R. v. Alves, 2013 BCSC 2075

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Alves, 2013 BCSC 2075 Date: 20130904 Docket: 28722-2 Registry: Dawson Creek Regina v. Daniel Scott Alves Before: The Honourable Mr. Justice Schultes Oral Reasons for Sentence Counsel for the Crown: A.M. Owens Counsel for the Accused: P.S. McMurray Place and Date of Hearing: New Westminster, B.C. September 4, 2013 Place and Date of Judgment: New Westminster, B.C. September 4, 2013 [ 1 ] Mr. Alves has entered a guilty plea to trafficking in cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19.

The offence occurred on October 14, 2010 in Dawson Creek. He waived the charge to New Westminster to be dealt with and the guilty plea was entered before another judge here in June of this year. [ 2 ] Mr. Alves was in the Alaskan Pub in Dawson Creek, which had been targeted by the RCMP investigators, along with three other pubs in the area, because of concerns about ongoing drug dealing in them. Constable Boillard, who was acting in an undercover role, ended up engaging in a drug transaction with Mr.

Alves and a second man, who was not initially identified by the investigators. [ 3 ] At around 10:40 in the evening of October 14, Constable Boillard was looking for opportunities to purchase drugs in the pub. Mr. Alves was sitting with this second man on a bench at a corner table. The officer inquired of them whether someone could get him some “hard” -- a street term for crack cocaine. Mr. Alves looked at the man beside him and Constable Boillard then advised that he was looking for "a hundred of hard". The second man asked Constable Boillard to sit on the bench beside them. Mr.

Alves asked Constable Boillard if he was a cop, which of course he denied. The second man asked for the money and Constable Boillard paid it. Mr. Alves and the second man nodded to each other and Mr. Alves then searched around for the substances, which he was eventually able to obtain from a crack in the bench area. They consisted of two foil packages, which he placed on the bench for Constable Boillard. This was .3 grams of cocaine, or “three points” as it is described in street terms. There was some further conversation between the officer and the second man about future contact to buy other drugs, but Mr.

Alves was not involved in that. [ 4 ] Another police officer identified Mr. Alves in the pub later that evening as one of the men with whom Constable Boillard had dealt, but he was not actually arrested until November 3, sometime after this incident. [ 5 ] Mr. Alves is 28 years old. He grew up in the Maple Ridge/Pitt Meadows area as the oldest of three children. His father is an auto body repairman and his mother is a dental technician. He now shares a home with a long-time friend, who has come to court today to show support for him.

He is employed at the same place, Craftsman Collision, where his father has been a long-term employee. A letter attesting to Mr. Alves’s hardworking and punctual contribution to the business was submitted on sentencing. [ 6 ] He has completed a year of an automotive service technician apprentice program at Vancouver Community College and, if he does not receive an actual jail sentence today, he plans on starting the second year of that program next month. Although he is not a high wage earner, according to the pre-sentence report he does not have much debt and is able to meet his financial needs.

He has the support of his parents. He has not told them the precise details of this offence but they know that he is charged with something because he had to have his bail modified so that he could go to their recreational property in the Cariboo. [ 7 ] The underlying contributing factor in this offence, according to his counsel, was his relationship with a long-time girlfriend, who unfortunately was heavily involved in the drug using and selling lifestyle in Dawson Creek. The second male with whom Mr. Alves engaged in the drug sale to Constable Boillard was actually the girlfriend’s father.

That transaction was intended to generate money for the girlfriend to retain counsel to defend her own drug charge. [ 8 ] Mr. Alves came to recognize that their relationship had no future and ended it more or less immediately after this offence. He was prohibited from being in Dawson Creek as part of his bail and is more than content to comply with that prohibition in the future. His counsel characterizes the offence as arising largely from that romantic relationship and the resulting pressures on him. [ 9 ] Mr. Alves has a previous criminal record. In December of 2007 in Fort St.

John he was convicted of breaching his undertaking or recognizance and received a fine for that. In February 2010, in Dawson Creek, he was convicted of causing a disturbance and also

received a fine. I am told that the disturbance was an altercation with his former girlfriend in a pub. Earlier this year in Port Coquitlam hewas convicted of the provincial offence driving without a licence and received a $250 fine. No criminal record is ever trivial, but theseconvictions would not in themselves trigger consideration of a jail sentence for the present offence. Much more significantly, in March of2008 in Dawson Creek Mr.

Alves was convicted of possession for the purposes of trafficking, the same offence as the present one, andreceived a conditional sentence of imprisonment for six months. [10] The pre-sentence report is informative, and largely positive. It describes the supportive roles of his family and his roommate.Mr. Alves did not elaborate with the probation officer on the role that his relationship with his girlfriend played in his offending, but hedid talk about the length of the relationship and confirm that it has ended. He has no psychological problems.

He may have been dyslexicas a child but that is not an ongoing bar to employment, as we can see. He is not a substance abuser. [11] Mr. Alves did hedge somewhat in his description to the probation officer of his degree of responsibility for the offence.

Whatmatters most to me obviously is that today he is not denying any of the facts that have been alleged against him in the sentencing hearing.It troubles me that he was less straightforward than that in his probation interview, but at the end of the day I am not convinced that itshould be weighed heavily against him in arriving at an appropriate sentence, given his ultimate acceptance of responsibility. [12] Generally speaking, the pre-sentence report supports his counsel's assertions that Mr. Alves is now doing much more positivethings than when he committed this offence.

He is working, he is living with a good friend and, most fundamentally, he is not dealingdrugs in pubs. [13] The Crown has provided some helpful sentencing cases. What they illustrate is that general and specific deterrence anddenunciation are very important in cocaine trafficking offences, and that even when the amounts involved are quite small -- smalleramounts even than we have here -- custodial sentences in the range of two to three months to one year, depending on the age andprevious criminal history of the offender, have been imposed.

These cases post-date the conditional sentence regime, so the judgesinvolved clearly regarded this offence as being serious enough to reject that sentencing option. [14] Crown counsel points out that there are distinctions drawn in the cases between sometimes quite pathetic individuals who selldrugs to fuel their own rampant addiction versus those who get involved for purely financial reasons. I accept that distinction, but in thiscase Mr. Alves’s place in the latter category will not be the determinative factor in arriving at the sentence. [15] The Crown is seeking six months of actual incarceration. Mr.

Alves's counsel submits that there are a couple of appropriateoptions here -- one would be a conditional sentence and the other would be a monetary penalty followed by probation. [16] The most important aggravating feature by far is the prior related conviction. Another judge in 2008 no doubt said to Mr. Alvesthat it was a very serious offence, that the Court of Appeal has time and time again said that jail is an appropriate penalty. Having heardall that, and having received the opportunity to serve his sentence in the community, Mr.

Alves nonetheless repeated the offence. [17] As far as the mitigating features go, he is still a relatively young man. His guilty plea is an expression of remorse. I do not knowenough about the circumstances under which it was entered to give it any less weight because of its timing. [18] The most important mitigating factor is that since the offence Mr. Alves has distanced himself from both the physical locationand the context of his offending. He was a grown man and the fact that his girlfriend was involved in drug dealing is not an excuse forhis participation, but it does help to explain how it came about.

The fact that he has done well on bail for a lengthy period since leavingthat situation supports his characterization of the role that it played, and also offers a preview of what his performance might be in thecommunity. [19] R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61 remains the most helpful authority on conditional sentences. Theappropriateness of a conditional sentence in a given case often comes down to the question of whether the needs of deterrence anddenunciation are, as Chief Justice Lamer said in Proulx, “particularly pressing”.

He emphasized that in many cases a conditionalsentence can achieve denunciation and deterrence just as well as an actual jail sentence can, particularly if punitive and even harshelements are included. The sentence can even be a longer one than actual imprisonment would have been, if that is necessary to achievesufficient deterrence and denunciation. It is only where those objectives are particularly pressing that a sentence of actual imprisonmentwill be necessary. [20] On the one hand, the reason that those objectives would be particularly pressing here is that, as I said earlier, Mr.

Alves wasgiven an opportunity to serve a sentence in the community and not that long after receiving that opportunity went back to committing thesame offence.

That seems to call for a greater message of deterrence to him and others, and also a greater expression of society'scollective condemnation of the present offence. [21] However, when I look at the total picture -- the efforts that he has made himself, the gap in time since the offence and thepositive events that are going on in his life now -- I conclude that, notwithstanding the fact that this is a second offence, a properlystructured conditional sentence can address the fact that there has been a repetition without jeopardizing his meaningful progress towardsrehabilitation. [22] The best things he can do for himself and for society are to work in a steady job, have healthy relationships with his friends andfamily, and not be in pubs dealing crack cocaine to undercover police officers.

The fact he has a reasonably long pre-sentence trackrecord of being able to do that is, in my view, a powerful distinguishing factor from the cases in which jail was found to be necessary. [23] So, I am persuaded that a conditional sentence is appropriate but it is going to be longer than the straight time sentence wouldbe and it is going to have some conditions that I hope will bite a little bit and be inconvenient at times to Mr. Alves.

When he is chafingunder them he can reflect on what the alternative sentence would have been, and hopefully that will address the need for deterrence. [24] First, I order that the number of samples of bodily substances that are reasonably required for the purposes of DNA analysis betaken from Mr. Alves.

[ 25 ] I am going to impose a conditional sentence order and it will be for a period of 12 months. The compulsory conditions are as follows: 1. He is to keep the peace and be of good behaviour. 2. He is to appear before the Court when required to do so by the Court. 3. He is to report to a supervisor within two working days after the making of this order and thereafter when required by the supervisor and in the manner directed by the supervisor. 4.

He is 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 he is 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. [ 26 ] The optional conditions will be as follows: 5. He will be continually in his place of residence between the hours of 11:00 p.m. and 6:00 a.m., seven days per week, except with the prior written permission of his supervisor, or in the case of a medical emergency.

I will just make it clear that his place of residence from time to time for the purposes of his condition will be the place that he has most recently advised his conditional sentence supervisor is his residence. 6. He is not to be in any premises licensed for the sale of alcohol. 7. He is not to be found within the boundaries of the Town of Dawson Creek, British Columbia. 8. He is to have no contact with Rebecca Burr, directly or indirectly. 9. He is to perform 40 hours of community work service within the first six months of this conditional sentence order. [ 27 ] Mr. Alves, I expect that Mr.

McMurray has told you about the consequences of a breach. In this Court those breaches are often brought before the same judge who gave the original sentence. That is a beneficial thing because if I heard a breach in this case I would be concerned about whether the positive information that I have received about you today was really accurate. I believe it is. I believe you are on a different path in your life and it would do no good at all and nothing but harm to incarcerate you at this point.

I am strongly hoping to be proven correct in my faith in that and I also hope -- and I mean this in a good way -- not to have to see you again, because if you comply with these conditions you can just go on with life and not be back in any more courtrooms. [ 28 ] Now, is there anything else? [ 29 ] MR. OWENS: One thing My Lord, about receiving a prior prohibition there was one made before on the earlier conviction and statutorily there is now a mandatory life prohibition but that's subject in common law to having given notice to Mr. Alves.

I'm not aware that notice was given that the Crown would be seeking a lifetime firearms prohibition so I told my friend in advance today that you know I asked him about getting a notice and he didn't recall it and he didn't have an issue with it but I just want to make sure that the Court is aware of that so we can get at least a 10-year firearms prohibition being made pursuant to s. 109(2). The lifetime one is 109(3) but it also refers to the requirement to give notice as with greater penalty. [ 30 ] THE COURT: You are not a gun fancier are you, Mr. Alves?

You do not have guns, you do not want guns? [ 31 ] THE ACCUSED: No. [ 32 ] THE COURT: All right. Yes, thank you, Mr. Owens. Mr. Alves I will order pursuant to s. 109(2) of the Criminal Code that you are prohibited from possessing any of the items set out in s. 109(2) (

a) for ten years following the making of this order, and you are prohibited from possessing any of the items in s. 109(2) (

b) for life. The Honourable Mr. Justice T.A. Schultes