English translation of reasons for judgment in R. c. Grenier, 2024 BCSC 2600

Translated

Original text: BC Supreme Court

This translation is not an authoritative English language translation.

Supreme Court of British Columbia

Citation:R. c. Grenier,
2024 BCSC 2600

Date:
Docket: 47527-2 and 47528-2
Registry: Penticton

Rex
v.
Yves Émile Wilfred Grenier
Presiding: Honourable Justice Maisonville

Oral Reasons for Sentence

Counsel for the Accused: G. Rivard

Counsel for the Crown: S. Phillips

Place and Date of Hearing: Penticton, BC
November 18, 2024

Place and Date of Judgment: Penticton, BC
December 6, 2024

[1] THE COURT: On October 23, Mr. Yves Grenier pleaded guilty to all counts in dockets 47527-2 and 47528-2. These offences are related to drug trafficking. These are my reasons for sentencing. Once these reasons are published, I reserve the right to make minor edits for grammar, syntax and to add titles. However, the substance, the conclusion and the analysis will not change in the written version. The facts set out below are summarized from the joint statement of facts.

Docket 47527-2, Surveillance of Mr. Grenier

Between January 27 and March 1, 2022, members of the Street Crime Unit of the Penticton RCMP detachment surveilled Mr. Grenier on nine days. They observed Mr. Grenier leave his home multiple times at 101 672 Pickering Street, Penticton, BC, the first residence, and participate in activities associated with drug trafficking such as hand-to-hand transactions and brief meetings inside vehicles.

[2] For example, on February 16, 2022, a police officer observed Mr. Grenier leave the first residence by foot and give a plastic sachet containing a white substance to a man sitting on the ground. Mr. Grenier was looking over his shoulders during the transaction. After that, Mr. Grenier spent an hour and forty-five minutes in a parking lot where police officers saw him conduct a similar hand-to-hand transaction with other individuals.

[3] On March 1, 2022, the police observed Mr. Grenier meet a man for two to three minutes and give the man a small item. Mr. Grenier then returned to the first residence. Five minutes later, the police arrested the man who met with Mr. Grenier and found the following drugs in his possession:

[4] Afterwards, the police observed Mr. Grenier leave the first residence and head towards the Burger King parking lot. The police arrested Mr. Grenier and found two cell phones in his possession. A search of the first residence was conducted that same day. The police executed a search warrant at the first residence. An individual opened the door, explained that Mr. Grenier was their tenant and identified Mr. Grenier's room.

[5] In his room, the police found the following items:

These are the seized items.

[6] In docket 47528-2, surveillance on Mr. Grenier in September and October 2022, members of the Penticton RCMP began to surveil Mr. Grenier again to determine which he was continuing to engage in drug trafficking. On September 28, 2022, the police saw Mr. Grenier enter and leave a residence at 127-298 Maple Street, Penticton, BC, the second residence.

[7] Of the course of several days of surveillance, the police observed Mr. Grenier engaging in activities they believed to be related to drug trafficking. For example, on October 5, 2022, they saw him give a small plastic sachet to a man sitting on the sidewalk in downtown Penticton. On October 6, they saw a man leave the second residence who then gave two small plastic sachets to a known drug user who was sitting on the sidewalk. On October 13, 2022, the police arrested the man as soon as he left the second residence.

[8] During the search ancillary to arrest, the police found two small transparent Ziploc bags in his left hand which both contained pink fentanyl (0.87 grams in total). The small transparent Ziploc bags were decorated with a black-and-white grain pattern.

[9] A short time afterwards, Mr. Grenier exited the second residence and left on his electric bike. He travelled around 350 metres and stopped at an intersection. Constable Sutherland approached Mr. Grenier while shouting that he was under arrest. When Cst. Sutherland approached, it appeared to him that Mr. Grenier was preparing to flee on his bike. Cst. Sutherland ran to Mr. Grenier and wrapped his hands around Mr. Grenier's torso while he was on his bike, causing them to both fall to the ground. Mr. Grenier was placed into custody without further incident.

[10] During the search ancillary to Mr. Grenier's arrest, the police found a transparent bag hidden in Mr. Grenier's pants in the crotch area containing the following items:

[11] In one of the bags that Mr. Grenier was carrying, the police found:

[12] Concerning the search of the second residence. Later that same day, the police executed a search warrant on the second residence. They found in a room:

[13] The police also found in the kitchen:

[14] In the case at bar, counsel submit a joint recommendation. A summary of the proposed sentences is below; the joint submission results in five years' imprisonment in total.

[15] In docket 47527, count 1 for 23.40 grams of methamphetamine, six months' imprisonment and count 2 for 12.71 grams of fentanyl, eighteen months' imprisonment concurrent to count 1; an order prohibiting Mr. Grenier from possessing firearms and other items listed in s. 109(1) of the Criminal Code for life; an order authorizing the taking of bodily substances for the purposes of forensic DNA analysis for a secondary designated offence pursuant to s. 487.051(3)(a) of the Criminal Code; a forfeiture order (a) pursuant to s. 16 of the Controlled Drugs and Substances Act authorizing the confiscation of the following exhibits listed in Major Exhibit Flowchart number 21185666: 1, 2, 3, 4, 11, 12 and 13.

[16] In docket 47528-2, sentences being consecutive to docket 47527-2 but concurrent to each other with regards to the principle of totality. Count 1, for 15.63 grams of methamphetamine, eight months' imprisonment. Count 2, 2.87 grams of fentanyl, 24 months' imprisonment. Count 3, 3.85 grams of cocaine, eight months' imprisonment. Count 4, for methamphetamine, twelve months' imprisonment. Count 5, for 75.98 grams of fentanyl, 42 months' imprisonment. Count 6, for cocaine, 12 months' imprisonment.

[17] Again, an order prohibiting Mr. Grenier from having weapons and other items listed in s. 109(1) of the Criminal Code for life; an order authorizing the taking of bodily substances for the purposes of forensic DNA analysis for a secondary designated offence pursuant to s. 487.051(3)(a) of the Criminal Code; a forfeiture order (a) pursuant to s. 16 of the Controlled Drugs and Substances Act authorizing the confiscation of the following exhibits listed in Major Exhibit Flowchart number 2216077-A: 1, 2, 3; and for Flowchart 2216077-B: 1, 6, 7, 8, 9.

[18] Now, I consider the legislative principles of sentencing. The following three articles of the Criminal Code are the most pertinent for sentencing. In them, Parliament has defined the objectives and principles of sentencing used to determine an appropriate punishment. 718, purpose:

[19] 718. Purpose - 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:

  1. (a) to denounce unlawful conduct;
  2. (b) to deter the offender and other persons from committing offences;
  3. (c) to separate offenders from society, where necessary;
  4. (d) to assist in rehabilitating offenders;
  5. (e) to provide reparations for harm done to victims or to the community; and
  6. (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[20] 718.1 - Fundamental principle - A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[21] 718.2 - Other sentencing principles - A court that imposes a sentence shall also take into consideration the following principles:

[22] The key decisions to determine the sentence for drug trafficking, in particular of fentanyl, in these circumstances are R. v. Smith, 2017 BCCA 11TR2; and R. v. Parranto, 2021 SCC 46.

[23] To determine a just sentence, the court must consider society's view on the gravity of certain offences. In Smith, the British Columbia Court of Appeal established that the appropriate setencing range for posesssion for fentanyl for trafficking is between eighteen and thirty-six months. In paragraph [65], Justice Harris described, as translated from English:

En résumé, l'escalade continue du nombre de décès détectés par le fentanyl, l'énormité du nombre total de surdoses accidentelles, le pourcentage croissant de décès détectés par le fentanyl par rapport au total de la conscience actuellement omniprésente du risque posé par le fentanyl ensemble justifient la reconnaissance d'une augmentation très substantielle de l'éventail des peines applicables pour trafic de fentanyl dans la rue. Mais une fourchette différente s'applique lorsque le contrevenant se situe plus haut dans l'échelle de vente que le niveau de la rue.

In sum, the continuing escalation in the number of fentanyl-detected deaths, the enormity of the total numbers of accidental overdosing, the increasing percentage of fentanyl detected deaths as a proportion of the total, and the currently ubiquitous awareness of the risks posed by illicit fentanyl, in combination, justify a recognition of a very substantial increase in the sentencing range applicable to street-level dealing in fentanyl. However a different range applies where the offender is higher up the chain of sale or distributionTR3.

[24] In Parranto, Justice Moldaver, writing for the Supreme Court of Canada, explained the dangers of fentanyl in 2022. In paragraph [93], he noted:

Aussi grave que soit la menace que représentent des drogues comme l'héroïne et la cocaïne, cette menace n'est rien en comparaison de celle que représentent le fentanyl et ses analogues. D'ailleurs, au cours des dix dernières années, le fentanyl a modifié le paysage de la crise de la toxicomanie au Canada, se révélant l'ennemi public numéro un.

As grave a threat as drugs such as heroin and cocaine pose, that threat pales in comparison to the one posed by fentanyl and its analogues. Indeed, over the past decade, fentanyl has altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy number one.

[25] In paragraph 96, Justice Moldaver explored the consequences of this crisis:

Toutefois, au-delà de son simple potentiel de nocivité, le fentanyl a eu — et continue d'avoir — un impact mortel bien réel sur la vie des Canadiens. En effet, le trafic de fentanyl est si mortel que plusieurs tribunaux l'ont érigé en crise nationale, ce qui témoigne d'une meilleure connaissance de la gravité des torts qu'il cause (voir, p. ex., R. c. Smith, 2017 BCCA 112, par. 50 (CanLII); R. c. Vezina, 2017 ONCJ 775, par. 58 (CanLII); R. c. Aujla, 2016 ABPC 272, par. 1 (CanLII)). Cette connaissance accrue est attestée par la preuve statistique disponible. La preuve d'expert versée au dossier dont nous disposons montre, par exemple, que les décès liés au fentanyl en Alberta ont augmenté de 4 858 pour 100 entre 2011 et 2017, passant de 12 en 2011 à 583 en 2017. De façon plus générale, les statistiques fédérales sur les décès liés aux opioïdes montrent qu'entre janvier 2016 et mars 2021, environ 23 000 Canadiens ont perdu la vie pour des raisons apparemment liées à une intoxication aux opioïdes, le fentanyl étant en cause dans 71 pour 100 de ces décès (Comité consultatif spécial sur l'épidémie de surdose d'opioïdes, Méfaits associés aux opioïdes et aux stimulants au Canada (septembre 2021) (en ligne)). L'épidémie ne montre par ailleurs aucun signe d'essoufflement, avec près de 6 000 décès accidentels survenus en 2020 seulement, dont 82 pour 100 étaient imputables au fentanyl (Gouvernement du Canada, Mesures fédérales sur les opioïdes à ce jour (juin 2021) (en ligne)). Ces chiffres illustrent une sombre et incontournable réalité : [TRADUCTION] « [c]haque jour, dans nos communautés, des Canadiens meurent en raison d'une consommation abusive de fentanyl » (R. c. Loor, 2017 ONCA 696, par. 33 (CanLII)).

Beyond its mere potential to cause harm, however, fentanyl has had — and continues to have — a real and deadly impact on the lives of Canadians. Indeed, trafficking in fentanyl is so deadly that various courts have described it as a national crisis, reflective of an increased understanding of the gravity of the harm it causes (see, e.g., R. v. Smith, 2017 BCCA 112, at para. 50 (CanLII); R. v. Vezina, 2017 ONCJ 775, at para. 58 (CanLII); R. v. Aujla, 2016 ABPC 272, at para. 1 (CanLII)). This heightened understanding is supported by the available statistical evidence. The expert evidence on the record before us establishes, for instance, that fentanyl-related deaths in Alberta increased by 4,858 percent between 2011 and 2017, rising from 12 deaths in 2011 to 583 deaths in 2017. More broadly, federal statistics on opioid-related deaths show that, between January 2016 and March 2021, approximately 23,000 Canadians lost their lives due to accidental apparent opioid-related deaths, with fentanyl involved in 71 percent of these deaths (Special Advisory Committee on the Epidemic of Opioid Overdoses, Opioid and Stimulant-related Harms in Canada (September 2021) (online). The epidemic also shows no signs of abating, with over 6,000 accidental deaths occurring in 2020 alone, 82 percent of which involved fentanyl (Government of Canada, Federal actions on opioids to date (June 2021) (online)). These figures throw into stark relief the dark and inescapable reality that "[e]very day in our communities, fentanyl abuse claims the lives of Canadians" (R. v. Loor, 2017 ONCA 696, at para. 33 (CanLII)).

I note that Smith from our Court of Appeal was cited here.

[26] Finally, in paragraph [100], Justice Moldaver insisted that:

À mon avis, il convient d'infliger de lourdes peines d'incarcération à purger dans un pénitencier lorsque le délinquant fait le trafic de grandes quantités de fentanyl et joue un rôle de premier plan dans le réseau de trafic de drogue. En fait, dans le cas du trafic de fentanyl à grande échelle, les peines sévères ne devraient être ni inhabituelles ni réservées à des circonstances exceptionnelles. Comme notre Cour l'a déjà expliqué, on ne doit pas réserver la peine maximale « au scénario abstrait du pire crime commis dans les pires circonstances »; on devrait plutôt l'infliger chaque fois que les circonstances le justifient.

In my view, heavy penitentiary sentences will be appropriate where offenders have trafficked in large quantities of fentanyl and assumed leadership roles in the trafficking operation. Indeed, in the context of largescale fentanyl trafficking operations, substantial sentences should be neither unusual nor reserved for exceptional circumstances. As this Court has previously explained, maximum sentences should not be reserved for the "abstract case of the worst crime committed in the worst circumstances", but rather should be imposed whenever the circumstances warrant it.

He cites the 2008 L.M. decision of the Supreme Court of Canada.

[27] In R. v. Kazakoff, 2022 BCSC 2151, the sentence was being contested after trial resulting in conviction. The Crown argued for a ten-year sentence consecutive to an eighteen-month sentence the offender already received shortly beforehand. This situation somewhat parallels Mr. Grenier's situation in the case at bar. There was a case of trafficking, a trial for trafficking, and then a little later, another case and trial for trafficking. In Mr. Kazakoff's case, there were separate trials for the two cases and the sentence was pronounced seperately for the first case.

[28] In Kazakoff, he had already received an eighteen-month sentence and the issue before the court was the sentence for the second case of trafficking. Mr. Kazakoff was in possession of a larger amount of substances than Mr. Grenier. Mr. Kazakoff was convicted of being in possession of Schedule 1 substances worth over $30,000, notably fentanyl as well as carfentanyl, a substance more potent than fentanyl and methamphetamine.

[29] Justic Kirchner examined other decisions in British Columbia related to drug trafficking. In the end, he sentenced Mr. Kazakoff, who he characterized as being at the lower end of the intermediate band of the chain of sale, but above street-level, to five years' imprisonment consecutive to the eighteen-month sentence previously imposed, giving a total sentence of six-and-a-half years.

[30] The seminal decision on joint recommendations is R. v. Anthony-Cook, 2016 SCC 43. Joint sentencing recommendations, when prosecution and defense counsel recommend to a judge a particular sentence in exchange for a guilty plea from the accused, are one way to close a case. They are an accepted way to come to an agreement on a plea.

[31] The Supreme Court of Canada has noted that this joint recommendations contribute not only to the resolution of the vast majority of criminal affairs in Canada but also to the justice system's equality and efficiency.

[32] In the case at bar, the police observed Mr. Grenier himself selling drugs on the street but the quantity and presence of unpackaged substances, as well as empty packaging. These circumstances and items all place him on the upper end of street-level. Mr. Grenier persisted with his drug sales despite his first arrest. He was not deterred by the investigation, his arrest and the seizure of the drugs.

[33] The way that prosecution and defense counsel can come to an agreement on a sentencing recommendation exchange for a guilty plea constitutes an acceptable and highly desireable outcome. In Anthony-Cook, the Supreme Court declared that with regards to public interest, the judge of a trial may not deviate from a joint sentencing recommendation unless the sentence would bring the administration of justice into disrepute or otherwise be contrary to public interest.

[34] In regards to Mr. Grenier, he is thirty-three years old. He was born in Quebec. He has a criminal history. His convictions for drug trafficking and possession of drugs for the purposes of trafficking is the second time that he has been convicted for such offences.

[35] The count for posession of drugs for the purposes of trafficking follows a previous conviction. Mr. Grenier had already received a suspended sentence in 2011 for drug trafficking and later in 2013, he again was convicted for trafficking and this time was sentenced to ninety days in prison and three years' probation. Later that year, he was sentenced to ninety days' imprisonment served intermittently for possession of property obtained by crime. Other convictions in his criminal history include breach of probation orders and assault.

[36] In 2020, Mr. Grenier moved from Quebec to British Columbia. He was convicted for other less pertinent crimes including breach of probation orders and assault.

[37] Later on, Mr. Grenier worked in construction. He suffered an accident at work causing him to lose one finger and the use of several others. He became progressively more dependent on drugs including cocaine, fentanyl and methamphetamine. This drug consumption has kept Mr. Grenier in poverty and in modest housing.

[38] Mr. Grenier began to sell drugs to make money to buy drugs and pay off his drug debts. He travelled to British Columbia in 2020 during the pandemic. After being arrested and imprisoned, he completely changed his life. He became a model prisoner working in the kitchen. It was possible that he could pursue this profession after his detention. In fact, his father is already a cook in a prison in the east. This work could suit him. His counsel also explained that Mr. Grenier help new detainees upon their arrival.

[39] During his oral statement, the accused showed sincere regret for his past actions. He stated that he began trafficking to fund his drug addiction. He wished to turn the page on this chapter on this life, return to his family and restart from zero. I accept Mr. Grenier's sincere declaration. His counsel explains that Mr. Grenier continues his rehabilitation.

[40] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Court must consider mitigating and aggravating factors pertinent to the crime and the circumstances of the accused as set out by the previously-stated principles. The Court must consider the accused's situation and any victim statements.

[41] In terms of mitigating factors, in this case, Mr. Grenier has pleaded guilty. The Court lists by contrast the following aggravating factors. It is important to denounce unlawful conduct, to deter the offender and other persons from committing offences and to separate offenders from society, when necessary. Parity with other sentences is also important.

[42] The most important factors here are denunciation and deterrence. It is appropriate to inflict a sentence of deterrence, not only in the general sense as already stated, but also in a specific sense.

[43] Totality is is an equally important principle to consider to ensure that an imposed sentence is just and appropriate. In regards to the evaluation of the global sentence to ensure it is not too long and thus disproportionate, I refer to R. v. Bertrand Marchand, 2023 SCC 26. The joint sentencing recommendation in the case at bar is five years' imprisonment along with the ancillary orders as set out previously.

[44] The court has considered the key precedents, the circumstances as set out out above and the step-up principle for sentences, given that the last sentence did not have the effect envisioned by the Court in 2013. The repetition of the same offence, particularly in absence of mitigating circumstances, justifies a more severe sentence than previous sentences. However, the application of this principle has its limits. S. 718.2 specifies (as previously noted by the court) that in all circumstances, the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[45] I accept that Mr. Grenier has expressed sincere regrets and has changed his life. It is of note that these crimes were mainly committed by reason of his opioid dependency.

[46] Mr. Grenier, in summary, in consideration of the principles of denunciation, general deterrence, specific deterrence, your criminal history, the elevated risk of recidivism, the circumstances of the offence, the gravity of the offence and your responsibility, the court imposes the following sentence.

[47] The Court accepts the joint sentencing recommendation. I impose the following sentence in docket 47527. Count 1, six months' imprisonment. Count 2, eighteen months' imprisonment, concurrent to count 1. An order prohibiting Mr. Grenier from possessing firearms and other items listed in s. 109(1) of the Criminal Code for life; an order authorizing the taking of bodily substances for the purposes of forensic DNA analysis for a secondary designated offence pursuant to s. 447.051(3) of the Criminal Code; a forfeiture order pursuant to s. 16 of the Controlled Drugs and Substances Act authorizing the confiscation of the following exhibits listed in Major Exhibit Flowchart number 2118666: 1, 2, 3, 4, 11, 12 and 13.

[48] For docket 47528, sentences being consecutive to docket 47527-2 but concurrent to each other with regards to the principle of totality. Count 1, eight months' imprisonment. Count 2, 24 months' imprisonment. Count 3, eight months' imprisonment. Count 4, twelve months' imprisonment. Count 5, 42 months' imprisonment. Count 6, 12 months' imprisonment. An order prohibiting Mr. Grenier from having weapons and other items listed in s. 109(1) of the Criminal Code for life; an order authorizing the taking of bodily substances for the purposes of forensic DNA analysis for a secondary designated offence pursuant to s. 487.051(3)(a) of the Criminal Code; a forfeiture order pursuant to s. 16 of the Controlled Drugs and Substances Act authorizing the confiscation of the following exhibits listed in Major Exhibit Flowchart number 2216077-A: 1, 2, 3; and for Flowchart 2216077-B: 1, 6, 7, 8, 9.

[49] Let us turn to pre-sentence credit.

[50] (Dicussion with counsel)

[51] Mr. Grenier has been in detention since his arrest in docket 47528 on October 13, 2022. He pleaded guilty on October 23, 2024. Five years is 1826 days (5 times 365) plus 1 day for the leap year within a five year period. Thus, as of the date of sentencing, Mr. Grenier will have spent 785 days in pre-sentencing custody, which is two years, one month and six days, including the last day. Sixty days of the 785 days must be deducted because they were already credited towards convictions for assault Mr. Grenier pleaded guilty to during his detention, which are found in dockets 49004-1 and 49175-1. With enhanced credit, Mr. Grenier has a total credit of 1135 days. Including today as a day of pre-sentence custody, there are 691 days remaining in his sentence.

[52] Mr. Grenier does not have the means to pay the victim surcharge. He is exempted from paying it.

"Maisonville J."

  1. TR1. I am not sure what this is so I have given a literal translation.
  2. TR2. Sic. The correct citation is 2017 BCCA 112.
  3. TR3. This last sentence does not come from paragraph 65 but instead I used a sentence from paragraph 45.