mr. Butler to imprisonment for 19 months followed by probation for 18 months.  If were it not for Mr. Butler’s mitigating factors the sentence imposed would have been greater.

[43]        As for Mr. Butler’s pre-sentence time in custody, his record should show a sentence of 19 months, with pre-sentence custody of 102 days, as such and with an enhanced credit of 153 days, Mr. Butler has a balance of 425 days to serve.  

[44]        With respect to the offences of breaching his recognizance and obstructing a police officer, I sentence Mr. Butler to imprisonment for one month on each offence.  Each sentence is served concurrent to each other and concurrent to the 19 month sentence.

[45]        The probation will be for 18 months with the following conditions:

[46]        Mr. Butler consents to the forfeiture order being sought by the Crown, as such, it is granted.

[47]        Pursuant to s. 109 of the Criminal Code, Mr. Butler is prohibited from possessing any firearm, cross-bow, restricted weapon, prohibited weapon, ammunition, and explosive substance for life.

[48]        The Crown applies for an order to obtain a sample of Mr. Butler’s DNA.  In considering the issue I recognize that I can make the order sought if I am satisfied that such an order is in the best interests of the administration of justice.

[49]        In deciding the Crown’s application I must consider Mr. Butler’s criminal record, the offences for which he is being sentenced, the circumstances surrounding their commission, and the impact that an order would have on Mr. Butler’s privacy and the security of his person.

[50]        I observe Mr. Butler has an extensive criminal record, and the circumstances involving the discovery of the drugs at issue was a violent confrontation involving a knife.  As for Mr. Butler’s privacy and security of his person, I note the taking of a DNA sample is minimally intrusive and the results are guarded by statute.  

[51]        After considering the relevant factors I am satisfied that the taking of Mr. Butler’s DNA is in the best interests of the administration of justice.  Crown’s application is granted.

[52]        Victim fine sur-charge is payable forthwith in default one day in custody served concurrent to the sentences imposed.