IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On August 29, 2018, I found Mr. Kumar guilty of both Counts on this Information wherein on or about July 16, 2016, at or near the City of Surrey, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: methamphetamine, for the purpose of trafficking, contrary to Section 5 (2) of the Controlled Drugs Substances Act; and further that on the same date, time and location, did unlawfully possess a controlled substance, to wit: heroin and fentanyl, for the purpose of trafficking, contrary to Section 5 (2) of the Controlled Drugs and Substances Act.  Briefly, the facts are such that Mr. Kumar arranged to knowingly meet a drug dealer, he left the drug dealer alone in his own vehicle, knowing that the dealer was awaiting a reload, and upon his return to his own vehicle, observed the dealer counting large amounts of money and had at least one cellular phone on the dealer.  The police located within Mr. Kumar’s vehicle where he was seated in the driver’s seat and thereafter falling from his lap a total of 3 meth flaps valued at $60.00, 20 flaps of heroin and fentanyl valued at $400.00, 4 flaps of heroin and fentanyl valued at $160.00 for a total of $620.00, cash was located, and three mobile phones of which two were inside Mr. Kumar’s vehicle and marijuana.

[2]           A Justin Conviction List was filed for the purposes of sentencing wherein Mr. Kumar has five entries since 2017 including theft under, driving without a licence, breach of undertaking or recognizance, and applications for a warrant which were granted.  All such were after this offence date. 

[3]           A Pre-Sentence Report was prepared indicating that he is currently 56 years of age, born in Fiji, had an upbringing void of any abuse of neglect, that he and his second spouse settled in British Columbia with two biological children and they also adopted his brother’s daughter.  They operated a number of family businesses until recently when he self-reported that his wife was unfaithful to him, and his life became so stressful, that his businesses failed and he was foreclosed.  He was introduced to cocaine by peers on a daily basis, resulting in his wife and children removing themselves from Mr. Kumar and his spiralling addiction.  His addiction to cocaine traversed over to both heroin and crack.  He self-reports that he has not been able to have a period of abstinence from his drug use.  He attended a recovery house once, self-reporting it was for a three week period, however, the writer of the PSR noted that this was inaccurate and it was for a one week period.  Arrangements were made for him to attend another residential treatment and despite the submissions that he could not attend due to his methadone, the writer of the PSR noted that in actual fact Mr. Kumar failed to attend for the intake more than once and as such his bed was lost.  He was forcibly removed from his rental accommodation and since such time has not been able to maintain stable housing.  The PSR noted that there was a recovery house bed being held for Mr. Kumar that was confirmed by his Probation Officer, however, at the time of sentencing submissions, Defence Counsel submitted that he was unable to attend because he was on the methadone programme.  This inability to secure a bed conflicts with the actions of his own Probation Officer and I am unable to reconcile such.  At the time of the preparation of the PSR, Mr. Kumar self-reported that he has removed himself from his negative peer associations and relies upon one person, however, the writer of the PSR was unable to verify such information.  Mr. Kumar has no contact with his spouse and his sons.  He has training as a truck driver.  He self-reported that he suffers from back and shoulder pain and is on narcotic pain medications such as Toradol and Tylenol 3.  He has an outstanding debt of $7,000.00 to ICBC.  The writer of the PSR noted that Mr. Kumar “has not responded well to past sentences and interventions.  He has breached his community supervision conditions a number of times and has re-offended during these supervised periods in the community” (Page 6).  Most notably, Mr. Kumar self-reports that he is aware of his addiction and indicates a verbal willingness to address his addiction many times, however, “he has yet to follow through on any actions to further his recovery” (Page 7).  He has not completed any community programming to address his addiction.

[4]           The mitigating factors before me are few.  He has a criminal record, however, it is brief and after this offence date.  He has no stable residence.  He verbalizes on many occasions that he will attend counselling, however, has not done so, despite intake appointments being made for him.  He is currently on the methadone programme.  He has no family supports in place.

[5]           The aggravating factors are that Mr. Kumar does have a criminal record, albeit I will balance that those occurred after this offence date, and it is related.  There are no exceptional circumstances before me to assist in mitigating his sentence.  The most poignant aggravating factor is the simple factual basis that Mr. Kumar committed these crimes involving heroin, methamphetamine and fentanyl.  Fentanyl in particular is a drug that has inflicted thousands of overdoses in this Province for a number of years and you need not be engaged in the law enforcement, social services, or medical communities, but simply as a member of the general public to be aware continuously of the scourge and wrath of fentanyl.  Mr. Kumar had such for the purpose of not only possession but also possession for the purpose of trafficking.  I will concede that the fact pattern before me is unique, however, I concluded at trial that Mr. Kumar had both the knowledge and consent with the ability to exercise power over the circumstances and he had a directing and restraining power over the drugs.  He was the registered owner of his own vehicle in which the dealer was found along with Mr. Kumar.  Mr. Kumar knowingly exited his vehicle under the alleged guise of going for a walk to allow the known dealer to sit in his vehicle awaiting for a reload, hoping by his own acknowledgement that he would also score a better deal on his own drugs that he was allegedly purchasing.  I did not find that believable.  Mr. Kumar knew of the presence of the drugs within his own vehicle, he acquiesced to such occurring and he had control over its location at all times within his own vehicle.  Mr. Kumar was an active confederate along with the other occupant in the passenger seat of his own vehicle.  I found that the facts supported that, upon the police arriving, Mr. Kumar stood up from being seated in the driver’s seat of his own vehicle and baggies of drugs fell onto the ground from Mr. Kumar.  The filed Agreed Statement of Facts states: “That the contents of the bag of drugs described…were for the purpose of trafficking.”

[6]           Crown Counsel has filed and relies upon the report dated July 25, 2016 from Dr. James Kennedy about the uses, abuse and toxicity of fentanyl.  Defence Counsel did not oppose its filing nor take any issues as to the expert qualification of Dr. Kennedy who is a BC medical doctor since 1981 practicing in internal medicine, clinical pharmacology and toxicology.  He is a professor at the University of British Columbia and at St. Paul’s Hospital.  He is an accepted expert in internal medicine, clinical pharmacology and therapeutics and clinic toxicology in the BC Supreme Court.  The filed report details and describes what is fentanyl, identifies that it can be produced in liquid, powder and tablet form.  In addressing the effects of fentanyl on the human body, at Page 4 of the report, it states:

[7]           Crown Counsel has also filed the Coroners’ Service Report regarding “Illicit Drug Overdose Deaths in BC January 1, 2008 – August 31, 2018“.  A review of this Report quickly illustrates the lethal impact that drugs such as fentanyl and heroin have upon the community.  In review, it noted that in August, 2018 alone there were 98 suspected drug overdose deaths, that the highest number of illicit drug overdoses were in Surrey, Vancouver and Victoria and that in particular both the Fraser Health and Vancouver Coastal Health Authorities had the highest number of illicit drug overdose deaths.  Page 2 of the Service Report produces a chart wherein the increase of deaths in BC due to illicit drugs exponentially increased in 2016.  One need not be a front line responder to know that with the dearth of media postings and news feeds that 2016 marked the unfortunate rapid and sharp increase in overdose deaths.  Mr. Kumar’s offence occurred in 2016.  Mr. Kumar would have had knowledge at the very public consumer level of the number of overdose deaths and the struggles that BC’s first responders have had in tackling this epidemic.  More so telling is on Page 4 of the Service Report wherein there is a breakdown of illicit drug overdose deaths both including and excluding fentanyl.  The sharp clear delineation upwards of those deaths as a result of fentanyl is significant and very troubling as of the latter part of 2015.  Deaths in BC due to illicit drug overdose in July 2015 was 39, however, in July 2016 (the time of this offence), there were 75 deaths in that very month.  Page 14 of such Service Report notes that from 2016 – 2018, fentanyl accounted for 75.6% of the drugs detected among illicit drug overdose deaths, cocaine was 48.4%, meth was 31.2% and heroin was 23.3%.  All of these drugs were found in the matter before me.  This is very aggravating.

[8]           The seminal case for consideration is that of R. v. Smith, 2017 BCCA 112 (CanLII), [2017] BCJ No. 471, which is a BC Court of Appeal decision for an accused who was a street-level trafficker, who was found to have 13 flaps of Fentanyl, 18 flaps of powdered cocaine, and rocks of crack cocaine.  He pled guilty to one count of possession of cocaine and one count of possession of fentanyl for the purpose of trafficking.  He was a first time offender, a drug addict and said that he was not aware that he had fentanyl believing instead that he had heroin.  In the Smith, (supra), decision, the Court made specific reference in its March 2017 decision that from the time of the offence in January 2015 to the date of the trial sentence in November 2016, there was a “profound and enormous escalation in the extent of the fentanyl crisis and the public awareness of it” (Page 1) and identified a sentencing range of 18 to 36 months.  Mr. Kumar’s offence date is July, 2016.  It is clear that offenders, counsel and sentencing judges have been put on notice that there is a public health crisis involving fentanyl and that deterrence and denunciation is required when crafting a sentence involving fentanyl.  The Smith, (supra), decision had unique facts in that his involvement in trafficking was brief, he had no criminal record, he was ignorant about fentanyl, and he had taken large steps towards rehabilitation and had an Aboriginal background.  Mr. Kumar is on methadone, however, has not taken any steps towards residential treatment, despite assurances to the writer of his Pre-Sentence Report that he would do so, he failed to report for intake and even with the gap from the initial sentencing submissions to January 24, 2019, he took no steps and Mr. Kumar is not Aboriginal.  There is nothing before me to convince me that Mr. Kumar was not aware or ignorant to the public health crisis at the time of the offence.  What is, however, unique is that when the Court considers the fundamental principle of proportionality and if a sentence is to deviate from the Smith, (supra), framework, is there sufficient facts before the sentencing judge to depart from the 18 – 36 month framework.  I am in the matter before me convinced that I am able to depart from the framework set out in Smith, (supra), for the unique reason that there is nothing factually before me to ascertain how much Mr. Kumar was involved in the trafficking and his level of involvement.  That is my only qualification.  I am satisfied that, upon undertaking my analysis and reasons for finding Mr. Kumar guilty, he had both possession and possession for the purpose of trafficking, and was engaged in such knowingly with the other occupant whom he allowed entry and to remain in his own vehicle.  However, the unique facts before me are that I do not know the extent of his involvement.  It is only for that absence of factual information that I will depart from the Smith, (supra), guidance.  However, I am unable to accede to Defence Counsel’s submission which initially was a two year Probation Order or alternatively 4 – 6 months of incarceration, however, was changed to a submission of 6 months of incarceration.  There is an alarming absence of other strong mitigating factors, particularly an absence of a Criminal Record and despite the date of this offence, no attendances at treatment, whether residential or within the community and counselling.  Mr. Kumar has no stable employment, no stable residence and only one person in the community with whom he identifies as a support person to which the writer of the PSR was unable to confirm.  I am also mindful that a number of the drugs seized included those drugs to which the Coroner’s Report have listed as being the significant contributing drugs to deaths in this Province including fentanyl and heroin.  In stating such, I am drawn to Paragraph 30 of the Smith, (supra), decision wherein the BC Court of Appeal stated:

[9]           Crown Counsel additionally seeks to rely upon the BC Provincial Court decision of R. v. Lencucha out of this Registry by the Honourable Judge D. Boblin of April 18, 2018.  My judicial colleague found that the Smith, (supra), analysis was applicable and that there was an absence of mitigating factors before her.  In R. v. Oates, 2015 BCCA 259, the Court carefully considered that the safety and protection of the community as a whole was predominant rather than rehabilitation.  I have considered such.  Thereafter, the Smith, (supra), decision forms a basis of a framework of 18 to 36 months for trafficking in fentanyl, thus increasing what was the seminal framework as set out in R. v. Voong, 2015 BCCA 285 of that historically being six to nine months for a first time offence for a dial-a-dope trafficker.  The Courts put the offenders and those engaging in fentanyl on notice that sentences would be higher.  The Smith, (supra), decision was endorsed again by the BC Court of Appeal in R. v. Rutter, 2017 BCCA 193 that street-level trafficking in fentanyl has a base of 18 months.  Thus, I am satisfied that in applying the facts before me that the Smith, (supra), decision is applicable and that the sentencing range is 18 – 36 months.  However, what draws Mr. Kumar uniquely out of the framework is the void before me of his level of involvement.  I have clearly found him involved in both possession and trafficking.  His level of involvement in this enterprise has bearing on the crafting of his sentence and but for that void of information, I would be imposing a period of 18 months incarceration.  I recognize that sentencing is an art and is individualized.  I will note that Mr. Kumar has not engaged in rehabilitation, including during the gap of the continuation date for sentencing submissions.  The PSR notes that he was afforded opportunities to attend intake sessions for residential treatment and failed to attend more than once.  He has not turned his life around.  He has no steady employment.  He has no steady residency.  In rejecting the sentencing submission of Defence Counsel, the moral blameworthiness of the offender is critical.  Mr. Kumar knew and ought to have known about the dangers of fentanyl and the other drugs found on him in both its use and its distribution and thereafter its consequences to not only himself, to other users, to first responders who knowingly risk their own lives to help addicts and to the community as a whole.  Mr. Kumar cannot respectfully convince this Court that he was operating in a vacuum of the increased public awareness around him.  Mr. Kumar knowingly permitted a drug dealer to not only enter his vehicle, but remain unattended in his vehicle hoping that he would garner a better deal on drugs, thus allowing the dealer to sit in his vehicle is implicit to those drugs risking the inclusion of fentanyl.  Mr. Kumar was either reckless or knowingly turned a blind eye to the prospect of the makeup of these drugs.  That does not permit such to be a mitigating factor.  So, too, this was a dial-a-dope operation which is a sophisticated business enterprise and while again, I am mindful that the facts do not allow me to form a framework of the actual level of involvement of trafficking undertaken by Mr. Kumar, a dial-a-dope operation is an aggravating factor. 

[10]        In the decision of R. v. Kirton, [2018] BCJ No. 146, the Honourable Judge Hewson from the Vernon Registry of the Provincial Court of BC, wherein a sentence of 2 years less one day followed by a 12 month Probation Order was imposed on an accused who was the father of a young child, the offences were out of character, he used cocaine recreationally, he engaged in trafficking to supplement his income, he had no prior record, and was of Metis heritage.

[11]        R. v. Olenik, 2017 BCPC 390 is a decision from the Vancouver Registry of the Honourable Judge Harris for an accused who was young at 25 years of age, did not have a criminal record, was addicted to drugs, that he since stopped using drugs, he excelled at his employment and in essence, had turned his life around.  That is not before me.  It was for those reasons that Judge Harris was able to find exceptional and unique circumstances to impose a sentence of suspended sentence for a three year period.  I am not satisfied that those unique factors are before me.

[12]        After careful consideration of the sentencing provisions of the Criminal Code, case law, and the filed materials before me, the date of the offence, the aggravating and mitigating factors, I believe that a fit and proper sentence for Mr. Kumar is to be 9 months of imprisonment to be followed by a 12 month Probation Order with the following terms and conditions:

[13]        I am satisfied that the sentence is in proportion to the gravity of the offence and Mr. Kumar’s moral culpability, particularly when I balance the mitigating and aggravating factors and the framework provided by case law.