R. v. Kemp, 2013 BCSC 2263

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Kemp, 2013 BCSC 2263 Date: 20131016 Docket: 155938-2 Registry: Victoria Regina v. Marcel Yvon Kemp Before: The Honourable Madam Justice Dorgan Oral Reasons for Sentence (In Chambers) Counsel for the Crown: T. Corsi Counsel for the Accused: M. Munro Place and Date of Trial/Hearing: Victoria, B.C. October 16, 2013 Place and Date of Judgment: Victoria, B.C. October 16, 2013 [ 1 ] THE COURT: Mr. Kemp has pled guilty to the offence of trafficking in a controlled substance, namely cocaine.

The offence date is October 7, 2011. [ 2 ] The circumstances of the offence are that Mr. Kemp sold slightly less than one gram of cocaine to an undercover police officer for $200 on October 7, 2011, here in downtown Victoria. [ 3 ] The defence and the Crown each consider that Mr. Kemp was middling at that point; that is, he arranged the transaction between the purchaser and the dealer, in return for which the expectation on his part was that he would get a small amount of cocaine that would feed his longstanding drug habit. [ 4 ] He was arrested quite some time later and since March 2012, Mr.

Kemp has been on a recognizance. The bail conditions include some which are relatively strict, one being a tight curfew in place now for one and one-half years. Another, somewhat unusually, as pointed out by Mr. Munro, is Condition 9, and that is that Mr. Kemp attend and participate in and complete any assessment or counselling or program as directed by the probation officer, including a full-time attendance program for drug abuse. [ 5 ] Arising from that recognizance, in the fall of 2012, Mr. Kemp attended and stayed at the Maple Ridge residential program for drug addiction and abuse.

He completed a 35-day program. [ 6 ] In the last year and a half, no charges of a breach of this recognizance of bail have arisen. [ 7 ] The last year and a half has not been without its glitches; glitches one would expect from a 42-year-old man with an extremely lengthy criminal history, all of which stem from at least 20 years of drug use and abuse predating physical and sexual abuse in his home as a young child. [ 8 ] The glitches I refer to are mirrored in the record of Mr.

Kemp, and those are that in April of 2013 and June 2013, I am told, there were breaches of undertaking twice -- possession of a controlled substance, and a breach of undertaking. In respect of one of the breaches, Mr. Kemp was found in possession not of drugs but of drug-related paraphernalia. [ 9 ] In Mr. Kemp's comments to the court, he clearly does not pretend that things have been perfect for the last year and a half. He paints a realistic picture, saying that he has struggles, he has called on the support that he has in the community, that he is further ahead in his rehabilitation than he has been for years.

I think those are my words, but that is how I interpret what Mr. Kemp said, and further, I assume from what he says that while he has had a few relapses, in this last year and a half he has primarily been drug free. [ 10 ] Mr. Kemp's mother is in court. She lives in Victoria. She is very supportive of Mr. Kemp. It seems that she is an important support in his life. It can be argued that she has been there for a long time, and even though she has been, he still has an extensive criminal record, and that is true. The record, as is pointed out by Mr.

Corsi for the Crown, includes 11 convictions for trafficking, the offence to which Mr. Kemp has pled guilty. [ 11 ] However, Mr. Kemp's mother does say that she sees something of a change in her son at the moment, that he is more healthy, I think, physically and perhaps emotionally than he has been for quite some time, and that she is hopeful that this is a time in his life where

turning a corner may be most realistic -- probably more realistic than at any time she has seen in years. [ 12 ] Furthermore, Mr. Fryer came to court and spoke to the court today. Mr. Fryer has had direct contact, daily contact from time to time in this last while with Mr. Kemp. Mr. Fryer takes Mr. Kemp to Narcotics Anonymous meetings. Mr. Fryer himself is a recovering narcotics user and abuser. He has been clean for six years. He has an insight into what Mr. Kemp's life has been like and what he is going to face if he is serious about rehabilitation. Mr. Fryer says that he is here to support Mr.

Kemp, to the extent that not only will he see and has he seen that Mr. Kemp goes to meetings regularly and thereby develops a different peer group than he does when he lives in downtown Victoria, but Mr. Fryer has generously offered Mr. Kemp a place to stay with him in his home in Sooke, which apparently Mr. Kemp is willing to accept. Mr. Fryer wisely notes that Sooke is a place that will help Mr.

Kemp stay away from the drug culture in central Victoria with which he has been imbued for the last decade. [ 13 ] The Crown's position is that the appropriate sentence is jail time -- custodial time -- for a period of 18 months. The Crown seeks that sentence on the basis of its appropriateness given the record, which I have already alluded to -- 11 convictions for trafficking; a lengthy record which starts in 1997 when Mr. Kemp, by my math, was age 26, and which continues to February 2010. Mr.

Kemp did pretty well until the 2013 breaches I have earlier referred to. [ 14 ] But the Crown submits, that given the record, jail time -- custodial time -- is required. Further, the Crown says that a conditional sentence order is inappropriate because over a period of 10 years, as is noted in the pre-sentence report, Mr.

Kemp has been convicted six times for failing to comply with a recognizance of bail order or a term of a probation order or parole order terms. [ 15 ] The defence position is that the appropriate range here is 12 to 18 months, there is not much disparity between the Crown and the defence in terms of the range, but the defence urges the court to consider a conditional sentence order as appropriate in all of the circumstances. [ 16 ] I have been assisted by the two cases which have been handed to me, Kukelka and Nesbitt , handed up to the court for two different reasons: one, Kukelka , is pretty clear that the range of sentence, particularly for an offender in Mr.

Kemp's circumstances and an offence of like nature, is 12 to 18 months; and Nesbitt , of course, was handed up to the court so that the court could be refreshed on the principles which apply to sentencing and a consideration of whether a conditional sentence order is appropriate. [ 17 ] I am satisfied without hesitation that two years less is the appropriate sentence. It is within the range, the 12 to 18 months as counsel have noted.

Accordingly, a conditional sentencing order is an option which the court has in fashioning an appropriate sentence in this case. [ 18 ] The defence obviously takes the position that the overriding principle here is one of rehabilitation.

I note that the Crown did not say that rehabilitation is not the overriding or the principle which the court should be most concerned with, but by implication the Crown is suggesting that denunciation and some deterrent effect which comes from, allegedly, a custodial sentence, is what the court should consider. [ 19 ] There is a guilty plea here, and I am satisfied that a conditional sentence order is the appropriate order in all of the circumstances. [ 20 ] Please stand, Mr. Kemp. [ 21 ] The sentence I impose upon you, sir, is for 18 months.

That sentence will be served in the community. [ 22 ] After you sit down, I will have some discussions and hear submissions from counsel as to the conditions. I will refer to and rely on the pre-sentence report to some large degree, and also the terms in the recognizance of bail with which you have lived pretty well for the last year and a half. [ 23 ] Mr. Kemp, there is a reason I am not going to send you to jail at this point in your life, and that is that you have satisfied me that you have the support necessary to take a different path in your life right now, and that you are ready at this point to do so.

This court will give you the opportunity to continue down that way. That is the pivotal part of it -- that you have support that will help you, and you will need it, of course, it is a rocky start, but you are started on a different path in life -- you are dealing with your drug addiction from which the criminal activity flows, and with the support you have, particularly from your mother, your sister who lives on the Mainland, I appreciate, but she is still part of your life, a big part of your life, and from Mr.

Fryer, who is willing to share many things with you in order to give you a hand up at a time in your life when he knows it is most difficult, you have a reasonable chance of turning things around. I think it was Mr. Fryer who said everybody needs a break now and again, it just has to come at the right time. [ 24 ] So this court is hopeful that this is the right time, and if you have trouble with the terms once I impose them on you, you know that you can be brought back to court and sentenced to jail, and that is the likely alternative. [ 25 ] All right. Please sit down, sir.

Counsel, we have the conditions, suggested conditions in the PSR. Do either of you have anything to say about any of those? [ 26 ] MR. MUNRO: I do. [ 27 ] THE COURT: That is, I think they are appropriate in the circumstances. Do you have anything that you would like to tell me that makes them less so? [ 28 ] MR. MUNRO: Thank you, My Lady. [ 29 ] THE COURT: Inappropriate. [ 30 ] MR. MUNRO: None in the pre-sentence report, save and except for 224 on the last page, which is the ban on cellphones and

the like. I doubt there's a landline out in the trailer, and cellphones are just too commonplace these days to -- to -- [ 31 ] THE COURT: I am satisfied that is the only way this man keeps in touch with his mother -- [ 32 ] MR. MUNRO: Or anyone. [ 33 ] THE COURT: -- who is a very important person in his life for support, and probably with Mr. Fryer as well. [ 34 ] MR.

MUNRO: Yes, and then the three conditions that probably make sense from the recognizance of bail, in addition to those, are 5, 6, and 7, which is the curfew and the monitoring, and the only concern I would have is in terms of meetings and the like, that there should be some proviso or consideration of when those are out, so -- [ 35 ] THE COURT: Now, Mr. Fryer talked about evening meetings out in Sooke, and this curfew has been eight o'clock at night, and that may be a little tight. [ 36 ] MR. MUNRO: It might be, and also because there's -- [ 37 ] THE COURT: Could you talk to Mr. Fryer about that, please, Mr.

Munro? [ 38 ] MR. MUNRO: Can you just come forward? There is also the bus situation for Sooke. [ 39 ] THE COURT: Yes, transportation issues. [ 40 ] MR. MUNRO: So 10:30, he says is the latest -- or the earliest they can get back from the Langford meeting by bus. So I would ask, I don't -- 6:00 a.m., there is no reason he is going to be out earlier than that, but that you might consider a 10:30 p.m. curfew. [ 41 ] MR. CORSI: That is agreed, My Lady. [ 42 ] THE COURT: Mr. Corsi? [ 43 ] MR. CORSI: Yes, and in fact -- [ 44 ] THE COURT: It is impossible to say 10:30 certain days.

As soon as you make it more complicated, you are just asking for breaches -- [ 45 ] MR. CORSI: Yes. [ 46 ] THE COURT: -- it seems to me. [ 47 ] MR. CORSI: Agreed. [ 48 ] THE COURT: All right. Do you see anything else then, Mr. Corsi, that -- I know that there is a s. 109 lifetime ban that ought to be imposed, and I will do that, just so you are aware of that. [ 49 ] MR. CORSI: Thank you. But right, I take no issue with the conditions as they are set out in the pre-sentence report. [ 50 ] THE COURT: 109. [ 51 ] MR.

CORSI: The suggestions by my learned friend, the conditions on the recognizance make a lot of sense as well. I have no issues with any of those. [ 52 ] THE COURT: All right, thank you. Just a moment, please. [ 53 ] All right, Mr. Kemp, once again if you would stand, sir. You know I have imposed a sentence of 18 months, a conditional sentence order. Here are the terms of the sentence.

Here are the conditions which I impose upon you. [ 54 ] You will immediately report to the probation office at 836 Courtney Street, Victoria, and you will report there as directed. [ 55 ] When first reporting to the probation officer, you will inform him or her of your residential address and phone number.

You will not change your residential address or phone number without first obtaining the written consent of your probation officer. [ 56 ] You shall not possess or consume any alcohol or any controlled substance as defined in s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. [ 57 ] You shall not possess any pipes, syringes, or other drug paraphernalia. [ 58 ] You will not possess any pager or portable telecommunication device except if it is immediately required for your employment, for any employment that you obtain. [ 59 ] You shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by the probation officer, and that could include programs for alcohol or drug abuse, full-time attendance at programs for alcohol or drug abuse, forensic assessments, counselling, or treatment through the Forensic Psychiatric Centre, and you will comply with all the rules and regulations of such assessment, counselling, or program. [ 60 ] Further, you are to obey and you will be subject to a curfew.

Your daily curfew will be from 10:45 p.m. to 6:00 a.m. each day during the 18 months of the sentence. The only exceptions to that will be if you have the written consent of the bail supervisor to be

outside the home outside those hours, and/or while you are at a full-time treatment program for drug abuse, in which case you will obey the rules and regulations of the program. [ 61 ] Whenever any peace officer or bail supervisor or probation officer attends at your home, you will present yourself at the door of your residence, and that is to make sure that you are in compliance with the curfew condition. [ 62 ] You will respond personally and immediately to the telephone if any peace officer or probation officer calls you at your residence, or anywhere else, for the purpose of determining your compliance with the curfew condition. [ 63 ] You are bound for a lifetime from using or being in possession of any firearms, as set out and defined by s. 109 of the Criminal Code of Canada . [ 64 ] Do you understand those terms, sir? [ 65 ] THE ACCUSED: Yes, I do. [ 66 ] THE COURT: Counsel, anything further? [ 67 ] MR.

MUNRO: Just if you would consider, he is relatively impecunious, the victim fine surcharge? [ 68 ] THE COURT: Mr. Corsi, any position on that? [ 69 ] MR. CORSI: No position, thank you, My Lady. [ 70 ] THE COURT: There is no need to pay the victim surcharge. [ 71 ] MR. MUNRO: Thank you very much, My Lady. [ 72 ] THE COURT: You are relieved of that obligation, Mr. Kemp. “J. L. Dorgan, J.” The Honourable Madam Justice Dorgan