IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Creuzot,

 

2017 BCSC 1075

Date: 20170626

Docket: 41136

Registry: Prince George

Regina

v.

Roger Todd Creuzot

Before: The Honourable Mr. Justice Jenkins

Reasons for Judgment on Sentencing

Counsel for the Crown:

E.Yao

Counsel for Mr. Creuzot:

D. Baker

Place and Date of Hearing:

Prince George, B.C.

March 31, 2017

Place and Date of Judgment:

Prince George, B.C.

June 26, 2017


 

[1]             On February 8, 2017, following a voir dire, I found the entry of the police without a warrant into Mr. Creuzot’s residence on July 30, 2015, to have been a breach of s. 8 of the Charter of Rights and Freedoms. However, as the entry was made in circumstances where there was an honest and reasonable belief destruction of evidence was reasonably and subjectively imminent, I found that admission of the evidence garnered as a result of the search would not bring the administration of justice into disrepute under s. 24(2) of the Charter and permitted the fruits of the search to be entered into evidence in the trial.

[2]             Shortly thereafter, Mr. Creuzot entered a plea of guilty to six of the seven counts contained in the indictment. Counts 1, 2, and 3 were guilty pleas under s. 5(2) of the Controlled Drugs and Substances Act, SC 1996, c 19 for possession of methamphetamine, cocaine, and heroin respectively for the purpose of trafficking, Count 4 for possession of a prohibited device, ie. a 15 round 9 mm magazine while prohibited to do so under s. 117.01(1) of the Criminal Code, RSC 1985, c C-46, Count 6 for possession of a prohibited weapon, a stun gun taser without license under s. 92(2) of the Code, and finally under Count 7 for possession of a 15 round 9mm magazine while not licensed, also under s. 92(2) of the Code.

[3]             The events which have given rise to the guilty plea all occurred on or about July 30, 2015.

[4]             I received submissions on sentencing from the Crown and defence on March 31, 2017, at which time I reserved my decision.

[5]             Of particular import in sentencing Mr. Creuzot on the charges for possession for the purposes of trafficking was the detection of traces of fentanyl in the heroin which was seized on July 30, 2015, the consequences of which were the subject of evidence presented by the Crown on sentencing, specifically the expert evidence of Cpl. Jeff Ringelberg. Cpl. Ringleberg’s evidence related to drug investigations, the extent of concern regarding fentanyl overdoses in the Prince George area and the consequences of fentanyl and other evidence regarding packaging, pricing, methods of sale, consumption, drug jargon, and slang all pertaining to cocaine, methamphetamine, and heroin.

[6]             Also at the sentencing hearing, I received several papers which had been published and distributed since 2014 in British Columbia regarding the extent of fentanyl trafficking, the often deadly consequences of the consumption of fentanyl and warnings distributed throughout the province regarding the illegal sale of and consumption of fentanyl.

[7]             Mr. Creuzot was incarcerated for part of the time leading up to his trial, specifically 209 days or 314 days of enhanced credit, the application of which is   appropriate in these circumstances.

Position of the Crown

[8]             The Crown submits that there should be a jail sentence of 30 months concurrent on each of Counts 1, 2 and 3, ie. the charges of possession of illegal drugs for the purpose of trafficking.

[9]             Regarding the firearms offences, ie. Counts 4, 6, and 7, the Crown submits there should be jail time of 12 months on Counts 6, 6 months on Count 7 and 12 months on Count 4, all concurrent to each other and consecutive to the drug convictions. In effect, the Crown submits a total sentence of 3.5 years or 42 months less credit for time served.

[10]         I keep in mind that although traces of fentanyl were found in the heroin seized from Mr. Creuzot’s residence, Mr. Creuzot has not been found to possess or has not pleaded guilty to possession of fentanyl for the purpose of trafficking. Nevertheless, it is submitted that the presence of fentanyl in the heroin should be an aggravating factor in this sentencing.

[11]         In addition, the Crown seeks an order of forfeiture for all non-drug items seized, a s. 109(3) Criminal Code lifetime firearms ban and an order under s. 109(2) of the Code.

Position of the Offender

[12]         Mr. Creuzot submits that he should be sentenced to a period of 12 months jail time concurrent on all offences and that with time served in pre-trial custody of approximately 8 months, Mr. Creuzot should receive credit for 12 months served at time plus one-half. If I were to accept the submissions of the defence, Mr. Creuzot would receive no further jail time after considering the time served to date.

[13]         Alternatively, it is submitted that if Mr. Creuzot were to receive additional jail time, he has proposed that the additional time be limited to 90 days and that the additional time be served intermittently applying the totality principal to all offences.

[14]         Other than letters from Mr. Creuzot’s mother and documents relating to Mr. Creuzot’s health issues from his doctors, no evidence was called by the offender at the sentencing hearing.

Circumstances of the Offences

[15]         In my reasons for judgment on the voir dire I summarized the evidence found on Mr. Creuzot’s person at the time of his arrest and also in the later search of his residence. Items found on his person included 3.5 grams of methamphetamine, $3,122 in one pocket and $1,100 in $100 bills in another pocket along with two score sheets.

[16]         The search of Mr. Creuzot’s residence yielded several different types of controlled substances including cocaine in quantities of 19.84 g., 5.25 g, .94 g, 1.22 g, 11 g of both crack and powder, methamphetamine in quantities of 27 g and smaller quantities, bags of 25 g and 16.76 g of marihuana bud, a fake Chef Boyardee can in which was stored 5.3 g. methamphetamine, crack cocaine, among other powders, a digital scale with heroin, cocaine and methamphetamine residue, heroin including traces of fentanyl, a stun gun/flashlight, a pellet gun, a 15 round 9mm magazine, 9mm ammunition, what may be at least in part two “score sheets”, and more all described in detail in the exhibits filed on the voir dire.

[17]         Cpl. Ringleberg opined that the value of heroin seized was $2,935 based upon a street level price of $250 per gram in the Prince George drug trade at the time, that cocaine valued at $3,184 was seized along with methamphetamine valued at $2,910. Cpl. Ringleberg opined that the quantities and other evidence led him to conclude that Mr. Creuzot was trafficking illicit drugs at the low end or street level of the hierarchy of traffickers, ie. to users.

[18]         Cpl. Ringleberg also opined, based upon his viewing of photographs taken at Mr. Creuzot’s residence that Mr. Creuzot had been investing earnings from trafficking in fortifying his residence for which he had purchased a heavy steel door, a multi-camera surveillance system with monitors in the residence and by the purchase of firearms. Cpl. Ringleberg concluded that the investment in fortifying his residence allowed Mr. Creuzot to “keep his operation going”.

[19]         Regarding the traces of fentanyl found in the heroin, Cpl. Ringleberg noted on cross-examination that no separate pure fentanyl was found in the search and he was unable to determine or opine as to whether Mr. Creuzot had mixed the fentanyl in the heroin. He also testified as to his knowledge of the drug trade in Prince George that dealers will typically use fentanyl to “cut” the heroin if the heroin is of a poor or weaker grade which can greatly increase the value of it.

[20]         Also under cross-examination Cpl. Ringleberg stated the fentanyl could have been present due to cross-contamination and that he could not opine on the potency of the fentanyl seized in this case.

[21]         Regarding the awareness in Prince George of the growing concern over fentanyl overdoses and fentanyl being detected in other drugs, Cpl. Ringleberg testified that in Prince George, the RCMP started to “see and hear” of fentanyl being found in heroin in or about 2012 or 2013 and that “it was a slow progression”. He opined that by 2013 and 2014 the concern over fentanyl had grown to the point that the RCMP were starting to warn their informants of the hazards of fentanyl and advised the informants take extra caution. He continued that the number of drug cases involving heroin had grown such that by 2013, instead of 1 in 50 cases involving fentanyl in other drugs had grown to approximately 1 in 10 cases. He added that by 2014, he, being active full-time in drug investigations in northern British Columbia assumes almost all seizures of drugs were contaminated with fentanyl and that it was typically mixed with heroin.

[22]         Finally, Cpl. Ringleberg testified that fentanyl was approximately 100 times more potent than most heroin, that 2 milligrams of fentanyl could be a fatal dose and that the presence of fentanyl in other illegal drugs is not detectable to the naked eye since a fatal dose is so small, and equated the same to 2 grains of rice.

Circumstances of the Offender

[23]         Mr. Creuzot is 51 years old and is a long-term drug addict. His addiction issues followed surgery while he was in his teens, which affected his right leg which is shorter than his left. This condition, known as “drop foot”, has left him suffering considerable pain. As a consequence, Mr. Creuzot became addicted to drugs from an early age. He does not have a trade or formal education of any kind and had been attempting to operate, without success, a towing business in Prince George up to the time of the offences in 2015. In a report issued in 2004, Mr. Creuzot’s physician stated that he will never be gainfully employed. It was submitted that he has made attempts in the past to manage his addiction without success but at the sentencing hearing, it was reported by his family that since this incident, Mr. Creuzot has not been engaged in the drug trade.

[24]         Due to his problems with his right leg, which are secondary to his aneurisms, his doctor has declared Mr. Creuzot to be disabled.

[25]         Mr. Creuzot addressed the court at the sentencing hearing and express remorse which I believe was a sincere statement.

[26]         Mr. Creuzot was living alone at the time of the offence. He has two young children with his former wife or partner who live on the Lower Mainland of B.C.

[27]         In 2002, Mr. Creuzot was diagnosed with multiple sclerosis which weakens his legs and affects his ability to work. Due to his medications and other drug use to manage pain, he has not been able to maintain employment. He entered the drug trade for profit and to raise funds to pay for his own addiction. Overall, his circumstances have resulted in depression.

[28]         It is submitted on behalf of Mr. Creuzot that he has sworn off of the drug lifestyle and has attended counselling for his addictions. He is reported to be relying on prozac to manage his depression.

[29]         Mr. Creuzot has resided with his mother in the 13 months since he was released from custody. It is apparent from submissions and the attendance of family members at the courthouse that he does have considerable support in his attempts to manage his addiction in seeking a new lifestyle. His mother has written a letter to the court which was most helpful in understanding Mr. Creuzot. She states that he is “sober and clear-headed” and has made visible progress. I understand Mr. Creuzot has followed his terms of bail without incident.

[30]         Mr. Creuzot has a significant criminal record relating to illegal drugs dating back to 1989 for the possession of a narcotic and received a conditional discharge plus six months’ probation. His criminal record since that time includes several convictions for possession of controlled substances (approximately seven), two convictions for possession for the purpose of trafficking which resulted in sentences of two and three months and other convictions including for possession of stolen property, possession of counterfeit money, two convictions for breach of probation, and other minor convictions. The prior convictions for possession for the purpose of trafficking relate to marihuana.

[31]         The longest prior sentence was for the period of three months in 2003 for an offence committed in 2002. The most recent convictions were in 2014 and were for possession of a controlled substance for which he received 12 months’ probation and subsequently a breach of probation for which he was fined $750.

[32]         Mr. Creuzot’s criminal record does not include crimes of violence or weapons. I agree with Mr. Creuzot’s counsel that his criminal record appears to be that of a long-term addict and the longest jail sentence he has received was three months.

[33]         Considering the circumstances of the offences to which Mr. Creuzot has now pleaded guilty and his considerable criminal record, I find that as a drug dealer, his activity was “small time” at the street level.

[34]         I note the submissions of defence counsel regarding the difficult time Mr. Creuzot has spent in detention while awaiting bail which was exacerbated by his medical conditions.

Impact on the Community

[35]         The impact of the use and distribution of illegal substances, especially “hard” drugs such as cocaine, heroin, and methamphetamine is well-known in the community. Untold numbers of our citizens have been seriously impacted by the addiction, crime, and loss of personal opportunity resulting from the use of illegal drugs. It is evident that Mr. Creuzot failed to consider the consequences of his activities in the drug culture upon society, the disappointment of his family and those around him for becoming engaged in the distribution of drugs. However, I expect that his judgment has been impaired by his regular use of drugs for many years.

Applicable Principles of Sentencing

[36]         The fundamental principles of sentencing are stated in s. 718 of the Criminal Code, R.S.C. 1985, c. C-46:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a)     to denounce lawful conduct;

b)     to deter the offender and other persons from committing offences;

c)     to separate offenders from society, where necessary;

d)     to assist in rehabilitating offenders;

e)     to provide reparations for harm done to victims or to the community; and

f)       to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

[37]         Section 718.1 of the Code states that the fundamental principle of sentencing is:

718.1  A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[38]         Finally, with respect to principles of sentencing for offences under the CDSA, s. 10(1) states:

(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

[39]         I conclude this reference to the applicable principles of sentencing by agreeing that denunciation and deterrence are the foremost considerations before the court today (R. v. Voong, 2015 BCCA 285 at para. 18). The presence of traces of fentanyl in the heroin emphasize even more the applicability of denunciation and deterrence in the case before me, especially considering the extensive campaigns which have publicized the tragic loss of life in recent years from the effects of fentanyl.

[40]         Although denunciation and deterrence are paramount when it comes to considerations in sentencing in these cases, rehabilitation and treatment of the offender and an acknowledgement of harm by the offender are significant. In this case, I accept that Mr. Creuzot has acknowledged the consequences of the illegal distribution of drugs in society.

[41]         I also recognize that trafficking in any hard drug, even without considering the exceptional impact of fentanyl, has devastating consequences on the community and must be dealt with harshly.

The Warnings Regarding Exposure to Fentanyl

[42]         The emphasis of the Crown in sentencing has related to the risks and consequences of fentanyl in our society, especially the extensive loss of life through drug users inadvertently ingesting fentanyl. The Crown has provided me with thirteen notices, articles bulletins, and reports issued between 2014 and early 2017 warning of the deadly effects of fentanyl and was marked as Ex. 1 on sentencing. Those documents were issued by many organizations including the B.C. Coroners Service, the B.C. Centre for Disease Control, B.C. Government News, and the Harm Reduction Journal among others. The message of the Crown in relying on those materials is to point out that by the time the offences in this case took place, ie. late July 2015, there had already been substantial warnings relating to the use of fentanyl which were distributed widely and in particular to the drug-using public. Not only were users being warned of the risks but dealers were being made aware that the heroin or other hard drugs they were selling may contain fentanyl.

[43]         It is very important that persons who may be ingesting fentanyl likely are not aware of the presence of that drug. The B.C. Coroners Service Information Bulletin issued June 4, 2014 stated:

There is concern that people may be taking fentanyl under the impression they are taking either heroin or oxycodone. The purchaser is unlikely to recognize the presence of fentanyl as it most often does not appear any difference to other opioids visually, and can be sold in similar packaging.

Fentanyl is a synthetic opioid which is significantly more toxic than morphine. This makes it a particularly high risk to naïve opiate users who can be in danger of dying even on their first use of fentanyl. Even handling fentanyl can be risky as it can be absorbed through the skin or mucous membranes.

Authorities Regarding Sentencing

[44]         The most significant recent decision on sentencing in cases involving fentanyl is R. v. Smith, 2017 BCCA 112. Smith was an appeal of a six month sentence for street-level trafficking in cocaine and fentanyl by a first-time offender. The offence occurred in early 2015 and sentencing by the trial judge was undertaken in late 2016. The majority in Smith found the sentence of six months’ imprisonment in that case was not demonstrably unfit considering the circumstances that existed in early 2015. However the Court of Appeal ruled that a court should apply a higher sentencing range, ie. between 18 and 36 months or more in cases where the events occurred later in time given the development of the public health crisis which had become much more prominent since the offence in Smith.

[45]         Newbury, J.A. dissented and would have imposed a sentence of 18 months as the six month sentence was, in her opinion, demonstrably unfit as of the time of the offence.

[46]         In Smith, the offender was arrested attempting to conclude a sale to an undercover officer and when arrested, was found in possession of 13 flaps of fentanyl with a total weight of 2.6 grams and 18 flaps of cocaine and several rocks of crack cocaine. Mr. Smith advised the author of his pre-sentence report that he was not aware that he was in possession of fentanyl and believed the 13 flaps contained heroin.

[47]         Several statements of the court in Smith are significant in the sentencing of Mr. Creuzot and I refer to the following passages from the Court of Appeal decision, firstly from the dissenting opinion of Newbury J.A.:

[17]      . . . . With respect to Mr. Smith’s ‘claim’ that he had been unaware he had been selling Fentanyl, the judge noted this court’s statement in R. v. Herrell, 2014 BCCA 114, a sentence appeal, that a seller of drugs “must be assumed to recognize an inherent risk . . . that the composition of the drugs may be unknown”. (At para. 19) Despite this, the sentencing judge in the case at bar said he was inclined to the view that actual ignorance might “lessen moral blameworthiness to some degree” (at para. 27)

. . . .

[30]      Although no finding was made in the case at bar that Mr. Smith was “wilfully blind” to the fact that he was in possession of Fentanyl rather than heroin, the case law suggests that even being genuinely mistaken about the true identity of the illegal drug in one’s possession does not serve as a mmitigating circumstance in sentencing, provided the offender knew he or she was in possession of an illegal drug: see R. v. Giammarco [2012] O.J. No. 1053 at paras. 25-31, aff’s 2014 ONCA 242. Here, there is no suggestion Mr. Smith did not know he was in possession of an illegal drug, albeit a different one than the drug he actually had in his possession for sale. To the contrary, he admitted he was trafficking in illegal drugs. He adduced no evidence demonstrating that he took reasonable steps to satisfy himself of his belief that the substance found in his possession was heroin rather than Fentanyl.

Secondly, at paras. 49 and 50 Harris J.A. rationalized why a substantially higher sentencing range was warranted for fentanyl and other dangerous drugs including heroin:

[49]      In my opinion, these facts warrant recognizing a sentencing range for street-level dealing in fentanyl which is materially higher than the sentencing range applicable to other dangerous drugs such as heroin. The range for street-level dealing in those drugs seems to start in British Columbia at six-months’ imprisonment. As matters stand today, other dangerous drugs do not kill as frequently, accidentally, or as unpredictably as fentanyl, but the risks posed by those drugs should not be minimized even by comparison with fentanyl. Heroin, crystal meth and cocaine can have devastating consequences. They may not kill as often as fentanyl, but very large numbers of accidental deaths are associated with their consumption (indeed the majority of accidental overdose fatalities involve a mixture of illicit drugs) and they destroy lives and wreak social havoc. The existing sentencing range for them is intended to reflect, amongst others, the sentencing principles of deterrence and denunciation. Recognizing a different and markedly higher sentencing range for street-level dealing in fentanyl turns on the enhanced risks associated with that activity and the individual responsibility of dealers given those risks and public knowledge of them.

[50]      Where I part company from my colleague is on the question whether we should defer to this sentence imposed by the sentencing judge. In my view, we should. Here the offender was not sentenced until late November 2016, but the offence was committed in January 2015. In the interim there has been a profound and enormous escalation in the extent of the fentanyl crisis and public awareness of it. Unlike my colleague, I am not persuaded that the sentence was demonstrably unfit given the circumstances regarding fentanyl as they existed in January 2015, when the offence was committed.

[48]         Thirdly, from the majority decision of Harris, J.A. regarding the time periods when the fentanyl crisis was widely discussed in the public forum:

[59]      I take from this that, even in August 2015, while there was a clear association between increasing availability of illicit fentanyl and increasing numbers of accidental overdoses, there remained some uncertainty about the role of fentanyl in causing or contributing to accidental drug overdose deaths. Secondly, the majority of deaths involved mixed illicit drug overdoses. I take from this that there was uncertainty about the contribution of illicit fentanyl to overdose deaths as opposed to the contribution made by other illicit dangerous drugs. In my view, this has some bearing on the question of identifying a sentencing range for fentanyl which is materially different from the sentencing range for other dangerous drugs which appear also to play a role in accidental overdose deaths. Finally, in June 2014 an information bulletin from the BC Coroners Service, footnoted to the September Report referred to above, warned illicit drug users of the dangers of fentanyl, but identified the area of particular concern to be within the Fraser Valley Health Authority, while in other regions of the province (presumably including where the offence occurred), deaths related to fentanyl appeared to be stabilizing or decreasing.

[60]      As I see the matter, as matters stood in January 2015, there may well have been good reason for a sentencing judge to consider imposing a sentence that would have reflected an increased sentencing range for street-level dealing in fentanyl above that of other dangerous drugs. Cases from other jurisdictions suggesting a higher range were available as comparators. . . . .

[61]      Since January 2015, there have been a number of changes which would render the sentence imposed on Mr. Smith demonstrably unfit had the offence occurred later, particularly if it had occurred late in 2016.

. . . . .

[64]      Thirdly, as a result of the forgoing it is most doubtful, in my view, that the statement that “the role of fentanyl in overall illicit drug overdose deaths cannot be determined at this time” (August 2015), would accurately reflect the state of opinion today. The role of fentanyl in overall illicit drug overdose deaths seems perfectly clear.

[49]         Harris J.A. closed his decision on the state of knowledge of the offender regarding whether he was selling fentanyl:

[66]      I want to add only one further comment. The sentencing judge placed little or no weight on the suggestion that Mr. Smith thought he was selling heroin and did not know that the powder he was selling was fentanyl. His state of knowledge played no material role in the sentence imposed. Accordingly, I prefer not to comment on the relevance of his alleged personal knowledge of what he was selling. I would prefer to leave that issue, insofar as there is any lack of clarity in the law, to a case in which it is material to the outcome.

[50]         Willcock J.A. agreed with the decision of Harris J.A. in Smith.

[51]         Approximately one month after publication of the Smith decision in the case of R. v. Naccarato, 2017 BCSC 645, Pearlman J. faced a sentencing in which the offender had been convicted of one count of possession of heroin for the purpose of trafficking. In that case, 58.3 grams of heroin was “laced with fentanyl”. The offence was committed on December 18, 2014.

[52]         The offender was a first-time offender, was addicted to methamphetamine and was a street-level drug dealer. Like Mr. Creuzot, Ms. Naccarato’s addiction was a contributing factor in her participation in the drug trade and was also motivated by financial gains. At the time of the offence, Ms. Naccarato was acting as a courier for a mid-level drug trafficker when she was arrested with a bag of heroin which had a value of between $12,000 to $15,000 were the heroin to be sold by the gram. The court also found that Ms. Naccarato “had no specific knowledge that the heroin contained fentanyl, but was generally aware in December 2014 that fentanyl was being used to cut heroin” (para. 14).

[53]         Pearlman J. acknowledged that the principal issue in Naccarato was whether the offender should be sentenced to incarceration or whether a suspended sentence and probation with strict conditions would constitute a fit sentence. The court also found that the offender was gainfully employed and her rehabilitation since the time of the offence was a significant sentencing objective.

[54]         Pearlman J. reviewed the then very recent Court of Appeal decision in Smith and at para. 90 acknowledged that “absent exceptional circumstances, the sentencing range was from six to 18 months’ incarceration” since the offence had occurred in December 2014.

[55]         At para. 37, Pearlman J. stated:

[37]      Here, Ms. Naccarato knew she was transporting heroin, but was not aware that the heroin had been laced with fentanyl. However, in my view, her lack of specific knowledge that the heroin contained fentanyl is not a mitigating factor. The Crown and defence agree and I have found that at the time of the offence, Ms. Naccarato was aware that heroin could be laced with fentanyl. Ms. Naccarato was aware she was transporting an illegal drug that could be adulterated with fentanyl. Her ignorance about whether or not the heroin contained fentanyl did nothing to ameliorate the risk of overdose to anyone who purchased the drugs.

[56]         The only mention of fentanyl during the voir dire hearing in the case at bar was on the Certificate issued by Health Canada which referred to “traces” of fentanyl in a bag of heroin. There was no evidence on the voir dire or on the sentencing hearing indicating Mr. Creuzot knew or did not know of the presence of fentanyl in the heroin found in his residence.

[57]         Pearlman J. concluded that exceptional circumstances were present in the case of Ms. Naccarato and imposed a suspended sentence and a three-year probation term on very strict conditions.

[58]         There were several other authorities referred to me by both counsel which have been very helpful. Other than Naccarato, there were no other decisions referred to the court on possession of drugs for the purpose of trafficking in which fentanyl was detected as opposed to the offender having been charged with possession of fentanyl for the purpose of trafficking.

Analysis

[59]         Mr. Creuzot has pleaded guilty to the possession of cocaine, methamphetamine, and heroin for the purpose of trafficking as of July 30, 2015.

[60]         In Smith, the Court of Appeal was concerned with circumstances of an offence which had occurred in January of 2015 and came to the conclusion that the prevailing circumstances in January 2015 were not such as to justify imposing a sentence reflecting the increased sentencing range for street level dealing in fentanyl above that of other drugs. Harris J.A. at para. 59 found, and I repeat:

[59]      I take from this that, even in August 2015, while there was a clear association between increasing availability of illicit fentanyl and increasing numbers of accidental overdoses, there remained some uncertainty about the role of fentanyl in causing or contributing to accidental drug overdoses. . . .

(emphasis added)

[61]         Harris J.A. continued and at para. 61 quoted above found that since January 2015 the more widespread knowledge of the dangers of fentanyl being mixed with other illegal drugs, were so well known that an offence committed later, particularly in late 2016, would justify greater sentence than would have been a fit sentence as of January 2015. Later, at para. 64, Harris J.A. found the statement that: “the role of fentanyl in overall illicit drug overdose deaths cannot be determined at this time” (referring to August 2015) accurately reflects the state of opinion today.

[62]         I take from the words of Harris J.A. that as of August 2015, considerable uncertainty remained as to the role of fentanyl in overdose deaths. The learned judge’s reference to “late in 2016” also point to a somewhat continuing uncertainty until the latter portion of 2016. It would follow from these two statements that an offence committed in July 2015 which involved traces of fentanyl being found in heroin does not justify the increased sentence any more than it did for an offence committed in January 2015 as was the case in Smith.

[63]         Assuming my understanding of the findings of Harris J.A. in this respect is correct, then a fit sentence for an offence involving fentanyl committed in July 2015  would not reflect the increased range of sentencing to be applied once the public awareness of the risks of fentanyl was widely known. I understand from Smith that the lesser range would commence at six months incarceration. If Mr. Creuzot were to be sentenced based upon the increased range reflective of wide dissemination of information on the fentanyl crisis, the range would be between 18 and 36 months as submitted by the Crown.

[64]         The findings of Harris J.A. in this respect appear to be inconsistent with the opinion of Cpl. Ringleberg whose opinion was that by 2014 almost all hard drugs were contaminated with fentanyl and that in 2014 the RCMP were warning their informants to exercise extra caution due to the increase in fentanyl related overdoses. From my review of Smith, many of the publications warning of fentanyl and mentioned by the Court of Appeal were the same or similar as those filed as Exhibit 1 on the present matter. I accept that in his testimony Cpl. Ringleberg was making an honest assessment the state of the fentanyl crisis based upon his experiences and those of his colleagues but my review of Exhibit 1 and the Smith decision lead me to conclude that by July 2015, the awareness of the fentanyl problem was not widespread.

[65]         Next, in the case of Mr. Creuzot, he was not charged with possession of fentanyl for the purpose of trafficking as was the case in Smith. In Smith, the offender was found with 13 flaps of fentanyl which totalled 2.6 grams. In Mr. Creuzot’s case, traces of fentanyl were found in the heroin.

[66]         In Naccarato, Pearlman J. stated, at para. 37 that:

 . . . . The Crown and defence agree and I have found that at the time of the offence, Ms. Naccarato was aware that heroin could be laced with fentanyl . . . .

There has been no such finding or agreement in the case before me.

[67]         From my review of the authorities, especially Smith and Naccarato, I conclude that a finding of possession of fentanyl for the purpose of trafficking is more serious and more heinous than possession of another illegal drug containing traces of fentanyl. Possession of fentanyl for the purpose of trafficking would be more culpable than possession of heroin containing traces of fentanyl in another drug, although both situations are very culpable.

[68]         Finally, is the absence of evidence that Mr. Creuzot was aware of the presence of fentanyl in the heroin a mitigating factor? Newbury, J.A. in Smith was clear in her dissenting opinion that it was not a mitigating factor. Pearlman J. came to the same conclusion in the later decision of Naccarato.

[69]         However, Harris J.A. in Smith at para. 66 chose to “not comment on the relevance of his alleged personal knowledge of what he was selling. I would prefer to leave that issue, insofar as there is any lack of clarity in the law, to a case in which it is material to the outcome”.

[70]         I take from the above statement by Harris J.A. that there may be special circumstances in which the accused’s state of knowledge of the presence of fentanyl can be a mitigating factor in sentencing. However in the case before me, I do not consider any knowledge or lack of knowledge of the presence of fentanyl in the heroin to be a mitigating factor.

Mitigating and Aggravating Factors

[71]         Mitigating factors would be Mr. Creuzot’s family support, that he was selling in part to pay for his addiction which originated from prescription drugs taken for pain arising from his serious medical issues, and his motivation to leave the drug trade which I understand through his family has been successful to date.

[72]         Mr. Creuzot’s criminal record is significant but, as said earlier, reflects life as a long-term drug addict and does not reflect physical violence or weapons. I do not consider his criminal record to be a significant aggravating or mitigating factor. I also note the weapons seized in this case were not typical of weapons seized from drug operations and the gun seized contained soft pellets.

[73]         Aggravating factors include the fortification of his premises at the time, indicating Mr. Creuzot had invested over a period of time in continuing a drug operation, and the seriousness of the drugs which he had been selling.

Conclusion

[74]         Mr. Creuzot, could you please stand.

[75]         Considering the factors discussed in the Smith decision in particular on the state of knowledge of persons in the drug trade in mid-2015 and taking into consideration of all factors referred to in these reasons for decision with emphasis on the need for denunciation and deterrence for any offences of trafficking in hard drugs, I sentence you to a global sentence for all offences, including the weapons offences, of 14 months’ incarceration, less time served at 1.5 days for each day spent in jail, by my calculations results in a sentence of 111 days, with a two-year term of probation.

[76]         The terms of probation are as follows:

·       Mr. Cruezot will keep the peace and be of good behaviour. He will appear before the court when required to do so by the court.

·       Mr. Cruezot will continue to reside with his mother for the first year of probation.

·       He will notify the court or his 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.

·       Mr. Cruezot will immediately report in person to the probation office in Prince George, and after that he will report as directed.

·       When first reporting to the probation officer, Mr. Cruezot shall inform him or her of his residential address and phone number.

·       He will not change his address or phone number without first notifying the probation officer.

·       Mr. Cruezot shall remain in the Province of British Columbia, unless he has received the written consent of the probation officer to go elsewhere.

·       For the first year of probation, he will obey a curfew by being inside his residence between the hours of 9:00 p.m. and 6:00 a.m. each day, except as follows:

(a) with the written consent of the probation officer, but such consent is to be given only for compelling personal, family, or employment reasons; or

(b) when travelling directly to, or returning directly from, his place of employment, or while in the course of his employment. He shall provide the probation officer with written details of his employment, if requested to do so; or

(c) when travelling directly to, or returning directly from, an educational institution at which he is enrolled, or while in the course of classes or extracurricular activities approved in advance by the probation officer.

·       Mr. Cruezot shall not possess or consume any alcohol or any controlled substance as defined in s. 2 of the CDSA, except as prescribed for him by a physician.

·       He shall not possess any pipes, syringes, or other drug paraphernalia.

·       Mr. Cruezot shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by the probation officer.

Ancillary Orders

i.        A firearm/weapon/ammunition prohibition

[77]         As a result of his conviction under s. 5(2) of the CDSA, s. 109(1)(c) of the Criminal Code requires that an order prohibiting Mr. Cruezot from possessing firearms, ammunition and restricted/prohibited weapons be issued. Pursuant to s. 109(2) of the Criminal Code, the duration of the prohibition order is ten years after his release from prison for firearms/ammunition and a lifetime prohibition for restricted/prohibited firearms.

ii.       A victim fine surcharge

[78]         In light of the offender’s lack of income, the victim surcharge levied under s. 737 of the Criminal Code is waived.

iii.       Forfeiture of the cash seized

[79]         The cash seized by the police from the accused are forfeited to the Crown, pursuant to s. 16(1) of the CDSA and s. 462.37(1) of the Criminal Code.

iv.      A DNA order

[80]         An offence under s. 5 of the CDSA is a "secondary designated offence”, as that term is defined in s. 487.04 of the Criminal Code. Therefore, s. 487.051(3) of the Criminal Code applies. The CDSA offence involving the methamphetamine, cocaine, and heroin with traces of fentanyl is an extremely serious one. These factors support the issuing of such an order. If a DNA order is issued there will be an impact upon the offender’s privacy interests, but there are significant societal benefits derived from allowing DNA samples to be taken from such offenders (see R. v. Boskoyons, 2008 ABCA 359 at para. 4). Considering the statutory requirements, the circumstances of the accused and the CDSA and Criminal Code offences committed by him, I am satisfied that it is in the best interests of the administration of justice to issue a DNA order and such an order is hereby issued.

“Jenkins J.”