IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Brandon Nair has pleaded guilty to one count of possessing fentanyl for the purpose of trafficking and one count of possessing methamphetamine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.

[2]           Mr. Nair pleaded guilty to those two counts following my voir dire ruling in which I determined that his rights under sections 8 and 9 of the Canadian Charter of Rights and Freedoms had not been breached. His guilty pleas were entered on December 4, 2019 and sentencing was adjourned to permit the preparation of a psychological assessment of Mr. Nair. This is my decision on Mr. Nair’s sentence.

[3]           The Crown seeks a custodial sentence of 24 months.

[4]           The Defence says that exceptional circumstances exist in this case such that Mr. Nair should receive a suspended sentence, along with a lengthy period of probation of two to three years. In the alternative, if a custodial sentence is deemed necessary, he states that a 90 day intermittent sentence is appropriate.

[5]           The Crown and Defence were able to settle on an Agreed Statement of Facts which was filed at the sentencing hearing. Those facts may be summarized as follows.

[6]           On August 10, 2018 members of the Ridge Meadows RCMP were alerted to a vehicle being driven by a male, with a female passenger. The male driver was subsequently identified as being Mr. Nair. The vehicle was then observed by RCMP members to engage in four short duration meetings with individuals over a 48 minute time span at various locations in the City of Maple Ridge. Officers believed these meetings to be consistent with dial-a-dope drug trafficking.

[7]           The vehicle then parked at a gas station and convenience store. Mr. Nair entered the store and the female passenger remained in the vehicle. Officers then approached Mr. Nair inside the store and arrested him for trafficking. A search incidental to his arrest revealed him to be in possession of $40 in Canadian currency, one large Samsung cell phone, one small Samsung cell phone and a grey bag. The smaller cell phone was observed to be ringing continuously.

[8]           The grey bag possessed by Mr. Nair was searched. It contained a wallet that held $125 in mixed Canadian currency in the rear portion, and $695 in Canadian currency in the front portion.

[9]           A search of the vehicle, which was driven by and registered to Mr. Nair, led to the discovery and seizure of a number of items, including:

[10]        While present at the scene, one of the officers answered six phone calls coming in on the small cell phone. During the course of those calls the officer took orders from callers ordering “pink”, “hard” and “down”.

[11]        Following transport to the police detachment Mr. Nair was advised that he was going to be strip-searched and he was given an opportunity to relinquish any items concealed on his person. Mr. Nair then removed a clear plastic bag from the crotch area of his sweatpants. This plastic bag was subsequently found to contain the following:

[12]        In August 2018 the approximate value of the drugs seized in the investigation was:

[13]        Mr. Nair’s personal circumstances are described in a psychological assessment prepared by Dr. Patrick Bartel on June 24, 2020.

[14]        Mr. Nair is 29 years old. He has no prior criminal record.

[15]        Mr. Nair was the eldest of three siblings. He was raised in an intact family although, due to his parents’ employment, his grandparents were often his primary caregivers. Although he denies the existence of family violence in the home, his mother states that his father, who was an alcoholic, physically and verbally abused him. His parents divorced when Mr. Nair was in his twenties.

[16]        Mr. Nair has had a chaotic educational path. In his younger grades he did well academically. However, he began to display behavioural problems in high school. He was suspended from school in grade eight when he says he was beaten up by peers and partly blamed for it by school authorities. The next year he was expelled from school for smoking marijuana. He then transferred schools but the following year he was expelled again for being part of an informal “fight club”, as well as for marijuana use. He then transferred to an alternative school.

[17]        Around that time he was kicked out of the family home as his parents could not manage his behaviour. He then lived with his girlfriend and worked at McDonalds while attending the alternative school. He was 16 years old at the time. He was eventually suspended from that school due to excessive absences. No doubt those absences were at least partly connected to his having to support himself with employment. He returned to a different alternative school the following year but was expelled from that program for beating up another student, who Mr. Nair says had sexually harassed his then girlfriend. He then attended “probation school” where he completed Grade 10. He has not returned to school to complete his high school equivalency.

[18]        Mr. Nair says that as a youth he was a partier and somewhat rebellious. He reports that he engaged in substance abuse throughout much of his adolescence. He began using both alcohol and marijuana at the age of 13 and used marijuana throughout much of his adolescence. More recently he continues to smoke marijuana once or twice each week in the evenings after work to calm his mood. For a period of a few months around the time of this offence he was using opioid Percocet pills, primarily to help him sleep. This period coincided with what he describes as a particularly difficult period of his life when his girlfriend had left him. His use of Percocet did not however, appear to have risen to the level of an addiction.

[19]        Despite the absence of a criminal record Mr. Nair concedes that as a youth he was arrested and criminally charged on one occasion when he and his friends got into a dispute with a person on a city bus who had pepper sprayed them. He was placed on a recognizance and the charges were eventually dropped.

[20]        As a young adult Mr. Nair has struggled with finding and maintaining steady employment. However, he had a single employer for five years, with a gap while he attended a 43 week automotive training course. Upon completion of that program he resumed employment with his previous employer but was dismissed in March 2020 when he advised the employer of his current charges. He states that he has been unemployed since that time and that his efforts to obtain employment have been hampered by the economic impact of the Covid 19 pandemic and the uncertainty connected to his potential incarceration on this sentencing.

[21]        After his arrest on these charges Mr. Nair states that he made significant positive changes in his life. He left the drug world and distanced himself from his drug associates. After a period of being depressed a year ago he met and began a relationship with his current girlfriend. They have lived together for the past year and his girlfriend is now pregnant with their child, with a due date of September 21, 2020. She is a licenced professional nurse. In her letter of support filed in the sentencing hearing she speaks highly of Mr. Nair and of the potentially detrimental impact on her and their child of a lengthy custodial sentence.

[22]        Mr. Nair remains close with his mother and sister, both of whom attended the sentencing hearing and filed letters of support. Letters of support were filed by Mr. Nair from various friends and family members, as well as an instructor at the automotive school he attended and his supervisor with his former employer. The letters describe him to be hard working, caring, soft spoken, respectful and generous. The letters also speak of his expressions of guilt and remorse for his crime.

[23]        As for Mr. Nair’s mental health functioning, he reports a history of significant depressive episodes that typically coincide with the loss of an important relationship, and in particular relationship break ups with girlfriends. He states that in the late summer of 2018 when this offence occurred he was going through a depressive episode as a result of the break up with his girlfriend, the death of his grandfather the previous year, and eventually the present criminal charges. He attempted suicide during that time by taking an excessive amount of pills. He was taken to hospital and released without treatment or follow up.

[24]        Dr. Bartels describes Mr. Nair as being primarily pro-social in orientation with his history of criminality being circumscribed and limited rather than pervasive and versatile. He describes Mr. Nair as being at low to moderate risk to reoffend. He is not entirely at a low risk since the charges are still relatively recent and he has shown a tendency to decompensate when a relationship ends.

[25]        Dr. Bartels further opines that if a custodial sentence is deemed necessary there are some mental health concerns that are relevant as Mr. Nair may not tolerate incarceration or adjust successfully to an institutional setting. Incarceration might also undo the gains he has made since being arrested. His risk of reoffending may also be increased by a custodial sentence as he will be in the company of criminals who could lure him back into a criminal lifestyle upon his release.

[26]        I am also told that Mr. Nair’s vehicle, which he was driving at the time of his arrest, has been seized and sent for civil forfeiture. This has a value of approximately $22,000 and is a collateral consequence of his arrest and conviction.

[27]        Mr. Nair personally addressed the court during his sentencing hearing and expressed that he was sorry for the mistakes that he has made. He noted that he has lost his job and his vehicle as a result of these charges and that he had suffered some personal losses at the time of the offence. He said that he is trying to create a better life for himself and his anticipated child.

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

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

[30]        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.

[31]        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.

[32]        As it often does in sentencing cases involving fentanyl, the Crown relies on the expert report of Dr. James Kennedy, an internal medicine specialist. In his report, Dr. Kennedy describes the effects of fentanyl on the human body and the ways in which fentanyl is particularly insidious and dangerous. It is 100 times more potent than morphine. A lethal dose of fentanyl is highly variable and often unpredictable. Even the smallest dose or change in dose of fentanyl is difficult to measure outside of a regulated pharmaceutical laboratory such that a small dose may be greater than thought, with potentially lethal consequences. The mixing of fentanyl with other drugs, whether intentionally or accidentally, increases this risk.

[33]        The Crown also refers to Coroners Service Reports detailing illicit drug overdose deaths and fentanyl detected overdose deaths in BC between 2012 and 2020. The statistics in those reports show a sharp increase in overdose deaths beginning in 2016. The statistics clearly show that this increase is due to the proliferation of fentanyl. There is no question that the fentanyl epidemic has wreaked tremendous damage on families and communities in recent years and continues to do so.

[34]        The Crown relies on a number of cases in support of its sentencing position. The first case is R. v. Oates 2015 BCCA 259. That case involved an offender who was being sentenced for his participation in a dial-a-dope drug operation involving crack cocaine and heroin. The sentencing judge imposed a suspended sentence but on appeal the Court of Appeal imposed a six month custodial sentence. The court found that it is not the offender’s particular role in the dial-a-dope operation that is important but rather it is the structured business model of dial-a-dope trafficking that is sophisticated and brings with it pervasive and pernicious consequences for the community, and accordingly should attract a commensurate sentence. At paragraph 19 of that decision Madam Justice Saunders quotes from R. v. Franklin 2001 BCSC 706:

[35]        In R. v. Smith 2017 BCCA 112 the BC Court of Appeal considered the appeal of a six month sentence for an offender who had pled guilty to possessing cocaine and fentanyl for the purpose of trafficking. The court considered and endorsed a higher sentencing range for trafficking offences involving fentanyl as compared to other hard drugs, given the particular dangerousness of that drug and its impact on the community. The court concluded that the range should begin at 18 months and increase to 36 months or higher, depending on the particular facts of the case. At paragraph 49, Mr. Justice Harris stated:

[36]        In that case the majority nonetheless declined to impose a lengthier sentence on Mr. Smith due to the fact that his offence date occurred prior to their being pervasive awareness of the devastating impact of fentanyl in the community. Madam Justice Newbury in dissent would have imposed an 18 month sentence using the new higher sentencing range.

[37]        In R. v. Johnson 2017 BCPC 251, the offender had entered guilty pleas to five counts of trafficking and possession for the purpose of trafficking in various drugs, which included fentanyl. The case involved a dial-a-dope operation. The offender was 28 years old and was on a conditional sentence at the time of his arrest. He had been diagnosed with bi-polar disorder and was selling drugs to support a drug addiction. He received a sentence of two years, after accounting for pre-sentence custody of 131 days.

[38]        In R. v. Kirton 2018 BCPC 11, an offender was sentenced after pleading guilty to possessing heroin and fentanyl for the purpose of trafficking in a dial-a-dope drug operation. He was 27 years old and had no criminal record. He used cocaine recreationally but was not an addict. He was the father of an 18 month old child and had metis ancestry. He engaged in drug trafficking to supplement the income he was earning as a concrete finisher. The sentencing judge found that there were no exceptional circumstances such as to bring the case outside the sentencing range described in Smith. He further found that the aggravating circumstances, including the profit motivation, the number and frequency of the transactions observed by police – 25 over three days – and the presence of weapons in the vehicle at the time of his arrest, justified a sentence of two years less a day.

[39]        In R. v. Lencucha BCPC (April 18, 2018) Surrey 220885-1, the offender was sentenced after pleading guilty to possessing for the purpose of trafficking a number of drugs, including fentanyl. As in the case before me, the crown sought a sentence of 24 months and the defence sought either a suspended sentence or a 90 day intermittent sentence. Ms. Lencucha was 26 years old, with no prior criminal record. She was previously an addict and was on methadone at the time of sentencing as well as participating in counselling for substance abuse and mental health issues. However, she had completed residential treatment at the time of the offence and was not in active addiction and her participation in trafficking was profit driven. She received a sentence of 24 months.

[40]        In R. v. Davies 2019 BCCA 359 the BC Court of Appeal considered an appeal of a 32 month sentence for possessing cocaine and fentanyl for the purpose of trafficking. The offender was 23 at the time of the offence. He came from a dysfunctional family upbringing and suffered from anxiety and depression, having attempted suicide on several occasions. He began abusing substances, including cocaine and alcohol in his early teens which he continued to use up until the offence, although his usage was not debilitating. At the time of the offence he was subject to a curfew under the terms of a bail order relating to another serious outstanding charge against him. During his 10 months of pre-sentence custody he had made significant progress towards his rehabilitation. He was described as operating at the mid-level of a dial-a-dope drug operation and his involvement was profit driven and ongoing. The 32 month sentence was upheld.

[41]        Lastly, the crown relies on R. v. Choi 2019 BCPC 295. In that case the offender had been convicted at trial of possessing various drugs for the purpose of trafficking, including a mixture of heroin and fentanyl, as a street level dial-a-dope trafficker. He was 21 at the time of the offence and had become involved in trafficking to make money, rather than to support a drug addiction. Following the charges he had moved back in with his parents, became legally employed and had completed significant volunteer work hours. He received a sentence of 18 months in addition to 12 months of probation.

[42]        The Defence relies on a number of cases in support of its position, beginning with R. v. Voong 2015 BCCA 285. In that case the Court of Appeal considered four crown appeals of suspended sentences granted for dial-a-dope drug dealers. 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.

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

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

[45]        Of the four offenders who were the subject of the sentence appeals in Voong, three were found to have demonstrated exceptional circumstances and were given suspended sentences with lengthy probation. 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.

[46]        Exceptional circumstances were found to be present in the case of R. v. Schneider 2019 BCCA 310. In that case the offender had pleaded guilty to trafficking in heroin and fentanyl when he sold a small amount of the substance to an undercover police officer after being approached by the officer who asked to purchase drugs from him. This was not in the context of a dial-a-dope operation. At the time the offender was homeless, living on the streets and addicted to heroin. He was 36 years old and had a lengthy criminal record mostly related to drug issues. He had been repeatedly sexually abused as a child by a person in a position of trust which had led to his drug abuse. By the time of sentencing he had not used illicit drugs for 23 months and was enrolled in a methadone program. He had completed 86 hours of group counselling since the offence, considerably more than had been expected of him. The sentencing judge expressed admiration for his considerable efforts at rehabilitation but held that a significant jail sentence was nonetheless necessary for an offence involving fentanyl and imposed a 20 month sentence.

[47]        On appeal, the court found that it was an error for the sentencing judge to conclude that a lengthy jail sentence is necessary in fentanyl cases despite the existence of exceptional circumstances. The court reiterated that sentencing ranges are guidelines only and not intended to set out a baseline minimum sentence in all cases, regardless of the circumstances. At paragraph 24 the court stated:

[48]        On the facts before it, the court found that Mr. Schneider’s efforts at rehabilitation were truly exceptional and justified a three year suspended sentence with strict probation conditions, which included a curfew for the entire probation period.

[49]        The next case relied on by the defence is R. v. Aguilera Jimenez 2020 YKCA 5. In that case the sentencing judge had imposed a suspended sentence with two years of probation following a guilty plea to possessing cocaine for the purpose of trafficking. The offender was 18 years old at the time of his arrest and had no prior involvement with the criminal justice system. In the two years following the charges he had re-enrolled in school, obtained his high school diploma and found regular employment. He had also distanced himself from negative peers, participated in substance abuse relapse prevention counselling and voluntarily completed 41 hours of community work service. The sentencing judge determined that the offender’s circumstances were exceptional and justified a sentence outside the range generally imposed in such cases.

[50]        The Yukon Court of Appeal agreed with the sentencing judge’s conclusion that exceptional circumstances were established, noting that the object of the criminal justice system is the protection of society, and that it was undesirable to endanger society by removing this youthful first time offender from his stable home environment, jailing him with other offenders and thus placing his ongoing rehabilitation at unnecessary risk. Despite that conclusion, the Court found that two years of probation was insufficiently denunciatory and deterrent in effect and thus rendered such a sentence demonstrably unfit. Accordingly the court increased the period of probation to three years.

[51]        In R. v. Knudsen 2019 BCPC 198, I imposed a suspended sentence with three years of probation on an offender who had been convicted following a trial of possessing controlled drugs, including fentanyl, for the purpose of trafficking. The offender was 25 years old at the time of the offence and had no criminal record. He had a deeply entrenched drug addiction but had nonetheless managed to maintain employment as an electrician for a number of years prior to the offence. Due to the high level of narcotics in his system his doctor expressed concern about whether he would survive detox and in fact he was hospitalized several times while detoxing after his arrest. He subsequently attended a residential treatment program and had been active in his recovery since the offence. In expressing remorse he acknowledged that his arrest may have saved his life given his level of addiction. He had been fully employed since completing residential treatment and intended to return to school to complete his electrician certificate. I found that exceptional circumstances were present as the offender had truly turned his life around since the offence.

[52]        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 which included a curfew and 80 hours of community work service.

[53]        In R. v. Dewat 2019 BCPC 183, 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.

[54]        In R. v. Wong 2016 BCSC 1568 the offender had pled guilty to possessing cocaine for the purpose of trafficking in the context of a dial-a-dope drug line. The offender was 18 years old at the time of the offence. Despite a generally positive upbringing he had connected with negative peers in high school and eventually dropped out of school and drifted into the dial-a-dope business. He was not an addict and his involvement was profit motivated. Since his arrest he had returned to his family and school and completed high school. He had also completed several post-secondary education courses, obtained a marine medical certificate, and had been working full time at a law office. He had the support of his family and had completed some volunteer work prior to sentencing. The sentencing judge concluded that exceptional circumstances were present and imposed a suspended sentence with probation for three years, which included 150 hours of community work service.

[55]        Lastly, the defence relies on R. v. Gill 2015 BCSC 1556. In that case the offender had been found guilty of possessing cocaine, heroin and marijuana for the purpose of trafficking in the context of a dial-a-dope operation. The offender was 19 years old at the time of the offence. He had no criminal record. He was not a drug addict and his involvement in the drug trade was profit motivated. Following the offence he had severed his connection to the drug operation and obtained full time employment as a driver for an airport limousine service. His long-term plan was to attend trade school and become an electrician. He had a close and supportive family. The sentencing judge concluded that exceptional circumstances were present such as to justify imposing a sentence below the usual range. However, the aggravating factors were too serious for a suspended sentence to be appropriate and a 90 day intermittent sentence was imposed.

[56]        While sentencing is guided by statutory sentencing principles, previous cases and sentencing ranges recommended by appellate courts, it is at all times an individualized process. The particular circumstances of the offence and of the offender will determine where a sentence may fit within, or even outside, a sentencing range.

[57]        Sentencing judges, as well as appeal decisions, have repeatedly emphasized that denunciation and deterrence must generally be given primacy in cases involving fentanyl. The principle of rehabilitation necessarily is a secondary, albeit important consideration.

[58]        In the present case there are a number of mitigating circumstances that I must consider. I find those to be the following:

[59]        There are also a number of aggravating circumstances present in this case. Those are the following:

[60]        While not necessarily mitigating, I am also obliged to consider the following facts in determining what is a fit and proportionate sentence for Mr. Nair:

[61]        Turning to the cases relied on by the defence I note that several of them involved offenders who were under the age of 20 at the time of the offence (Jimenez, Joon, Dewat, Wong and Gill). Four of the cases did not involve fentanyl (Voong, Jimenez, Wong and Gill). Of the cases that did not involve teenage offenders, both Knudsen and Schneider were serious addicts who were selling drugs to feed their addiction, and had successfully addressed their addictions by the time of sentencing. Furthermore, neither of the latter two cases involved dial-a-dope operations.

[62]        Ultimately, as noted in Voong, to establish exceptional circumstances, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his life around and that protection of the public is consequently better served by a non-custodial sentence.

[63]        There is no doubt that Mr. Nair has made positive changes to his life since he was charged. His circumstances are indeed sympathetic, particularly in view of the fact that he is soon to become a first time father. However, as noted by the BC Court of Appeal in R. v. Dragani 2018 BCCA 225, “sentencing judges should not conflate “sympathetic circumstances” with “exceptional circumstances” (para 73).

[64]        Upon a careful consideration of all of the circumstances, in this case I am not satisfied that exceptional circumstances are present such as to depart from the typical sentencing range for cases involving the sale of fentanyl. I am however, satisfied that the circumstances justify a sentence at the bottom of the range.

[65]        Accordingly, Mr. Nair you are sentenced to 18 months in custody. Following your release from custody you will be subject to probation for 12 months. The conditions of your probation shall be:

[66]        Pursuant to s. 109 of the Criminal Code you are 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.

[67]        I am also satisfied that while this is a secondary designated offence, pursuant to s. 487.051(3) Mr. Nair will be required to provide a copy of his DNA while in custody.

[68]        There will also be an order for forfeiture of all offence related property pursuant to s. 16 of the Controlled Drugs and Substances Act.