2018 BCSC 1589 R. v. Glendinning

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	R. v. Glendinning,
	2018 BCSC 1589

Date: 20180816

Docket: 85556-2

Registry: Kelowna

Regina

Samuel David Glendinning

Before: The Honourable Madam Justice Marzari

Oral Reasons for Sentence Re Accused Glendinning

Counsel for the Crown:	C. Burnett
Counsel for the Accused Glendinning:	D.W. Skogstad
Place and Date of Trial/Hearing:	Kelowna, B.C. August 13-15, 2018
Place and Date of Judgment:	Kelowna, B.C. August 16, 2018

[1] THE COURT: Mr. Glendinning, I have considered the submissions that have been made by your counsel and by Crown counsel, as well as the materials I have been given, and I am satisfied that the sentence that counsel jointly propose of two years plus a day to be served concurrently for both counts is a fit sentence in all the circumstances.

[2] Your offences of possessing cocaine and a mixture of heroin and fentanyl for the purpose of trafficking are very serious for all of the reasons Crown counsel has outlined. The dangers and costs in terms of human life associated with fentanyl are enormous. As stated by the Court of Appeal in R. v. Smith, 2017 BCCA 112 [Smith] “…fentanyl is a scourge. It poses intolerable risks of accidental overdosing…”.

[3] The toll on our communities of this drug has been too high. I believe that since the time of your arrest you have reflected on these dangers and on the consequences of your conduct.

[4] There are mitigating circumstances to be considered here as well. You are still young at 24, and you were 22 at the time of these offences. I note in particular that you have no criminal record, and it would appear that since your arrest you have moved home with your family and you have made significant contributions to your work place and in your community as a volunteer. Your work ethic in the last year is particularly noted. You lost your father in your teenage years, and this may have contributed to you losing your way when you moved to Kelowna to work for a year. You are now, from what I can see in the court and in the letters that you have provided to me, strongly supported by members of your family and friends. I accept that you have reconsidered your actions and regret them.

[5] The Criminal Code, R.S.C. 1985, c. C-46 [Code] and Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA] set out a number of factors that the court must consider in pronouncing sentence. I will mention only some. Section 718 of the Code states:

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 unlawful conduct … ;

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

(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 acknowledgment of the harm done to victims or to the community.

[6] 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.

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

(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.

[8] Denunciation and deterrence are particularly weighty considerations in this offence (R. v. Voong, 2015 BCCA 285). The presence of fentanyl in the heroin in this case is particularly relevant to the requirement of denunciation and deterrence in this case. Indeed, trafficking in any hard drug, even without considering the exceptional impact of fentanyl, has devastating consequences on the community and must be dealt with accordingly.

[9] Although denunciation and deterrence are paramount when it comes to considerations in sentencings of these cases, rehabilitation and treatment of the offender and an acknowledgment of harm by the offender are significant. Your own efforts at rehabilitation is a factor that I give significant weight to. From what your counsel has told me, and from the letters of reference that you have put before the Court, it appears very likely that you are already on the road to rehabilitation, and that you are unlikely ever to find yourself in this type of situation or involved in criminal conduct again.

[10] You are fortunate in having very strong family and community support. It is to your credit that members of your family and your community value you as an individual, and support you. It appears from everything I have been told and have read that you are quite properly taking advantage of that support to move forward and get the help you need and put yourself on a more positive path.

[11] The principles of sentencing parity requires me to take into account the sentences generally ordered for possession for the purposes of trafficking cocaine, and heroin mixed with fentanyl. Your counsel and Crown counsel provided me with the Court of Appeal decision in Smith and R. v. Kirton, 2018 BCPC 11 [Kirton]. I note that the joint submission of two years plus a day is at the lower end of the sentencing range discussed in Smith, and is similar to the sentence in Kirton for Count 2.

[12] Given that this is a joint sentence made on behalf of your counsel and Crown counsel, I would only depart from that joint submission if I considered the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

[13] In all of the circumstances, I am satisfied that the proposed sentence is a fit one. Would you stand, please.

[14] Mr. Glendinning, I sentence you to imprisonment for a period of two years plus a day. That is to be served concurrently with respect to both counts.

[15] I also make the following ancillary orders.

[16] I am required to impose an order that prohibits you from having possession of any weapons or ammunition for a period of ten years. That order is made under s. 109 of the Code.

[17] Finally, I will make an order in the form which the parties have agreed, requiring the forfeiture of the three cellphones and the cash that was seized at the time of your arrest.

[18] I have signed that order and that has also been signed by counsel.

[19] MR. BURNETT: Yes. Thank you. It should be sent -- I will let Mr. Clerk enter it, and then we can get copies. Thank you.

[20] THE COURT: Yes. There is a victim surcharge imposed by legislation that has not been requested to be waived, so it will simply go by way of the legislation.

[21] Is there anything else required?

[22] MR. BURNETT: No, My Lady. I believe that covers everything.

[23] MR. SKOGSTAD: I believe that's it.

[24] THE COURT: All right. Good. Thank you very much. That concludes this trial, then. Thank you.

[25] MR. BURNETT: Thank you.

“Madam Justice Marzari”