Fentanyl, cocaine dealer hoping to avoid jail while Crown seeks 4 years

The Crown is seeking a four-year jail sentence for a man convicted of trafficking fentanyl in Kelowna, but he's hoping to avoid jail altogether.

Nigel Byrne, 48, appeared in Kelowna court Thursday for a sentencing hearing, after pleading guilty last March to possession of cocaine and fentanyl for the purpose of trafficking and possession of cannabis for the purpose of distribution contrary to the Cannabis Act.

The charges stem from a spring 2020 police investigation into a “dial-a-dope” drug trafficking operation that led to a raid at a home on Kelowna's Lillooet Crescent. Officers found nearly 150 grams of cocaine and 119 grams of fentanyl at the home, along with a nearly 2.2 kilograms of cannabis and a number of other assorted drugs.

More than $27,000 in Canadian cash was also found, along with 25,000 Mexican pesos.

The Crown said Thursday they're seeking a jail sentence of four years for Byrne, but defence counsel Julian van der Walle is instead asking for a conditional sentence order, which would see Byrne serve a two-year sentence outside of jail under house arrest and curfew conditions instead.

Downplaying involvement

The vast difference between the sentencing positions comes as the two sides portrayed far different pictures of Byrne's involvement in the trafficking operation. While Byrne's partner Michelle Collins was also initially charged, Byrne successfully sought the staying of Collins' charges as part of his plea deal with the Crown.

While her charges will be stayed after Byrne's sentencing, van der Walle downplayed Byrne's involvement in the trafficking operation, placing the bulk of the blame on Collins.

“This obviously was a joint enterprise but it's also going to be my position that the evidence bears out that my client's level of involvement was significantly lower than Ms. Collins', in the sense that he's not the directing mind,” van der Walle said.

Van der Walle characterized Byrne as little more than a “delivery man who's addicted to drugs, living in [Collins'] basement.”

He spoke about Byrne's struggle with opioid addiction dating back to 2004, and how just this week he has entered into a live-in treatment facility in Kelowna. Van der Walle noted that Byrne admitted he has used heroin as recently as two weeks ago though.

The Crown acknowledged Byrne's struggle with addiction, but said his drug trafficking was largely driven by profit, and was not simply to support his habit.

Van der Walle pointed out it was Collins who owned the Lillooet Crescent home where the pair had been living and officers had found the bulk of the fentanyl and cash in a closet in what was believed to be Collins' room.

“Seemingly in a separated suite downstairs is Mr. Byrne's bedroom which was very different from Ms. Collins'. It's very messy, it contains a couple of fentanyl pills, there's some used paraphernalia down there and as I say, he's not anywhere near the big chunk of fentanyl which appears to be in her room,” he said.

“The Crown submits that he's a mid-level trafficker who's living some well-to-do lifestyle and his addiction shouldn't be given much weight, but in my submission, it's an error to conflate Mr. Byrne with Ms. Collins. You can't forget that she's the one who owns the house outright, she owns the luxury vehicle, the Range Rover.

“He was not living some high life off of trafficking drugs, this is a man who was addicted to drugs living in a woman's basement.”

Because of the limited involvement in the operation Byrnes claims to have had, van der Walle urged Justice Steven Wilson to go below the sentencing range for a mid-level fentanyl trafficker, which is somewhere between three and 10 years, and instead hand down a two-year conditional sentence order.

With the Crown and defence's sentencing positions so far apart, Justice Wilson opted not to make a decision Thursday, and pushed his sentencing to a later date that has yet to be set.

Civil forfeiture case

Before criminal charges were laid against Byrne and Collins, B.C.'s Civil Forfeiture Office filed a lawsuit against the pair, looking to seize Collins' home and 2020 Land Rover Evoque, along with Byrne's 2005 Infiniti G35.

The suit said officers observed both Byrne and Collins make a number of “short-duration stops consistent with drug trafficking,” prior to the April 2020 raid on Collins' home.

In a response to the suit, Collins denied the allegations, saying she's a self-employed businesswoman who operates a cleaning business and earns “legitimate income” through the business and by flipping houses. She says she purchased the Lillooet Crescent home using her legitimate income, savings and a large inheritance from a family member.

“The defendant Collins is completely unaware of any criminal activity in the house at Lillooet Crescent Property, and if some illegality did in fact occur there, then it was done so without her knowledge or consent,” her response states.

The Civil Forfeiture Office alleges Collins' home and vehicle are proceeds from a drug-trafficking operation and the province continues to seek its forfeiture.

While Byrne has consented to the forfeiture of his Infiniti – telling his lawyer that it's not worth what it would cost to fight the seizure in legal fees – it appears the forfeiture of Collins' home and Land Rover remains ongoing.