IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  These are my Reasons for Sentence in the matter of R. v. Galbraith, file 85440-2-C.

[2]           Following a trial under this proceeding, I found Timothy Archie Fraser Galbraith guilty of three offences which occurred on April 1, 2017.

[3]           On Count 1, I found him guilty of possessing heroin/fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. Mr. Galbraith was found in possession of 10 balls of heroin/fentanyl weighing 2.32 grams with a street value of $300.

[4]           On Count 2, I found Mr. Galbraith guilty of possessing cocaine for the purposes of trafficking, again contrary to s. 5(2) of the CDSA. He had in his possession seven rocks of crack cocaine weighing 1.39 grams with a street value of $140.

[5]           On Count 5, I found Mr. Galbraith guilty of wilfully obstructing Cst. MacPherson, contrary to s. 129(a) of the Criminal Code. He fled from the officer in the course of a detention or arrest.

[6]           I acquitted Mr. Galbraith of Counts 2 and 3 concerning the dangerous driving of a grey minivan.

[7]           My task now is to sentence Mr. Galbraith for these offences involving hard drugs. The Federal Crown quite properly emphasizes denunciation and deterrence for crimes involving the deadly drug fentanyl. Accordingly, the Federal Crown seeks a four-year sentence for the possession for the purpose of trafficking offences, and a 30‑day concurrent sentence for the obstruction offence.

[8]           Conversely, defence counsel points to the fact that Mr. Galbraith was himself an addict and he has largely turned his life around. In these exceptional circumstances, the defence argues that Mr. Galbraith ought to receive a two-year suspended sentence with strict terms such as a curfew, residential recovery and counselling.

[9]           On April 1, 2017, the Mission RCMP attempted a vehicle stop of a grey minivan which ended up crashing into a fence and some cedar hedges near a townhouse. An unknown male was seen fleeing the scene.

[10]        Cst. MacPherson later saw a man who purportedly matched the description of the man fleeing the scene, but it is important to emphasize that I have acquitted Mr. Galbraith of any offences concerning the minivan as the Crown did not prove identity to the requisite standard.

[11]        In any event, Cst. MacPherson activated the lights of his police vehicle when he saw a man, who turned out to be Mr. Galbraith, run southwest. Cst. MacPherson pursued Mr. Galbraith on foot and yelled, "Stop, you're under arrest."  Mr. Galbraith ran into a wooded area but tripped over a log. He was then arrested.

[12]        Cst. MacPherson conducted a search incidental to arrest and found a wallet and a Ziploc bag on Mr. Galbraith's person. The Ziploc bag contained 10 baggies of heroin/fentanyl weighing 2.32 grams and seven baggies of crack cocaine weighing 1.39 grams. Two cell phones were also found on Mr. Galbraith's person. Cst. Jones and Cst. MacPherson answered four calls on the LG cell phone strongly indicative of requests to purchase drugs.

[13]        The impact of trafficking in hard drugs goes beyond any one age group and beyond any one particular type of illicit drug user. With fentanyl in particular, it is a blight upon the Fraser Valley and beyond. The BC Coroners Service put out a report titled "Illicit Drug Overdose Deaths in B.C. - January 1, 2008 to August 31, 2018". In August of 2018 there were 98 suspected illicit drug overdose deaths in B.C. and that was actually a 20 percent decrease over the number of deaths in August of 2017, being 122. Even if one uses the August 2018 figures, 3.2 people died every day that month from an illicit drug overdose.

[14]        As of August 31, 2018, the Fraser and Vancouver Coastal Health Authority had the highest number of illicit drug overdose deaths, 309 and 288 deaths respectively. I note that Mr. Galbraith's offences occurred in 2017 and that was likely a worse year.

[15]        When one looks specifically at the Abbotsford area (there was not a breakdown for Mission), 52 people died of illicit drug overdoses in 2017 and 20 people died to August 31 in 2018.

[16]        I also take heed of Mr. James Kennedy's report dated July 25, 2016 where he indicates that the high potency of fentanyl is the most important difference between fentanyl and other common opioids. It is 100 times more potent than morphine. Moreover, a lethal dose of fentanyl is highly variable and often unpredictable. What is worse, fentanyl cannot be detected by a layperson outside a laboratory setting.

[17]        Mr. Galbraith is 30 years old and the youngest of three children. His father died in a motorcycle accident when he was nine years old. As an adult, he has had a number of unhealthy relationships as his partners also struggled with substance abuse.

[18]        Mr. Galbraith lived in the United States for 13 years but he was deported to Canada in November of 2010 following a U.S. conviction for drug-related offences.

[19]        In Canada, Mr. Galbraith reconnected with his godfather, Larry Deroche, but following a relapse he was asked to leave and he drifted to the Downtown Eastside of Vancouver. He returned to his godfather's home for about a year commencing in December of 2017 and he had done well with that second chance. More recently, he has had a slip and that is discussed further below.

[20]        When Mr. Galbraith was 19 he was assaulted with a baseball bat and he suffered facial injuries requiring reconstructive surgery. Unfortunately, he has a long history of substance abuse. At age 14 he used alcohol and marihuana and that progressed to hallucinogens and cocaine. At age 19 he was introduced to heroin and, in his words, heroin was "the beginning of the end."  He also used crystal methamphetamine.

[21]        Mr. Galbraith's mother arranged for him to attend three different residential treatment centres in the U.S., but those were not successful. Since returning to Canada he has resided at Insight, Together We Can (2011), Trilogy House (2012) and he did not complete Kinghaven in 2014.

[22]        Following Mr. Galbraith's arrest he was remanded in custody from April 3 to April 26, 2017. After his release, he resided at Maple Ridge Treatment Centre from April to June 2017 and he obtained a completion certificate. He then resided in the Into Action Recovery House from July to December 2017. He was described as "an excellent client who participated in all programming, attends support meetings on a regular basis above and beyond our programming criteria."

[23]        As stated earlier, in December 2017, Mr. Galbraith's godfather invited him back to his home for a second chance and at page 5 of the Pre-Sentence report, all collaterals report that he had "turned his life around" at that point. Because his godfather was a functioning alcoholic, Mr. Galbraith decided to move in late 2018 and he was in Onsite Traditional Housing in Vancouver. He was registered on February 1, 2019 to attend the Union Gospel Mission Vancouver Recovery Programme. If he were not to be incarcerated, his plan then was to help in the community and in the soup kitchen.

[24]        Throughout much of his pre-trial period, Mr. Galbraith was on strict bail conditions and he had not breached his terms until recently. He was initially on a suboxone program from April 2017 to March of 2018 and he tapered off his opiate replacement therapies. However, in December of 2018, he returned to methadone but stopped to be accepted in the Union Gospel program. As indicated below, he has recently had this slip and his plans have now changed.

[25]        Mr. Galbraith had worked in the past for Titan Reinforcement installing rebar but he is unemployed at the moment. He is an apprentice ironworker awaiting employment and he has various tickets for that trade.

[26]        Of recent concern, Mr. Galbraith did not attend for his sentencing hearing on February 1, 2019 but his counsel then did have instructions. Mr. Galbraith was in transit and too late for the February 8, 2019 date and he was altogether absent for the February 20, 2019 date. A bench warrant then issued. Mr. Galbraith was picked up on the warrant on March 10, 2019 and subsequently released but he failed to attend court March 13, 2019. Mr. Galbraith ultimately came into custody on April 7, 2019. He was also not reporting as required.

[27]        Defence counsel acknowledges that Mr. Galbraith had a slip, but since coming into custody at Surrey Pre-Trial he has maintained sobriety and is taking programming. He soon will have a room available at "It's Up To You" Recovery House Society should a release be contemplated.

[28]        As discussed, Mr. Galbraith has no Canadian criminal record but he does have a U.S. conviction in May of 2010 for an offence which occurred on June 24, 2008. The offence concerns delivery of Oxycontin which I take to be a type of trafficking offence. Mr. Galbraith received a 12 month plus one-day jail sentence after taking into account 115 days of credit for time served. This sentence was followed by nine to 12 months community supervision.

[29]        The statutory principles and objectives of sentencing are set out in s. 10 of the Controlled Drugs and Substances Act and in s. 718 through 718.2 of the Criminal Code. While I am to balance denunciation and deterrence with objectives such as rehabilitation of the offender, the principles of denunciation and deterrence come to the forefront when dealing with the harm caused by the trade of hard drugs like fentanyl.

[30]        The seminal case in this area is our Court of Appeal decision in R. v. Smith, 2017 BCCA 112. The court there points out paragraph 49 that:

[31]        The court also endorsed a sentencing range beginning at 18 months imprisonment and that might exceed 36 months.

[32]        When I review cases such as R. v. Kirton, 2018 BCPC 11, R. v. Grewal, 2017 BCPC 412, R. v. Henry, 2017 BCSC 1627, R. v. Mani, 2018 BCPC 100, and R. v. Harrison, 2018 BCSC 2056, it becomes clear that the low end of the sentencing range is reserved for street-level dealers of fentanyl in smaller amounts with little or no criminal record. The offenders are often drug users themselves.

[33]        When the amount of heroin/fentanyl is greater, or where the offender has a criminal record of some substance, the jail sentences are more considerable. In R. v. Poirier, (11 January 2018), Vancouver 233933-C-2, 233648-C-3 (B.C.P.C.), the court imposed a 30-month jail sentence on an offender involved in a street-level trafficking operation where the amount of heroin laced with fentanyl was 13.35 grams and the methamphetamine was 12 grams. The offender had a criminal record.

[34]        In R. v. Forsberg, (17 September 2017), Victoria 167638‑4-C, 167641-2 (B.C.P.C.), the offender received a four-year sentence for possession of fentanyl for the purpose of trafficking, as well as possession of cocaine and brass knuckles. The offender had two prior convictions for either trafficking or possession for the purposes of trafficking.

[35]        Notwithstanding the seriousness of street-level trafficking in hard drugs, our Court of Appeal in R. v. Voong, 2015 BCCA 285, established that in exceptional circumstances non-custodial sentences could meet the principles of sentencing. The court was careful to reserve this type of disposition for rare cases and only where the offender demonstrated a verifiable change in circumstances. The court said the following at paragraph 59:

[36]        In R. v. McClain, (11 December 2018), Abbotsford Registry 86412‑4C (B.C.P.C), the court did find that Mr. McClain's case was exceptional and he had taken significant and identifiable steps towards rehabilitation of his drug addiction. The court was careful to point out that the Voong case did not contemplate the current opiate crisis but more recent decisions still allow for exceptional circumstances. In R. v. Rutter, 2017 BCCA 193, our Court of Appeal explained that the Smith range of 18 to 36 plus months of imprisonment was not a straightjacket. In sentencing, judges still the discretion to depart from the range in exceptional circumstances.

[37]        I would point out that the McClain case can be distinguished from Mr. Galbraith's case because Mr. McClain was a very young man without a criminal record, whereas Mr. Galbraith has a U.S. record for delivery of Oxycontin. As well, Mr. McClain pled guilty, whereas Mr. Galbraith did not. That said, both men have made considerable strides in turning their lives around.

[38]        The aggravating factors in this case are fairly obvious:

[39]        The mitigating factors for Mr. Galbraith are as follows:

[40]        I first must decide whether Mr. Galbraith has demonstrated that his case is so exceptional that I ought to render a non-custodial sentence.

[41]        I do find that Mr. Galbraith has taken many steps to turn his life around. That phrase is actually used in the Pre-Sentence Report. Until recently, he followed strict bail terms and completed treatment, although he has now had a slip and missed some court dates. However, Mr. Galbraith has a U.S. record concerning Oxycontin in 2010, and he finds himself again dealing in hard drugs in 2017. I am of the view that his steps at rehabilitation are a strong mitigating factor, but they are not such exceptional circumstances as to warrant a non-custodial sentence.

[42]        Ordinarily, the Crown would be on solid ground to seek a four-year sentence in these circumstances. However, taking into account the significant mitigating factors, I am sentencing Mr. Galbraith to 24 months imprisonment, the lower end of the Smith range.

[43]        For Count 1, possession of fentanyl for the purpose of trafficking, the sentence is 24 months, less 79 days of enhanced credit, leaving a remaining jail sentence of 21 months and 11 days.

[44]        In addition, there will be a 12-month probation order with terms to be spoken to in a moment.

[45]        For Count 2, possession of cocaine for the purpose of trafficking, the sentence is 24 months, less 79 days of enhanced credit, leaving a remaining jail sentence of 21 months and 11 days, concurrent. Again, there will be a 12-month probation order to follow.

[46]        For Count 5, the obstruction charge, the sentence is 30 days jail concurrent.

[47]        On all three counts there will be a probation order for 12 months and, sir, could you please stand up. The compulsory conditions will be:

[48]        You must keep the peace and be of good behaviour.

[49]        You must appear before the court when required to do so by the court.

[50]        You must notify the court or the probation officer two days in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation.

[51]        There will be a reporting term. You must report in person to a probation officer at 2865 Cruickshank Street, Abbotsford, B.C., within two business days after your release from custody unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different timeframe. After that, you must report as directed by the probation officer.

[52]        When first reporting to the probation officer you must inform him or her of your residential address and phone number. You must not change your residence or phone number without written permission from your probation officer.

[53]        The only other term will be counselling. I think that goes to rehabilitation. You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer.

[54]        There will be the following ancillary orders for Counts 1 and 2:

[55]        There will be a mandatory firearms prohibition under s. 109 of the Criminal Code. Specifically, you are prohibited from possessing (a) any firearm other than a prohibited firearm or restricted firearm and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years; and (b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition for life.

[56]        For Counts 1 and 2, a discretionary DNA order under s. 487.05(3) is made. A sample of your DNA will be taken for inclusion in the National DNA Data Bank.

[57]        For Counts 1 and 2, there will be an order that the items seized from Mr. Galbraith will be forfeited to Her Majesty the Queen.

[58]        I believe those are all the orders required.