R. v. Ashmore, 2010 BCSC 1941

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Ashmore , 2010 BCSC 1941 Date: 20101208 Docket: 40278-2 Registry: Port Alberni Regina v. Strider Spence Ashmore Before: The Honourable Mr. Justice Verhoeven Reasons for Sentence (Delivered Orally) Counsel for Crown: T. Morgan Counsel for Defence: D. Marshall Place and Date of Hearing: Port Alberni, B.C. December 8, 2010 Place and Date of Judgment: Port Alberni, B.C. December 8, 2010 [ 1 ] THE COURT: This matter is before me for sentencing. Mr.

Ashmore has pleaded guilty today to the following offence as set out in the indictment dated December 18, 2009: Count 4: Strider Spence ASHMORE, on or about the 4th day of September, 2008, at or near Port Alberni, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: Cannabis resin in an amount not exceeding 3 kilograms, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act. [ 2 ] I am told that the circumstances were generally as follows.

On September 4, 2008, pursuant to a search warrant, there was a search of a property here in Port Alberni. A number of marihuana plants were found in a marihuana grow-op. There was some cannabis resin found. The amount was 120 grams. The operation was described generally as being not sophisticated. It was not carried on with the aid of any artificial lighting. It was simply in a shed with a polypropylene roof using natural light, and the quality of the plants was apparently quite poor.

Relevant for purposes of the count to which the guilty plea was accepted is that the value of the resin is in the range of $1,000. [ 3 ] In terms of circumstances of the offender, I am advised by defence counsel that Mr. Ashmore has been on a recognizance since the date of the offence in September of 2008, so in excess of two years. He has been residing in the Parksville area with his wife and young family.

I am advised that he has faithfully adhered to the conditions of his recognizance, except for one oversight when he neglected to inform the supervisor that he had made the move to Parksville, and for that he was charged and pleaded guilty to a breach of the recognizance. [ 4 ] Mr. Ashmore is 31 years of age. He was born in Victoria. He graduated from grade 12. Until the age of 19 he was residing in the Parksville area of British Columbia. I am advised he had some problems with alcohol. In 1997 he had a youth record for possession of a narcotic. He was sentenced to probation of six months on that occasion.

In 1998 there are three offences in Parksville: February 11, 1998, driving with more than 80 milligrams of alcohol in the blood, and for that he was fined $500 and given probation of three years and prohibited from driving for a year; August 23,1998, a conviction for breaking and enter and theft, for which the sentence was six months imprisonment; and September 23, 1998, also in Parksville, failure to comply with an undertaking, two charges. 30 days on each charge was imposed to be served consecutively.

The criminal record was described by both Crown and defence as being “dated”, in the context of this offence in 2008. [ 5 ] At the age of 19 Mr. Ashmore moved to Alberta for work and spent about five years working there, then returned to British Columbia. In 2005 he was married here. He remains married. He is now responsible for four children; one child who his current wife had already, and three children of the marriage. All four of the children are boys and they are all under the age of seven. Mr.

Ashmore's wife is a pharmacy technician who, given the child care responsibilities I am sure, is only able to work part-time. [ 6 ] Mr. Ashmore has started a business in construction which he is the owner of. He has had at times two employees. The construction business operates in the Parksville, Qualicum and Port Alberni area. Currently, in order to make more money than can be done in the construction business in this area, Mr. Ashmore is working in Fort St. John. He has been working there since August of 2010 in construction.

That work will carry on until the end of this calendar year, and there is a prospect of further work in January. That work requires Mr. Ashmore to be away from his family, which has remained here, for three weeks out of four. I am advised as well that the shifts are long, both due to the fact that the workers are away from home and due to the weather conditions there. 12 hour days are common. There is the prospect of further work in Fort St. John in January 2011. There is also the prospect of work in Victoria with Mr.

Ashmore's father in 2011, that would also pay better than the self-employed business and would, of course, be closer to home. [ 7 ] With respect to the marihuana grow operation that is the subject of the offence, I am instructed by defence counsel on Mr. Ashmore's behalf that this arose out of a desire of Mr. Ashmore to purchase a property in Port Alberni that would become the residence of the family. There was however, inadequate accommodation on the property. There was financial strain. The residence on the property was inadequate for the family, which, as of March of 2008, grew by the addition of twin boys.

There was a decision made, an unwise decision now regretted, to "grow a little bit of pot" as it was put, somewhat for personal use but also for purposes of financial gain and of course, the purposes of financial gain is inherent in the trafficking aspect of the charge to which Mr. Ashmore has pleaded guilty. [ 8 ] I have been provided with, and have read, a number of reference statements or letters of support with respect to Mr.

Ashmore from his father, his mother, aunt and uncle and another aunt and also a friend, and his mother-in-law, all attesting to his general good character, hard-working disposition and the out-of-character nature of the particular offence in question. I am advised that although the marihuana was produced, cannabis that is, for purposes of -- somewhat for personal use, Mr.

Ashmore is no longer using drugs, illegal drugs that is, and that is attested to by at least one of the letters of reference. [ 9 ] With respect to the legal parameters, the Controlled Drugs and Substances Act provides that the maximum term of imprisonment for an offence involving less than three kilograms is not to exceed five years, and counsel distinguishes that from cases where the amount in question is larger, wherein Parliament has deemed persons who contravene that

section to be liable for imprisonment for life. [ 10 ] With respect to the positions of Crown and defence, the Crown recognizes the dated nature of the record, and notes that there were triable issues with respect to the offences in question. The Crown suggests that there ought to be a conditional sentence in the rage of four to six months.

In addition to the statutory conditions set out in S. 742.3, the Crown suggests that there ought to be house arrest for half of the length of the conditional sentence, as well as -- with exceptions for obligatory demands, but also conditions such as seeking and obtaining employment. [ 11 ] The Crown also seeks a firearms prohibition under s. 109, forfeiture of the items seized, and a DNA sample. [ 12 ] The defence, in contrast, suggests that in these particular circumstances the court ought to impose a fine having some relationship to the value of the product in question, which as I mentioned was about a thousand dollars, so defence suggests a $1,500 to $2,000 fine, and if anything beyond that is required, the suggestion of the defence would be that it ought to be probation of six months or so, perhaps if necessary with community service as well. [ 13 ] With respect to case law, the defence has referred me to a number of authorities, some cases acknowledged to be distinguishable, where in somewhat similar circumstances but without a record, the courts have imposed a conditional discharge.

I was referred to R. v. Hogan, 2003 BCPC 543 , as well as R. v. Mantione, which is 2007 ONCJ 419 . [ 14 ] I was also referred to a decision of the British Columbia Provincial Court, R. v. Pham , 2001 CarswellBC 1039 . In that case Mr. Pham was described by the trial judge as a "gardener or water boy" with respect to the grow operation in question. However, the grow operation was defined as a very sophisticated one with a value of a hundred and sixty-seven thousand dollars.

The offender had no prior record, and Judge Meyers imposed a fine. [ 15 ] I am also directed to a decision of the Provincial Court, Alberta, also for possession for purposes of trafficking of marihuana in the amount of half a pound, where there was a $2,000 fine and 12 months probation; and a decision from the B.C. Supreme Court R. v. Grant, 2005 BCSC 811 , where Mr. Justice Wong imposed a $100,000 fine for a commercial grow operation. [ 16 ] In terms of mitigating factors, the low level nature of the marihuana grow-op operation is noted.

There is no evidence before me of any profit being obtained out of the operation, and most significantly of course, there is a guilty plea, which is a mitigating factor. [ 17 ] On the aggravating side of things, it is acknowledged that the operation was at least intended, at least in part, for profit purposes, and that again, as I mentioned earlier, is inherent in the trafficking aspect of the offence. There is a prior record. As I mentioned, it was described as dated. I would consider it somewhat dated. It was 10 years prior to the offence in question. Some of the offences involve Mr.

Ashmore when he was an adult, although a very young adult, but the offences are serious so it is certainly not a factor that can be ignored. [ 18 ] I am not satisfied that a fine is adequate in the circumstances, having regard to the principles and purposes of sentencing set out in the statute, and of course, I refer here to s. 718 , 718.1 and 718.2 of the Criminal Code . It seems to me that the principles of denunciation and deterrence are not adequately satisfied simply by a fine, even with probation.

As I mentioned, there is a prior record which is not immaterial and, as I also mentioned, the grow operation which, as in all such cases, was planned, deliberate and knowingly done in defiance of the law, partly at least for purposes of profit. It is the kind of offence that must be denounced and deterred.

So I am not satisfied, as I said, that a fine is adequate. [ 19 ] I am satisfied that a term of conventional imprisonment is not required, and that a conditional sentence order is appropriate in the circumstances and fits within the parameters of a conditional sentence order within the meaning of s. 742.1 of the Criminal Code that is: . . . that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 . . . [ 20 ] The sentence I impose is a four month conditional sentence order, followed by a period of six months probation.

The conditions for the conditional sentence order – as I mentioned, the Crown has sought a period of some house arrest. In the circumstances unique to Mr. Ashmore, in relation to his work in Fort St. John, his family responsibilities, the somewhat fluid nature of his employment, and the onerous responsibilities that he has, and the other practicalities involved, I am not going to impose any additional conditions; that is, there will not be a special condition for house arrest.

[ 21 ] There will be the mandatory conditions for a conditional sentence order set out in s. 742.3 (1), which are to keep the peace and be of good behaviour; to appear before the court when required to do so by the court; to report to a supervisor within two working days or such longer period as the court directs after the making of the conditional sentence order and thereafter when required by the supervisor and in the manner directed by the supervisor; and to remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and finally, to 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. [ 22 ] I did not hear any submissions with respect to the conditions for probation.

I will hear from counsel about that in a moment. [ 23 ] With respect to the other aspects, the Crown also sought ancillary orders as I mentioned, of weapons prohibition pursuant to s. 109 and forfeiture. Those were not contested, so those orders will be made. [ 24 ] The Crown also sought an order for a DNA sample, and I am satisfied, based upon the previous record and this record that in the circumstances the order for DNA should also be made. [ 25 ] With respect to the conditional sentence or probation, the question was raised as to whether community service should be imposed. I can tell Mr.

Ashmore and the parties that I am not inclined to order community service, because Mr. Ashmore already has his hands full time-wise. [ 26 ] So the only matter remaining, as far as I know, is the question of conditions for probation. [ 27 ] MR. MORGAN: My Lord, I would simply, given the disposition that you have moved towards, just ask that the statutory conditions be made. [ 28 ] THE COURT: Which

section is that? [ 29 ] MR. MORGAN: It is . . . is it 730 here, 731? I think the report to probation . . . [ 30 ] THE COURT: I think you are right. It is 732.1. [ 31 ] MR. MORGAN: Thank you, My Lord, yes, 732.1. What I would suggest is a report as directed, so that gives the discretion to the probation officer as to whether or not there needs to be an ongoing reporting condition. The probation officers are often the same as -- the same individuals who are the conditional sentence supervisors, and then can -- are aware, by virtue of that, how Mr.

Ashmore would have done on the conditional sentence, and sometimes they exercise their discretion to have a long reporting time or no reporting time. Keep the peace and be of good behaviour. [ 32 ] THE COURT: Well, I have, if I understand this, under

section 732.1(2), there is no reporting requirement. There is (a), (b) -- keep the peace and be of good behaviour, (

b) appear before the court, and (

c) notify the court, et cetera. [ 33 ] MR. MORGAN: Yes. [ 34 ] THE COURT: And that is it. So in that circumstance, those terms are, of course, going to be mandatory, so those are imposed, and I wouldn't order anything in addition to that. [ 35 ] MR. MORGAN: No, I am not seeking anything in addition to that. [ 36 ] THE COURT: All right, so there will just be the mandatory terms then under s. 732.1(2). [ 37 ] MR. MARSHALL: Two things, My Lord, if we can clarify so that -- try and avoid coming back for clarification.

One is I practice in Victoria, so I am not sure how the DNA provision applies up here, and I'm hoping the sheriff can help us, just for guidance for Mr. Ashmore as to where to attend. [ 38 ] THE SHERIFF: Yes, My Lord, just usually -- [ 39 ] THE COURT: Well, you don't need anything from me in that respect. [ 40 ] THE SHERIFF: [Inaudible/not near microphone]. [ 41 ] MR. MARSHALL: And the condition about remain within the jurisdiction of British Columbia, I've run into this confusion in the years.

Some probation officers think that means right here, the jurisdiction. [ 42 ] THE COURT: No, I meant the Province of British Columbia. [ 43 ] MR. MARSHALL: Thank you. [ 44 ] THE COURT: Fort St. John is still in the province, I think, so -- [ 45 ] MR. MARSHALL: It is. [ 46 ] THE COURT: I had that in mind, that that might be a problem. [ 47 ] MR. MARSHALL: I know, I thought so too, because of course that is within the jurisdiction of this court. [ 48 ] THE COURT: Right.

[ 49 ] MR. MARSHALL: But there is some confusion sometimes, so I was wondering if you might want to consider just rewording that, so he's not to leave British Columbia. [ 50 ] THE COURT: Yes, well I can clarify the order and you can so stipulate. The order, when I said, "must remain within the province, or within the jurisdiction of the court," I had in mind that this is the B.C. Supreme Court, so the jurisdiction runs throughout the province, including Fort St. John, so that order should be read, "to remain within the jurisdiction of the court, i.e., the Province of British Columbia." [ 51 ] MR.

MORGAN: Just a final housekeeping matter, My Lord, there is the victim fine surcharge. [ 52 ] THE COURT: Right, and how much is that typically? [ 53 ] MR. MORGAN: Mr. Marshall will know the answer to that. [ 54 ] MR. MARSHALL: No, I don't, because I -- it's a percentage, but when there is a custodial sentence, there is a different formula. [ 55 ] THE CLERK: May I? [ 56 ] THE COURT: Mm-hmm. [ 57 ] THE CLERK: It's generally $100 per indictable offence -- [ 58 ] THE COURT: Mm-hmm [ 59 ] THE CLERK: -- My Lord, and 15 percent of any fine imposed. [ 60 ] MR. MARSHALL: That sounds -- that sounds right. [ 61 ] MR.

MORGAN: Fifteen percent I'm familiar with. [ 62 ] THE CLERK: Yeah, and a hundred dollars per indictable offence that [indiscernible/not near microphone]. [ 63 ] THE COURT: All right. [ 64 ] MR. MORGAN: $100. [ 65 ] MR. MARSHALL: I am not asking that that be waived in the circumstances, Your Honour, given his financial situation. [ 66 ] THE COURT: All right, then there will be no order in that respect. [ 67 ] THE CLERK: My Lord, I missed the length of the firearms prohibition? [ 68 ] THE COURT: Oh, it is 10 years. [ 69 ] THE CLERK: Ten years, thank you. [ 70 ] MR.

MARSHALL: I believe my friend already dealt with Counts 1, 2 and 3? [ 71 ] MR. MORGAN: Yes. If I haven't already, I'd ask Your Honour to direct a stay of proceedings on those please? [ 72 ] THE COURT: Right; all right, there is a stay of proceedings then, as the Crown has requested, with respect to Counts 1, 2, and 3 in the Indictment dated December 18, 2009. [ 73 ] MR. MORGAN: Thank you, My Lord. [ 74 ] MR. MARSHALL: Thank you. “Verhoeven J.”