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R. v. Brown, 2018 BCPC 228 (CanLII)

Date:
2018-09-18
File number:
170716-2-C
Citation:
R. v. Brown, 2018 BCPC 228 (CanLII), <https://canlii.ca/t/hv562>, retrieved on 2024-03-28

Citation:

R. v. Brown

 

2018 BCPC 228

Date:

20180918

File No:

170716-2-C

Registry:

Victoria

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

 

REGINA

 

 

v.

 

 

RANDE MICHAEL BROWN

 

 

 

 

 

REASONS FOR SENTENCE

OF THE

HONOURABLE JUDGE E.C. BLAKE

 

 

 

 

Counsel for the Crown:

Mr. J. Fowler and Ms. S. Simpson

Counsel for the Accused:

Mr. M. Munro

Place of Hearing:

Victoria, B.C.

Dates of Hearing:

November 23, November 30 & December 1, 2017

Date of Judgment:

December 19, 2017

Date of Submissions:

September 7, 2018

Date of Sentence:

September 18, 2018


INTRODUCTION

[1]           On December 19, 2017 Rande Michael Brown was convicted after trial on three counts of possession of controlled substances for the purpose of trafficking.  The substances were methamphetamine, cocaine and fentanyl.  For various reasons, including a late request for a pre-sentence report, Mr. Brown adjourned the sentencing proceeding several times after the conviction date.  The pre-sentence report was ultimately filed with the court on June 4, 2018.

[2]           I have now had an opportunity to consider the pre-sentence report, together with other documents and authorities that have been filed by both counsel.  I also had the benefit of hearing the full sentencing submissions which were presented on September 7, 2018.

[3]           It is apparent that Crown and defence counsel are far apart in their respective assessments of the appropriate sentence to be imposed upon Mr. Brown.  Crown counsel submits that a global sentence of seven years in custody is appropriate.  Defence counsel, on the other hand, submits that a sentence should be imposed which is at or near the upper end of the range suggested by the British Columbia Court of Appeal in R. v. Smith, 2017 BCCA 112.  The range that is referred to in that case is between 18 months and three years.  In view of the wide variation in counsel’s submissions, and the obviously serious consequences for Mr. Brown, I reserved my sentencing decision to consider the issues fully.  This is the reserved decision.

ANALYSIS

[4]           It is well established that when imposing sentence a court should consider the general seriousness of the offence committed, the particular circumstances under which the offence was committed, and the circumstances of the offender.  Consideration of those various factors must take place against the background of the general sentencing principles set forth in sections 718 to 718.2 of the Criminal CodeReference to case authority may be helpful to establish principles and general ranges of sentence, but because sentencing is such an individualized process case authority is recognized as being somewhat less helpful than it is in other contexts.  No two offenders are precisely identical, after all, and fact patterns vary infinitely.

[5]           I consider first, then, the general seriousness of the offences committed here.  There can be no doubt that the law considers possession of any of the controlled substances present in this case, if possessed for the purpose of trafficking, to be very serious.  Each of these substances is listed in Schedule 1 to the Controlled Drugs and Substances Act, meaning that possession for the purpose of trafficking attracts a maximum penalty of life imprisonment in each case.

[6]           It is not hard to see why trafficking offences involving cocaine, methamphetamine and fentanyl are treated so seriously.  The use and abuse of such drugs continues to plague our society, causing untold misery and even death to many, while undermining whole communities and straining public resources beyond breaking point.  All of this is well-known and well documented in the case authorities, and requires no further elaboration.

[7]           The unregulated use of fentanyl has in recent years been implicated as a particular scourge in the community.  The disastrous consequences of fentanyl usage, and the judicial response to the problem, are matters that deserve special consideration here.  In the case of R. v. Fyfe, 2017 SKQB 5, at paragraph 58, the sentencing judge said this:

[T]he obvious and unavoidable inference is that fentanyl is a dangerous and powerful drug, highly lethal when used in a non-clinical setting on the street.  There can be no gainsaying that fentanyl is lethal, that its unauthorized use is causing deaths in this province, and that these problems are growing rapidly  …..  [W]hen an appropriate sentence is considered, fentanyl must at least be treated as seriously as other hard drugs (e.g. cocaine) and arguably more seriously, given the substantial risks posed by this substance.

[8]           Those words were written with respect to a sentencing proceeding in Saskatchewan, but they are at least equally applicable in British Columbia.  Thus, in the Smith case, to which I have already referred, Newbury, JA said this at paragraphs 44 and 45:

British Columbia has one of the worst, if not the worst, problems of Fentanyl abuse in Canada.  This public safety emergency has prompted various media campaigns, public alerts and outreach efforts by police and social workers who are involved in seeking to contain this scourge – yet Fentanyl abuse continues to claim lives every day in our communities.  The danger posed by such a drug must surely inform the moral culpability of offenders who sell it on the street, and obviously increases the gravity of the offence beyond even the gravity of trafficking in drugs such as heroin and cocaine.

I agree with the many judges who have stated that denunciation and deterrence must generally be given primacy in sentencing in cases involving Fentanyl.

[9]           I acknowledge that in the end result, Newbury, JA was in dissent with respect to the specific sentence to be imposed in the Smith case.  Her comments with respect to the general sentencing principles to be adopted in cases involving fentanyl, however, were echoed by the other two appellate judges presiding in that case.

[10]        The documentary materials which have filed by the Crown on the sentencing hearing here indicate that the tragedy of fentanyl abuse in this province is not going away.  In fact, it is getting worse.  In 2017 alone, there were over 1,400 drug overdose deaths in British Columbia, a 500% increase from only five years earlier.  Fentanyl was implicated in over 80% of the fatalities in 2017.  In the first four months of 2018, there were over 500 deaths from drug overdose in this province, and fentanyl continues to account for the overwhelming majority of fatalities.  Fentanyl alone now kills, on average, three or four people each day in this province.

[11]        It is not possible to comment at length on the circumstances under which the offences were committed in this particular case.  To some extent I referred to the fact pattern in the Reasons for Judgment which I delivered when entering the conviction in this case.  Mr. Brown continues to deny his guilt, however, and that fact, together with the very limited nature of the evidence given by the police investigators in this case, greatly reduces the prospect of any detailed exploration of the facts.  For sentencing purposes, at least the following components of the fact pattern are clear and relevant:

              1.              At the time of his arrest, Mr. Brown had the following quantities of drug in his possession:

a)            24.8 grams of fentanyl, mixed with caffeine (see photographs 8, 17, 19 and 25, and exhibits 13, 17 and 19 from the evidence at trial);

b)            7.8 grams of methamphetamine (see photographs 21 and 23 and exhibits 12 and 18 from the evidence at trial); and

c)            2.7 grams of cocaine (see photographs 20 and 29 and exhibits 11 and 14 from the evidence at trial).

In my earlier Reasons for Judgment I have already commented that the manner in which the police handled the drug exhibits led to unnecessary complications in the evidence.  In particular, the bewildering transfer of items back and forth between Constables Sun and Fehr makes the determination of exact quantities problematic, but I have done the best I can with the evidence so as to avoid any “double counting”.  The amounts which are referred to above represent the most favourable interpretation of the evidence from Mr. Brown’s perspective.

              2.              In addition to the drugs, Mr. Brown had in his possession the sum of $2,870 in cash.  The presence of that amount of cash suggests that Mr. Brown must have sold substantial amounts of drugs on the day of his arrest.  A similar inference was drawn by my brother Judge Higinbotham in the decision in R. v. Forsberg (Victoria Registry No. 170716-2-C. September 27, 2017), at paragraph 10.

              3.              The date of the offences is March 8, 2017.  By that date, the fentanyl crisis in this province was well advanced and well recognized.

              4.              Mr. Brown had a serious drug addiction to drugs at the time of his arrest.  By his own estimate, he was spending $1,000 per day on his own drug habit, suggesting that for the most part, if not entirely, he was selling drugs in order to feed his own addiction.

[12]        Based upon the above summary, as well as the comments I made in the Reasons for Judgment at the time of conviction, I would view the following as aggravating factors for sentencing purposes: the fact that one of the drugs involved was fentanyl; the fact that Mr. Brown was intending to traffic in fentanyl at a time when the disastrous effects of that drug had become well-known in this province; the fact that Mr. Brown was offering a multiplicity of drugs for sale; the fact that the quantity of drugs seized was significant (although I have no specific evidence concerning value); and the fact that the cash seized was substantial.

[13]        On the other hand, it is something of a mitigating factor that Mr. Brown’s primary purpose in possessing the drugs for the purpose of trafficking was to support his own drug habit, rather than to engage in an illicit business operation for greed or profit.

[14]         I have no information at all which would allow me to reach any conclusions regarding the degree of sophistication of Mr. Brown’s set-up for drug sales, nor do I have any information from which I can make any determination concerning Mr. Brown’s status in the drug hierarchy in the Victoria area.

[15]        I turn next to Mr. Brown’s personal circumstances.

[16]        At the time that he committed the present offences, Mr. Brown was 52 years of age and was, as I have already said, seriously addicted to drugs.  From a review of his criminal record and by his own admission, it is clear that he has been an addict all of his adult life.

[17]        I have read with interest the pre-sentence report that was prepared in this case.  I do note, however, the caveat which the probation officer includes at the outset of his report:  “Mr. Brown was unable to provide any collateral contacts during the preparation of this report.  As such, the following report is solely based on Mr. Brown’s information.”  In view of the negative conclusion that I reached regarding Mr. Brown’s credibility during the course of this trial, that is a significant qualification.

[18]        The Crown does not take issue with the assertions in the pre-sentence report -- and therefore I accept -- that Mr. Brown grew up in the most traumatic circumstances, suffering extreme neglect and abuse during his formative years.  It is sadly predictable that the deprivation which he suffered as a boy has led to a lifetime of misery and soul-searching.

[19]        One unique feature of Mr. Brown’s upbringing is the fact that he spent a good part of his boyhood in a home with an Aboriginal step-father, a man whom Mr. Brown implicates as perhaps his main abuser in those years.  Until he was 16, Mr. Brown believed that he was Aboriginal himself.  For a time he lived on an Aboriginal reserve in Alberta and experienced many native cultural activities and traditions.

[20]        At the present sentencing hearing, an interesting question arises concerning the application of section 718.2(e) of the Criminal Code to Mr. Brown’s situation.  He is not an Aboriginal person biologically, but it may well be true that some of the abuse that he suffered as a boy occurred because his step-father lacked basic parenting skills due to the trauma which he endured as a result of his own Aboriginal status.

[21]        Counsel did not provide me with any authorities which might assist me in determining whether to specifically apply section 718.2(e) in the present circumstances, and discussion on the subject was limited.  I am inclined to think, though, that the specific legislative provision ought not to be given much weight, if any, for the following reasons:

              1.              Mr. Brown’s Aboriginal connection, and its impact on his life, has not been properly developed in the material before me.  It is based entirely on Mr. Brown’s own comments to the probation officer, without verification from any other source.

              2.              The sentencing principles developed in cases such as R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688 and R. v. Ipelee, 2012 SCC 13 are intended, in part, to reduce Aboriginal representation in the custodial facilities in this country.  By any assessment, Mr. Brown is not an Aboriginal person who falls within the scope of that reasoning.

[22]        I do acknowledge, however, that it is entirely appropriate that I should take into account the utterly miserable and deprived childhood which Mr. Brown has suffered.  Aboriginal or not, he can fairly claim that the deprivations which he experienced as a child have left him ill-equipped to deal with the pressures of adult life, and for that he is entitled to some degree of sympathetic consideration from any sentencing court.

[23]        Mr. Brown told the author of the pre-sentence report that he had begun to use drugs even before his teen years.  Apparently, his heavy use of both drugs and alcohol continued until he was in his early 20s, but ceased for a time when he was released from a correctional facility in Alberta and began a new life in British Columbia.  When his infant son was subsequently killed in an accident, however, he became fully immersed in the drug culture once more.  He has never really emerged from it.  Since 2007, he has used heroin and crack cocaine on a daily basis and maintains that until recently (as will be discussed in more detail in a moment) he has not received counselling or treatment for drug use.

[24]        Mr. Brown’s depressing criminal record reflects his drug dependency.  Since his 18th birthday in 1983, he has been convicted on 36 separate occasions.  Some of his sentencing dates involved multiple convictions, so that the total number of convictions actually exceeds 50, by my count.

[25]        Some of Mr. Brown’s convictions have been for serious wrongdoing.  In 2009, for example, he was convicted on four separate charges of robbery and received a sentence of 46 months, after receiving a credit of 26 months for time spent in custody before sentencing.

[26]        Of more specific relevance in the present context, Mr. Brown has previous convictions for offences related to trafficking in illegal substances.  In 2013, he was convicted in Victoria of possessing a Schedule 1 substance (other than fentanyl) for the purpose of trafficking and received a 300 day sentence, after being credited with 65 days for time spent in custody before sentencing.  Much earlier, in 1984, he was convicted in Calgary of trafficking in a restricted drug and received a sentence of three months’ imprisonment.

[27]        I also note that on July 7, 2016 Mr. Brown was convicted of fraud, receiving a sentence of 89 days, after being credited with 31 days for time spent in custody before sentencing, and to a probationary period of one year to follow.  Thus, he was on probation on March 8, 2017 when the present offences occurred.

[28]        Of course, I have to be careful not to be overwhelmed by the nature and extent of the criminal record that has been put before me.  Plainly, it is not my function to penalize Mr. Brown once more for offences which have already been the subject of judicial sanction.  Mr. Brown must be considered to have already paid his debt to society with respect to those offences.  His record is to be considered only as a factor to determine where the balance lies between rehabilitation, on the one hand, and denunciation and deterrence, on the other hand, for present sentencing purposes.  In this case, the record surely suggests that denunciation and deterrence must now take priority, even if the nature of the offences which Mr. Brown has committed did not already point in that direction.

[29]        The fact that denunciation and deterrence must be emphasized in this case, however, does not mean that rehabilitation should be disregarded entirely.  I certainly acknowledge the steps which Mr. Brown has taken during his present period of incarceration to attempt to chart a course toward a drug-free and constructive future.  One of the main reasons for his request that I now sentence him to a period of custody of three years or less is that such a sentence (after deduction for time already spent in custody) will allow him to remain in a provincial institution.  That is an environment in which he has come to feel confident with his progress toward drug rehabilitation.  He wishes to explore the possibility of enrolling in the Guthrie House program in Nanaimo, although he acknowledges that there is no guarantee that he would be accepted there.  I do note, of course, that there are also drug rehabilitation programs available within the federal penal system, for those who are committed enough to access them.

[30]        I do not doubt the sincerity of Mr. Brown’s wish to become drug-free and contribute to the community in a productive way, although I naturally have concerns about his ability to remain on course, given his history.  The length and scope of his commitment to a drug-focussed lifestyle in the past suggest that the path to a constructive future in the general community is going to be exceedingly difficult for him.  It is hard to argue with the notion that one of the best ways to predict the future is to look at the past.

[31]        It remains for me to consider what guidance the case authorities can provide in this case.

[32]        It is of some importance to note that the offence date in the present matter was March 8, 2017.  That was two days before the Court of Appeal delivered its decision in Smith, a case to which I have already made extensive reference.

[33]        Prior to Smith, the applicable range of sentence for offences involving trafficking in fentanyl was not clearly differentiated from trafficking cases involving other Schedule 1 offences.  As such, the general sentencing range was from six months to 18 months, at least for first offenders involved in dial-a-dope operations, as set forth in R. v. Voong, 2015 BCCA 285.

[34]        In Smith, the Court of Appeal directed that sentencing for cases specifically involving trafficking in fentanyl should proceed on the basis of a suggested range of between 18 months and 36 months (or higher in some cases).  The Court of Appeal did not specifically identify the chronological starting point for the elevated sentencing regime.  Should the new regime only apply to offences committed after March 10, 2017?  Or should it apply also to offences committed earlier than March 10, 2017 if the offences were committed at a time when the fentanyl crisis had become serious and was well-known to the public?

[35]        I must confess that I was initially concerned about whether the Smith sentencing regime applied to Mr. Brown, given the relevant dates that I have mentioned.  Counsel seemed satisfied that I should apply the Smith regime, but I was left somewhat uncomfortable by the fact that they did not specifically address the issues of the dates.

[36]        Further research has satisfied me that counsel are indeed correct and that the Smith sentencing regime applies to the sentencing on the fentanyl charge that is before me, notwithstanding the fact that Mr. Brown committed the offence two days before Smith was decided.  I have reached that conclusion myself by reading very carefully Harris, JA’s majority decision in Smith (at paragraphs 54 to 64), and also by reference to the decisions in R. v. Johal, 2018 BCSC 549 at paragraph 69, R. v. Rutter, 2017 BCCA 193 at paragraphs 2 to 5, R. v. Forsberg, which I have already mentioned, and R. v. Joon, 2017 BCPC 301 at paragraphs 18 to 20.  By the beginning of March 2017 the fentanyl crisis was well-known and therefore the Smith sentencing range applies to Mr. Brown’s fentanyl conviction.

[37]         The Voong decision continues to have application with respect to the convictions registered against Mr. Brown on the other two counts.

[38]        The comments made in both Voong and Smith concerning the general judicial response to be adopted in cases involving dealing in hard drugs are obviously applicable here.  Indeed, as I have already said, the disastrous effects of unregulated fentanyl usage in this country were not only well-known by the time Mr. Brown committed his offences and by the time Smith was decided; they have worsened since, making the appellate court’s general comments in that case all the more relevant.

[39]        Furthermore, the comments in Smith regarding the methodology to be used when dealing with judicially-directed ranges of sentence are also binding upon me.  I quote from Newbury, JA’s dissenting judgment again, at paragraph 35:

It is trite law that ranges are not hard and fast categories, and do not preclude lesser or greater sentences if the circumstances or applicable principles in a particular case warrant.

[40]        The Crown provided case authority in this case, providing me with examples of the way in which the Smith range of sentence has been applied.  Defence counsel did not provide any additional case authorities, but was content to comment on the various cases which the Crown placed before the court.

[41]        The only authority provided to me to demonstrate the type of situation in which a seven year sentence would be appropriate is the Court of Appeal decision in R. v. Mann, 2018 BCCA 265.  That case is undoubtedly of relevance in illuminating once more matters of general principle that come into play when sentencing those convicted of trafficking in fentanyl.  On its specific facts, however, the case is so far removed from the present circumstances that I find it to be of virtually no assistance when attempting to fix upon a specific sentence here.  Even though Mr. Mann had no previous record and did have the benefit of a guilty plea at the sentencing hearing, he had engaged in multiple counts involving fentanyl and a much more dangerous fentanyl analogue called carfentanil.  His sentencing also related to a charge of possessing a loaded restricted firearm.  During the course of the police investigation, he had uttered a short statement to an undercover drug purchaser which made it clear that his motivation for selling drugs was entirely profit-oriented, and he said so in such a way as to suggest that he was indeed “indifferent to the human lives that [he] was putting at risk”, to use the words of Newbury, JA in Smith (at paragraph 45).  On reflection, I am bound to say that I am a little disturbed to think that Crown counsel would even consider that the Mann case, on its facts, would be of help to me in my present task.

[42]        I have considered all of the other cases that have been put before me, although I will not comment on them specifically because the fact patterns and the circumstances of the individuals involved in those cases vary so widely.  Suffice to say that a careful review of those cases does lead me to conclude that Mr. Brown must be sentenced somewhat outside the specific range of a sentence identified in both the Smith and Voong cases, though not nearly so far outside the range as the Crown suggests.  Mr. Brown is a mature man who placed the lives and safety of others at risk by possessing significant quantities of very dangerous controlled substances, particularly fentanyl, with the intention of trafficking them.  He has had previous warnings from the courts in the form of convictions and sentences imposed for trafficking in controlled substances, as well as for many other serious offences.  He was on probation when the present offences occurred and his prospects for rehabilitation at the present must fairly be described as guarded.

[43]        Notwithstanding the fact that I accept Mr. Brown’s intention to traffic in this case was largely, if not entirely, motivated by the need to feed his own substantial drug habit, and notwithstanding the fact that despite a very difficult life, he is beginning to take steps toward rehabilitation, my conclusion is that I would be bound to sentence him as follows if it were not for the credit to which he is entitled on account of the time which he has already served:

              1.              On the charge of possessing fentanyl for the purpose of trafficking: 48 months;

              2.              On the charge of possessing methamphetamine for the purpose of trafficking: 30 months concurrent; and

              3.              On the charge of possessing cocaine for the purpose of trafficking: 24 months concurrent.

[44]        Counsel are agreed, however, that Mr. Brown has served nine months in custody in connection with this case and would not otherwise be entitled to credit for that time if it is not reflected in the present sentence.  Counsel are also agreed that the credit should be 13 ½ months in length, on the basis of the usual 1.5:1 ratio.  I make that credit accordingly, directing that 13 ½ months credit be granted with respect to the fentanyl sentence specifically.

CONCLUSION

[45]        In the end result, then, the sentences that are imposed now and which begin today are as follows:

              1.              On the charge of possessing fentanyl for the purpose of trafficking: 34 months and 15 days;

              2.              On the charge of possessing methamphetamine for the purpose of trafficking: 30 months; and

              3.              On the charge of possessing cocaine for the purpose of trafficking: 24 months.

[46]        I will also accede to the Crown’s request and order that Mr. Brown provide a sample of bodily substances for purposes of DNA analysis and registration.  Each of the offences of which he has been convicted are identified as “secondary designated offences” under section 487.04 of the Criminal Code and the defence did not oppose the application for the provision of a sample.

[47]        Finally, I will make the mandatory order, pursuant to section 109 of the Criminal Code, to prohibit Mr. Brown for life from possessing any of the weapons or other devices or substances listed in that section.

 

 

__________________________________

E.C. Blake

Provincial Court Judge