The British Columbia Court of Appeal has overturned the house arrest sentence a Surrey judge gave a fentanyl dealer and replaced it with a federal prison term, finding the lower court judgment failed to give "meaningful effect" to the principles of deterrence and denunciation.
The Surrey provincial court judge on Nov. 12, 2024 sentenced Kyle Robert Bird, 37, to a conditional sentence of two years less a day and three years probation on two counts of possessing illicit drugs for the purpose of trafficking, one involving fentanyl. Appeal court Justice Joyce DeWitt-Van Oosten on Aug. 29, 2025 raised that to five years on the fentanyl conviction and four years concurrent on the second count involving MDMA.
"I am satisfied the sentence imposed in the provincial court is demonstrably unfit given the volume and nature of the drugs involved, the respondent’s mid-level status in distributing fentanyl for profit, and his diminished mitigation. On its own, a demonstrably unfit sentence allows for appellate intervention," DeWitt-Van Oosten decided.
"I agree with the Crown that there was nothing extraordinary or highly unusual about the respondent’s personal circumstances, such that they would justify a marked departure from sentences imposed for similarly situated offenders who commit similar offences. There was no finding of diminished moral blameworthiness, mental health or other personal challenges that would render a penitentiary term especially hard for the respondent, or significant efforts at rehabilitation between the offences and sentencing."
Justices Christopher Grauer and Lisa Warren concurred.
The Crown, which had at trial sought an eight-year sentence, initiated the appeal. The Surrey judge had accepted the defence's position.
The Crown argued at the appeal court hearing in Vancouver the conditional sentence was "demonstrably unfit" for the crime, "out of step" with similar sentences involving large amounts of fentanyl, and that a substantial prison sentence is warranted.
DeWitt-Van Oosten in her noted the appeal court won't vary a sentence unless it's persuaded the sentence "unreasonably" departs from the principles of proportionality.
"In other words, it must be so manifestly excessive (or inadequate) that it cannot reasonably be seen as proportionate to the gravity of the offence and the personal responsibility of the offender," she explained.
On appeal, the Crown asked that the cumulative sentence be raise to six years in prison. Bird was charged in February 2021 for crimes that occured in April 2019 to which he pleaded not guilty.
The court heard police seized a box with nine plastic bags containing 8.68 kilograms of MDMA, as well as a locked safe containing 834 fentanyl pills, 35.13 grams of MDMA, and small baggies. The fentanyl pills inside the safe “were being held out" as counterfeit Percocet and made to resemble prescription drugs," DeWitt-Van Oosten noted. "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, again depending on the level of the user."
Police also seized a scale, “cocaine kilo wrappers”; a kilo press, roughly 1,000 small baggies and sealed bottles of benzodiazepine.
Bird’s Jaguar was seized under British Columbia’s civil forfeiture program. The Crown at sentencing submitted June 2024 BC Coroners Service bulletin confirming that in the previous eight years at least 14,582 people died in B.C. from toxic drug use and that fentanyl “continues to be the primary driver” of toxic-drug deaths.
The court hear Bird offered no explanation and "no remorse or insight into his involvement in the drug trade" other than having held the drugs for someone else. He also said that some of the drugs were for personal use. The Surrey judge characterized him as a "mid-level dealer motivated by profit."
She decided "his sentence in the community would not endanger the safety of the community. He has been in the community for the last five years since the offence date. In all of the circumstances, which I have carefully considered, I find that a CSO is appropriate. It will be followed by three years’ probation.
"The terms of the CSO include 'house arrest' for the first 18 months," the Surrey judge determined, "with specified exceptions, including employment. For the remaining six months of the CSO, the respondent must obey a daily curfew of 6:00 p.m. to 6:00 a.m., again with certain exceptions."
The sentence was suspended on Jan. 27 pending the appeal and Bird was released on bail having served just over two months of house arrest.
"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," DeWitt-Van Oosten concluded.
"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."
