B.C. drug dealer gets prison time in place of ‘demonstrably unfit’ house arrest

British Columbia’s top court has substituted a five-year prison sentence for house arrest for a Langley man caught with nearly $250,000 worth of ecstasy and fentanyl after his luxury car was seized as “an instrument of illegal activity.”

The Crown successfully appealed the conditional sentence of just under two years and three years of probation that a B.C. provincial court judge handed Kyle Robert Bird last November after the now 38-year-old was convicted of two counts of possession for the purpose of trafficking. His 2013 Jaguar XF had already been seized under British Columbia’s civil forfeiture program.

“I am satisfied the sentence imposed in the provincial court is demonstrably unfit,” Justice Joyce DeWitt-Van Oos wrote in a recent decision from B.C.’s Appeal Court.

“Given his significant moral culpability and the palpable risks of serious harm fentanyl presents to the public, including accidental overdose, a non-penitentiary disposition is markedly disproportionate. On the judge’s findings of fact, a sentence of under two years’ imprisonment is manifestly disproportionate to the gravity of the offences and the respondent’s degree of personal responsibility. Although the judge was correct to ensure that the respondent’s personal circumstances informed the search for a proportionate sentence, this was a case in which the principles of denunciation and deterrence were paramount, and a substantial penitentiary term was necessary to give those principles meaningful effect.”

At Bird’s initial sentencing the Crown “sought a cumulative eight-year prison term.” But the trial judge accepted Bird’s position; she handed him house arrest and probation.

“Respectfully, two years less one day, even when coupled with lengthy probation, is logically irreconcilable with the judge’s findings of fact surrounding Mr. Bird’s offences, the volume and value of the drugs involved, his high moral culpability … and the significant harms associated with this offence,” the three-judge Appeal Court panel said in a decision dated Aug. 29.

Bird was caught with MDMA and fentanyl in April 2019 after police fielded a tip that he was dealing drugs.

When they searched the home that month where Bird was living with his young daughter, police found a “significant volume of drugs” in his bedroom, said the Appeal Court decision.

“The police seized a box from the bedroom with nine plastic bags containing a total of 8.68 kilograms of MDMA. A locked safe contained 834 fentanyl pills, 35.13 grams of MDMA, and small baggies,” said the decision.

“According to an expert Crown witness, eight of the bags containing MDMA were consistent with wholesale amounts and trafficking at the kilo level. The MDMA in the locked safe consisted of multiple baggies, was packaged in random amounts, and reflected different types of MDMA. The use of small baggies is consistent with street-level distribution. The fentanyl pills in the safe ‘were being held out as counterfeit Percocet’ and made to resemble prescription drugs. The fentanyl had a street value of $8,690–$17,380. Depending on the level of the user, it would provide a 173–434-day supply. The MDMA had a street value of $155,000–$232,000 and would provide a nine-year supply.”

The self-employed ironworker and welder, who has two children, “reported ‘partying a lot and using recreational drugs’ at the time of the offences,” said the decision.

Bird’s letters of reference described him as “hard-working, caring, compassionate, and a good father,” it said, noting his Jaguar was seized as proceeds of crime.

During Bird’s initial sentencing, “the Crown filed a June 2024 information bulletin from the BC Coroners Service confirming that in the preceding eight years, at least 14,582 people had died in this province from toxic drug use,” said the decision.

“According to the bulletin, fentanyl ‘continues to be the primary driver’ of toxic-drug deaths.”

The trial judge found Bird had “no explanation … no remorse or insight into his involvement in the drug trade other than an explanation of holding the drugs for someone” else, said the Appeal Court decision.

“He also said that some of the drugs were for personal use. The judge did not find these explanations credible and rejected them.”

The trial judge “characterized (Bird) as a mid-level dealer motivated by profit,” it said.

She also accepted “the Crown’s submission that, if Mr. Bird believed the (fentanyl) pills were Percocet, he was willfully blind to the actual content of the pills and was putting the public at even more risk.”

The trial judge noted “Bird has suffered a collateral consequence because of his offences; namely, he lost his vehicle to civil forfeiture.”

She noted that the “serious circumstances” surrounding Bird’s conduct and his level of personal responsibility required “a significant jail sentence to meet the primary principles of denunciation and deterrence,’” said the Appeal Court decision.

“However, she then said: Of importance here is the fact that Mr. Bird has been in the community since his arrest for this offence five years ago. He had no criminal record before, and he has not committed any crimes since. He is gainfully employed, raising a teenaged daughter, engaging with a young son who lost his mother, and has significant family and community support.”

Though she had “some reluctance given the quantity of drugs,” the trial judge handed Bird two concurrent sentences of two years less a day.

Then the trial judge decided it “was appropriate” for Bird to serve those as conditional sentences, with house arrest  for the first 18 months before he was subjected to a 6 p.m. to 6 a.m. curfew for the last six months.

She “assigned considerable weight” to the fact that Bird has not reoffended since his initial arrest in April 2019, said the Appeal Court. “This is, of course, important. However, from 2021 to the date of sentencing, he was before the courts with a strong incentive to remain compliant.”

One leading case “set a range of 18 months to three years’ imprisonment or higher, depending on the circumstances,” for street level fentanyl trafficking, said the decision, which notes the sentencing range for mid-level trafficking in B.C. is three to 10 years’ imprisonment.

The Appeal Court pointed out a decision from another judge that noted “over the past decade, fentanyl has altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy number one.”

The “highly addictive substance, which, when taken outside of controlled medical environments, puts its users at risk of serious harm, including brain damage, organ damage, coma, and death,” said the recent decision. “Fentanyl’s potential for harm is, however, significantly greater than other opioids. It is, for example, estimated to be 80‐100 times more potent than morphine and 25‐50 times more potent than pharmaceutical grade heroin. Given its strength, a lethal dose will often be less than two milligrams, an amount as small as a single grain of salt.”

• Poilievre seeks life sentences for traffickers of more than 40 mg of fentanyl
• Canada's fentanyl crisis now claiming the lives of babies and toddlers

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