IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Donna Howard entered a guilty plea to the indictable offence of possessing heroin, fentanyl and cocaine for the purpose of trafficking contrary to s. 6(2) of the Controlled Drugs and Substances Act [“CDSA”].  These are all Schedule I substances.  The maximum sentence is imprisonment for life.  The offence date is 4 November 2016, and the plea was entered on the 15^th of October 2019.  For a variety of reasons, COVID-19 among them, the sentence hearing did not go forward until June 2^nd 2021.

[2]         The Crown cites the 18-36 months or more range for CDSA trafficking offences involving fentanyl established by the Court of Appeal in R. v. Smith, 2017 BCCA 112, and submits that in the circumstances here, the appropriate sentence is 36 month jail. 

[3]         The defence submits that there are exceptional circumstances that justify a non-custodial disposition.  In the alternative, defence counsel submits that on the authority of R. v. Chen, 2021 BCSC 697, a conditional sentence order [“CSO”] is now an available sentencing option in this case.  In that decision, Schultes J. found that Criminal Code sub-sections 742.1(c) and (e)(ii) violate s. 7 of the Charter of Rights and Freedoms and are not saved by s. 1; he declared that both sub-sections are of no force and effect.  Those provisions would otherwise operate to make a CSO unavailable where the matter is prosecuted by indictment and the maximum sentence is 14 years or life, or where the offence involves the trafficking of drugs.  Crown counsel concedes that this court is bound by the decision in R. v. Chen, and that a CSO is therefore an available sentencing option for Ms. Howard.

[4]         On 4 November 2017 (a Friday afternoon) members of the RCMP Drug Unit were conducting pro-active enforcement in a part of Surrey known for drug trafficking.  They observed a vehicle make a series of short duration stops in Surrey and Langley which were consistent with dial-a-dope drug trafficking.  The vehicle was stopped and the two female occupants were arrested.  Ms. Howard was in the passenger seat.

[5]         Ms. Howard told police that she had drugs in her purse which was located inside the vehicle.  The police seized the purse, which contained five dialler bags of drugs, four of which were labeled “Friday”, “day Saturday”, “night Saturday”, and “day Sunday”.  Inside each bag was a sheet that set out an inventory of the contents.  I infer from the labelling on the dialler bags that Ms. Howard had in her possession a supply of drugs intended for sale over the course of the coming weekend.

[6]         I was provided with the total quantities of the different drugs located in all of the dialler bags rather than a bag-by-bag breakdown.  Those figures are as follows:

[7]         After being transported to the Surrey RCMP detachment, Ms. Howard provided a warned statement.  In that statement, she told police that she accepted full responsibility for the drugs located in her purse.  More specifically, she said that she was selling drugs, but the driver was not.  Ms. Howard told police that she did not sell fentanyl because a friend had died from an overdose, and that to the best of her knowledge she did not have any fentanyl in her purse.  She was unaware of anyone overdosing on fentanyl who had purchased drugs from the line she worked for.  Ms. Howard told police that she was a former addict who had cleaned up in jail, was on methadone, and was trafficking drugs because she could not find work.  Counsel for Ms. Howard submits that Ms. Howard was not in fact a recovered addict and that she was selling drugs to fuel her addiction; the information in the PSR supports this version of events, and Crown counsel does not take any different view.

[8]         Ms. Howard is 38 years old and resides near Terrace, BC.  She has a criminal record which runs from to 2006 into 2014, and includes two convictions for impaired driving, break and enter, theft under, and breach of probation.  Most significant with respect to the matter I am dealing with here, Ms. Howard has a 2012 conviction for trafficking in a controlled substance; the disposition for that offence was an 8 month conditional sentence order.  I have not been advised of the circumstances, but Ms. Howard breached that order in 2013 and the CSO was terminated.

[9]         I have had the benefit of a Pre-Sentence Report [“PSR”] which was prepared for the 2012 trafficking matter, and a second PSR prepared for this case in early 2020.  These reports together with several character reference letters and the submissions of counsel have provided helpful background information about Ms. Howard, as well as updates on her progress since this offence was committed in November of 2016.

[10]      Ms. Howard has had a troubled history.  When she was 12 years old her mother started a relationship with a man who was physically abusive towards her and her sisters.  She began to run away from home, spending time on the Downtown East Side of Vancouver where she associated with negative peers.  She left home for good before her 17^th birthday and signed a voluntary living agreement with the Ministry.  She married and had two children who are now 19 and 16 years old respectively.  Ms. Howard separated from their father years ago, then cycled through a series of unhealthy relationships leading up the 2012 trafficking offence; during that time she became addicted to heroin.  Throughout her adult life she has also struggled with bouts of depression, and as a teenager was diagnosed with bipolar disorder.  She has been taking medication for her mental health issues off and on since her late teens.

[11]      The two PSRs tell a similar story of a descent into drug addiction, selling drugs to support that addiction, arrest and prosecution.  The main difference however is that she immediately returned to her addiction and drug trafficking after her sentence for the 2012 offence ended.  Since her arrest for this offence in November 2016 she has made a series of positive changes which have brought about significant improvements in her life and the lives of her children.

[12]      In 2012, Ms. Howard told the PSR writer that she had been selling drugs on the Whalley strip in Surrey.  After her arrest, she reported that she stopped using drugs and entered the methadone maintenance program, but had not participated in any drug counselling or Narcotic Anonymous [“NA”] meetings; she told the PSR writer that she did not think she needed counseling for her drug addiction.

[13]      The second PSR picked up Ms. Howard’s history since her first drug conviction.  She entered into another relationship with someone who also had drug misuse issues; she described this as a drug co-dependency relationship.  She told the PSR writer that after completing her sentence for trafficking drugs she once again took up with negative peers and continued to sell drugs to support her addiction.  She described the time leading up to her second arrest in 2016 as a low period in her life, and that her drug use during that time spiralled out of control.

[14]      Ms. Howard reports that she has not used illicit drugs since January of 2018.  She is still in the methadone maintenance program but on a very low dose; she hopes that before much longer she will able to wean herself off that substance entirely.  As was the case in 2012, she told the 2020 PSR writer that she did not think she required any interventions or supports for her drug problem.  She believes that she has made good progress on her own, and is concerned that counseling might interfere with her employment.

[15]      Despite years of drug addiction, Ms. Howard has managed to successfully hold down a number of jobs.  While working during the day, she attended night classes at BCIT from 2017 to 2019 and obtained a business marketing management certificate from that institution.  After graduation she worked as a marketing/sales representative for an organic grain company.  Ms. Howard has filed a letter from her current employer.  When he offered her a marketing position at his construction company, she told him about her outstanding drug charges.  She was offered the job despite that background, and the employer reports that she is a valued employee who would be greatly missed should the court impose a jail sentence. 

[16]      In this case as in many others, the Crown has submitted statistics which express in numbers the devastating effect the opioid crisis has had in British Columbia.  Of course the toll in human misery and lives lost cannot be understood by mere numbers alone.  Sadly, this crisis continues unabated, as is apparent from documentation filed by the Crown at this sentence hearing, including Dr. James Kennedy’s 2016 report which has been considered many times by sentencing courts in this Province, statistics from the Coroners Service which track illicit drug toxicity deaths in BC from 2011 to March of 2021, and “type of drug” data which clearly links fentanyl or its analogues to the vast majority of overdose deaths in BC.  This crisis had firmly taken root at the time of Ms. Howard’s arrest for this offence in November of 2016.

[17]      The applicable sentencing principles for drug offences are set out in the CDSA at s. 10.  The purpose and principles of sentencing also appear in the Criminal Code at sections 718 and 718.2.

[18]      At the end of the day, my task is to craft a sentence which recognizes the fundamental principle of proportionality.  A proportionate sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender.  Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity and nature of the offence, the blameworthiness of the offender, and the harm caused by the crime:  R. v. Nur, 2015 SCC 15, para. 43.

[19]      Denunciation and deterrence are the primary principles when sentencing an offender for offences related to drug trafficking.  As such, those who engage in trafficking, absent exceptional circumstances, can expect a custodial sentence: R. v. Smith, 2017 BCCA 112; R. v. Voong, 2015 BCCA 285; R. v. Creuzot, 2017 BCSC 1075.  While these principles are paramount in cases of this type, the court must not fail to consider as well that “one of the main objectives of Canadian criminal law is the rehabilitation of offenders” which assists the court to impose a sentence in any given case which is “just and appropriate”:  R. v. Lacasse, 2015 SCC 64 at para. 4; see also R. v. Schneider, 2019 BCCA 310 at paras 10-11.

[20]      In R. v. Smith, 2017 BCCA 112 at paragraph 45, the Court of Appeal set a new range for a first offence of street level trafficking in fentanyl.  The court set the bottom of the range at 18 months.  The court did not specify the top of the range, but found that it might exceed 36 months, “especially where the offender has a substantial record involving the sale of fentanyl or otherwise demonstrates an indifference to the human lives he or she is putting at risk.”  The court also noted that a different range may apply “where the offender is higher up the chain of sale or distribution.”  (Also see R. v. Rutter, 2017 BCCA 193 at paras 3-4).

[21]      In setting the range of sentence for street level trafficking in fentanyl the court in R. v. Smith noted that ranges are not hard and fast categories.  They are not intended to set a baseline minimum sentence in all cases, regardless of the circumstances, and they do not preclude lesser or greater sentences if warranted.  Sentencing is an inherently individualized process.  No two offenders are identically situated.  There is no such thing as a uniform sentence for a particular crime.  A sentence outside the usual range can be imposed so long as it is in accordance with the principles and objectives of sentencing: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500; R. v. Lacasse, 2015 SCC 64; R. v. Smith, supra, at paras. 35, 43 and 46; R. v. Williams, 2019 BCCA 295; R. v. Padda, 2019 BCCA 351.

[22]      Our Court of Appeal in R. v. Williams, supra, described the sentencing range approach which has been employed in this Province for some time:

[23]      The British Columbia Court of Appeal has long recognized that rehabilitation is an important sentencing goal.  In R. v. Voong, 2015 BCCA 285, the Court of Appeal considered four Crown appeals of dispositions which fell below the usual range for street level drug dealers.  After finding that the range for first time offenders or offenders with a minor criminal record was 6-18 months jail, the court turned to the question of exceptional circumstances which might permit a court to impose a non-custodial sentence:

[24]      At paragraphs 39-43 of Voong, the court also noted that supervised probation is a restraint on the probationer’s freedom, and that the sentencing principles of deterrence, denunciation and protection of the public might be given effect by a suspended sentence.

[25]      With these principles in mind, I note that there are several aggravating factors in this case:

[26]      There are also a number of important mitigating factors which enter the mix:

[27]      I have carefully considered defence counsel’s submission that a suspended sentence with restrictive conditions would be fit in this case.  I agree that R. v. Schneider, supra, is authority for the proposition that a prior conviction for drug trafficking does not automatically make a non-custodial disposition unavailable for a subsequent trafficking or PPT conviction.  I also agree that Schneider makes it clear that trafficking fentanyl is not in and of itself a bar to a sentence below the range in R. v. Smith, or even a non-custodial sentence in appropriate circumstances.  However, the offender’s circumstances and the nature of the offence in R. v. Schneider are distinguishable from the case I am dealing with here.  In Schneider, the offender, who had a lengthy record that included convictions for drug trafficking, had resided at a recovery house for some 17 months prior to sentencing, and had also completed many hours of group counseling.  It was apparent that Mr. Schneider was making progress with his recovery from drug addiction.  The offence was committed when an undercover officer observed Mr. Schneider smoking heroin with another person; the UCO approached him and made a $20 purchase from the same stash of drugs that Mr. Schneider was using.  The drugs purchased by the UCO turned out to be a mix of heroin and fentanyl.  The court found that “this conduct was relatively low on the scale of moral blameworthiness” when viewed within the context of Mr. Schneider’s lifelong addiction to drugs which started after childhood sexual abuse.  The court substituted a three year suspended sentence for the twenty month jail term imposed by the sentencing judge.

[28]      Ms. Howard was working as a dial-a-dope drug trafficker in 2012, was caught prosecuted and sentenced for that offence, then returned to the same conduct.  By her own admission, on both occasions she became immersed in the dial-a-dope style of drug trafficking in order to support her own addiction.  She told the PSR writer in 2012 that she was ready to leave this life behind, but she was unable to do so primarily because, despite her own best efforts, she was not able to get her addiction under control.  I accept that Ms. Howard has done much better since 2016, and that she has managed to abstain from the consumption of illegal drugs since early 2018.  But again she has refused to pursue programing, counseling, residential treatment or other supports during her most recent recovery despite her inability to deal with this problem on her own following the 2012 conviction.

[29]      It is particularly troubling that the dialer bags Ms. Howard was holding contained counterfeit OxyContin pills that contained fentanyl.  These pills would have been particularly dangerous for the unwary street drug user, as well as for those who are not experienced consumers of street drugs.

[30]      I find that the level of moral blameworthiness for this drug trafficking conduct is considerably higher than it was for the offender in R. v. Schneider.  And while I applaud her efforts to put her drug addiction behind her and bring stability to her own life and the lives of her children, there remains a concern that Ms. Howard has not yet pursued the help she needs to fully, and finally, leave her previous life behind.  This aspect of her history, together with the relatively high level of moral blameworthiness arising from the circumstances of the offence itself, and her return to the dial-a-dope drug trade after her prior conviction, lead me to conclude that a suspended sentence would not be a fit disposition in this case.

[31]      I have also considered a CSO and have come to a different conclusion.  As noted earlier, in light of the ruling in R. v. Chen a CSO is now available as a sentencing option for this offence.  The statutory pre-conditions for imposing a CSO are that the jail sentence imposed must be for less than two years, and the court must be satisfied that service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code.

[32]      In R. v. Proulx, 2000 SCC 5, the Supreme Court of Canada distinguished a CSO from probationary measures, and observed that Parliament intended conditional sentences to include both punitive and rehabilitative aspects.  The court suggested that for this reason a CSO should generally include punitive conditions that are restrictive of the offender’s liberty.  The court also found that a CSO fashioned in this way can provide significant denunciation and deterrence, while at the same time achieving the restorative objective of rehabilitation.

[33]      While I appreciate that the range in R. v. Smith falls on either side of the divide, I am satisfied that a penitentiary term is not required in this case.  I have concluded that the mitigating factors I have identified carry it into the lower end of the Smith range.

[34]      I am also satisfied that Ms. Howard can be supervised in the community without endangering the safety of the community.  In coming to this decision, I have considered the progress she has made on her own since this offence was committed.  I find that in these circumstances, a CSO with appropriately punitive conditions together with conditions aimed at assisting and guiding her recovery from drug addiction will be sufficient to protect the public.

[35]      Finally, I have also concluded that with punitive conditions that provide a sufficient level of denunciation and deterrence a CSO would be consistent with the purpose and principles of sentencing.

[36]      You must comply with a conditional sentence order for a term of twenty two months.  The conditions are:

[37]      Convictions under s. 5 of the CDSA trigger a mandatory firearms prohibition under s. 109 of the Criminal Code.  You are prohibited from possessing any firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, ammunition, and explosive substance for life.

[38]      This is a secondary designated offence for DNA purposes, so an order under s. 487.051(3) is discretionary.  I am satisfied that it is in the best interest of the administration of justice to make an order authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank.

[39]      There will also be an order for forfeiture of all offence related property seized by police in this case pursuant to s. 16 of the CDSA.  Counsel will consult with each other with respect to the items to be included in this order.  If counsel cannot agree the matter can be brought back before me.

[40]      The Victim Fine Surcharge was in effect when this offence was committed.  Ms. Howard is employed and I am satisfied that payment of this surcharge would not be a hardship, so I will make that order as well.