R. v. Emery

2019 BCSC 1789 R. v. Emery

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Emery, 2019 BCSC 1789 Date: 20190813 Docket: 67604-2 Registry: Chilliwack Regina v. Corey Richard Emery Before: The Honourable Madam Justice Ker Oral Reasons for Sentence Counsel for the Crown: M. Loda (as Agent for S. Gill) Counsel for the Accused: J. Myers Place and Date of Trial/Hearing: Chilliwack, B.C. August 9, 2019 Place and Date of Judgment: Vancouver, B.C. August 13, 2019 [1] These Reasons for Judgment were delivered as oral reasons. They have since been edited for distribution.

INTRODUCTION [2] On April 12, 2019, I sentenced an offender, Dylan Friesen, on one count of trafficking in fentanyl. My reasons from that matter are found at R. v. Friesen, 2019 BCSC 1038. My introductory comments there remain applicable in this case: [2] On April 10, 2019, the Public Health Agency of Canada (the "PHAC") issued a news release entitled "Updated Numbers on Opioid‑Related Overdose Deaths in Canada". The news release contained several staggering statistics about opioid‑related deaths in Canada, as well as emergency medical services data collected from January 2018 to September 2018 pertaining to suspected opioid‑related overdoses. The PHAC's news release contained the following grim statistics: 1) During the first nine months of 2018, 3,286 Canadians lost their lives to apparent opioid-related overdoses. I note parenthetically that this is roughly the size of small B.C. towns such as Rossland, Chemainus, and Mackenzie.

2) Between January 2016 and September 2018, more than 10,300 Canadians died as a resulted of apparent opioid-related overdose. I note parenthetically that this figure is larger than the population of such B.C. towns as Gibsons, Sooke, Castlegar, and Whistler.

3) The data shows that fentanyl and other fentanyl-related substances continue to be major drivers of this crisis. From January 2018 to September 2018, 73% of accidental apparent opioid-related deaths involved fentanyl or fentanyl-related substances. [3] The PHAC's news release unequivocally establishes that the opioid crisis continues to have devastating effects on the health and lives of Canadians. Tragically, British Columbia continues to be at the epicentre of this crisis. [3] An updated report from the BC Coroners Service entitled "Illicit Drug Overdose Deaths in BC, January 1, 2009 - March 31, 2019", posted May 15, 2019, and filed as an exhibit on this sentence hearing provides another measure of the grim reality that is the fentanyl crisis in British Columbia. It is with that backdrop in mind that I approach the sentencing of Corey Richard Emery who is before the Court on three counts of possession for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA]. As outlined in the indictment, Mr. Emery possessed the following for the purpose of trafficking: heroin and fentanyl (count 2); cocaine (count 3); methamphetamine (count 4). All of these substances are Schedule I substances. By virtue of s. 5(3) of the CDSA, persons who possess a Schedule I substance for the purpose of trafficking may be liable to

imprisonment for life. [4] This offence occurred on October 18, 2018. Mr. Emery has been detained in custody since that date. It is agreed that he is entitled to have his pre-sentence custody deducted from any sentence I impose at the enhanced credit rate of 1.5:1 as provided by s. 719(3.1) of the Criminal Code, R.S.C. 1985, c. C-46 [Code]. [5] Mr. Emery's trial started on February 19, 2019. Two voir dires were held. In the first voir dire, I found that Mr. Emery's arrest conformed to the requirements of s. 9 of the Charter and the seminal authority of R. v. Storrey, [1990] 1 S.C.R.

241. I also found that the searches of Mr. Emery, his vehicle, and his cellphone were lawful searches incident to arrest. My reasons are indexed at 2019 BCSC 702. [6] A second voir dire was held in relation to the search warrant executed on Mr. Emery's home. Due to deficiencies in the Information to Obtain ("ITO") and the process in obtaining the search warrant as well as a breach of Mr. Emery's s. 10(b) Charter right while held in detention after the search warrant was executed, I excluded the evidence seized from Mr. Emery's residence pursuant to the s. 24(2) analytical framework from the Supreme Court of Canada decisions in R. v. Grant, 2009 SCC 32 and R. v. Harrison, 2009 SCC 34. My reasons are indexed at 2019 BCSC 1710. [7] On June 20, 2019, Mr. Emery appeared before the court and changed his pleas, entering guilty pleas to counts 2 through 4 on the indictment. His pleas relate to the substances found in his possession in his man purse in his vehicle at the time of his arrest.

THE CIRCUMSTANCES OF THE OFFENCE [8] The circumstances of the offence are outlined in detail in my reasons on the first Voir Dire. [9] Briefly stated, on the morning of October 18, 2018, members of the Chilliwack RCMP Drug Section were conducting surveillance on an unrelated target in the downtown core of Chilliwack, BC. Their attention was diverted to a known street-level drug trafficker, Richard Parkins, who was observed to be engaging in behaviour consistent with dealing drugs at the street level. The surveillance team followed Mr. Parkins to Mr. Emery's home. Mr. Parkins was there approximately 13-14 minutes. When he left the residence, two officers arrested Mr. Parkins away from Mr. Emery's residence. Mr. Parkins was in possession of prepackaged crack cocaine and bulk methamphetamine. The quantity and packaging of the drugs was consistent with possession for the purpose of trafficking. [10] Based on this development and other relevant information, Cst. Brock Pascuzzo formed the belief that bulk drugs were being stored inside Mr. Emery's residence. Another officer with the Drug Surveillance Team was tasked to draft the ITO in support of the search warrant for the residence. Constable Pascuzzo maintained surveillance on the residence. Once it was confirmed that Mr. Emery resided at the residence, Cst. Pascuzzo believed, based on the totality of the circumstances, that he had

the requisite grounds to arrest Mr. Emery. A decision was made to arrest Mr. Emery away from his residence. He was arrested in traffic while stopped for a train at the railway crossing at Prest Road and 1st Avenue in Chilliwack, BC. Once arrested, Mr. Emery's vehicle and cellphone were searched. The results of that search were outlined in my reasons on the first Voir Dire at paras. 45, 46, and 48: [45] Once the accused was arrested, Cst. Lewis searched the accused's vehicle incidental to arrest and also conducted a limited search of a cellphone located on the driver's seat. Cst. Lewis stated that the cellphone search was also incidental to the arrest because he believed it was the accused's cellphone and that it may contain evidence of trafficking or PPT. Cst. Lewis testified that the cellphone was a smartphone that was not password protected or locked. As it was a smartphone, he was aware that it would hold a large amount of personal information and so he wanted to be careful about how far he went into the cellphone. He restricted his search to recent text messages and recent calls. He opened the message folder and observed a contact titled "Rick Parkins". He believed these text messages between the accused and Mr. Parkins would contain evidence about the offence and, as such, would be pertinent to the investigation. Accordingly, he opened this stream of messages and

photographed what he observed. He observed a message from the accused to Mr. Parkins on October 18, 2018 at 10:58 a.m. It was identical to the 10:58 text message from "Corey" that he observed on Mr. Parkins' cellphone when Mr. Parkins was arrested. [46] Cst. Lewis also searched the accused's vehicle and located a black man purse on the floor of the vehicle against the driver's seat. This bag was observed slung across the accused's shoulder and torso as he exited his residence at 3:35 p.m. and got into the Acura shortly thereafter. The black bag worn by the accused is depicted in the surveillance video clip taken by Cst. Pascuzzo starting at 3:25 p.m. Cst. Lewis searched the black bag when he found it in the vehicle incidental to the arrest. Cst. Lewis located the accused's driver's licence and wallet (containing $250) inside. Also included in the black bag were: prepackaged drugs inside a larger Ziploc bag, one package of bulk drugs, some smaller packages of individually-packaged drugs, a collapsible baton, and a can of bear spray. [48] In respect of the prepackaged drugs found in the black bag, Cst. Lewis inventoried the packaging back at the detachment. As outlined in his major exhibit flowchart, as well as the photographs of the inventory of the items seized in the search of the vehicle and the admissions filed, the following was found: 1. A Ziploc bag containing 6.38 grams of methamphetamine.

2. A Ziploc-style bag containing 17 smaller Ziploc-style bags of prepackaged drugs that analyzed as a mixture of heroin, fentanyl, and caffeine, with a total weight of 4.75 grams.

3. A knotted plastic bag described as a "dialer pack" containing 14 smaller Ziploc-style bags of prepackaged drugs. These small individual packages break down to three different types of product: a) five individual bags, each containing a mixture of heroin, fentanyl, and caffeine, with a total weight of 1.22 grams; b) three individual bags, each containing crack cocaine, with a total weight of 1.04 grams; and c) six individual bags, each containing cocaine, with a total weight of 4.58 grams. [11] The total weight of the seized methamphetamine is 6.38 grams, and it is valued at between $400 and $638 depending on how it is sold. [12] The total weight of the seized powdered cocaine is 4.58 grams, and it is valued at between $325 and $428, again, depending on the manner of sale. [13] The total weight of the seized crack cocaine is 1.04 grams. Depending on the manner of sale, the value of this substance is between $80 and $100. [14] The total weight of the seized heroin, fentanyl, and caffeine mixture is 5.97 grams. It has an approximate value of $1,194. [15] An examination of Mr. Emery's cellphone revealed a thread of text messages with Richard Parkins on Tuesday, October 16, Wednesday, October 17, and Thursday, October 18, 2018. The October 16 text messages are consistent with Mr. Emery advising Mr. Parkins that he had "down" [heroin] and "good shit big shards nice clean clear

shit". The conversation establishes that Mr. Emery was offering to supply Mr. Parkins with drugs. [16] Although the Crown alleged Mr. Emery to be a mid-level dealer or supplier, the necessity for a Gardiner hearing on the issue was waived. Mr. Emery conceded he was a street-level trafficker who also supplied some other street‑level traffickers that he knew. [17] Mr. Emery, through his counsel, admitted he was between a street-level trafficker and a mid-level dealer. Counsel advised Mr. Emery trafficked at the street level to support his own drug addiction and supplied other street-level traffickers he knew. The Crown accepted this characterization of Mr. Emery's role. [18] The packaging of the drugs found in his possession as well as the text messages on his phone establish that he was above the street-level dealer. Based on the totality of the circumstances, I find that Mr. Emery was both a street-level trafficker, but also someone slightly higher up the ladder who had access to bulk drugs and supplied them to other street-level dealers that he knew.

THE CIRCUMSTANCES OF THE OFFENDER [19] Mr. Emery is 32 years old. He was born in London, Ontario. His birth mother used alcohol and hard drugs at the time of her pregnancy no doubt in part due to the fact that her pregnancy was the result of a sexual assault. Mr. Emery and his mother moved to BC when he was two years old. He was adopted at the age of three. He has had no contact with his birth mother until recently when they found each other through social media. [20] Mr. Emery lived with his adoptive family until he was 11 years old. He then cycled through various group homes until he "aged out" with the Ministry. He maintained contact with his adoptive family and continued weekend visits with them. At 12 years of age, he was sexually assaulted by one of his older adoptive siblings who was between 16 and 17 years of age. [21] Mr. Emery grew up in East Vancouver and attended an alternative high school. He made it through grade nine in the Youth Futures Program but then dropped out of school. To his credit, he has worked to obtain a grade 12 completion certificate through the Surrey Schools' Adult Continuing Education Program while in custody on earlier charges and then on this charge. He obtained his grade 12 completion certificate on November 20, 2018. [22] Mr. Emery advises he has been diagnosed with PTSD, anxiety, and depression. He has been prescribed the antidepressant

Cipralex. Mr. Emery has endeavoured to see the psychologist once a week while detained at Surrey Pretrial Centre ("SPC"), but he is sometimes unable to do so given that there is only one psychologist for approximately 400 inmates. He has also met with the alcohol and drug counsellor at SPC on two occasions. Although he would like to have been able to attend more sessions, the counsellor's availability is also limited given the large caseload. [23] Mr. Emery's behaviour at SPC has been that of a model inmate. He was a unit rep for his living unit for three months and has been employed first as a meal server and now as a cleaner over the past five months of his pre-sentence detention. While detained at SPC, Mr. Emery was not able to access any programming despite numerous requests that he be permitted to do so as outlined in both his letter to the Court and his three inmate complaint and special request forms filed at the sentencing hearing (exhibits 3 and 5). [24] Mr. Emery's childhood and upbringing have been marred by significant difficulties, sexual abuse, and violence. His addiction issues centre around methamphetamine, heroin, and fentanyl abuse. He advises in his letter to the Court that he has spent the last 20 years of his life as an addict and has lost everything as a result of his choices. [25] Mr. Emery has an unenviable criminal record that started in January 2011.

It consists of five convictions for offences of violence (assault, sexual assault, and assault causing bodily harm), three property offences (theft-under-$5,000 and mischief-under-$5,000), nine convictions for a breach of an undertaking or recognizance, six convictions for breach of probation, and one related drug conviction for simple possession from March 2018. Mr. Emery was bound by four different probation orders at the time of this offence. [26] Mr. Emery acknowledges that his prior performance on community supervision while on bail, in particular, his attendance at recovery houses, has been poor. The Crown advised that she received an email from Mr. Emery's probation officer which indicates that, overall, Mr. Emery has only completed the Respectful Relationships and Substance Abuse Management courses, which he completed while incarcerated in 2013. Mr. Emery remains an untreated offender with respect to sexual offending and domestic violence offending. His supervision in the community has been poor, resulting in multiple admissions into custody for new charges and breaches of community supervision orders. [27] The probation officer further advised that Mr. Emery has been vocal in stating that he is not interested in any programming and will refuse to participate in any future sex offender programming. His participation in the Respectful Relationships Program at the

Chilliwack Community Corrections office was problematic, resulting in his removal from the group. Mr. Emery has not completed any required programming while supervised by Community Corrections since 2013 due to being frequently in and out of custody. [28] Notwithstanding Mr. Emery's abysmal performance in the community and his inability to follow through on treatment of his addiction in the past, he advises that he is now ready to deal with his personal issues. Mr. Emery writes that having spent a large portion of his life in jail, it is his view that more jail is not the answer. He also believes that attendance at a recovery house as part of a bail plan and attending an accredited treatment centre as part of his sentence are two fairly different scenarios. [29] Mr. Emery has researched treatment options on his own initiative. He would like to attend the Phoenix Society's Residential Treatment Centre ("Phoenix") in Surrey, BC. He has completed an application form for their program on July 10, 2019. As I understand it, Mr. Emery will not be accepted to Phoenix directly from jail. To that end, Mr. Emery has applied to Joshua House, a recovery house in Surrey, BC. On July 24, 2019, he received confirmation that his application has been accepted and he has a bed reserved at Joshua House. Mr. Emery advises that the director of Joshua House, Richard Korkowski, has agreed to be his

sponsor. Mr. Emery's plan is to reside at Joshua House until he is accepted into the Phoenix residential treatment program. [30] Mr. Emery's aspiration is to gain sobriety, deal with his mental health issues, and to attend Kwantlen College while he is at Phoenix in order to pursue a degree in counselling. He believes that his insights and experiences as an addict will assist him in assisting others to overcome their addictions. [31] Mr. Emery's articulate and thoughtful letter is an impassioned plea for leniency and a heartfelt recognition of the damage he has caused by being part of the drug trafficking culture.

IMPACT OF THE OFFENCE ON THE COMMUNITY [32] In Friesen, I summarized the impact of the offence on the community at paras. 37 through 42: [37] Fentanyl is more than a nasty drug, it is a scourge plaguing many communities in the Lower Mainland, through the province, and across the country, indeed across North America. Not a day goes by without some news story, opinion piece, or article about the opioid crisis and the seemingly iron grip it has on so, so many communities, and the destruction it has wrought on the lives of its victims, their families, friends, and coworkers. [38] In R. v. Toth, 2017 BCSC 501 (CanLII), I outlined the impact of the offence of drug trafficking in fentanyl and the devastating consequences it has wrought on this province: see paras. 32-40. [39] The Crown adduced similar evidence at this sentence hearing. Exhibit 4, the Crown's book of materials on sentencing, contains some of the same reports filed at the Toth sentence hearing. I do not propose to detail the grim statistics included in these materials and the litany of misery that the fentanyl crisis has caused. Mr. Justice Fitch succinctly summarized much of this evidence in his reasons in R. v. Mann, 2018 BCCA 265 (CanLII): [18] Sgt. Boechler testified that fentanyl is a powerful synthetic opioid drug that is approximately 100 times more powerful than morphine. Fentanyl is intended for use by

anesthesiologists in strictly controlled medical environments. [19] Fentanyl, fentanyl analogues and other synthetic opioids are now commonly used in the production of counterfeit heroin and oxycodone for sale in the illicit drug trade. Some drug users seek out fentanyl because it tends to produce a better "high" than heroin that is available for purchase on the street. [20] Fentanyl is addictive and causes dependence in a user. The pharmacological effects of fentanyl include pain relief, euphoria, sedation, respiratory depression, lowered blood pressure and lowered heart rate. The mechanism by which fentanyl causes death is almost always related to respiratory depression resulting in lethally low circulating oxygen levels. [21] Fentanyl used in illicit drug sales is typically imported from China and then cut with cheaper innocuous substances like caffeine for street-level distribution. The risk of overdose death is heightened with fentanyl because of its potency and because traffickers typically use imprecise mixing methods. In some cases, electric blenders are used to dry mix powders. [22] In the case at bar, the appellants were found to have used a mortar and pestle for mixing purposes. Crude mixing methods, such as the one employed by the appellants, result in an uneven distribution of the drug. As a result, the potency of one dose can vary greatly from another. "Hot

spots", or the concentration of fentanyl in a particular dose resulting from uneven mixing methods, increase the risk of death by overdose. Sgt. Boechler commented that use by the appellants of a simple mortar and pestle to mix fentanyl and its analogues with a cutting agent is "extremely dangerous" and "one of the most primitive and negligent mixing methods I have yet to observe in the illicit drug market". [23] Dr. Kennedy also noted in his report that even the smallest dose or change in dose of fentanyl is difficult to measure outside of a regulated pharmaceutical laboratory. What are thought to be small doses of fentanyl or small increases in doses may be greater than expected due to measuring error, and the respiratory effects may be much more serious than anticipated due to the potency of the dose. [40] The grim trajectory of the death toll from this crisis is outlined in the B.C. Coroner Service's November 14, 2018 report entitled "Fentanyl‑Detected Illicit Drug Overdose Deaths: January 1, 2012 to August 31, 2018" (included in the materials filed on sentencing). This report summarizes all deaths that occurred in B.C. between January 1, 2012 and August 31, 2018 as a result of illicit drug use where fentanyl or its analogues were detected, whether alone or in combination with other drugs. The chart at page 3 of that report lists fentanyl‑detected deaths by month, and then

provides an annual total as follows: · In 2012, there were 12 deaths; · In 2013, there were 50 deaths; · In 2014, there were 91 deaths; · In 2015, there were 152 deaths. [41] The numbers skyrocketed thereafter: · In 2016, there were 668 deaths; · In 2017, there were 1,220 deaths and · In 2018, as of August 31, there were 856 deaths. [42] The materials filed by the Crown may be authority for the obvious, but they powerfully demonstrate in black and white the grim reality of the fentanyl crisis in this province, and that the most vulnerable members of our communities--the homeless, drug‑addicted, and impoverished--are disproportionately represented in these grim statistics of death and addiction. [33] In this case, the Crown filed both Dr. Kennedy's 2016 report about fentanyl uses, abuses, and toxicity referred to in R v. Mann, 2018 BCCA 265 and the updated report from the BC Coroners Service previously referred to in these reasons. In addition to the grim statistics cited in Friesen, the updated Coroners Report establishes the following: 1. The upward spike in illicit drug deaths in BC started in 2014 and has skyrocketed since then, although a slight plateau may have occurred for 2017 and 2018; 2. Between 2009 and 2014, the number of illicit drug overdose deaths was between 201 and 368 a year; and 3. In 2015, consistent with the arrival of fentanyl and its analogues on the

street, the numbers started to climb and, in 2018, 1,514 overdose deaths were recorded. [34] The city of Chilliwack is not immune from the devastating consequences of the introduction of fentanyl into the illicit drug trade. Between 2009 and 2014, the overdose death rate for Chilliwack was between two and eight deaths per year. In 2015, there were 10 overdose deaths, 13 in 2016, 23 in 2017, and 35 in 2018. So, in that three-year period, the overdose death rate has increased 3.5 times. [35] All of the decisions provided by counsel at the sentence hearing refer in some way to the frightening rate at which fentanyl-related overdose deaths continue to occur. All acknowledge that the magnitude of the public health crisis has increased dramatically. Tragically, notwithstanding the passage of nearly two-and-a-half years since the Court of Appeal's decision in R. v. Smith, 2017 BCCA 112 increased the range of sentence for street-level dealers of fentanyl to between 18 and 36 months' imprisonment, my observations in R. v. Toth, 2017 BCSC 501 at paras. 43 through 45 remain unchanged: [43] But in addition to the overdose deaths caused by fentanyl, tragic as they are, there is the further tragedy and misery felt by the family and friends of the deceased. [44] Indeed, the risk of overdose for users is not the only danger presented by this extremely hazardous substance; first responders,

healthcare workers, citizens wielding naloxone kits and more are put in harm's way through the risk of contamination with this substance. That is not to mention the heavy collateral toll on a strapped healthcare system struggling to respond to this epidemic. [45] As Judge Van Harten so aptly noted in R. v. Aujla, 2016 ABPC 272 (CanLII): [1] Once an insidious killer of opioid users, the drug fentanyl has emerged to become a notorious Grim Reaper stalking the streets of Canada's cities and towns. Anyone reading or watching the news understands that fentanyl use has become a serious public health crisis to which governments and law enforcement agencies are attempting to respond. CROWN'S POSITION ON SENTENCE [36] The Crown submits a sentence of five years' imprisonment less time served on pre-sentence detention is the appropriate sentence for this case. The Crown based this submission on the assertion that Mr. Emery is a mid-level trafficker and that the range of 18 to 36 months' imprisonment established by the Court of Appeal in Smith is for first-time offenders dealing with fentanyl at the street-level of trafficking this drug. The Crown also seeks ancillary orders, specifically, the mandatory ten-year firearms prohibition pursuant to s. 109(c) of the Code and a DNA order pursuant to s. 487.051 of the Code. The Crown also seeks a forfeiture order for a number of items seized

pursuant to the CDSA. [37] In support of her position on sentence, Crown counsel relied upon the following cases: · Smith; · R. v. Mann, 2017 BCPC 401, aff'd 2018 BCCA 265; · R. v. Bransford, 2018 BCSC 1995; · R. v. Creuzot, 2017 BCSC 1075; and · R. v. Henry, 2017 BCSC 1627. [38] In Mann, two brothers were sentenced to global sentences of five and seven years' imprisonment for various counts of trafficking and possession for the purpose of trafficking ("PPT") in fentanyl and other controlled substances as well as other unrelated offences including, for one brother, possession of a loaded restricted firearm. The two brothers engaged in a joint enterprise that involved dial-a-dope trafficking in fentanyl and its analogues. At the time of the joint enterprise, the public health crisis was well known. The brothers mixed fentanyl with other ingredients in a haphazard and grossly negligent fashion creating hot spots (areas of uneven potency) in the drugs thus creating an extremely dangerous situation for purchasers. The brothers were not merely street-level traffickers-they were involved in mid-level distribution including mixing, weighing, and packaging fentanyl for sale on the street. They were motivated by greed. [39] The fact that the operation in Mann was beyond street-level led the trial judge to conclude that a sentence greater than 36 months was required. He imposed four-year

concurrent sentences for the fentanyl offences and a further five years concurrent for one of the brothers who trafficked in carfentanil, an even more lethal drug. Neither of the two had prior criminal records, and both entered early guilty pleas. As both brothers were found to be mid-level traffickers, the range in Smith was not appropriate for their circumstances. [40] In the Court of Appeal decision, Mr. Justice Fitch, writing for the court, commented on the sentences imposed and the range for mid-level traffickers at paras. 98 to 100 as follows: [98] As will inevitably be the case, all of the sentencing decisions cited by the Crown have distinguishing features from the case at bar. What these cases serve to establish, however, is that the moral culpability of offenders who traffic in fentanyl and its analogues is very high. The public health crisis that followed the introduction of synthetic opioids in the illicit drug trade continues unabated. As Newbury J.A. observed in Smith (at para. 44), "fentanyl abuse continues to claim lives every day in our communities" and "British Columbia has one of the worst, if not the worst, problems of fentanyl abuse in Canada". General deterrence and denunciation must feature prominently in sentencing cases of this kind. [99] In this case, the appellants knew they were trafficking fentanyl to vulnerable drug users. The appellants were not

mere street-level traffickers. They compounded the drugs for street-level sale. They took no care in doing so. Their compounding practices were so crude that potentially lethal doses of fentanyl were repeatedly sold by them to undercover officers and other drug users who had no way of knowing the potency of the drug they were purchasing or the harm that ingesting it would likely cause. The conduct of the appellants was found by the judge to display an indifference to human life. They pursued the joint endeavour for personal gain. While Sarabjit was battling his own addiction to fentanyl at the relevant time, the judge made no finding that he was trafficking solely for the purpose of feeding his own addiction. There was no suggestion on sentencing that Karan-Jit struggled with addiction when he participated in the joint enterprise. The judge was right to distinguish the range identified in Smith and impose significant penitentiary terms on both appellants. That the sentences are not even longer is attributable to the appellants' youth and the fact that neither of them had criminal records. [100] It is premature to identify a range applicable to a case of this kind. The range will develop over time, guided by judicial experience and the need for public protection. I say only that the sentences imposed on the appellants have not been shown to be demonstrably unfit. [41] I note

that the amount of drugs found in the bedrooms of the two Mann brothers was significantly greater than what Mr. Emery had in his possession. [42] In Bransford, the two co-accused were found to be mid-level traffickers. They had significantly more drugs than Mr. Emery. Madam Justice Brown found that the offenders were not street-level traffickers, but rather involved at a mid-level business, which took the case beyond the minimum level set out in Smith: Bransford at para.

25. Madam Justice Brown found one accused, Mr. Perkins, to be involved in the offences as a business for profit, not as an addict. Mr. Perkins would have received a six-year sentence for the PPT fentanyl charge, but it was reduced to two years to be served consecutive to a 12-year sentence for drug and weapons offences imposed earlier by Mr. Justice Ehrcke. The other accused, Ms. Bransford, a first-time Indigenous offender, received a three-year sentence for the PPT fentanyl offence and concurrent sentences for other substances and possession of a loaded restricted firearm. Ms. Bransford's sentence was reduced to 34 months once pre-sentence custody was deducted. [43] In Henry, Mr. Justice Brown imposed a sentence of 12 months' imprisonment and 12 months' probation on a 23-year-old offender after he pleaded guilty to possession of cocaine and fentanyl for the purpose of trafficking. The accused was a street-level drug trafficker who was found with 5.6 to 5.7 grams of cocaine and 5.2 grams of fentanyl. He did not know that he had fentanyl. The offender had a prior record that was almost all youth-related. He started using cocaine when he was 12 and heroin when he was 21. At the time of sentence, he was on the methadone program. He expressed remorse, and he had spent 30 days in pre-sentence custody. [44] In Creuzot, Mr. Justice Jenkins sentenced an offender who pleaded guilty to

possession of methamphetamine, cocaine, and heroin for the purposes of trafficking. Trace amounts of fentanyl were found in the heroin. The 51-year-old offender had a significant criminal record relating to drugs. He had a long-term drug problem and no trade or formal education. He suffered from multiple sclerosis, which affected his ability to work. He entered the drug trade for profit and to raise funds to support his own addiction. The offender was a street-level trafficker. At the time of sentencing, he was in counselling for his addiction and had complied with all bail conditions. A sentence of 14 months' imprisonment less time served and two years' probation was imposed. [45] What the Crown's authorities establish is that where an offender is situated above the level of a street-level trafficker, the range in Smith is not applicable and that something higher than 18 to 36 months is necessary for the mid-level trafficker. Larger quantities of fentanyl, evidence of mixing and packaging, knowledge that the substance is fentanyl, engaging in the drug trade for profit, and repeated sales all elevate the moral culpability of the offender and elevate the sentence. While Mr. Emery is not simply a street-level trafficker, he certainly is not at the higher end of the mid-level trafficking group, either. The circumstances of his case are not nearly as sophisticated as those in Mann

and Bransford. What I take from the authorities is that someone in Mr. Emery's position in the drug trafficking hierarchy does not fall at the lower end of the Smith range. However, he does not fall within the higher end of the mid-level trafficking range as demonstrated in Mann and Bransford, either. To paraphrase Fitch J.A. in Mann, the authorities relied upon by the Crown have distinguishing features from the case at bar. The same can be said for the authorities relied upon by the defence in this case. DEFENCE'S POSITION ON SENTENCE [46] Defence counsel argued that I should find exceptional circumstances in this case as the concept is understood from R. v. Voong, 2015 BCCA 285 at para. 59 and sentence Mr. Emery to time served. As of today's date, Mr. Emery has served 299 days detained in pre-trial custody. Applying the 1.5:1 enhanced credit ratio from s. 719(3.1) of the Code would result in a time-served sentence of 449 days or nearly 15 months' imprisonment. In my view, at the very least, the top end of the Smith range governs the approach to this case unless the defence establishes exceptional circumstances (see Voong at para. 59, as affirmed in R. v. Sellars, 2018 BCCA 195 at para. 34). [47] As I stated in Friesen at paras. 63 and 64: [63] The existence of a discretion to depart from an established range has been present in the jurisprudence for decades and encompasses a

wide variety of offences, ranging from manslaughter: R. v. Nielsen (October 31, 2012), Kamloops, 90155; to robbery: R. v. Cain (1993), 28 B.C.A.C. 105; to other violent offences: R. v. Nakamura, 2012 BCSC 327; to possession for the purpose of trafficking: Voong. See also: R. v. Nasogaluak, 2010 SCC 6 at para. 44; R. v. Lacasse, 2015 SCC 64 at paras. 58-60; R. v. Suter, 2018 SCC 34 at para. 25; R. v. Scott, 2013 BCCA 397 at paras. 38-42; Sellars at para. 34. [64] Instead, the jurisprudence repeatedly reminds us that ranges are not hard-and-fast rules, but rather guidelines. The purpose of a range is to encourage greater consistency between sentencing decisions in accordance with the parity principle set out in s. 718.2(b) of the Code, but the jurisprudence also recognizes that there will be cases where the particular circumstances of the offence and/or offender call for a sentence that falls outside the normal sentencing range: Suter at para. 4. [48] Defence counsel argued that Mr. Emery's conduct could fall in the Smith range and that his personal circumstances may make it such that he should fall below the Smith range such that time served is an appropriate sentence. As I understood defence counsel's submission, the exceptional circumstances in Mr. Emery's case are that he has taken steps toward rehabilitation but has been thwarted by the inability to access programs while

detained in custody. The further exceptional circumstances, argued defence counsel, are the tragic upbringing experienced by Mr. Emery, his recognition that he has a substance abuse problem, and his desire to leave his former addict life behind and use his life experience to assist others in overcoming their addictions. [49] In support of his position that a sentence of time served is appropriate, counsel for Mr. Emery relied upon the following cases: Voong; R. v. Basra, (September 22, 2017) Surrey Provincial Court Registry 216743-3-C (B.C.P.C); R. v. Homan, 2017 BCSC 2503; R. v. McClain, 2018 BCPC 369; R. v. Joon, 2017 BCPC 301; Creuzot; Friesen; and R. v. Wong, 2019 BCPC 132. [50] I will note at the outset that like the Crown's cases, the cases provided by the defence also have several distinguishing features. The offenders in Basra and Joon were both first offenders and 18 and 19 years old respectively when they committed the offences. Basra received a 15-month sentence for the possession of fentanyl for the purpose of trafficking, but it was reduced for pre-trial custody to 12 months' imprisonment. [51] In Joon, the offender received a suspended sentence and three years' probation. The accused in that case was a 19-year-old first offender who was aware of the dangers of fentanyl, but still trafficked in the substance. On the facts of that case, there were two undercover

buys resulting in three "flaps" and two baggies being exchanged containing heroin, fentanyl, and a fentanyl derivative. He was motivated by greed. In the 18 months following his arrest, he had been living a pro-social and contributing life. The court found that his rehabilitation was well established. [52] In Wong, the 23-year-old offender received a sentence of one year imprisonment in recognition of his positive steps towards rehabilitation, his guilty plea, his sincere apology, and character letters of support that confirmed he had abandoned his prior drug trafficking lifestyle. [53] In Homan, the accused was arrested after police officers observed two hand-to-hand transactions in an area of Mission, BC known for drug activities. He had no criminal record. The accused had 2.7 grams of heroin laced with fentanyl on him in addition to crack cocaine, a scoresheet, and $305 in cash. The accused had a difficult childhood with a mother who abused substances, stepfathers who abused the mother and the accused, and the accused was sexually abused by a babysitter. The accused was gainfully employed for years and married with children. After the accused was laid off, he became depressed. While doing contract work, he was injured and became addicted to drugs after being prescribed painkillers. This led to his involvement as a low-level player in a dial-a-dope operation to support his

drug habit. The accused and his wife were separated at the time of sentence, but he had stopped using drugs, was employed again, and the couple were working at reconciliation. Mr. Justice Brown acceded to the defence submission that the Voong exceptional circumstances test had been satisfied and imposed a sentence of 5.5 months as time served followed by 12 months' probation. [54] In McClain, the sentencing judge found the case was an instance of exceptional circumstances as, since his arrest, the 22-year-old offender was dealing with his substance abuse issues and had turned his life around. The sentencing judge found that the accused was living in a positive and supportive environment with a demonstrated ability to continue to address his addiction and mental health and to pursue employment. He had established real roots and a pro-social life and there was a strong basis to believe he would not reoffend. Sending him to a penitentiary was found to be a crushing experience and would do nothing to protect the public because it would risk destabilizing the difficult work he had already done to serve his own rehabilitation. [55] In so far as the circumstances of that offence were concerned, the accused pleaded guilty to trafficking in fentanyl and cocaine and to possessing the same substances for the purpose of trafficking. He was part of a dial-a-dope operation and sold to an

undercover officer drugs on three occasions. In his car, police found 13 packages of fentanyl totalling 2.99 grams and four baggies of cocaine totalling 1.72 grams. He was released and sold drugs to an undercover officer again. At the time of the second offence, the accused was in possession of 70 packages of fentanyl weighing 15.4 grams and 26 packages of cocaine weighing 10.56 grams. The street value of the fentanyl was between $2,100 and $2,400 and the cocaine was valued at $844. [56] Mr. McClain had substance abuse issues. After his arrest, he participated fully in addiction programming and became a leader to others in recovery. He accomplished a gradual return from residential treatment into the community where he continued to comply with strict supervised surety bail and curfew conditions. He also secured employment. The accused had separated himself from the lifestyle and the peer group that he had when he was an addict and when he committed those offences. The accused had no prior record. [57] In Friesen, the offender sold powder containing fentanyl to undercover officers on two occasions. In total, he sold 0.2 grams of the powder to the officers and was paid $80. Mr. Friesen was a street-level trafficker addicted to fentanyl and opioids. He was 38 years old, had a criminal record, and a challenging upbringing. Mr. Friesen had been employed, but an accident at work

caused him to become unemployable and addicted to opioids. I sentenced Mr. Friesen to time served (effectively 202 days) and three years' probation. [58] Mr. Friesen satisfied the exceptional circumstances test from Voong by his demonstrated rehabilitation through residing at a residential treatment centre once released on stringent bail conditions and eventually becoming employed by the centre. He adopted a pro-social lifestyle, was reunited with his young son, his partner, and at the time of sentencing, had a baby girl to support as well. [59] While I agree with the defence that Mr. Emery does not approach the level of sophistication or involvement as the cases of Mann and Bransford relied on by the Crown, in my view, Mr. Emery does not necessarily fit the profile of the offender in the cases relied upon by the defence, either.

THE PRINCIPLES OF SENTENCE [60] The statutory principles of sentencing are found in s. 10 of the CDSA and ss. 718 through 718.2 of the Code. Both statutes set out the purpose and principles of sentencing. The fundamental purpose is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. This is achieved by imposing just sanctions to denounce unlawful conduct, deter offenders and others from committing offences, separate offenders from society where necessary, assist in offenders' rehabilitations, provide reparations, and promote a sense of responsibility and acknowledgment of harm done. [61] There are additional principles set out in ss. 718 through 718.2 of the Code, particularly, the sentence imposed must be proportionate to the gravity of the offence and the offender's moral culpability. The court must also take into account both mitigating and aggravating factors. Moreover, the sentence should be consistent with other sentences for similar offences and similar offenders. The court must exercise restraint in crafting a sentence. In other words, imprisonment should only be imposed where the circumstances make it necessary. [62] The principles of primary importance in cases involving PPT of fentanyl and other Schedule I offences are denunciation and deterrence: Smith, paras. 45 to 49; Toth, para.

81. Rehabilitation cannot be overlooked. However, the importance of rehabilitation will vary from case to case depending on the degree of willingness of the offender to turn things around and the degree of confidence that the court has in the durability of the offender's recovery: Friesen, para.

70.

ANALYSIS [63] I begin with an examination of the aggravating and mitigating circumstances of this case. Aggravating Circumstances [64] The first aggravating circumstance is the nature of the drugs involved: Friesen, para. 71; Toth, paras. 66 to 67. Mr. Emery possessed for the purpose of trafficking a drug that causes real and catastrophic harm in our communities. [65] The second aggravating factor is Mr. Emery's criminal record. That record includes a prior conviction for simple possession of a controlled substance from June 2017. Related to his criminal record is the fact that Mr. Emery was bound by four probation orders at the time he committed this offence. [66] The third aggravating factor is that Mr. Emery was not just a street-level trafficker. He was slightly higher in the drug trafficking hierarchy, supplying other street-level traffickers, and so he is a mid-level dealer, albeit at the lower end of the spectrum of that category. The fact of the matter remains that he moves in circles where he is at least trusted to possess larger amounts of illicit substances and has access to them in an amount sufficient to supply other street-level traffickers. [67] The fourth aggravating factor is that Mr. Emery knew the drugs he possessed for the purpose of trafficking contained fentanyl. This offence occurred well after the decision in Smith and more than a year after the

magnitude of the public health crisis became common knowledge. Mitigating Circumstances [68] The mitigating circumstances in this case include the following: · Mr. Emery's guilty plea; · his sincere expression of remorse in his letter to the Court and in speaking to the Court at the time of sentencing submissions; · his recognition of the public harm caused by his activities; · his tragic upbringing; · his addiction to drugs including fentanyl and the fact that he engaged in this course of conduct to support his own addiction; and · his desire to change his lifestyle and leave the drug trade. Exceptional Circumstances [69] The issue that remains to be determined is whether there are exceptional circumstances in this case such that a sentence below the range is a fit sentence. [70] I say first that the range for an offender who is more than a street-level trafficker must start at the upper end of the Smith range. Although the Court of Appeal has not pronounced on what that range is, in my view, the authorities provided suggest that the range would be somewhere between 36 and 72 months, with the 36 months being the low end of the range for those offenders only slightly above the street-level trafficker. I find support for this range from the decisions in Smith, Bransford, and Mann. [71] In Voong, at para. 59, Madam Justice Bennett set out a non-exhaustive list of factors that

could constitute exceptional circumstances where they exist in combination, including: (a) the lack of a criminal record; (b) significant and objectively identifiable steps towards rehabilitation for a drug addict; (c) gainful employment; and (d) remorse and acknowledgment of the harm done to society as a result of the offences. [72] At para. 59, Justice Bennett further stated: [59] There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. [73] The subtext of that logic is that a person who has achieved recovery from their addiction and disassociated themselves from that lifestyle would be at risk of re-entering into it. There is that risk if incarcerated, so accomplishing no gain, a zero gain, for either the community and for the offender: Homan, para. 30. [74] Bennett J.A. further stated: Thus, it will be the rare case where the standard of exceptional circumstances is met. [75] In Mr. Emery's case, there is remorse and acknowledgment of the harm done as a result of the offences. There is also a stated desire to leave the drug trade and deal with his addiction. What there is not is a demonstrated and committed set of meaningful steps towards rehabilitation such as occurred in Friesen, Joon, and Wong. [76] Mr.

Emery is to be commended for the steps he has taken thus far while in custody. I recognize he may have been frustrated somewhat in accessing programs while detained at SPC, but the full evidentiary context of that issue has not been properly adduced in these proceedings. However, the fact remains that the demonstrated commitment to turning his life around has not been established to the level that would lead me to conclude that he has truly turned his life around and that the protection of the public is better served by a non-custodial sentence. [77] The main principles of sentencing in a case like this are, of course, denunciation, deterrence, and protection of the public. Rehabilitation is another factor that must be considered and, as I have noted earlier, its importance will vary from case to case depending on the proven willingness of the offender to turn things around and the degree of confidence that the court has in the durability of the offender's recovery. In terms of rehabilitation, Mr. Emery's recognition of the significant public harm that fentanyl causes and that his offending has caused coupled with his desire to change his life support the notion that rehabilitation remains possible in this case. It just has not been demonstrated to the level of providing confidence that Mr. Emery has truly turned his life around. He has, however, made a significant first few steps in the path by becoming clean, researching recovery programs, applying to attend one, and being accepted into a recovery house as well as obtaining his grade 12 certificate.

THE SENTENCE [78] Mr. Emery, would you stand up, please. [79] Having considered the circumstances of the offence and your personal circumstances, the impact of this offence on the community, the case law cited in these reasons and its application to the facts of your case, and the principles of sentencing, I sentence you to three years' imprisonment on each count. They will be served concurrently. Once the pre-trial custody credit formula is applied to your 299 days' pre-trial custody, there is a total of 449 days already served. That shall be deducted from the 36 months of imprisonment. Accordingly, the net sentence I impose is 21 months and 16 days. [80] You can have a seat. [81] Following your jail sentence, you will be placed on probation for two years. The terms of the probation are, first, the statutory ones: 1. You must keep the peace and be of good behaviour.

2. You must report to this court when required to do so by the court.

3. You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [82] The optional conditions attached to your probation order are: 4. You must report in person within two working days of your release from custody to a probation officer at -- and I do not know whether it should be one of the Surrey probation offices, Chilliwack, or Abbotsford. [83] Mr. Myers, you can speak to Mr. Emery while I go through the rest of the conditions if you want -- [84] MR. MYERS: Yes. [85] THE COURT: -- to tell me which office it should be. I do have the addresses for all the probation officers in the Lower Mainland that I can insert at the end of this. Okay? I will continue.

5. You must remain within the jurisdiction of the court, meaning the Province of British Columbia, and may only leave the province with the written permission to go outside the jurisdiction obtained from the court or your probation officer, in advance.

6. If at any time prior to the expiration of this order you are arrested, detained, or have served a sentence for another offence, you must report to your probation officer within two business days of your release from custody.

7. You must advise your probation officer at your first appointment of your residential address and home phone number, including your cellphone number.

8. You may have only one cellphone registered to you, and you must not possess a cellphone other than the one registered to you.

9. You must not change your residence, your home phone number, or your cellphone number without the prior written permission of your probation officer.

10. You shall not consume or possess any drug or controlled substance listed in the Controlled Drugs and Substances Act or the Food and Drugs Act, unless you have a valid medical prescription.

11. You must attend, participate in, and successfully complete any substance abuse intake, assessment, counselling, program, treatment, or residential treatment as directed by your probation officer.

12. You must not possess any drug paraphernalia, including but not limited to pipes, rolling papers, or syringes. [86] Those are the terms of your probation order. [87] I turn to the ancillary orders. Pursuant to s. 109(1)(c) of the Code, you are prohibited from possessing any firearms or related items specified in that section for a period of 10 years. [88] The Crown applies for an order to obtain a sample of Mr. Emery's DNA pursuant to s. 487.051 of the Code. In considering this issue, I recognize that I can make the order sought if I am satisfied that such an order is in the best interests of the administration of justice. In deciding the Crown's application, I must consider Mr. Emery's criminal record, the offences for which he is being sentenced, the circumstances surrounding their commission, and the impact that an order would have on Mr. Emery's privacy and security of his person. [89] Mr. Emery has an extensive criminal record. The offence itself occurred in an area plagued by the insidious trade of drugs. As for Mr. Emery's privacy and security of his person, I note the taking of a DNA sample is minimally intrusive and the results are guarded by statute. [90] After considering the relevant factors, I am satisfied that the taking of Mr. Emery's DNA is in the best interests of the administration of justice. The Crown's application for a DNA order is granted. [91] There

was discussion at the sentencing of a forfeiture order, Mr. Myers, I do not know whether you and Ms. Gill resolved that issue and had a draft order? [92] MR. MYERS: We do not have a draft order. We did pretty much resolve that issue. I was waiting for her response on one issue. [93] THE COURT: You -- [94] MR. MYERS: I think probably we should file that after the fact. [95] THE COURT: You can submit it to me, too, for signature -- [96] MR. MYERS: Thank you, My Lady. [97] THE COURT: -- and if there is any issue with respect to it, then I suppose it remains an outstanding application until the order is submitted and you can bring the matter back before me. [98] MR. MYERS: Yes, My Lady, and I believe we raised this issue at the sentencing hearing, but is it -- can a probation order attach to his sentence that -- [99] THE COURT: Yes, it can, Mathieu -- [100] MR. MYERS: -- because there is a provincial sentence remaining. [101] THE COURT: Yes, R. v. Mathieu, 2008 SCC 21. [102] MR. MYERS: Thank you. [103] THE COURT: Probation can attach to two years or less on a net sentence. [104] MR. MYERS: Yes. [105] THE COURT: Probation cannot -- or a CSO cannot be imposed for an offence that gets below two years less a day because of R. v. Fice, 2005 SCC 32, but Mathieu in the Supreme Court of Canada, I am confident - [106] MS. LODA: I am too. [107] MR. MYERS: Thank you. [108] THE COURT: -- on

that point. It is a funny little wrinkle. Probation is to assist in the rehabilitation of Mr. Emery. [109] MR. MYERS: Thank you, My Lady, and the only other question -- [110] THE COURT: Oh. [111] MR. MYERS: -- I would ask is, you had your second set of reasons, I am just wondering if you are ordering -- [112] THE ACCUSED: Can you send me to the pen? Like probation is clearly not working for the last 20 years of my life. You might as well just give me a federal sentence. [113] THE COURT: Mr. Emery, I have sentenced you and I am not going to alter the sentence. [114] I am sorry, you were asking me about the reasons? [115] MR. MYERS: So there is a second set of reasons on the second voir dire -- [116] THE COURT: Voir dire, they -- [117] MR. MYERS: -- and 24(2). I was just wondering if those were being released or -- [118] THE COURT: They have been transcribed. They came in while I was away. I have read through them. My law clerk is reading through them to check for grammar, et cetera. So they have been transcribed. They will be released once we get through the cleaning it up for grammar, et cetera. [119] MR. MYERS: Thank you, My Lady, I was just checking, so. [120] THE COURT: No, no, no -- [121] MR. MYERS: Yes. [122] THE COURT: -- that is fine. I apologize for the delay in having them released. There is only one other issue is what probation office. [123] MR. MYERS: Chilliwack

-- [124] THE COURT: Chilliwack? [125] MR. MYERS: -- is fine. [126] THE COURT: So the Chilliwack office I have is at 45960 Wellington Avenue. [127] THE CLERK: Sorry, My Lady, could you say that again? [128] THE COURT: Yes, it is 45960 Wellington Avenue, Chilliwack, B.C. [129] THE CLERK: Thank you. [130] MR. MYERS: Thank you, My Lady -- [131] THE COURT: Thank you. [132] MR. MYERS: -- and I thank my friend. [133] THE COURT: Mr. Emery, good luck to you. The probation order is to try and assist you in terms of your treatment and accessing treatment for your addiction issues. [134] THE ACCUSED: It has worked so well for the last 20 years, Your Honour. [135] THE COURT: Well, thank you very much. "Ker J."