IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Tysson Schuler has entered guilty pleas to counts 1 and 15 on Information 236393-2, trafficking cocaine and Alprazalam (Xanax) contrary to section 5(1) of the Controlled Drugs and Substances Act (“CDSA”), and possessing cocaine for the purpose of trafficking (“PPT”) contrary to section 5(2) of that Act.  The trafficking count captures eleven separate sales to an undercover police officer between October 4, 2018 and May 14, 2019.  Smaller quantities of cocaine were sold at the outset, leading up to a series of ounce and multi-ounce transactions.  Mr. Schuler was arrested on the 14^th of May following completion of a three ounce sale.  Police executed a search warrant at his residence and located additional cocaine and drug trafficking paraphernalia which forms the subject matter of the PPT count.

[2]         The maximum sentence for both of these offences is imprisonment for life.

[3]         The guilty pleas were entered on the 22^nd of February 2021.  A sentence hearing scheduled for earlier this year was adjourned following release of the decision in R. v. Chen, 2021 BCSC 697.  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 Conditional Sentence Order (“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 an available sentencing option for Mr. Schuler.

[4]         Counsel also agree that the applicable sentencing range for a first offender trafficking cocaine at the ounce level is 15-36 months jail:  R. v. McKay, 2019 BCSC 1112 at paras. 38 and 45.  Mr. Schuler is not a first time drug offender.  Crown counsel submits that I should impose a sentence of 24 months real jail.  Defence counsel submits that a fit sentence would be a CSO in the range of 18-24 months, or in the alternative, a jail sentence of 12-15 months.

[5]         Mr. Schuler first came to the attention of police on October the 4^th, 2018, when he took a call from police on a known drug line.  He agreed to sell 3.5 grams of cocaine and 12 Alprazolam (Xanax) pills; he met the undercover officer (“UCO”) at the King George SkyTrain to complete the sale in exchange for $300.  Another call was made and a second sale of 3.5 grams of cocaine at the same location followed on the 10^th of October. 

[6]         The UCO called the drug line on the 20^th and 25^th of October and discussed the purchase of half an ounce of cocaine.  Arrangements were made to meet for the half ounce transaction at the King George SkyTrain on the 25^th of October.  When Mr. Schuler approached the UCO at the station he was holding hands with a young boy who appeared to be 5-7 years old.  Mr. Schuler positioned the child about 10 feet away from his meeting with the UCO, where he handed over a clear plastic baggie containing 14.04 grams of cocaine in exchange for $1,030.

[7]         Subsequent text messaging between Mr. Schuler and the UCO included discussions about purchasing cocaine in larger quantities.  With the exception of a sale at a Tim Horton’s on 12 February 2019, all subsequent transactions took place in and around the King George SkyTrain Station:

[8]         When police executed a search warrant at Mr. Schuller’s residence following his arrest on the 14^th of May they found 26.59 grams of cocaine, drug packaging materials, brass knuckles, switchblades, an orange starter pistol and taser flashlight.

[9]         I have had the benefit of a Pre-Sentence Report (“PSR’), a collection of reference letters, a report from a counsellor who has been treating Mr. Schuler and a letter from a treating psychiatrist, letters from employers, and the submissions of counsel.

[10]      Mr. Schuler is 33 years old.  He is currently residing with his maternal grandmother in Surrey.  His parents separated when he was very young, and his biological father has not had any contact with him since he was 7 years old.  His mother, Lorraine, married Garrett Steen, who took on parental responsibilities for Mr. Schuler and his three siblings.  Mr. Steen reports that Mr. Schuler’s mother had addiction issues; they separated in 2004.  Mr. Schuler reports that his mother then entered into a series of common-law relationships and that he moved back and forth between his maternal and paternal grandparents.  At some point after 2004, he lived with Mr. Steen; he left that home when he was 14 years old in what Mr. Steen described as “an act of rebellion.”

[11]      Mr. Schuler told the PSR writer that he began selling drugs when he was 17; he added that he did not graduate from high school because of his involvement in the drug trade.  Of note is the fact that Mr. Schuler reports that he is not a drug user himself.

[12]      Mr. Schuler has had a spotty work history.  After high school he worked in a variety of jobs, including construction, customer service, and as an alarm installer.  More recently, he worked for Eagle Eye Construction in Gibsons as a carpenter’s helper.  He left that job in March of this year but his employer has written a letter to the court confirming there is still work available for him.  He is now doing renovation work for a company in the lower mainland; his employer has confirmed that arrangement in a letter to the court.

[13]      Mr. Schuler’s common-law relationship of five years ended recently.  He brought his partner’s then 7 year old child to the 25 October drug transaction described earlier.

[14]      I have reviewed letters from Dr. Strating, a psychiatrist employed by Sunshine Coast Health & Addiction Services, who speaks positively about Mr. Schuler’s recent efforts to improve his mental health.  I also have a reporting letter from Paul Bains, who is a registered clinical counsellor.  Mr. Bains reports that he began meeting with Mr. Schuler in May of 2019, and that there have been 28 sessions along the way.  He says that Mr. Schuler has expressed a deep commitment to changing his life, and has acted on that commitment with the support of family, friends, and his pastor.

[15]      Mr. Schuler has a criminal record which includes convictions for breaching a probation order, flight from police, dangerous operation of a motor vehicle, and obstructing a peace officer in the execution of their duty.  Most significantly he has two prior CDSA convictions.  The first was a youth PPT conviction in 2007 for which he received a sentence of 1 year probation.  The second was trafficking in a controlled substance with a November 2013 offence date; on 29 August of 2016 he was sentenced to serve a 90 day intermittent jail sentence and was placed on probation for two years.  The probation order for this offence expired a little over one month before Mr. Schuler completed the first UCO drug sale in this case.

[16]      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.

[17]      At the end of the day, I am tasked with crafting 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.

[18]      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.  I am also mindful of the principle of restraint, best reflected in sub-sections 718.2(d) and (e) of the Criminal Code.

[19]      I agree with counsel that the usual range of sentence for multi-ounce traffickers is 15-36 months jail.  I also remind myself 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, supra; R. v. Smith, 2017 BCCA 112, paras. 35, 43 and 46; R. v. Williams, 2019 BCCA 295; R. v. Padda, 2019 BCCA 351.

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

[21]      I have considered the following aggravating circumstances:

[22]      I have also considered a number of mitigating circumstances:

[23]      The first issue for determination is whether a CSO would be an appropriate sentence in this case.  As noted earlier, in light of the ruling in R. v. Chen, a CSO is now available as a sentencing option for CDSA trafficking offences.

[24]      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.

[25]      The statutory pre-conditions for imposing a CSO are set out in s. 742.1 of the Criminal Code.  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.

[26]      The Crown asks that I impose a 24 month jail sentence, one day beyond the 24 months less a day requirement for a CSO.  The accepted range of 15-36 months jail falls on either side of that divide.  I am satisfied that a sentence of less than two years would be a fit sentence in this case.

[27]      I am also satisfied that Mr. Schuler has demonstrated by his conduct since May of 2019 that service of this sentence in the community would not endanger the safety of the community.  I accept that he has made a decided turn away from the criminal behaviour which has been a central them in his life since he began to traffic drugs at the age of 17.

[28]      The central question here is whether a CSO in this case would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code.

[29]      In deciding this issue I have considered a number of authorities tendered by Crown and defence counsel.  These include the following:  R. v. Sandher, 2008 BCSC 263 (a case that was decided before amendments to the Code removed CSOs as a sentencing option in drug trafficking cases); R. v. Charlie, 2008 BCCA 44; R. v. Abude, 2016 BCSC 543; R. v. Basit, 2014 BCSC 868 and; R. v. Olson and Pennell, 2013 BCSC 2238.

[30]      In Sandher, the court declined to impose a CSO for an accused who engaged in four separate dial-a-dope sales to a UCO, the third of which was a one ounce sale of cocaine after which he was arrested and released, followed by a four ounce sale to another UCO on the following day.  The sentencing judge rejected a defence submission that Sandher was “just a delivery boy.”  The accused was 28 years old with no record; the court imposed an 18 month jail sentence.

[31]      Defence counsel relies on R. v. Charlie, supra, where the Court of Appeal upheld a second drug trafficking CSO for an offender who was serving a CSO for the same conduct when the new offence was committed.   Mr. Charlie was an Indigenous person who had been successfully serving his sentence in the community for some time before the appeal was heard.  The court expressed reluctance to return Mr. Charlie to jail when he had made positive steps in his life, and said that it was “on this basis alone” that the Crown’s appeal was dismissed:  R. v. Charlie, supra, at para. 35.

[32]      I accept that the decision in R. v. Abude, supra, makes it clear that a CSO may be available for a first time offender who has engaged in a series of undercover drug sales even though a CSO was not imposed in that case for reasons which are not pertinent here.

[33]      The CSO imposed for importing in R. v. Basit, supra, is distinguishable because it was a plea following a hung jury and the defence advanced at the first trial was duress.  The sentence was imposed some four years after the offence was committed, and the defence of duress was taken into consideration as an extraordinary or extenuating mitigating circumstance at sentencing; the court made it clear that but for that factor, a CSO would not have been appropriate for the offence of importing a controlled substance:  R. v. Basit, supra, at paras 45-46 and 59.

[34]      The decision in R. v. Olson and Pennell, supra, where CSO’s were imposed for drug trafficking offences is also clearly distinguishable.  Both accused had addiction issues.  Olson had a prior record, but no prior drug convictions, and Pennell had no record at all.  While this was not a joint submission, the Crown at the sentence hearing pointedly did not oppose a CSO for both offenders.

[35]      Returning to the case at bar, I have concluded that a CSO for this offender and these offences would not be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code.  I note in particular his prior convictions for similar conduct, the escalating nature of the 11 drug transactions, their close proximity to the end of a probation order imposed for the 2016 drug trafficking conviction, that this was a purely commercial enterprise as Mr. Schuler was not an addict selling to support his drug habit, and his decision to involve a 7-year-old child in one of these sales.  Assessing his conduct overall, I find that his moral blameworthiness falls at the higher end of the scale.  While Mr. Schuler has taken steps to change his life, I find that in these circumstances rehabilitation must be afforded less weight than the sentencing principles of denunciation and deterrence.

[36]      I have carefully considered the case authorities referred to earlier, and two additional cases tendered by the Crown that deal more directly with the jail term that might be appropriate here.  In R. v. Deol, 2019 BCSC 1879 and R. v. Sidhu, 2019 BCSC 2388, Riley J. sentenced co-accused separately after guilty pleas were entered mid-trial.  Both had criminal records, but not for drug convictions, and were involved jointly in 11 ounce-level undercover sales of cocaine ending with a 20 ounce transaction.  Mr. Justice Riley J. found that Deol and Sandhu were “principals involved in cocaine sales straddling the street-level and the mid-level of distribution”; he applied the range in R. v. McKay and sentenced each of them to 21 months jail.

[37]      The Crown argues that Mr. Schuler was also more than a mere street-level trafficker, while also acknowledging that he told the UCO that he had a boss and had to obtain supplies from others.  It is clear that Mr. Schuler was well connected with others who were able to provide ounces of cocaine on relatively short notice, but I cannot find that he was anything more than the street-level end of that organization.

[38]      But for the positive steps Mr. Schuler has taken since his arrest in May of 2019 and the evidence of strong community support submitted at these proceedings, I would have no problem acceding to the Crown’s submission - more or less given my earlier finding on the applicability of a CSO - that I should impose a 24 month jail sentence.

[39]      Taking into account these mitigating factors and the principle of restraint, I find that the appropriate sentence for each count is 20 months jail, concurrent one to the other.

[40]      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.

[41]      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.  The samples will be taken from you while you are in custody and you must submit to the taking of samples.

[42]      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.

[43]      I am waiving the Victim Fine Surcharge.