IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Ryan Patrick pled guilty to two counts of possessing drugs for the purpose of trafficking and one count of possessing a weapon for a purpose dangerous to the public peace. Counsel agree that a custodial sentence is appropriate; however, they diverge on the appropriate length. The task for this court is to identify a fit sentence.

[2]         On December 17, 2018, the Vancouver Police executed a search warrant at a single room occupancy building on Richards Street in Vancouver and they recovered the following:

[3]         Mr. Patrick is 32 years old. He was born in Ontario and raised by a single mother who married when he was four years old. Mr. Patrick has the support of his mother and stepfather, who live in Ontario. Mr. Patrick has no contact with his biological father and limited contact with his stepbrothers.

[4]         Growing up, Mr. Patrick had difficulty in school and by the time he was in his teens he had frequent contact with the justice system for offences including; robbery, dangerous driving, assault with a weapon and theft. Mr. Patrick attributes his criminal behavior to drug use, negative peers, a lack of concern for self and others, and poor problem solving skills.

[5]         According to Mr. Patrick’s mother, she became overwhelmed in trying to manage him as a teenager, therefore, and with the intention of helping him receive more support, she surrendered him and he was placed into foster care. While in care, Mr. Patrick attended various programs including “Hats Off – Residential Treatment Centre”.

[6]         Despite being in care, Mr. Patrick was regularly involved with the justice system. Unfortunately, this pattern continued into adulthood when he accumulated convictions for; aggravated assault, assault, possession of a weapon, robbery, and drug possession. His last conviction was in 2013.

[7]         In terms of mental health, it was noted in the psychological assessment that Mr. Patrick had been diagnosed with ADHD and that he suffered abuse between the ages of three to nine years. It is Mr. Patrick’s view that the abuse made him defiant and contributed to his anti-social behaviour.

[8]         As for work and education, Mr. Patrick completed grade 12 when he was 19. He has worked as a skilled labourer and he is an experienced carpenter’s helper and roofer. He changed jobs frequently and he acknowledges his substance abuse interfered with his ability to work and as his use increased he would resort to illegal activity as a means to raise funds.

[9]         When asked about his offences, Mr. Patrick commented he was living in a building “full of addicts” where overdoses were a common occurrence. Now, and with the clarity of sobriety, Mr. Patrick recognizes his actions were wrong and he believes his addiction, corresponding street entrenchment and connection to the drug culture prevented him from recognizing the wrongfulness of his actions. Notably, Mr. Patrick did not express concern to the writer of the Pre-Sentence Report for the harm he may have caused those who purchased drugs from him.

[10]      Mr. Patrick’s Pre-Sentence Report and the psychological assessment confirms his substance misuse is the primary driver to his criminal conduct. Mr. Patrick started using marijuana when he was 14 and by 22, he was using cocaine regularly. Then, and after moving to Vancouver, he started using heroin. Thereafter, he progressed to using heroin every day for six years. According to Mr. Patrick, he was a functioning addict and his family and friends had no idea that he was using.

[11]      To Mr. Patrick’s credit, he has pursued sobriety on several occasions. He has attended various detox centres, he has sought help from his family, he has tried methadone, and he is currently taking Suboxone. Although, Mr. Patrick has not taken any programs while in custody, he remains committed to achieving his sobriety the primary reason for this is he appreciates that sobriety is critical to him accessing his children.

[12]      Although, some may be suspicious of Mr. Patrick’s claim of being committed to his sobriety, I accept his statement because, his hope for sobriety is evidenced by his previous attempts; moreover, sobriety is necessary before he can see his children; and finally, the Personality Assessment Inventory suggests Mr. Patrick is interested in and motivated for treatment.

[13]      According to the psychological assessment, Mr. Patrick is not suffering from any major mental illness. He has an opioid use disorder and a stimulant use disorder. Dr. Kropp, the author of the psychological assessment, opines that Mr. Patrick is vulnerable to relapse if he returns to a high-risk environment or if he is in a relationship with an active drug user.

[14]      Turning to Mr. Patrick’s social network, Mr. Patrick was in a long-term relationship with Ms. Sloan, his co-accused, and she has long-standing substance use challenges. Together, they have a daughter and Mr. Patrick has been a father to Ms. Sloan’s young son. While in custody, Mr. Patrick has had phone and video contact with the children. Once out of custody, Mr. Patrick hopes to reunite with his children. The Ministry will consider access provided Mr. Patrick shows a significant period of stability, sobriety, and cooperation with the Ministry.

[15]      In terms of future plans, Mr. Patrick wants to obtain his welding certification and work as a welder. Also, and because access to his children depends on it, Mr. Patrick is prepared to address his challenges by engaging with medical supports including counselling and treatment. In fact, while in custody, Mr. Patrick has been engaging with the health team and he is trying medication intended to assist with his ADHD. He has also put in a request to connect with a team of nurses, doctors, and psychologists in order to obtain assistance with his mental health and addiction challenges. Then, and once stabilized, Mr. Patrick plans to move with his children to Ontario so he can be closer to family supports.

[16]      It is noted that Mr. Patrick performs best when he is supported. In this regard, with the help of his mother, he returned to Ontario for a period, he entered treatment, he maintained sobriety for approximately 15 months, and he enrolled in a school program. This observation aligns with Dr. Kropp’s recommendations of; continued opioid agonist treatment, access to residential treatment and continued psychological treatment or counselling. Lastly, Dr. Kropp notes Mr. Patrick’s success will be dependant on his motivation to avoid high-risk environments and other drug-using or antisocial associates.

[17]      The Crown submits a global sentence of three years less time served is appropriate, and breaks down the sentences in the following manner: Count 1, fentanyl, three years; Count 2, cocaine, 1½ years; and Count 4, weapons, six months, with all sentences served concurrently. The Crown argues the location, the nature of the drugs and the quantities justifies a three-year sentence. The Crown relies on R. v. Parranto, 2021 SCC 46, R. v. Smith, 2017 BCCA 112, R. v. Mann, 2018 BCCA 265, R. v. D’Allesandro, 2019 BCSC 1810, and R. v. Lockhart, 2021 BCSC 1226.

[18]      Counsel for Mr. Patrick argues a global sentence of 20 months less time served is appropriate, and he breaks down the sentences in the following manner; 20 months for the fentanyl count, 12 months for cocaine count and four months for the weapons’ count, with all sentences served concurrently. In support, counsel points to Mr. Patrick’s personal circumstances including his ADHD, his previous trauma and his addiction.

[19]      In R. v. Lacasse, 2015 SCC 64 at para. 1, the Supreme Court of Canada observed, “…sentencing is one of the most delicate stages of the criminal justice process in Canada.” The Court then went on to note that sentencing is more of an art than a science, involving the balancing of multiple factors including the objectives and principles as set out in the Criminal Code: at para. 1. Notably, the ultimate goal of sentencing is a fair, fit and principled sanction: R. v. Parranto, 2021 SCC 46 at para. 10.

[20]      Sections 718 – 718.2 of the Criminal Code sets out factors that a judge must consider when identifying a fit sentence. Guidance is also found in section 10 of the Controlled Drugs and Substances Act, where the purpose of sentencing and factors that shall be considered when imposing a sentence related to drug offences are set out. Specifically, the section indicates the purpose of any sentence imposed is to protect society and contribute to respect for the law and the maintenance of a just peaceful and safe society and for offences involving drugs, it includes encouraging rehabilitation and treatment in appropriate circumstances.

[21]      Further to the above, it must be recognized that proportionality is a fundamental principle of sentencing. Simply, the sentence imposed must be proportionate to the serious of the offence and the degree of offender responsibility. In Lacasse, the Court commented on how proportionality is determined:

[22]      Further relevant sentencing principles that must be considered include; adjustments for the aggravating and mitigating factors, other similar sentencing decisions, and the principle of restraint.

[23]      Drug trafficking offences requires a sentence that denounces and deters. Simply, the sentence imposed must communicate society’s abhorrence for Mr. Patrick having breached societal rules. The sentence must also inform those who sell or possess drugs for the purpose of trafficking, that they will be dealt with harshly and absent significantly reduced culpability, a jail sentence will likely follow: R. v. Voong, 2015 BCCA 285.

[24]      Despite the importance of denunciation and deterrence, I am mindful of Mr. Patrick’s rehabilitative prospects. On the one hand, he has a long standing, deeply entrenched addiction to opioids, on the other hand, he is motivated, he has family support, and he has previously obtained periods of sobriety.

[25]      Turning to the issue of proportionality. The seriousness of Mr. Patrick’s offences cannot be overstated. On this point, the Supreme Court of Canada in R. v. Parranto, 2021 SCC 46 at para. 87 commented:

[26]      Further to the above, the social and personal harm caused by fentanyl is staggering. Thousands have died and many more have become disabled. Fentanyl has overburdened emergency responders and health care professionals in that on a daily basis if not hourly, they assist a multitude of persons in the throes of overdosing on fentanyl.

[27]      As for Mr. Patrick’s moral culpability, I note he had the wherewithal to acquire the drugs, conceal them and engage in their distribution, this suggests a heightened degree of culpability. Despite this, Mr. Patrick’s individual circumstances serve to slightly reduce his culpability. In this regard, I find his childhood trauma likely contributed to his drug use, he was significantly addicted at the time of his offence, and he was selling to sustain his addiction.

[28]      As for the aggravating and mitigating factors, it is aggravating that Mr. Patrick possessed Schedule 1 drugs for the purpose of trafficking. Specifically, the drugs involved were addictive and deadly. The quantities involved and the presence of weapons is also aggravating. Lastly, I find the environment where Mr. Patrick’s offences occurred to be aggravating. In this regard, his offences occurred in a SRO (single room occupancy building) where some of society’s most vulnerable live. On this point, I am guided by Parranto, where the Court stated at para. 70:

[29]      Turning to the mitigating factors, Mr. Patrick’s guilty plea is mitigating. The plea has saved court time and it has avoided taking front line officers off of the streets in order to testify. The plea is also an acknowledgment of wrongdoing and it displays some remorse. Finally, Mr. Patrick’s preparedness to give a statement to the authorities, coupled with his family support, is mitigating.

[30]      I have considered the relevant sentencing authorities. In doing so, I appreciate sentencing is an individualized exercise where the unique circumstances of the offender is highly relevant. Despite this, the authorities are of assistance and in this regard, I acknowledge the range for fentanyl offences starts at 18 months and possibly exceeding 36 months, especially were the offender has a related record or has demonstrated an indifference to the lives of persons he has put at risk: R. v. Smith, 2017 BCCA 112 at para. 45.

[31]      In D'Allesandro, the offender was convicted after a trial and he received a four-year sentence for possessing heroin and fentanyl for the purpose of trafficking and 18 months concurrent for possessing cocaine and methamphetamine for the purpose of trafficking. The offender was charged after the police executed a warrant at his residence, which was in a building for vulnerable persons. In the residence, the police located 21.7 grams of heroin/fentanyl mix, 5.83 grams of methamphetamine, and 9.71 grams of cocaine. Also located was approximately $25,000. The offender was 40, he had a long-standing drug addiction and he had a lengthy criminal record with three previous convictions for possession for the purpose of trafficking.

[32]      In Lockhart, the offender was convicted after trial of two counts of trafficking; fentanyl and a fentanyl/heroin mix, and he received concurrent 26-month sentences. The offender was charged after making two drug sales in a location well known for drug trafficking. Each sale was for $20, he lacked sophistication and according to the sentencing judge, he targeted the disenfranchised. The offender was 39, unemployed and at the time of the offence, he was addicted to heroin; however, at the time of sentencing, the offender had been sober for 11 months. The offender had a criminal record with 14 convictions including possession for the purpose of trafficking.

[33]      The sentence I impose must denounce and deter, and per Smith, I conclude the appropriate range is between 18 months and beyond 36 months. In considering the authorities provided, I recognize Mr. Patrick pled guilty, and unlike D'Allesandro, there is no evidence that he was amassing a significant amount of cash, nor, does Mr. Patrick have previous trafficking related convictions. I also note, Mr. Patrick’s operation was slightly above street level and it lacked sophistication. I find the presence of weapons and the context wherein he committed his offences to be concerning. Nevertheless and to Mr. Patrick’s credit, he pled guilty, he has family support and he cooperated with the authorities.

[34]      With the above in mind, I impose the following concurrent custodial sentences:

[35]      In terms of pre-sentence time in custody, Mr. Patrick will be credited with 521 days and adjusted he is credited with 17 months, 2 weeks. Accordingly, he has a balance of 6 months, 2 weeks left to serve and in order for him to remain close to his supports and away from the downtown eastside, it is the recommendation of this Court that he serve his sentence at Prince George Regional Correctional sentence.

[36]      Finally, and with respect to the sentences impose, I declined to accede to the Crown’s submission of a 36-month sentence because I do not see Mr. Patrick’s conduct as falling at the higher end of the range. Simply, he has reduced culpability, he was drug addicted, his offending lacked sophistication, he was trafficking to feed his addiction, he was operating at just above street level and he pled guilty to the offences.

[37]      As for defence counsel’s suggestion of 20 months, I am of a view that such a sentence would not be proportional to the seriousness of the offences. This is because of the quantities, the nature of the drugs, the presence of weapons and the area where the offences occurred.

[38]      Pursuant to s. 487.051 of the Criminal Code, I order that Mr. Patrick provide a sample of his DNA.

[39]      Pursuant to s. 109 of the Criminal Code, Mr. Patrick is prohibited from possessing firearms and all other items in that section for life.

[40]      Mr. Patrick has been unemployed and in custody for a lengthy period of time. As such, to impose a victim fine surcharge would be a hardship on Mr. Patrick and it is therefore waived.