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R. v. Knudsen, 2019 BCPC 198 (CanLII)

Date:
2019-09-04
File number:
98821
Citation:
R. v. Knudsen, 2019 BCPC 198 (CanLII), <https://canlii.ca/t/j280d>, retrieved on 2024-03-29

Citation:

R. v. Knudsen

 

2019 BCPC 198

Date:

20190904

File No:

98821

Registry:

Port Coquitlam

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

 

REGINA

 

 

v.

 

 

NIKLAS HOLST KNUDSEN

 

 

 

 

 

 

REASONS FOR SENTENCE

OF THE

HONOURABLE JUDGE R.P. McQUILLAN

 

 

 

 

Counsel for the Crown:

P. Bachra

Counsel for the Defendant:

P. Riddell Q.C.

Place of Hearing:

Port Coquitlam, B.C.

Date of Hearing:

July 29, 2019

Date of Judgment:

September 4, 2019


[1]           Niklas Knudsen was convicted, following a trial, of one count of possessing heroin, fentanyl and 4-Anilino-N-phenethylpiperdine for the purposes of trafficking, and one count of possessing cocaine for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”). He was also convicted of three counts of possessing controlled drugs, being Alprazolam, MDMA and a combination of fentanyl and methamphetamine, contrary to s. 4(1) of the CDSA. He is now before the Court to be sentenced.

Positions of the Crown and Defence

[2]           The Crown submits that a fit sentence for Mr. Knudsen would be 24 to 30 months in custody. The Defence submits that exceptional circumstances exist in Mr. Knudsen’s case and that a suspended sentence with two to three years of probation would be a fit sentence. Alternatively, the Defence says that if a custodial sentence must be imposed to adequately address the sentencing principles of denunciation and deterrence, a sentence of 90 days or less, to be served intermittently, would be appropriate.

Circumstances of the Offence

[3]           Mr. Knudsen came to the attention of the police when the vehicle he was driving, in the early morning hours of November 10, 2017, was observed to be swerving and driving erratically. The police conducted a traffic stop of the vehicle. Their ensuing interactions with Mr. Knudsen indicated signs of him being impaired, including slow speech, bloodshot eyes, shaky hands and providing strange and unresponsive answers to police questions. Two bags of drugs were then pulled from Mr. Knudsen’s pockets. He was then arrested.

[4]           A subsequent search of Mr. Knudsen led to the seizure of $710 in Canadian currency, mostly comprised of $20 bills.

[5]           The drugs seized from Mr. Knudsen consisted of five separate bags. Those bags contained 27 separate rocks of crack cocaine, plus a small baggie of powdered cocaine, weighing a total of 6.22 grams, as well as 29 separately packaged “spit balls” of heroin and fentanyl weighing a total of 3.4 grams. Those drugs form the basis for the count of possession for the purposes of trafficking.

[6]           In addition, the bags also contained 3.42 grams of Alprazolam (also known as Xanax), four MDMA pills (also known as ecstasy) and .25 gram of combined methamphetamine and fentanyl. These latter substances form the basis for the three counts of simple possession.

Circumstances of Mr. Knudsen

[7]           A Pre-Sentence report (“PSR”) was prepared to assist in sentencing. The PSR reveals that Mr. Knudsen is 27 years old. He was 25 years old at the time of the offence. He had a relatively positive upbringing, with no verbal, physical or substance abuse in the home. His parents divorced in 2013, when Mr. Knudsen was 21. He continues to have a supportive relationship with both parents and his older brother. His father attended the trial and sentencing hearing and provided a letter of support for use in sentencing.

[8]           Mr. Knudsen’s family moved frequently during his childhood due to his father being transferred with his job. This was stressful for him and led to difficulties developing any friendships of significance. Over the years he became less attached to his parents and more attached to peers, many of whom tended to have a negative influence on him. At the time of his arrest he described having a minimal peer group and having become increasingly isolated in recent years. He was however, residing with his father at the time of his arrest.

[9]           Mr. Knudsen completed high school as well as an electrician program at Vancouver Community College. His employment history consists mainly of work as an electrician. He was able to maintain employment with the same electrical contractor for six years prior to being terminated as a result of performance related issues stemming from substance abuse. That occurred shortly before this offence occurred. His substance abuse led to him having difficulties attending work on time and some days attending at all.

[10]        Mr. Knudsen has been employed with a different electrical contractor since January 2018, shortly after this offence. He has completed over 10,000 workplace hours towards a Construction Electrician Certificate and has completed levels one and two of the four levels of technical training required to attain his Red Seal. He hopes to attend school in December 2019 to complete level three.

[11]        Mr. Knudsen began to engage in substance misuse at the age of 14, which then progressed to include the use of cocaine, heroin and fentanyl. His use significantly escalated over the years, at times costing him $300 to $500 per day. In order to support his addiction he began selling drugs, although he says that he earned just enough to support his own addiction and did not make any profit from this venture.

[12]        Mr. Knudsen attended mandatory drug treatment while still in high school as a result of child protection orders obtained by his parents to force him into treatment. Subsequently he attended at the Last Door Recovery Centre on two occasions, and completed that program once. Since these charges arose, he successfully completed a 28 day residential treatment program at The Orchard Recovery Centre. After his arrest on these charges, and prior to commencing residential treatment, his doctor expressed a concern about whether Mr. Knudsen would survive detox given the very high level of narcotics in his system. He was hospitalized several times while detoxing. He appears to have remained clean of illicit substances since then, being the longest period of time that he has remained clean. His father describes him as being a changed person this time.

[13]        Since completing residential treatment in late 2017, Mr. Knudsen has been attending one to one substance misuse counselling with an addictions specialist twice per week. He also attends Narcotics Anonymous meetings, although his attendance at those meetings is less frequent due to his social anxiety impeding his ability to present at those meetings.

[14]        Mr. Knudsen has struggled with severe and persistent anxiety since his adolescence, for which he has received medication in the past. His father expresses the view that Mr. Knudsen’s addiction may have been precipitated by his attempts to self-medicate.

[15]        Mr. Knudsen continues to reside with his father, who is clearly a significant support to him. He is involved with a girlfriend, for the first time in a number of years. She is not connected to the drug or criminal culture. He has disassociated himself from others connected to the drug world.

[16]        Despite Mr. Knudsen’s long history of drug use, this is his first criminal conviction.

[17]        As a result of these charges, the vehicle driven by Mr. Knudsen at the time of his arrest was seized and has been sold through civil forfeiture. The sale resulted in a shortfall for which Mr. Knudsen remains responsible to pay.

[18]        Mr. Knudsen expressed remorse for his actions, by way of his comments to the writer of the PSR, by directly addressing the Court in person and by way of a letter that was filed in the sentencing hearing. In doing so, he acknowledged that his arrest on November 10, 2017 may have saved his life as it has led him to making significant changes to his life in the year and half since then. He also expresses a willingness and desire to continue in his recovery and be a productive member of society.

Principles of Sentencing in the Criminal Code

[19]        The Criminal Code sets out a number of principles that a court must consider in sentencing offenders.

[20]        Section 718 sets out the purpose and objectives of sentencing as follows

718   The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[21]        Section 718.1 sets out the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[22]        Section 718.2 requires a sentencing judge to consider any mitigating or aggravating circumstances relating to the offence or the offender. It also requires sentencing judges to impose sentences similar to what has previously been imposed on similar offenders for similar offences in similar circumstances. The same section also cautions sentencing judges to exercise restraint in sentencing, and to give due consideration to sanctions less restrictive than imprisonment if appropriate.

Case Law

[23]        Both the Crown and the Defence rely on the leading BC Court of Appeal cases of R. v. Smith 2017 BCCA 112, and R. v. Voong 2015 BCCA 285.

[24]        In Smith, our Court of Appeal considered the devastating impact that fentanyl had been having on communities and endorsed a markedly higher sentencing range for street level dealing in fentanyl as compared to other drugs. As a result, this new “normal range” would begin at 18 months and would go as high as 36 months or perhaps higher in particular circumstances, such as where an offender has a substantial prior record involving the sale of fentanyl or where the offender is higher up the chain of sale or distribution. The Court also reiterated that the principles of denunciation and deterrence must be given primacy in sentencing cases involving fentanyl.

[25]        The case of Voong pre-dates Smith and the higher sentencing range endorsed therein. In Voong, the Court reiterated that the normal range in place then for a first offence dial-a-dope trafficker was between six to nine months and upwards to 18 months in some cases, absent exceptional circumstances. Much of the analysis in Voong related to what might constitute exceptional circumstances such as to justify imposing a sentence lower than the otherwise normal sentencing range. The Court stated that, generally speaking, the exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of the main principles of deterrence and denunciation by way of a prison sentence (para 45).

[26]        At paragraph 59 of Voong, Madam Justice Bennett stated,

[59]   …Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a noncustodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available. Thus, it will be the rare case where the standard of exceptional circumstances is met.

[27]        In Voong, the Court also affirmed that in some cases a suspended sentence with a period of probation, while primarily rehabilitative, may be able to give effect to the principles of denunciation and deterrence. At paragraph 61,

[61]   A suspended sentence can achieve a deterrent effect, as noted above, as well as a denunciatory effect. And, as Esson J.A. stated in Chang, the fact of being arrested, tried and convicted, can also address these principles. In other words, the stigma of being a convicted drug trafficker and the consequences of that conviction—for example, restricted ability to travel outside of Canada and exclusion from many forms of employment—may also play a deterrent effect.

[28]        Of the four offenders who were the subject of the sentence appeals in Voong, three were found to have demonstrated exceptional circumstances such that they were given suspended sentences with probation of 30 to 36 months. Some of the circumstances that placed those three offenders in the category of exceptional circumstances were: guilty pleas, demonstrations of remorse, minimal or no prior criminal record, meaningful and verifiable steps taken to address addiction issues, youthfulness, and engagement in employment. The fourth offender did not meet the test of exceptional circumstances as he had tested positive for drug use several months after the offence date and his efforts at rehabilitation were largely unverifiable.

[29]        The defence also relied on a number of additional cases. In the case of R. v. Pepper 2015 BCCA 476, the Court of Appeal stated that the test is “exceptional circumstances”, and not “highly exceptional circumstances”.

[30]        In R. v. Rutter 2017 BCCA 193, the Court of Appeal reminded sentencing judges that the range set out in Smith is a guideline and not a strait jacket and that sentencing judges retain the discretion to depart from the range where there are case specific exceptional circumstances as described in Voong (para 4).

[31]        In R. v. Kim 2017 BCSC 578, the offender was convicted of possessing heroin, cocaine and clorazepam for the purposes of trafficking in a dial-a-dope operation. Fentanyl was not involved. He was found to have proven exceptional circumstances because of the following facts: He was 27 years old, he had no criminal record, he expressed remorse, regret and embarrassment, this was a brief foray into crime which was induced by threats to hurt his family members if he did not participate, and he had returned to his formerly lawful ways. He received a sentence of 90 days, to be served intermittently.

[32]        In R. v. Olenik 2017 BCPC 390, an offender who was convicted of possessing heroin and fentanyl for the purposes of trafficking was found to have proven exceptional circumstances. The facts which led to that conclusion were his age (25 at time of the offence), lack of a criminal record, his drug addiction driving the offence, his cessation of drug use following his arrest, moving away from negative influences, and becoming successfully employed as a commercial painter. He was given a suspended sentence with probation for three years. During the first 18 months of probation, he was to abide by a curfew of 8:30 PM to 6:30 AM. He was also required to complete 120 hours of community work service.

[33]        In R. v. Joon 2017 BCPC 301, the offender had pled guilty to one count of trafficking in heroin and fentanyl in the context of a dial-a-dope operation. The offender was 19 at the time of the offence, he had no criminal history and was not a drug user but rather became involved in trafficking solely for the purposes of financial gain. He was otherwise of good character and was employed and at the time of sentencing was in his second year of training to become an electrician. His father’s vehicle was seized as a result of the offence. He was remorseful. Exceptional circumstances were found to exist in his case such as to justify departing from the normal sentencing range and to impose a non-custodial sentence. He received a suspended sentence with probation for three years.

[34]        In R. v. McClain 2018 BCPC 369, a 22 year old offender without a criminal record pled guilty to trafficking in fentanyl and cocaine in a dial-a-dope operation. His offending was driven by his drug addiction and, since his arrest, he spent six months at a recovery house and was vigorously engaged in his recovery as a mentor to other recovering drug addicts. He had secured employment and had been compliant with strict bail conditions. He was attending NA and AA meetings regularly and was seeing a psychologist to address the underlying issues behind his addictions, including ADHD and anxiety. The Court found that exceptional circumstances were present and Mr. McClain was given a suspended sentence with probation for two years. The probation included a curfew of 10:00 PM to 6:00 AM for the first year.

[35]        In the very recent case of R. v. Dewat 2019 BCPC 183, (which was released after the present sentencing hearing), an offender was sentenced after pleading guilty to trafficking in heroin and fentanyl. He was 18 years old at the time of the offence but had been on bail as a youth for a charge of trafficking in cocaine at the time. Exceptional circumstances were found to exist in his case, which included his youthfulness, his guilty plea, expressions of remorse, and sustained and significant efforts to rehabilitate himself. He was given a suspended sentence with probation for three years. The first 18 months of the probation order included house arrest conditions. He was also ordered to complete 30 hours of community work service.

Application to this Case

[36]        Sentencing is ultimately an individualized process and I must consider the unique circumstances of Mr. Knudsen and his offence, as well as the various sentencing principles from the Criminal Code and previous sentencing decisions. In my view, an application of those particular circumstances to those principles establishes that Mr. Knudsen has proven exceptional circumstances such as to justify departing from the sentencing range of 18 to 36 months in custody. Some of the mitigating circumstances that support that conclusion are Mr. Knudsen’s young age, his immediate enrolment in residential treatment following his arrest, his continued success in remaining drug free, becoming and remaining fully employed, taking steps towards advancing his career with further educational plans, the rehabilitative support of his family and now his girlfriend, and his remorse. I also consider the civil forfeiture of his vehicle to be a collateral consequence which is of some relevance in assessing proportionality.

[37]        I am mindful that Mr. Knudsen does not receive the mitigating benefit of a guilty plea, as is present in most of the cases in which exceptional circumstances have been found. However, I am satisfied that he did express remorse for his actions in a particularly powerful way by stating that his arrest by the police at the time of the offence may have had the effect of saving his life, given the level of drug use that he had reached at that time.

[38]        I also remain somewhat concerned that Mr. Knudsen does not appear to have meaningfully taken steps to address the underlying issue of his anxiety, which appears to be at least a partial explanation for him turning to illicit drugs to self-medicate. Despite that concern, on the whole I believe that Mr. Knudsen has shown that he has truly turned his life around.

[39]        I am also satisfied that the protection of the public in Mr. Knudsen’s case is better served with a non-custodial sentence. As stated in Voong, the governing principles of denunciation and deterrence can be satisfied by way of a carefully crafted probation order. I am satisfied that those principles can be met, along with the principle of rehabilitation, by way of a lengthy probation order for Mr. Knudsen.

[40]        I am also satisfied that a curfew condition, as was imposed in some of the cases noted above, is an appropriate probation term in this case. The BC Court of Appeal has cautioned against imposing probation conditions which are purely punitive since the objective of probation is instead to serve one or both goals of protecting society and facilitating reintegration: R. v. Bosco 2016 BCCA 55 at para 56. In my view there is a nexus in this case between a curfew and the goals of protecting society and reintegrating Mr. Knudsen particularly in light of the fact that his offence occurred in the middle of the night.

Sentence

[41]        Accordingly, I will suspend the passing of sentence and impose a probation order for a period of three years. The terms of the probation order will be:

1.            You must keep the peace and be of good behaviour.

2.            You must appear before the court when required to do so by the court, and notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or your probation officer of any change of employment or occupation.

3.            You must report to a probation officer at 2610 Mary Hill Road, Port Coquitlam by 4:00 PM September 4, 2019 and thereafter where, as and when directed by the probation officer.

4.            You must advise your probation officer of your residential address and you must not change that address without first notifying your probation officer of your new address.

5.            For the first 12 months of the probation order, you must abide by a curfew by remaining inside of your residence or on the property on which it is situated, between the hours of 9:00 PM and 6:00 AM seven days per week. You must present yourself immediately at the door to your residence when any peace officer or probation officer attends at your residence to check your compliance with the curfew condition of this order. You may be away from your residence during the curfew hours with the written permission of your probation officer, such permission to be given only for compelling reasons and with any such written permission to be carried on your person at all times. You may also be away from your residence during the curfew hours:

a.            While in the course of your employment, or when travelling directly to, or returning directly from your place of employment. If requested you must provide your probation officer with details of your employment, including location and hours of work.

b.            In the event of a medical emergency and then only while at a health care facility, or when travelling directly to, or returning from the facility. If requested, you must provide your probation officer with written confirmation that you went to the facility, signed by a representative of the health care facility to which you went.

6.            You must attend at, participate in and successfully complete any counselling that may be directed by your probation officer, which may include, but is not limited to substance abuse counselling.

7.            You must abstain from the possession or consumption of alcohol or any drugs defined by the Controlled Drugs and Substances Act, except those for which you have a medical prescription.

8.            You must not possess drug paraphernalia, including but not limited to pipes, rolling papers and syringes.

9.            You must not possess any weapons as defined in the Criminal Code.

10.         At the direction of your probation officer, you must complete 80 hours of community work service, such hours to be completed within the first two years of this order, or by no later than September 3, 2021.

[42]        The Crown also seeks a number of ancillary orders, to which the defence did not express any opposition. In my view they are all appropriate orders.

[43]        Accordingly there will be an order for forfeiture of all offence related property.

[44]        Pursuant to s. 109 of the Criminal Code, Mr. Knudsen is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of ten years.

[45]        As this is a secondary designated offence, pursuant to s. 487.051(3) before making an order that Mr. Knudsen provide a copy of his DNA, I must be satisfied that such an order would be in the best interests of justice, upon a consideration of Mr. Knudsen’s absence of a previous criminal record, the nature of this offence, the circumstances surrounding the commission of this offence and the impact that such an order would have on Mr. Knudsen’s privacy and security of the person. While Mr. Knudsen does not have a prior criminal record, I am satisfied that the seriousness of his offence tips the balance in favour of making such an order, notwithstanding any minimally intrusive privacy and security of the person interests that Mr. Knudsen may have. As such, there will be an order that Mr. Knudsen provide a copy of his DNA pursuant to s. 487.051(3).

 

 

__________________________________

The Honourable Judge R.P. McQuillan

Provincial Court of British Columbia