R. v. P. Date:, 2010 BCPC 468

Citation: R. v. P. Date: 20101122 2010 BCPC 0468 File No: 34617-1; 31701-1; 31701-S-4; 31636-C-2 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. E.R.P. ORAL REASONS FOR SENTENCE OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M .J. BRECKNELL Counsel for the Crown: L. Vizsolyi Counsel for the Defendant: J. Duncan Place of Hearing: Prince George , B.C. Date of Judgment: November 22, 2010 [ 1 ] THE COURT: This is my decision on the matter of Regina versus E.P. Introduction

[ 2 ] Mr. P. is a 33-year old member of the Lake Babine First Nation. He has pleaded guilty to one count of break and enter on File Number 31701 and one count of possession of stolen property and one count of assault of a peace officer on File Number 31636-2-C. [ 3 ] These three offences give Mr. P. a total of 101 criminal convictions as a youth and adult spanning back almost two decades. [ 4 ] The Crown seeks a total sentence of over two years in a penitentiary. [ 5 ] The defence contends that Mr.

P. should receive either sentences of time served on the possession of stolen property and assault peace officer, plus a conditional sentence order on the break and enter of one year, plus one year probation, or if jail is necessary a total jail sentence of six to 12 months less time served. [ 6 ] Mr. P. has been in custody since June 4th, 2010, a total of 171 days. Circumstances of the Offences [ 7 ] On June the 4th, the police responded to a B & E alarm at a local convenience store. As a result of video observations made subsequently, they were able to link Mr. P. to that break and enter.

The break and enter occurred through the drive-through window and a total of 59 packages of cigarettes with a value of $590 was stolen. [ 8 ] Later the same day, the RCMP are called to an allegation of a break and enter of cars near a local restaurant in which a backpack had been stolen. [ 9 ] A suspect was seen by a witness and the witness did a photo-lineup later and identified Mr. P. as the culprit. However, Mr. P. has pleaded guilty to possession of stolen property rather than the theft and the Crown has accepted that plea. [ 10 ] Later the police while on patrol found Mr. P. riding a bicycle.

He was high on drugs and he was detained and during the course of the detention produced the backpack in question, which had the stolen items in it. [ 11 ] The police attempted to arrest Mr. P., but he ran away and was tackled, but got away again and there was an altercation between him and the police in which it is alleged that he kicked at the police officers and basically was uncooperative. [ 12 ] More members came to help and Mr. P. was eventually restrained.

He was injured during that incident and was taken to the emergency room of the University Hospital of Northern British Columbia because the police were concerned he may have suffered some sort of heart attack as a result of the drugs he was on. [ 13 ] While at the University Hospital of Northern B.C., Mr. P. continued to be uncooperative.

At one point he was given permission to go to the washroom, but as he came out of the washroom he bolted for the door causing the police officer who had him in custody to chase him, tackle him, and a further struggle ensued. [ 14 ] During that struggle, a citizen was knocked into and injured. During that struggle as well, both Mr. P. and the police got violent with each other and Mr. P was eventually subdued. [ 15 ] With regard to the circumstances of the first offence, defence counsel does not dispute the fact that Mr. P. stole the items, in fact he has pled guilty to that. But he does point out that Mr.

P. did so because he was fearful of some members of a gang to whom he owed a drug debt. [ 16 ] The court asked at the time of the first sentencing hearing whether or not such actions could be considered to be a mitigating factor. Thankfully Crown counsel found a case that suggested that it not. That is the case of R. v.

Brennan , a decision of the Alberta Court of Appeal found at 2003 ABCA 330 in which that court says in Paragraph 6 of that very brief decision: We also agree that the duress imposed upon this respondent to commit the last two robberies to pay off an outstanding drug debt, was not a mitigating factor, and should not have been treated as such. [ 17 ] Having said that, it is not necessarily an aggravating factor either and, in fact, for the purposes of this decision I consider it a neutral factor. [ 18 ] With regard to the second incident involving Mr.

P. and the police, both near the restaurant and at the hospital, defence counsel points out that Mr. P. has a long history of unfortunate dealings with the RCMP in this community in which he alleges he has been mistreated by them and, in fact, has filed a formal complaint about that. [ 19 ] He also has been subjected to the use of the taser in the past and as a result he has an extreme fear of the police. [ 20 ] Mr.

P. in his comments to the court also pointed out that not only does he have a fear of the police because of their treatment of him, but that he has a great deal of concern about their treatment of his spouse in which he alleges that police officers have misconducted themselves by sexually assaulting his spouse on a previous occasion. [ 21 ] Both Mr. P.'s treatment by the police and the allegations concerning his spouse have been formally complained of and are in the investigating process as provided for by the RCMP Complaints Commission. Circumstances of the Offender [ 22 ] Mr.

P.'s upbringing can be described quite simply as a tragic history of poor parenting by his parents, an attempt by his grandmother to raise him properly, but that in doing so -- no fault of the grandmother -- Mr. P. was exposed to both sexual and physical

abuse and at an early age exposed to drug and alcohol consumption. [ 23 ] It is unfortunately for Mr. P. a classic Gladue circumstance that he has seen himself raised in. [ 24 ] As a member of a First Nation, Mr. P. is entitled to the court considering carefully all the principles set out in R. v. Gladue and the court has had the benefit of a Gladue pre-sentence report prepared by Ms. Maurice. [ 25 ] The whole issue of the consideration given by the court to Gladue principles and Gladue reports has recently been brought back into focus by a decision of our Court of Appeal, R. v. Napesis found at 2010 BCCA 499 .

In that decision Madam Justice Huddart says the following at Paragraphs 14 through 17. Paragraph 14: I have little doubt that background and systemic factors unique to aboriginal offenders played a significant

part in bringing Mr. Napesis before the courts on this occasion as on so many earlier ones. It is likely the sentencing judge and both counsel are familiar with these factors and with the alternatives available to aboriginal offenders in the Tumbler Ridge area. It is equally likely counsel took these factors into account along with the appellant’s record in determining what penalty would separate Mr.

Napesis from the community and meet the objectives of deterrence and denunciation, while not overlooking the possibility of rehabilitation. [ 26 ] Fifteen: What is missing from the record of proceedings of the sentencing hearing is any attempt by anyone to explain that the direction in Gladue to “place a primary emphasis upon the ideals of restorative justice” (at para. 70) and to focus on the “human beings closely affected by the crime” (at para. 72) was being followed.

It is useful to recall that “[s]entencing judges should not conclude that the absence of alternatives specific to an aboriginal community eliminates their ability to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved” (Gladue, at para. 74). It is also useful to recall that the effect of s. 718.2(

e) was to “alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders” (Gladue, at para. 75), such that “[t]here is no discretion as to whether to consider the unique situation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence.” (Gladue, at para. 82). [ 27 ] Sixteen: As the Supreme Court noted, at para. 3 in Gladue, there will be cases where evidence is required to assist the judge in fulfilling his duty toward an aboriginal offender and there may be cases where an aboriginal offender does not wish to have such evidence adduced.

A particular offender may waive his right to have particular attention paid to his or her circumstances as an aboriginal offender. But, if there is no waiver, it “is to be expected that counsel will fulfil their role and assist the sentencing judge [by adducing relevant evidence].” If counsel fail to meet that expectation, “it is incumbent upon the sentencing judge to attempt to acquire information regarding the circumstances of the offender as an aboriginal person.” (at para. 84).

If a sentencing judge does not engage in the duty imposed by s. 718.2(e), a court of appeal must consider relevant and admissible fresh evidence, if presented. [ 28 ] Seventeen: In my view, it behoves every sentencing judge, even those faced with what is effectively a joint submission on sentence in a busy court, not only to take seriously the duty to aboriginal offenders summarized at para. 93 of Gladue, but also to demonstrate on the record and in reasons that he or she has done so.

As almost everyone involved in the justice system will attest, the very best result of a criminal prosecution is a rehabilitated offender. That result can be achieved only if counsel and the sentencing judge fulfill the expectations implicit in their acceptance of roles in that system, particularly during the sentencing process. [ 29 ] I will deal in more detail with the Gladue report later in this decision. Mr. P.'s Criminal Record [ 30 ] Mr. P. has a serious and lengthy criminal record.

He has 12 convictions for violence or assaults, 21 convictions for break and enters, 19 convictions for property offences, 10 convictions for mischief or causing disturbances, four convictions involving the operation of a motor vehicle and/or driving while under the influence of alcohol, nine convictions for resisting or assaulting police officers, 28 convictions for breaches of bail, probation, parole or conditional sentence orders, and two convictions for obstruction of justice, a total of 101 convictions over a period of 19 years.

The Reports Presented to Court [ 31 ] The pre-sentence report marked as Exhibit 1 in this proceeding, as well as a psychiatric report marked as Exhibit 2, and a Gladue pre-sentence report marked as Exhibit 3 were ordered by the court in order to assist in obtaining as much information as possible concerning Mr. P. so that the court is in a responsible position to pronounce an appropriate sentence. That is the very thing referred to by Madam Justice Huddart in Napesis . [ 32 ] The pre-sentence report was done on a very shortened timeline, due firstly to a dispute that arose between Mr.

P. and the previously assigned probation officer and, secondly, due to staffing issues at the probation office that made the preparation of the report somewhat more difficult.

[ 33 ] The pre-sentence report completion was further made difficult by the direction of me to the effect that I wanted the report prepared so that Mr. P. could be sentenced in November because I was most concerned that members of his family and members of his Aboriginal community had come on previous occasions to see the sentencing process and had been turned away because we were not ready to proceed. [ 34 ] I have read the pre-sentence report, as I have all the other reports, and I would comment that it is not as complete as it could be or, in fact, should be. Some people, particularly people Mr.

P. wished to have consulted, were not consulted by the author. In addition, the author made attempts to consult others, who may have had some valuable information for the court, but those attempts were not successful. [ 35 ] I recognize and understand the stresses and constraints that all members of the criminal justice community are working under in these tight economic times and, although I have some concerns about the pre-sentence report, I still found it to be useful in a limited way in dealing with many of the issues I have to decide in sentencing Mr.

P. [ 36 ] There were comments and concerns raised by defence counsel concerning the report and, although they were well-founded, they are not in my view to such an extent that I would find the report unhelpful. [ 37 ] The psychiatric report prepared by Dr. Riley and marked as Exhibit 2 confirms that Mr. P. is not suffering from any psychiatric illness, but does have a fairly rampant drug and alcohol dependence problem. [ 38 ] There were some concerns raised about Dr. Riley not having on hand all of the reports prepared concerning Mr.

P. while he was in the custody of the Correctional Service of Canada during a previous stay at a penitentiary. Although it would have been beneficial for Dr. Riley to have access to all of that material, it is material that could have been provided to him through additional diligence by either Mr. P. or his counsel in ensuring that previous reports prepared on him were made available as part of the report preparation process, both with regard to Dr.

Riley as well as with regard to the probation officer and the Gladue report writer. [ 39 ] The Gladue report, which has been marked as Exhibit 3, provided a very useful social, historic, and cultural perspective into Mr. P.'s life and upbringing; however, it too suffers from some deficiencies. It has a somewhat disjointed approach and in many places relies on various editorial comments about the circumstances surrounding Mr. P., which in my view are not appropriate in such a report. [ 40 ] It does provide some information concerning Mr.

P.'s wishes and plans and what steps he has taken to look forward to a lifestyle without criminal behaviour. The report author, Ms. Maurice, appears to have assisted Mr. P. in ensuring that all the information available with regard to his plans to attend residential treatment with his family, as the prerequisites for that, have been placed before the court. [ 41 ] There has recently been put into place a protocol between the court and the people who provide the Gladue pre-sentence reports.

That has been further enhanced by a training program that has been put into place for the authors of such reports and that training program, as well as the criteria that the court should apply to pre-sentence reports, has been a recent topic of discussion at the most recent Provincial Court judges' educational conference held earlier in November 2010. [ 42 ] In addition to the reports, I have also carefully considered the able submissions of counsel as to what should occur with regard to Mr. P. as a result of these convictions. [ 43 ] I have also listened carefully to Mr.

P.'s comments in which he professes a desire to turn his life around, both for the betterment of himself and, more importantly, his family. I have listened carefully to his concerns raised about the misconduct of the RCMP towards himself and his family, although I will say for the purposes of clarity that I do not consider that behaviour to have any effect on the decision I am going to impose upon Mr. P. That is a circumstance or circumstances best left to the process that Mr. P. has already engaged in with regard to a complaint. [ 44 ] I have also listened carefully to Mr.

P.'s comments that as a result of the break and enter he has now settled up whatever debts he has with the various gang members he owed money to as a result of consuming drugs and that he has kept his head down while he has been incarcerated at the Correctional Centre, and has been free of any further activities in that regard even to the point of it being to his detriment by both being assaulted while in the custody of the Correctional Service at the hands of other inmates, and by asking for or being put into protective custody. Sentencing Positions [ 45 ] The Crown's position is as follows, that Mr.

P. should be sentenced to two years' new time on the break and enter, that he should be sentenced to six months concurrently with regard to the possession of stolen property charge, and six months concurrently with regard to the assault of a peace officer charge. [ 46 ] The Crown opposes a conditional sentence order pointing out that Mr. P. has in the past breached conditional sentence orders and with 28 convictions for breaches of bail, probation, parole, or conditional sentence orders he is indeed a poor candidate to serve any custodial time in the community. [ 47 ] Defence counsel submits that Mr.

P. should be sentenced to time served for the possession of stolen property and assault peace officer, which would be 171 days or approximately six months, so in that defence and the Crown take a similar position. [ 48 ] With regard to the break and enter, defence counsel submits that Mr.

P. should be sentenced to a one-year conditional sentence order followed by one year of probation, that as a term of the conditional sentence order he should be required to take both the pre- admission counselling and upon successfully completing that be required to attend the residential treatment program that is mentioned in the Gladue report and has been referred to by counsel. Decision

[ 49 ] In any sentencing proceeding, the court must consider all the provisions of s. 718 through 718.2 of the Criminal Code . In the case of Aboriginal offenders and as directed by the decision in Gladue , the court must pay particular attention to the provisions of s. 718.2(e).

That has been re-emphasized recently in the Napesis decision. [ 50 ] In considering what is an appropriate sentence in this case, I am not required to take into account each and every factor set out in s. 718 through 718.2 equally, I am entitled to give more or less emphasis to some or all of the principles and purposes of sentencing as set out in those sections. [ 51 ] I must consider Mr.

P.’s background, particularly as it applies to Gladue and keeping in mind that he had found himself as a very young person already victimized by his circumstances in life, already victimized by criminal and sexual assaults being visited upon him, and already being victimized by a dysfunctional family. [ 52 ] I keep in mind that it appears from the Gladue report that many generations of his family prior to him had the horrific experience of attending residential school and it is well-known both in criminal justice and sociological circles that such a traumatic series of events visited upon one person can well be pronounced through generations because the initial victim never learns the appropriate social constraints in how to be a member of a family. [ 53 ] I have to take into account Mr.

P.'s very lengthy and serious criminal record, 101 convictions is certainly not the most ever seen by this court by one offender, but it is certainly in the top five or 10 percent. Mr. P. has victimized members of this community for the last almost two decades and I have to give consideration to the fact that in most circumstances people who have a certain lifestyle or way of dealing with the world tend to continue to do so into the future. [ 54 ] Having said that, I have also given careful consideration to Mr.

P.'s plan which is to come out of jail to attend a treatment facility called -- and I hope I am pronouncing this correctly -- the Kackaamin Family Development Centre located in Port Alberni, British Columbia, which can offer both him and members of his family a joint approach to treatment in hopes that both he and members of his family can benefit from it and turn away from a criminal lifestyle. [ 55 ] That treatment facility, in fact, has an opening available for January 13th, 2011. Mr.

P. is not yet confirmed as being able to attend that program because he has to take pre-treatment, which is six appointments that have to be taken care of in his local community. [ 56 ] There is an indication in the Gladue report that those six appointments can be dealt with prior to January 13th, 2011 if Mr. P. is able to get right on to such a program of pre-treatment counselling. That is Mr.

P.'s wish and plan. [ 57 ] In coming to a final conclusion as to what the appropriate sentence is here, I must in my view emphasize the following; denouncing unlawful conduct, separating offenders from society where necessary, deterring the offender and others from committing offences, and assisting in rehabilitation of Mr.

P. [ 58 ] I have to keep in mind his record, I have to keep in mind his responsibility for these offences, which he has admitted to quite freely, and I have to keep in mind that as a member of a First Nation he is entitled to in many respects a somewhat different approach to the overall sentencing scheme as directed by Gladue and commented in Napesis . [ 59 ] This is my decision with regard to the offences to which Mr. P. has pled guilty. Mr.

P., please stand up, sir. [ 60 ] With regard to Information Number 31636-C-2, Count Number 1, the possession of stolen property which occurred on June 4th, 2010, in my view an appropriate sentence would be 171 days in custody. Mr. P. has served 171 days in custody. He will receive a sentence of one day time served. That is Count Number 1 of that Information, Madam Clerk. [ 61 ] With regard to Count Number 5, assault of a peace officer, I keep in mind Mr.

P.'s past history with the police, but also that the police as well as anybody else are entitled to not be assaulted in the course of their job duties taking into account the nature of the offence and the way it was visited upon Constable Poyzer or Charron, one or the other. [ 62 ] MS. VIZSOLYI: It was Poyzer, Your Honour. [ 63 ] THE COURT: Poyzer. In my view an appropriate sentence would be 171 days in custody. Mr.

P. has served 171 days so he will receive a sentence of one day time served. [ 64 ] With regard to the break and enter of the convenience store, Information Number 31701, I agree with the Crown that a period of jail is necessary, but I also conclude despite Mr. P.'s previous criminal history that I can take one further chance with him and have him serve that sentence in the community. However, in doing so I think the maximum sentence to be served in the community is appropriate here, one year of conditional sentence order followed by one year of probation will not in my view bring to the attention of Mr.

P. that he is walking a very, very, very thin line and that any breaches will end him up in jail for a period of time almost equivalent to what the Crown is seeking in any event. [ 65 ] On the break and enter, Madam Clerk, there will be a conditional sentence order of two years less a day. It will have the following terms and conditions. I will get to those in a moment, Madam Clerk. [ 66 ] There will be no probation order to follow. There will be a waiver of the victim fine surcharge on all of the offences. [ 67 ] Mr.

P., a conditional sentence order, you have been on them before, you breached them before and you know the consequence. You go to prison if you breach. You get to come back before me if you breach. I have just spent the last 35 minutes telling you why I am making the decision I am making. I have all my notes. I have all the exhibits marked, it will not take me any more than five minutes to send you to prison if you really mess up. [ 68 ] Now, I have to be fair with you, sir. The default position for a person who breaches a conditional sentence order is to go to

prison for the remainder of the sentence. There are other options available to a judge, however, if there is a breach and that breach is not potentially as serious as some other types of breaches.

So keep in mind that is the primary position that the Crown will take, although it is open to the court to decide other possible penalties. [ 69 ] The terms of the order will be as follows, Madam Clerk. [ 70 ] Number 300, you shall keep the peace and be of good behaviour. [ 71 ] You shall appear before the court when required to do so by the court. [ 72 ] You shall report in person to a conditional sentence supervisor no later than 12:00 noon tomorrow, November 23rd, 2010 at the Probation Office at 101 - 250 George Street, Prince George, British Columbia.

You shall thereafter report as and when directed by the supervisor and in the manner directed by the supervisor. [ 73 ] You shall remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the supervisor. [ 74 ] You shall notify the court or the supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change of employment or occupation. [ 75 ] 302B, Madam Clerk.

You shall reside at a residence approved of in advance by the supervisor and you shall not change your residence at any time without first obtaining the written consent of the supervisor. At the end, Madam Clerk, except as otherwise provided for in this order. [ 76 ] 303, Madam Clerk. Pardon me, actually we are going to make it 304, Madam Clerk. You are to remain within your residence or on the lot in which your residence is located at all times except as follows, between the hours of 6:00 p.m. and 8:00 a.m. [sic] each day in order to attend to your personal business and to attend to the care of your children.

So that way you will be able to take them to school and things like that. [ 77 ] MS. VIZSOLYI: Six p.m. to 8:00 a.m., Your Honour? [ 78 ] THE COURT: Yes. So from six o'clock at night till 8:00 a.m. [ 79 ] The next he is -- oh, pardon me, I have the hours -- thank you, Ms. Vizsolyi. [ 80 ] You are to be in your house at all times, sir, except between 8:00 a.m. and 6:00 p.m., so in other words at 6:00 p.m. you got to be in and you got to stay in until the next morning. So during the day you can be out to attend to your family. [ 81 ] Madam Clerk, did you get that correction that Ms.

Vizsolyi kindly pointed out? [ 82 ] THE CLERK: 8:00 a.m. to 6:00 p.m. [ 83 ] THE COURT: Yeah, that is the time he can be out. [ 84 ] (b), at any time with the written consent of the supervisor, such consent is to be given only for compelling personal, family, or employment reasons. [ 85 ] (c), when travelling directly to or returning directly from your place of employment or while in the course of your employment you shall provide the supervisor with written proof of employment if requested to do so. [ 86 ] (

d) when travelling directly to or returning directly from an educational institution at which you are enrolled or are in the course of classes for extracurricular activities approved by the supervisor at such educational institution. [ 87 ] You shall provide the supervisor with written proof of your educational enrollment or your involvement in extracurricular activities if requested to do so. [ 88 ] (f), Madam Clerk, in the event of a medical emergency and then only when travelling directly to or returning directly from a hospital emergency ward. [ 89 ] 306, Madam Clerk.

You shall present yourself at the door of your residence when any peace officer or supervisor attends there for the purpose of determining your compliance with the house arrest condition of this order. [ 90 ] 306A, you shall respond personally and immediately at the telephone when a peace officer or supervisor makes a telephone call to your residence for the purpose of determining your compliance with the house arrest conditions of this order. [ 91 ] 315, Madam Clerk.

You shall not possess or consume any alcohol or any controlled substances within the meaning of s. 2 of the Controlled Drugs and Substances Act except as prescribed for you by a physician. [ 92 ] 322, Madam Clerk. You shall not possess any weapon as defined in s. 2 of the Criminal Code . [ 93 ] 327, Madam Clerk.

You shall attend, participate in and successfully complete any assessment, counselling, or program as directed by the supervisor without limiting the general nature of this condition as such assessment, counselling, or program may relate to anger management, alcohol or drug abuse, full-time attendance program for alcohol or drug abuse, such full-time attendance program as may be directed by the supervisor, and you shall comply with all the rules and regulations of any such assessment, counselling, or program.

[ 94 ] Now, I am going to dictate a clause, Madam Clerk. For further particularity ... [ 95 ] THE CLERK: Sorry, for further ... [ 96 ] THE COURT: Particularity you shall attend six pre-treatment counselling sessions with Ms. Mieke, M-i-e-k-e. [ 97 ] THE CLERK: M-i-e-k-e? [ 98 ] THE COURT: Yes. [ 99 ] THE CLERK: Thank you. [ 100 ] THE COURT: Community and Wellness therapist for Mental Health and Addictions with the Carrier-Sekani Family Services, such six sessions to be completed no later than January 7th, 2011. [ 101 ] The next clause I am going to dictate as well, Madam Clerk.

If you have complied with the condition immediately above and you are accepted to the Kackaamin Family Development Centre, which is spelled K-a-c-k-a-a-m-i-n. [ 102 ] THE CLERK: K-a-c-k ... [ 103 ] THE COURT: ... a-a-m-i-n Family Development Centre for residential treatment for yourself and your family, you shall attend that program and obey all the rules and regulations of that program. [ 104 ] 333, Madam Clerk.

Under the direction and supervision of the supervisor you shall successfully complete 50 hours of community work, which shall start no sooner than April 1st, 2011, and be completed no later than December 31st, 2011. [ 105 ] These are mandatory DNA orders, are they not, Ms. Vizsolyi? [ 106 ] MS. VIZSOLYI: I believe it's secondary, Your Honour. [ 107 ] THE COURT: Okay. [ 108 ] MS. VIZSOLYI: Oh, it would be mandatory with respect to -- no, it will be secondary on the assault on a police officer and secondary on the break and enter. [ 109 ] THE COURT: Yeah. [ 110 ] MS.

VIZSOLYI: Because it's a commercial property. [ 111 ] THE COURT: Well, before I get to that, are there any other terms of the conditional sentence order that the Crown thinks are necessary in order to control Mr. P.'s behaviour in the community? [ 112 ] MS. VIZSOLYI: Yes, Your Honour. [ 113 ] THE COURT: Okay, tell me what they are. [ 114 ] MS. VIZSOLYI: First of all, reporting -- particularly in the initial stages if Your Honour leaves it at just reporting -- the norm is for Mr. P. to report once a month, in the Crown's view that is not sufficient. [ 115 ] THE COURT: Okay. [ 116 ] MS.

VIZSOLYI: And I would ask that Your Honour impose a condition that he report at least once per week in person. [ 117 ] THE COURT: Okay. I have to find my -- I got so many notes here now. One time per week in person. Okay. Thank you. [ 118 ] MS. VIZSOLYI: Yes. Your Honour didn't -- Your Honour imposed a no alcohol and drugs condition. I didn't hear Your Honour impose a no go to liquor outlets. [ 119 ] THE COURT: Okay. [ 120 ] MS. VIZSOLYI: That would be appropriate. [ 121 ] THE COURT: Yes, you are right about that. [ 122 ] MS.

VIZSOLYI: And the third condition, Your Honour, is with respect to attending the pre-treatment counselling sessions with Mr. -- with Ms. Mieke, I would just ask that Your Honour add a term that he provide written proof to his conditional sentence supervisor that he has attended those in the timeframe that he's been asked to attend them. [ 123 ] THE COURT: Well, I will hear from your friend, but I think I might go you one better on that, Ms. Vizsolyi, by requiring him to provide proof after each session. [ 124 ] MS.

VIZSOLYI: That -- I would prefer that, Your Honour. [ 125 ] THE COURT: That way we will see whether he is attending to it quickly enough or not. Mr. Duncan, anything on the points that your friend has raised or any other issues that you think need to be addressed?

[ 126 ] MR. DUNCAN: Mr. P. understands the wish of the Crown that he report at least once a week. He is suggesting twice a month. A condition that says at least twice a month. If the probation person wants more, that he report as often as told to do so, but he is suggesting twice per month.

It certainly makes sense. [ 127 ] The other request of my friend, I would have no position at all except that the intent of the order is to see him get treated so that providing proof of actually taking a session gets him along that road. [ 128 ] The other thing that -- that I think we need to put in here is that all of these programs and things that he is attending is by consent so there is no question that -- that he has agreed to do this and that -- and someone looking at these -- at these orders will know that this was part of his plan, not just a court imposed plan.

The concern sometimes is that these programs think that it is just the court imposing. Or if I read this order, I would understand that that is Mr.

P.'s plan, but my hope is that when it says "by consent" that they understand that this is really something that he wants to do. [ 129 ] THE ACCUSED: Is it possible that -- because I have outings and stuff that -- like my children and Jennifer that I could be present like out after hours with Jennifer Alexander. [ 130 ] THE COURT: If you get -- [ 131 ] THE ACCUSED: Beside the -- like with her. [ 132 ] THE COURT: If you get permission from the conditional sentence supervisor, sir. The other thing that Mr.

Duncan will tell you is after a period of time if you are going well in this, you can apply to come back before me to vary the terms of the CSO. But at this point until the CSO supervisor says that you can go out in the evening, your time in the community is going to be during the daytime. [ 133 ] THE ACCUSED: Okay. [ 134 ] THE COURT: Which is a lot better than spending it at the Correctional Centre or a federal penitentiary in my view. [ 135 ] MR. DUNCAN: I will explain it further to him too, Your Honour. [ 136 ] THE COURT: Yes, thank you.

Madam Clerk, let us just go back, first of all in Clause 300 where I originally said "report as when directed by the supervisor and in the manner directed by the supervisor," can you find that? [ 137 ] THE CLERK: Yes, I can. [ 138 ] THE COURT: Adding to that at the end of that sentence, but in any event no less than one time per week in person.

I agree with the Crown on that issue. [ 139 ] Then, Madam Clerk, if you skip ahead to where I said "no consumption of drug or alcohol," which is 315, right after that put in 316, you shall not enter any liquor store, beer and wine store, bar, pub, lounge, or other business premises where the primary commodity sold is liquor. [ 140 ] Finally, where I was directing Mr.

P. to attend that pre-treatment admission counselling, I want to add in a further sentence to that, which shall read, you shall provide proof to your conditional sentence supervisor of your attendance after each counselling session within three business days of that session occurring. [ 141 ] Then finally, Madam Clerk, with regard to Clause 327 and the clauses involving the pre-admission counselling and the attendance at the treatment centre, the order will read at the end of each of those clauses the following, the court acknowledges that you wish to participate in such counselling and treatment.

I do not want to say "by consent" because if he withdraws his consent then there is going to be an issue as to what the court allowed or did not allow him to do. [ 142 ] MR. DUNCAN: Thank you, Your Honour. [ 143 ] THE COURT: Now, there is also going to be a DNA order both on the break and enter and the assault PO, Madam Clerk. In my view they are necessary. I am sure Mr. P. has had it done before, but just in case he has not. [ 144 ] Mr. P., I am going to require you to attend -- this is Clause 350, Madam Clerk, and they are both discretionary or secondary DNA orders.

You shall attend at the RCMP detachment at 999 Brunswick Street, Prince George, British Columbia on or before November 26th, 2010 between the hours of 9:00 a.m. and 4:00 p.m. and thereafter as may be necessary in order for a sample or samples of your bodily substance to be taken for the purposes of registration in the National DNA Databank in accordance with the provisions of

Part 15 of the Criminal Code . [ 145 ] If they have already done that, sir, when you show up they will look at their records and say, "Oh, we have already done it" and they will not take another sample. [ 146 ] THE ACCUSED: Yes, I have had it done before. [ 147 ] THE COURT: Yeah. Well, they will check and make sure that it is still on file. [ 148 ] Anything further today, Ms. Vizsolyi? [ 149 ] MS. VIZSOLYI: No, thank you, Your Honour. Except I will direct stays of proceedings on Information 31636. [ 150 ] THE COURT: Thank you.

[ 151 ] THE CLERK: So that would be 1, 3, 4? [ 152 ] MS. VIZSOLYI: That would be Count 2, Count 3, and Count 4. (REASONS CONCLUDED)