IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Austin Hogan has pleaded guilty to one count of trafficking in heroin, cocaine and fentanyl on January 25, 2019, contrary to s. 5(1) of the Controlled Drugs and Substances Act (“CDSA”).  He is now before the court to be sentenced.

[2]         The Crown is seeking a 22-month jail sentence, to be served in a correctional facility, followed by 12 months of probation.  The Crown also seeks a 10-year weapons prohibition and a DNA order.  The Defence seeks a Conditional Sentence Order of two years less a day, followed by 18-24 months of probation.

[3]         Between December 2018 and the summer of 2019 Coquitlam RCMP were engaged in a drug investigation regarding a dial-a-dope drug line involving the sale of illicit drugs.  During the course of that investigation undercover officers made a number of drug purchases from that drug line, which was associated with the phone number 236-558-3252.

[4]         On January 25, 2019, an undercover police officer called the drug line to purchase some drugs.  He spoke to a male.  The officer asked to purchase “two Q’s of down”, with “down” referring to opiates.  The undercover officer agreed to meet the male at a parking lot outside a restaurant.  When the undercover officer arrived at the agreed upon location, a male individual, who was subsequently identified as Mr. Hogan, approached the officer’s vehicle and got into the front passenger seat.  The officer recognized Mr. Hogan as being the individual from whom he had previously purchased drugs a week earlier. 

[5]         The undercover officer passed Mr. Hogan $80, who handed the officer a baggie, which was subsequently weighed and tested, and found to contain 0.2 grams of a mixture of heroin, fentanyl and cocaine.

[6]         Mr. Hogan was then observed by surveillance officers to get out of the vehicle and get into another vehicle driven by another person.  That latter vehicle was then observed to make a subsequent stop, which appeared to be consistent with drug trafficking.

[7]         The police did not observe Mr. Hogan participating in this drug operation after January 25, 2019, despite the continuation of the investigation for several months thereafter.

[8]         As it frequently does in sentencing cases involving the trafficking of fentanyl, the Crown relies on an expert report dated July 25, 2016, from Dr. James Kennedy, a physician with specialties in internal medicine, clinical pharmacology and toxicology.  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. 

[9]         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.

[10]      The Crown also refers to Coroners Service Reports detailing illicit drug toxicity deaths and fentanyl detected deaths in British Columbia between 2012 and 2022.  The statistics in those reports show a sharp increase in drug toxicity deaths beginning in 2016.  With the exception of a dip in 2019, such deaths have increased every year, with 2232 deaths having occurred in 2021.  The statistics clearly show that this increase is due to the proliferation of fentanyl.  In 2019, the year this offence occurred, there were 982 illicit drug toxicity deaths, over 80% of which involved fentanyl.  There were 94 deaths in January alone, the month when this offence occurred.  There is no question that the fentanyl epidemic has wreaked tremendous damage on families and communities in recent years and continues to do so.

[11]      I have had the benefit of reviewing both a Pre-Sentence Report (“PSR”) and a Psychological Assessment of Mr. Hogan, which were prepared to assist in sentencing.  Those reports reveal that Mr. Hogan has recently turned 24 years old.  He was just 20 years old when he committed this offence.

[12]      Mr. Hogan had a turbulent childhood.  His parents separated before his birth and subsequently put young Mr. Hogan at the centre of ongoing custody battles. He spent the first eight years of his life living with his mother, who struggled with addiction and mental health issues.  When he was eight, the Ministry for Children and Family Development intervened and he was placed with his father and stepmother, with whom he resided for the next six years.  His father also had substance abuse issues and Mr. Hogan describes his father and stepmother as being verbally and physically abusive towards him during that period.  A year after the family moved to Calgary, Mr. Hogan returned to British Columbia to live with his mother again.  He was then 13 years old.

[13]      Life with his mother was chaotic.  She had a number of boyfriends who lived with them, while she was raising a teenaged Mr. Hogan, along with two pre-teen girls and two infants.  Mr. Hogan observed one of his mother’s boyfriends beat her up when she was pregnant.  Conflict between Mr. Hogan and his mother escalated over time, which resulted in him running away several times, for periods of days, and later for weeks and months.  He says that he never felt like he belonged while he was growing up, and acknowledges how the lack of stable and consistent parenting resulted in attachment issues.  When he was 16, he dropped out of school and left home for good.

[14]      After leaving home, Mr. Hogan spent the next five years couch surfing, and living on the street, on the downtown east side, and the Whalley Strip.  The substance abuse issues, which had begun when he was living at home, escalated to the point that he developed addictions to crystal methamphetamine and fentanyl by the time he was 18.  Mr. Hogan estimates that he has overdosed 30 times.

[15]      Mr. Hogan began committing property offences to support his addiction, and consequently began accumulating a criminal record in 2016.  His convictions between 2016 and 2019 include assault, obstructing a peace officer, breaches of supervision orders, and thefts.  

[16]      Mr. Hogan was diagnosed with Attention Deficit Hyperactivity Disorder as a child.  He was treated with medication for a year and then discontinued, saying he was later informed that he did not have ADHD.  However, the psychological report states that his responses to testing are consistent with ADHD in adults.  While he does not report any other psychiatric diagnoses or being treated with psychiatric medications, he does acknowledge an episode of self-harm (cutting), and periods when he has experienced suicidal ideation.

[17]      Given his struggles with addiction and homelessness, Mr. Hogan has a limited history of employment.  He has however, been employed at a liquor store, as well as various retail stores, and teaching Tae Kwon Do.  Most recently, since September 2021, he has been employed full-time with West Coast Manpower, as a carpenter.  He recently left that employment due to uncertainty over his future related to this sentencing.  I understand that he is welcome to return to work there.

[18]      Mr. Hogan has attempted treatment several times.  In 2017 he completed 4.5 months of a treatment program before self-discharging himself prior to completing the program.  The cost of this program was paid for by his paternal grandparents.  He then completed a further one month of residential treatment and progressed to second stage housing in January 2018.  During that time he was prescribed Suboxone as an opiate replacement, at the dosage of 18 mg/day.

[19]      He relapsed in the spring of 2018, which led to him committing further criminal offences and spending a brief period of time in jail.  Following his release from custody, he resided in the Maple Ridge Treatment Centre where he completed a 70 day program and again transitioned to a second-stage recovery house.  While he was residing there he connected with the wife of a man he had recently met while in custody, who offered him a position in the dial-a-dope operation the man was involved in.  Mr. Hogan agreed, and his subsequent involvement in that operation led to these charges.

[20]      Following his arrest on these charges, Mr. Hogan was released on bail but was subsequently arrested for breaching his curfew condition.  He then enrolled in, and completed a six-week daytox program.  His progress has been continuous since completing that program.  He has completed 13 counselling sessions with a substance abuse counsellor between May 2019 and February 2020.  He has not used illicit drugs since early 2019, and has reduced his Suboxone dose from 18 mg/day to one mg/day.  He has maintained stable housing since November 2019 and stable employment since September 2021.  He completed his British Columbia Adult Education Graduation Diploma online during the Covid-19 pandemic.  He has stopped associating with old peers.

[21]      Mr. Hogan describes having close relationships with his siblings and paternal grandparents, the latter having provided significant support in his recovery, including paying for residential treatment.  He continues to see his grandparents once or twice per week.  I note that they provided a supportive letter and attended the sentencing hearing.  They describe his strengths as kindness, generosity, trustworthiness and a strong work ethic.  Mr. Hogan’s relationship with his own parents is more strained, but they both provided supportive letters and attended the sentencing hearing. He also has the support of his sister Emily, as evidenced by her letter of support.

[22]      With respect to the issue of remorse, Mr. Hogan, provided the writer of the PSR with a written letter of apology, in which he expresses a desire to give back to the community that he has taken from by his crimes.  I note however, that the writer of the psychological report indicated that he tended to minimize his actions, saying that he was the one most affected by his drug dealing and that if he did not sell drugs, the drug users would have just obtained drugs from someone else.

[23]      Historically, Mr. Hogan has a poor history of compliance with court supervision, with several instances of breaching conditions.  However, that appears to be related to his addiction and unstable lifestyle as he has been compliant with all court imposed conditions for the past three years, since early 2019.

[24]      Fentanyl and heroin are Schedule I substances, and as such, Mr. Hogan is subject to a maximum term of imprisonment for life.  There is no applicable minimum sentence. 

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

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

[27]      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.

[28]      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.

[29]      For drug-related offences, section 10 of the CDSA further provides that an additional sentencing purpose is to encourage rehabilitation and treatment of offenders in appropriate circumstances, while acknowledging the harm done to victims and the community.

[30]      The Crown relies on five cases in support of its sentencing position.  The first is the leading fentanyl sentencing case from our Court of Appeal – R. v. Smith, 2017 BCCA 112.  In that case, the Court of Appeal endorsed a higher sentencing range for trafficking offences involving fentanyl as compared to other hard drugs, given the dangerousness of the drug, and its impact on the broader 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:

[31]      The Court of Appeal also noted that sentencing ranges are merely guidelines and not straitjackets, and do not create hard and fast categories, or preclude lesser or greater sentences if the circumstances or applicable principles warrant: para. 35.

[32]      The Crown next relies on the case of 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.

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

[34]      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.  I note that in the present case, Mr. Hogan is not submitting that a suspended sentence is appropriate, but rather that a Conditional Sentence is.  Nonetheless, similar factors, although not identical, apply to that analysis.

[35]      The third case relied on by the Crown is the case of R. v. Rutter, 2017 BCCA 193. In that case, the Court of Appeal overturned suspended sentences that had been imposed on two first-time dial-a-dope offenders who had pleaded guilty to trafficking in fentanyl and cocaine.  Both of the offenders were quite youthful, at 22 and 24.  One had a history of addiction but had taken steps to address his addiction after the offence, albeit with some setbacks.  The other offender was not an addict but had been engaged in trafficking to support his educational endeavours.  The Court of Appeal concluded that in both cases a suspended sentence was demonstrably unfit and substituted them with sentences of six months, together with probation.  I note that the offences in the case pre-date the higher sentencing range set out in Smith, but the court nonetheless re-affirmed the Smith sentencing range for cases involving the sale of fentanyl.

[36]      In R. v. Ruiz, 2019 BCCA 323, which is not a fentanyl case, the Court of Appeal considered “exceptional circumstances” in the context of an offender’s sentence appeal involving trafficking in methamphetamine.  His role had been only to provide a ride to an acquaintance who was conducting drug sales.  He was aware of the trafficking activity but did not stand to profit from it. The offender was 40 years old, and had three children, one of whom had autism.  He had no criminal record.  The sentencing judge concluded that exceptional circumstances were not present and ordered that the offender serve a 90-day sentence, to be served intermittently, along with 18 months of probation.  The Court of Appeal concluded that the sentencing judge had not erred, and upheld the sentence.  In doing so Mr. Justice Groberman stated, at paragraphs 18-19:

[37]      The principles expressed by Justice Groberman were re-stated by Justice Fitch in R. v. Choi, 2022 BCCA 90, where he stated that an appellate court should not artificially constrain the ability of a sentencing judge to impose a proportionate sentence by requiring a demonstration of “exceptional circumstances” when departing from a range.  The task of a sentencing judge is not to determine whether the offender has met some ill-defined exceptional circumstances threshold test, but to fashion a proportionate sentence.

[38]      Rather than seeking a suspended sentence, Mr. Hogan’s sentencing submission is that a Conditional Sentence Order (“CSO”) may be a fit sentence. Prior to the British Columbia Supreme Court decision in R. v. Chen, 2021 BCSC 697, which declared s. 742.1(c) and (e)(ii) of the Criminal Code to be of no force and effect, a CSO was not an option available for the offence of trafficking.  Persons convicted of trafficking in a controlled substance could expect to receive a real jail sentence, unless they were able to establish the existence of “exceptional circumstances” to justify a non-custodial sentence, or one that departed from the sentencing ranges set out by the BC Court of Appeal.  Before Chen however, a non-custodial sentence could only be served by way of a suspended sentence, and not a CSO.

[39]      In order to be eligible for a CSO, the offence may not be subject to a minimum term of imprisonment.  There are three further statutory pre-conditions that must be met for a sentence to be served in the community under s. 742.1.  The first is that the sentence must be for a period of less than two years.  Secondly, the court must be satisfied that service of the sentence in the community would not endanger the safety of the community.  The third pre-condition is that such a sentence served in the community would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[40]      The conditional sentence regime was enacted by Parliament to reflect its concerns over the high rates of incarceration in Canada:  R. v. Proulx, 2000 SCC 5, at para. 17.  A properly crafted conditional sentence can still provide adequate denunciation and deterrence. (Proulx, para. 67)

[41]      In a number of sentencing decisions post-Chen, sentencing judges have found that a CSO was a fit sentence on the facts of the particular case.  Those decisions include R. v. Howard, 2021 BCPC 167, R. v. Flintroy, 2021 BCSC 1187, and R. v. Hanson, 2021 BCPC 208.  In each of those cases, the sentencing judge concluded that an application of the sentencing principles could not justify a suspended sentence, but that a CSO was appropriate. 

[42]      In Howard, the 38 year old offender had pled guilty to possessing heroin, fentanyl and cocaine for the purpose of trafficking.  Upon her arrest she possessed significant quantities of drugs, having a street value of over $14,000.  She had a significant criminal record, including a conviction several years earlier for trafficking.  However, since the offence she had made a number of significant changes to her life, including cessation of drug use, maintenance of consistent employment and obtaining a certificate in business marketing.  She was sentenced to a 22 month CSO.

[43]      In Flintroy, the offender had pled guilty to possessing cocaine and methamphetamine for the purpose of trafficking.  She was involved in packaging drugs in a stash house for distribution and was found to be jointly in possession of drugs with a street value of $1,000,000 at the time of her arrest. She had a troubled upbringing and longstanding addiction issues.  However, since her arrest she had begun drug treatment and obtained employment caring for victims of drug overdoses.  The sentencing judge found that she had made uniquely positive strides in her rehabilitation and sentenced her to a 20-month CSO and 12 months of probation. 

[44]      In Hanson, the offender had pled guilty to trafficking in fentanyl and methamphetamine.  This was a one-time, street-level transaction, and not associated with a dial-a-dope operation.  The offender was 35 years old with a history of mental health and addiction issues.  She had a brief unrelated criminal record and since the offence had taken positive steps towards stabilizing her life.  She received a 20-month CSO.

[45]      Although not seeking a suspended sentence, the Defence nonetheless relies on three fentanyl sentencing cases in which the sentencing judge found the existence of exceptional circumstances such as to justify the imposition of a suspended sentence: R. v. Naccarato, 2017 BCSC 645; R. v. Dewat, 2019 BCPC 183; and R. v. Olenik, 2017 BCPC 390.  All were youthful offenders and each one had demonstrated sustained and significant progress in rehabilitating themselves.

[46]      Conversely, in R. v. Gill, 2021 BCSC 2269, the sentencing judge did not accede to a submission for a CSO and instead imposed a custodial sentence of two years plus a day for an offender who was 20 years old at the time he trafficked in fentanyl.  At the time of sentencing he had another conviction for trafficking, for which he received a 13-month jail sentence, although it was not entered until after the date of the offence he was being sentenced for.  The Court held that, in considering the appropriateness of a CSO, the proper approach is to first consider whether a sentence of imprisonment of less than two years is appropriate.  Once that preliminary determination is made, assuming other statutory requirements are met, the sentencing judge should then consider whether a CSO would be consistent with the fundamental purpose and principles of sentencing set out in the Criminal Code, and would not endanger the safety of the community.  The Court concluded that a CSO would not be appropriate in that case, given the dangers to the community that such a sentence would give rise to, and that it would not be consistent with the purpose and principles of sentencing.

[47]      Similarly, in R. v. Stampp, 2021 BCPC 264, a fentanyl trafficking case, I found that the principles of denunciation and deterrence could not be adequately addressed by a CSO and instead imposed a custodial sentence of 12 months, taking into consideration some significantly mitigating circumstances of the offender. 

[48]      Prior to the present sentencing, I sentenced Mr. Hogan’s co-accused, on this indictment, Mr. Hoy, to an 18-month custodial sentence. His personal circumstances were significantly different than those of Mr. Hogan as there was little objective support for his assertions that he had placed his life on a more positive trajectory since the offence.

[49]      In the present case, I find the following to be mitigating circumstances:

[50]      I find the following to be aggravating circumstances:

[51]      The question I must ask is whether a CSO would be a fit sentence in the circumstances of this case. 

[52]      The first of the three statutory pre-conditions for such a sentence has been met, as it is clear that a fit jail sentence would be less than two years. 

[53]      The second pre-condition requires that I be satisfied that service of the sentence in the community would not endanger the safety of the community. In Proulx, at paragraph 69, the Supreme Court of Canada said the following with respect to evaluating whether the community would be endangered:

[54]      In this regard, I am mindful of Mr. Hogan’s history of difficulties with complying with court conditions, which would be an essential component of any CSO.  However, those difficulties appear to be in the past, while he was in active addiction and had an unstable life. His circumstances over the past three years have been very different and I would not anticipate that he would have difficulties complying with court ordered supervision.  As such, I believe that Mr. Hogan serving his sentence in the community would not endanger the community.

[55]      Finally, I must also be satisfied that serving a sentence in the community would be consistent with the purpose and principles of sentencing set out in sections 718 to 718.2.  Upon a consideration of those purposes and principles, I find that a sentence served in the community would adequately address them, and in particular, the principles of denunciation and deterrence.  In my view, while the principles of denunciation and deterrence must be at the forefront, I must not lose sight of the principle of rehabilitation.  There are significant mitigating circumstances in this case, and particularly the objectively verifiable strides taken by Mr. Hogan to lead a pro-social life.  Sending Mr. Hogan to a correctional facility also risks derailing the progress he has made.  Balancing the relevant sentencing principles, I find that a CSO of two years less a day followed by 12 months of probation is a fit sentence.

[56]      Mr. Hogan you are sentenced to a Conditional Sentence of two years less a day.  The conditions of the CSO will be as follows:

[57]      Following completion of the Conditional Sentence, you will be on probation for 12 months.  The conditions of your probation will be as follows:

[58]      Pursuant to s. 109 of the Criminal Code, you are prohibited from possessing:

[59]      This is a secondary designated offence. After considering the factors set out in section 487.051(3) of the Criminal Code, I am satisfied that it is in the best interest of the administration of justice to authorize the taking of samples of bodily substances from you. You must attend at the New Westminster police station at 555 Columbia Street, New Westminster, on Thursday June 2, 2022 at 9:00 a.m. for the taking of such samples.