IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Brown pled guilty to possessing fentanyl for the purpose of trafficking. The Crown seeks a sentence in the mid-range of three to four years less time served. Counsel for Mr. Brown argues that a fit sentence is a custodial sentence of 24 months less the time that Mr. Brown has served in custody.

[2]           On February 11, 2018, the police were covertly watching the south lane of the unit block of East Hastings Street. While watching the lane the police saw Mr. Brown enter from the east end and briefly speak with a person known to be Lindhurst.

[3]           Shortly after speaking with Lindhurst, Mr. Brown walked to a wall on the south side of the lane and angled his body toward the wall at which point he looked up and down the lane. Lindhurst then moved to within 5 feet of Mr. Brown and he (Lindhurst) was joined by a third unknown male who stood nearby. Then, and with his right hand, Mr. Brown reached into the front of his pants and produced a white ball that was approximately half the size of a golf ball. Mr. Brown handed the ball to Lindhurst who then handed it to the third male. This male then turned and walked out of lane.

[4]           Once the third male had left, Mr. Brown turned back toward the wall reached into the front of his pants and produced another white ball. He handed this ball to Lindhurst who turned and walked out of the lane. Mr. Brown then walked to the west and out of lane.

[5]           The police decided to arrest Mr. Brown and they located him at East Hastings and Columbia Street. On his arrest, Mr. Brown was searched, given his Charter rights and handcuffed. The search did not yield any contraband so the police decided to walk Mr. Brown to the jail where they could conduct a more thorough search. While walking Mr. Brown to the jail the police told him that he would be searched at the jail, but that he would be given the opportunity to produce anything that he might have hidden on his person.

[6]           When they reached the jail, the handcuffs were removed and Mr. Brown reached into the front of his pants and removed a ball. Within this ball were five separate packages. Subsequent analysis determined that three packages. Each package contained 1.03 grams of fentanyl and two packages contained at total of 7.28 grams of crack cocaine. The total estimated value of the drugs seized is $450.00 for the fentanyl and between $360.00 to $440.00 for the cocaine.

[7]           Mr. Brown was ultimately released on a Promise To Appear, however, for various reasons he found himself back in custody. Counsel agree that Mr. Brown has spent 420 actual days in custody and that he is entitled to a credit of 630 days pre‑sentence custody.

[8]           Mr. Brown is a 26 year old Indigenous male. Both of his parents are from the Musqueam Reserve. His family has lived on the Reserve for generations. Mr. Brown’s parents separated when he was two years old and he remained living with his father.

[9]           When he was four, Mr. Brown’s father formed a new partnership. At 15 years old, Mr. Brown left his home and moved a block away to live with his stepmother’s stepson and his (Mr. Brown’s) older half-brother.

[10]        The danger of Mr. Brown living on his own at a young age was amplified because, all of his family role models were regularly drinking and using drugs. In support, the pre-sentence report notes:

[11]        As for Mr. Brown’s mother, she suffered from chronic drug and alcohol addiction and she was not involved in raising him. When Mr. Brown was 15 years old, his mother briefly moved back to the Reserve only to return to the Downtown Eastside. The challenges faced by Mr. Brown are documented in the Gladue Report where there writer, Daniel Holloway observed:

[12]        Sadly, Mr. Brown’s mother passed in 2014 owing to a drug overdose. Mr. Brown’s stepmother passed away from medical complications in 2019. Mr. Brown’s primary support is his father.

[13]        Mr. Brown completed his grade 9 studies and he is not interested in upgrading his employment. He has no formal work history and he makes money helping his cousin operate a fishing boat. Mr. Brown is comfortable helping out on the boat and indicates that is what he knows.

[14]        Mr. Brown does not suffer from any mental health issues. As for his use of substances, Mr. Brown started drinking and smoking marijuana when he was 14 years old. He smoked marijuana daily for 10 years and he occasionally uses cocaine. As for alcohol, Mr. Brown feels that he can “self-manage” his drinking and stop when he wishes. 

[15]        As for his adult criminal record, Mr. Brown has convictions for offences in 2011, 2014, 2015, 2017, and 2018. Mr. Brown has four drug convictions (three for possession for the purpose of trafficking and one for trafficking). It is noteworthy that Mr. Brown was on probation for a drug offence when he committed the offence in issue and that he had been released from custody (for drug offences) four months prior to the offence in issue. 

[16]        Mr. Brown, accepts responsibility for his actions. He advises at the time of the offence, he was using substances daily and he was selling drugs to maintain his lifestyle. Finally, Mr. Brown indicates he has learned from his arrest and that a similar incident will not happen again. He resists the suggestion of counselling.

[17]        Sadly, Mr. Brown has little connection to his culture, heritage, community or traditions. Mr. Brown does not access Reserve services or supports. His father did not encourage participation in Reserve events and in fact he discouraged his son from attending the Long House. Mr. Brown’s father and close relatives did not teach Mr. Brown about First Nations languages, cultures or traditions. Mr. Brown’s father, and other close relatives have all attended Residential Schools.

[18]        The Gladue Report that was prepared for Mr. Brown notes that many of the systemic background factors that affect Indigenous persons in Canada have also impacted Mr. Brown. These include:

[19]        The Crown argues that a fit and appropriate sentence is a sentence in the range of three to four years less the time that Mr. Brown has served. In support, the Crown points to the circumstances of the offence, Mr. Brown’s criminal history and related sentencing decisions. The Crown relies on: R. v. Smith, 2017 BCCA 112, R v. Forsberg (27 September 2017) 167641-2 (BCPC) and R. v. Lloyd, 2019 BCCA 128

[20]        The defence argues Mr Brown’s Indigenous background, his reduced moral culpability and the mitigating factors all dictate a sentence of 24 months less the time that Mr. Brown has served. In support, counsel relies on: R. v. Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 S.C.R. 433.

[21]        Determining a fit and appropriate sentence requires the court to consider the purposes and principles of sentencing as articulated in sections 718 to 718.2 of the Criminal Code and section 10 of the Controlled Drugs and Substances Act.

[22]        The primary sentencing objective for offences related to drug trafficking are denunciation and deterrence: R. v. Smith, 2017 BCCA 112. Those who engage in trafficking can, absent exceptional circumstances, expect to receive a custodial sentence: R. v. Voong, 2015 BCCA 285 at paragraph 1. The objective of denunciation and deterrence becomes more pressing when dealing with fentanyl. In this regard, the court commented in R. v. Schneider, 2019 BCCA 310, at paragraph 10:

[23]        As per section 718.1 of the Criminal Code, a fundamental principle of sentencing is proportionality. Accordingly, the sentence imposed must be proportionate to the seriousness of the offence and the degree of offender responsibility.

[24]        In applying the principle of proportionality, I observe that the offence of possessing fentanyl for the purpose of trafficking is a serious offence. I note the depth and breadth of death and destruction that the illicit fentanyl trade has caused. I also note that the maximum penalty available for the offence in issue is life imprisonment.

[25]        As for Mr. Brown’s degree of moral culpability, he was not drug dependant at the time of his offence and it appears that he was selling drugs to maintain his lifestyle of “partying”. At first blush, it may appear that Mr. Brown has a high degree of moral culpability; however, such a conclusion ignores Mr. Brown’s Indigenous background and the impact of colonialism. In this regard, Mr. Brown, his family, and his community, have suffered substance abuse, violence, low level of education, poverty, and disconnection from; culture, tradition, role models, and community. For these reasons, I conclude that Mr. Brown’s level of moral culpability is toward the low end of the spectrum.

[26]        Section 718.2 of the Criminal Code sets out further principles of sentencing:

[27]        Turning to the above, I find Mr. Brown’s criminal record aggravating. It is also aggravating that he was on probation at the time of his offence. A further aggravating feature is that Mr. Brown was trafficking fentanyl. In this regard, I am mindful that Mr. Brown claimed that he did not know he had fentanyl, however, I am satisfied that the prolific campaign regarding fentanyl being in street drugs, makes it such that those who choose to traffic in street drugs are simply wilfully blinding themselves to the obvious; that fentanyl will be present.

[28]        As for mitigation, I find Mr. Brown’s guilty plea to be highly mitigating. I also find his cooperation with the police and the support that he has from his father to be mitigating.

[29]        As for the range of available sentences, the range for fentanyl offences is 18 months up to and possibly above 36 months: R. v. Smith 2017 BCCA 112. Where in the range that an individual falls is driven by many variables including but not limited to; quantities, purity, sophistication, circumstances of the offence and the circumstances of the offender.

[30]        The relevant portions of section 10 of the Controlled Drugs and Substances Act reads:

[31]        The sentence that this court imposes must denounce and deter. Specifically, through the sentence imposed this court must communicate society’s abhorrence. Further, the court must also send a message to Mr. Brown and others that those who chose to traffic in fentanyl will, absent exceptional circumstances, receive a custodial sentence.

[32]        Despite the above, I note the impact that colonialism has had on Mr. Brown. In fact, a review of his background and history strongly suggests that he was doomed to face significant struggles even before his birth. Specifically, the historical mistreatment of Indigenous persons placed Mr. Brown on the roadway to criminal involvement and even gave him a push.

[33]        I am mindful that sections 718.2 (d) and (e) of the Criminal Code mandates the least restrictive sentence that is appropriate and that particular consideration must be given to the circumstances of Aboriginal offenders.

[34]        After considering all of the materials and submissions of counsel, I decline to impose the sentence suggested by Crown. A sentence of three to four years, although likely appropriate were it not for Mr. Brown’s Indigenous heritage, however the length disregards the importance of minimizing Mr. Brown’s separation from his family and his Reserve. As such, a lesser period of custody is warranted but it must be one that still denounces and deters.

[35]        As for the sentence suggested by counsel for Mr. Brown, I find that it would not adequately denounce and deter Mr. Brown’s conduct particularly given that he had been released from custody four months earlier after having served 294 days for possession of heroin for the purpose of trafficking.

[36]        In my view, this court must impose a sentence that achieves the purpose of sentencing while minimizing, as much a possible Mr. Brown’s separation from the aspects of his life that connects him to his heritage. Specifically, his father, his cousins, his Reserve and his work on the fish boat. I see this approach as a means to support his connectedness to his culture which in the long term would have a rehabilitative benefit. As such, I impose a sentence of 30 months and from this time corrections should deduct time credited of 630 days.

[37]        Pursuant to s. 487.051(3) (b) of the Criminal Code, DNA is a secondary order and I must consider what is in the best interests of the administration of justice. In doing so, I must look at what Mr. Brown has been convicted of, the circumstances of the offence, and his criminal history balanced against his privacy interests and his personal security.

[38]        When I look at the offences, Mr. Brown was convicted of possessing a fentanyl for the purpose of trafficking. I acknowledge that drug trafficking frequently involves weapons and violence and I also acknowledge Mr. Brown’s record which includes a youth conviction for robbery. In considering the security of Mr. Brown’s person and his privacy interests, I am cognizant that the taking of a DNA sample is minimally intrusive and the results are guarded by statute. In the circumstances, it is my view that the best interests of the administration of justice outweigh Mr. Brown’s privacy and security interests and I order that a sample of his DNA be taken.

[39]        Pursuant to section 109 of the Criminal Code, I impose a lifetime ban of the weapons set out within the section.