R. v. Casemore, 2013 BCSC 1214

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Casemore, 2013 BCSC 1214 Date: 20130529 Docket: 35957-2 Registry: Campbell River Regina v. Earl Conrad Casemore Before: The Honourable Mr. Justice Thompson Oral Reasons for Sentence Counsel for Federal Crown: P. Corbett Counsel for Defence: D. Marion Place and Date of Sentence Hearing: Campbell River, B.C. May 29, 2013 Place and Date of Judgment: Campbell River, B.C. May 29, 2013 [ 1 ] THE COURT: Mr. Casemore was charged on a two count indictment. The first count alleged the offence of possession of cocaine for the purpose of trafficking.

The second count alleged that he did traffic in that controlled substance, cocaine, contrary to the relevant provision of the Controlled Drugs and Substances Act . [ 2 ] As a result of what I was told were lengthy discussions, the matter came before me today on the basis of a guilty plea. Mr. Casemore pled guilty after the

section 606 inquiry.

He pled guilty to Count 1 on the indictment, that is, the possession for the purpose of trafficking count, and Crown counsel directed a stay of proceedings on Count 2. [ 3 ] With respect to sentence, Crown and defence counsel made a joint submission that an 18-month conditional sentencing order, together with certain ancillary orders, would be the appropriate disposition. [ 4 ] With respect to the circumstances of the offence, I was told that on 9 April 2011 Port Hardy RCMP came into possession of information or were in possession at that time of information that allowed them to dial a number reaching a cell phone and that they had a text conversation arranging for a cocaine buy.

A meeting was arranged with Mr. Casemore as a result of that text conversation. The RCMP attended at the place chosen for the meeting, as did Mr. Casemore. In the course of his arrest Mr. Casemore attempted to swallow two small packages. One package contained .85 grams of cocaine and the other package contained .50 grams of cocaine.

His efforts to swallow the evidence were interrupted by the RCMP officers. [ 5 ] After the arrest a key was located that led the police to a room in a local Port Hardy hotel where they found $1,120 in cash, 1.3 grams of cocaine, the cell phone (which had the number that the RCMP dialled and had the text conversation in connection with), and an occupant who may or may not have been the person that was in possession of the 1.3 grams of cocaine. [ 6 ] The Crown is proceeding on this case with respect to the cocaine that was found on Mr. Casemore's person at the time of his arrest. [ 7 ] Mr.

Casemore has a cognate record. In 2001 he was convicted for possession for the purpose of trafficking and spent four months in jail. At that same time he was sentenced to time served for a simple possession count. In 2007 he was sentenced for simple possession and received a six month CSO, and in 2008 he received a $1,500 fine for simple possession. I was not informed what the drug was in each of these cases.

It is therefore difficult to know what significance to attach to the record, and I am obliged to take the most benign view that is available to me in those circumstances of what that drug might have been. [ 8 ] With respect to the offender's background, he is presently 57 years old. He left school in Grade 10. He was married for 30 years. There were three boys and one girl born as a result of that relationship, all adults now. He is divorced. He was a commercial diver and had 15,000 hours of commercial diving experience. He suffered an embolism on one of his dives which caused a form of emphysema.

He recovered from that health setback, but has recently faced other significant health challenges. [ 9 ] Shortly after this offence was committed he was in a serious motor vehicle accident, as a result of which he spent 50 days in bed. It is said on his behalf that he will not likely work again. He has six months of physiotherapy ahead of him. He has been diagnosed with a form of disintegrating bone disease. I was also told that he has a recently diagnosed condition called pyemia, a stomach infection for which he requires a regime of antibiotics and he has more tests ahead of him in that regard.

It is urged on his behalf that the flexibility

of a conditional sentencing order is appropriate in these circumstances because of these health challenges. [ 10 ] At the time of the offence it was submitted that he was a cocaine addict and was trafficking to finance his habit. Happily, about six months ago he entered into drug counselling and his counsel submits that he has this habit under control.

He has stopped using the drug and stopped the counselling thinking that he has that problem under control. [ 11 ] I was provided with three cases to establish that the disposition urged upon me is within the range of fit sentences that might be imposed in a case such as this with an offender such as this. [ 12 ] Would you stand, please, Mr. Casemore. [ 13 ] I accept the joint submission of counsel. The sentence that I am about to impose is within the range of fit sentences. [ 14 ] You are sentenced to an 18-month period that you will be subject to a conditional sentencing order.

The first six months you will be under house arrest at all times with these three exceptions: Saturday from 10 a.m. to 4 p.m.; the second exception: with the permission of your sentence supervisor; the third exception: for medical emergencies. [ 15 ] During this first six month period of time you will present yourself at the door within two minutes of a demand by a peace officer. I will call that the “two minute term”. [ 16 ] Also during this first six month period of time the RCMP may on two occasions without notice attend your residence and walk through the residence.

I will call that the “RCMP drop-in term”. [ 17 ] During the second six months, of your conditional sentencing order, you will be under a curfew. You are to be in your residence from 9 p.m. until 6 a.m. all seven days of the week.

During this second six months, the two minute term will be in place and the RCMP drop-in term will be in place. [ 18 ] During the final six months, there will be the statutory terms, plus you are to have no cell phone, and in fact you are to have no cell phone in your possession for the entire sentence. [ 19 ] Also during the entire time of your sentence you are not to possess or consume any substances that are caught by the Controlled Drugs and Substances Act . [ 20 ] During the first 12 months of your sentence you are not to possess or consume any alcohol. [ 21 ] There will also be the imposition of the mandatory s. 109 firearms and weapons ban for 10 years.

You will be prohibited from possessing any of the weapons referred to in that section, and there will be a lifetime ban with respect to the other restricted and prohibited weapons within that section. [ 22 ] There will be the DNA order, pursuant to s. 487 of the Criminal Code . [ 23 ] There will also be ordered the forfeiture of the $1,120 cash and the cell phone that was seized from the hotel room. [ 24 ] Counsel, anything arising from all of that? [ 25 ] MR. CORBETT: I see two potential matters, My Lord, and I may just have missed them in taking my notes.

In regards to the no drug term during the 18 months, given Mr. Casemore's need for prescription medication, I am not sure if My Lord mentioned he would be allowed to have it with valid medical prescription. [ 26 ] THE COURT: Yes, that should be added, and I recall you mentioned that when you first made your submissions. That is my error. So there will be an exception added: except with a medical prescription. [ 27 ] MR. CORBETT: And the only other matters, My Lord, that I saw was you raised the issue of the 114 order and 48 hours -- [ 28 ] THE COURT: Yes. [ 29 ] MR.

CORBETT: -- to provide firearms, and then in the DNA I would suggest there be a time for him to report for the taking of a DNA order. I am not sure if the sheriffs can do it here. I think it should be done at the RCMP in Port Hardy within seven days. [ 30 ] THE COURT: So how does that -- well, let me first of all impose the s. 114 order.

Within 48 hours there will be the surrender, Sir, of the weapons caught by s. 109. [ 31 ] THE ACCUSED: I don't have any anyway. [ 32 ] THE COURT: Well, that will make it very easy then for you to comply with the order. [ 33 ] THE ACCUSED: Yeah. [ 34 ] THE COURT: And what can you tell me about what the practice is, Mr. Corbett, on the DNA? It may not -- just within seven days for him just to show up and say “here I am” and suppose that was on a Saturday between 10 a.m. and 4 p.m. It may not be a convenient time for the taking of the sample. [ 35 ] MR. CORBETT: Yes, My Lord. Mr.

Sheriff has been kind enough to assist, My Lord. If he was to contact the RCMP by telephone in Port Hardy I agree it would -- they would be able to have someone available to take the DNA sample during the time or they can make the arrangement with his probation officer -- sorry, his sentence supervisor, who can then allow him out for that purpose.

So perhaps give him even 10 days to get there, which allows for the arrangement of time. Just in my submission having a finite date there makes sure that this isn't something that gets missed in terms of the order. [ 36 ] THE COURT: Well, why don't we allow a little bit more time for it all to happen? Within 21 days he will produce a sample. He will make contact in the meantime with the RCMP for the purposes of having that sample taken. [ 37 ] MR. CORBETT: Thank you, My Lord. [ 38 ] THE COURT: Thank you. Anything else arising? [ 39 ] MR. MARION: No, My Lord. [ 40 ] THE COURT: Thank you.

That matter is concluded. [ 41 ] THE CLERK: My Lord, the victim surcharge, is that waived? [ 42 ] THE COURT: Thank you. What do you have to say about the victim fine surcharge, Mr. Corbett? [ 43 ] MR. CORBETT: The Crown takes no position in that regard, My Lord. We heard submissions he is unemployed and unemployable. That confirms what I was informed by the RCMP, that he is currently unemployed. It would seem appropriate if my friend makes the submission that that be waived. [ 44 ] THE COURT: Does your client have any cash just lying around that could pay a victim fine surcharge? [ 45 ] MR.

MARION: No, he doesn't, My Lord. [ 46 ] THE COURT: Yes, okay. That will be waived then. It would produce an undue hardship to make an order that he pay the surcharge. That will be waived. “Thompson J.”