R. v. Hambler, 2017 BCSC 1191

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hambler, 2017 BCSC 1191 Date: 20170220 Docket: 28817-5 Registry: Dawson Creek Regina v. Jordan Albert Hambler Before: The Honourable Mr. Justice G.C. Weatherill Oral Reasons for Sentence In Chambers Counsel for the Crown: H. Pineo Counsel for the Accused: P. McMurray Place and Date of Hearing: Dawson Creek, B.C. February 20, 2017 Place and Date of Judgment: Dawson Creek, B.C.

February 20, 2017 [ 1 ] THE COURT: The accused is before the court today to be sentenced, after having pleaded guilty some time ago to the following two counts: Count 1 : That on the 28th day of February, 2014, at or near the City of Dawson Creek, in the Province of British Columbia, he did unlawfully possess a controlled substance, to wit: cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19.

Count 2 : That on the 28th day of February, 2014, at or near the City of Dawson Creek, in the Province of British Columbia, he did unlawfully possess a controlled substance, to wit: heroin, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 2 ] At the opening of the hearing this afternoon, the accused, Mr. Hambler, informed the court that he had dismissed his counsel, Mr. McMurray, due to a disagreement regarding the joint submission as to sentencing that Mr. McMurray and Crown Counsel wished to make. After discussion with the court, Mr.

Hambler reconsidered his earlier decision and reappointed Mr. McMurray as his counsel. pre-sentence report [ 3 ] The court has had the benefit of a pre-sentence report that was prepared by Heather Mateluna, a probation officer in Edmonton, Alberta. The pre-sentence report is dated November 14, 2016. The following background is gleaned from that report. [ 4 ] The accused is currently 37 years of age.

He lives in Edmonton in a common-law relationship with a Bridget Burr, with whom he has a six-year-old son and a 3-month-old daughter. [ 5 ] The accused has a son from another relationship but does not participate in his life, and has not had any contact with him for over four years. He currently pays child support of $465 per month in respect of that child. [ 6 ] The accused was born in Prince George, British Columbia. He is the oldest of five children. He claims to have had good parental support during his formative years, primarily from his mother. He enjoyed his childhood.

He graduated from Prince George Secondary School with average grades. [ 7 ] The accused’s mother remarried approximately 20 years ago. The accused describes his stepfather as “a good man”. The accused continues to have a positive relationship with all of his family members, and is particularly close to his mother. He and his family get together often, even though they live in different provinces. [ 8 ] The accused also has a positive relationship with his most recent two children, and is described by Ms.

Burr as a very “hands on”, loving, generous, and attentive father who tries to spend as much family time with his children as possible. [ 9 ] The accused is currently employed with a company called Alstar Oilfields, which has a project near Dawson Creek. I understand that his work in that project is currently scheduled to be completed at the end of March 2017. However, his employer has

indicated -- [ 10 ] MS. PINEO: Sorry, My Lord, can I just stand up -- I don’t mean to interrupt -- I am just wanting to make sure I am clear -- I am just not sure what -- Your Honour is giving a decision on something. I just don’t know what it is. I want to make sure that I have made all the submissions that I have wanted to. I am just not sure what’s occurring, and I want to make sure that I don’t -- [ 11 ] THE COURT: All right -- stay tuned. [ 12 ] MS. PINEO: Yes. Oh, perfect. [ 13 ] THE COURT: The employer Alstar Oilfields has indicated that it intends to continue Mr.

Hambler’s employment after the current project is completed, to the extent that it is able. [ 14 ] The accused reports that he has credit card debt of approximately $6,000 and a monthly truck payment of $400. His rent is currently $1,750 per month. [ 15 ] The accused acknowledges a gambling weakness, and finds it difficult to control his gambling urges once he enters a casino.

Although he experimented with soft drugs in his youth, he denies having any alcohol or drug dependency. [ 16 ] The accused has had a number of previous transgressions with the law: • December 9, 1999 in Prince George, possession of property obtained by crime under $5,000, contrary to s. 355 (

b) of the Criminal Code , R.S.C. 1985, c. C-46 for which he received a suspended sentence and 12 months’ probation. • April 10, 2001, in Dawson Creek, charged with two counts of break and enter to commit, contrary to s. 348(1) (

b) of the Criminal Code , for which he received six months in jail on each charge concurrently, and as well a charge of one count taking a motor vehicle without the owner’s consent, contrary to s. 335(1) of the Criminal Code , for which he received a sentence of 30 days consecutive. • November 27, 2001, in Dawson Creek, a charge of unauthorized possession of a prohibited or restricted weapon, contrary to s. 91(2) of the Criminal Code , for which he received a sentence of three months’ jail and two years’ probation, plus a discretionary probation order under s. 110 of the Criminal Code for two years. • December 22, 2004, in Fort St. John, a charge of theft over $5,000, contrary to s. 334 (

a) of the Criminal Code , for which he received a sentence of seven months’ jail and 18 months’ probation. • October 25, 2006, in Dawson Creek, a charge of robbery, contrary to s. 344 (

b) of the Criminal Code , for which he received a sentence of 18 months’ jail and one year’s probation, and a mandatory prohibition order under s. 109 of the Criminal Code . In addition, he was charged with failure to comply with a probation order contrary to s. 733.1(1) of the Criminal Code , for which he received a sentence of 14 days in jail, and as well a charge of failing to attend court, contrary to s. 145(2) (

b) of the Criminal Code , for which he received a sentence of seven days’ jail concurrent. • April 15, 2008, in Dawson Creek, charges of obstructing a peace officer contrary to s. 129 (

a) of the Criminal Code , a sentence of 30 days’ jail; a charge of escaping lawful custody, contrary to s. 145(1) (

a) of the Criminal Code , a sentence of 30 days’ jail consecutive, and a third charge of failure to comply with the probation order contrary to s. 733.1(1) of the Criminal Code , for which he received a sentence of 15 days in jail. • February 17, 2009, in Dawson Creek, a charge of obstructing a peace officer contrary to s. 129 (a)(

d) of the Criminal Code , for which he received a sentence of 45 days jail plus 24 days’ presentence custody, and a second charge of failure to comply with a probation order, contrary to s. 733.1(1) of the Criminal Code , for which he received a sentence of 30 days in jail. • January 18, 2011, in Dawson Creek, a charge of aggravated assault, contrary to s. 268(1) of the Criminal Code , for which he received a sentence of six months’ jail and three years’ probation. • And finally, April 9, 2013, in Dawson Creek, a charge of failure to comply with a probation order, contrary to s. 733.1(1) of the Criminal Code , for which he received a sentence of 32 days in jail. [ 17 ] As the foregoing discloses, the accused has had a history of breaching the undertakings he has given to the court, although that history is somewhat dated. [ 18 ] Since the charges currently before the court were laid, the accused has made an effort to do the right thing.

He has come to understand that what he had done in the past was wrong. He is upset with himself for what he has done. He has begun to see the bigger picture, and wants to improve himself. He now wants to change his ways for the better and be a positive influence on his family, who mean a great deal to him. [ 19 ] The pre-sentence report is generally positive, although its author found that the accused was only a “marginal candidate” for community supervision. principles of sentencing [ 20 ]

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is “to contribute along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions”. This purpose is achieved by imposing sentences which have, among others, the following objectives:

(

a) denouncing unlawful conduct; (

b) deterring the offender and other persons from committing offences; (

c) separating offenders from society, where necessary; (

d) assisting in the rehabilitation of offenders; (

e) providing reparations for harm done to victims or to the community; and (

f) the promoting of a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [21]

Section 718.1 of the Criminal Code provides that the sentence must be proportionate to both the gravity of the offence, and thedegree of responsibility of the offender: R. v. Nasogaluak, 2010 SCC 6. [22]

Section 718.2 of the Criminal Code provides the following additional guidance for sentencing: (

a) a sentence should be increased or reduced to to account for any relevant aggravating or mitigating circumstance related to the offenceor to the offender; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders. [23] Retribution is also a factor to consider in conjunction with the other sentencing principles. In R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at 554-9, the Supreme Court of Canada held that retribution is an accepted and important principle ofsentencing.

Retribution, which is, neither vengeance nor denunciation, requires a sentence to properly reflect the moral blameworthinessof the offender. [24] Section 10(1) of the Controlled Drugs and Substances Act sets out the following purpose of sentencing applicable to offencesagainst its provisions: Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this

Part is tocontribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, andtreatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [25] Crown Counsel and counsel for the accused have, I am told, after lengthy discussion, agreed upon a joint submission for asentence of two years less a day. [26] There are in this case aggravating circumstances. The accused has a criminal history which includes possession of stolenproperty, break and enter, a weapons offence, breaches of probation, and assault. [27] Cocaine and heroin are

section 1 substances, which are highly addictive and destructive to individuals and to communities. They impose a significant social and economic cost on our society. The accused’s involvement in the trafficking of cocaine and heroinwas clearly profit-motivated. He was not supporting a drug addiction; rather he enjoyed the money. [28] However, there are also mitigating factors. It appears that the accused has had no involvement in the criminal justice systemsince these charges were laid in 2014, and has had no previous criminal history for possession or trafficking of drugs. The accused hassteady employment.

He is intimately involved in the lives of his two young children and his common law spouse, and has taken andcontinues to take steps to better himself. [29] The accused is of mixed aboriginal heritage, as I understand. I also understand that he has made substantial success inrehabilitating himself since moving away from Dawson Creek. [30] The accused has expressed great remorse, both to the author of the pre-sentence report and again in court this afternoon. He hastaken full responsibility for his actions.

I wish to say that I am impressed with the accused’s demeanour in court today and his obviousremorse, and I am satisfied that he has changed and is doing his best to better himself. [31] In the recent decision of our Court of Appeal in R. v.

Carillo, 2015 BCCA 192, the court stated the following regarding theimportance of individualizing each sentence to the particular circumstances of the offence and the offender and the unique role that thetrial judge has in that process: [31] As to whether the judge erred in finding exceptional circumstances justifying a departure from the range, I do not view itnecessary for present purposes to confirm a precise sentencing range because there is no question the sentence imposed is well outsidewhat would be a range of jail time for this type of offence.

It is, however, important to acknowledge that deciding a fit sentence is not ascience; there may not be a “single appropriate sentence for a similar offender and a similar crime”. A judge may impose a sentenceoutside the identifiable range where there is a justifiable case-specific basis for doing so. ... In R. v.

Samson, 2015 YKCA 7, the Courtsaid this about sentencing ranges and individualized sentences: [18] In other words, “while the range of sentences emerging from earlier cases provides guidance, it is not conclusive of an appropriatesentence in a given case”.. “Only substantial disparity that cannot be justified by reference to differences in offenders and the

circumstances of their offences will lead to appellate intervention”. [32] Thus, sentencing is a “profoundly contextual” process particularly suited to the sentencing judge. … [ 32 ] The accused was 35 years old at the time of the offences. He was old enough to know that engaging in the trafficking of cocaine and heroin is a crime that will attract a strong penalty. Indeed, it is punishable by life imprisonment.

These defences are not eligible for a conditional sentence order. [ 33 ] The law is clear that in the absence of exceptional circumstances, the sentence range for a first offender who commits a crime of the nature involved in this case, being trafficking in cocaine and heroin, is six to nine months imprisonment: see R. v. Cisneros , 2014 BCCA 154 ; R. v. Oates , 2015 BCSC 584 ; R. v. Alibhai , 2008 BCSC 1549 ; R. v. Herrell , 2014 BCCA 114 . [ 34 ] The trafficking in hard drugs is a scourge upon our society that simply cannot be justified and cannot be tolerated.

Cocaine and heroin have consistently been recognized by this court and others as deadly and devastating drugs that ravish lives: R. v. Butt , 2010 NSCA 56 ; R. v. Shusterman , 2012 BCSC 362 , at para. 14 . Literally, hundreds of young people are dying from taking such drugs.

Lives are being irretrievably ruined because profit-motivated people, like the accused in this case, wish to make some easy money without regard for the consequences of their actions on the users of the drugs that they sell. [ 35 ] I find that the principles of sentencing that ought to be given the most weight in this case are denunciation and deterrence. Clearly, a custodial sentence is warranted, however, the law constrains the court, and this judge in particular, from imposing a sentence that is dramatically outside of the range. I accept, Mr.

Hambler, your statements of remorse, and I accept that there is sufficiently strong evidence regarding your efforts at rehabilitation, and I applaud you for both of them. [ 36 ] However, I am satisfied that I am unable to impose a sentence in this case that I would like to impose and, accordingly, I find that I must accede to the joint submission.

The public interest, however, and the interests of the two innocent children in this case, in my view, warrant that the custodial sentence of two years less a day be served starting after your current employment has finished on the project that you are employed on now, which I understand will be either March 31 or April 1 of this year. [ 37 ] Therefore, I am ordering you to surrender yourself to the Sheriff here in Dawson Creek on Friday, April 7, 2017 to commence your custodial sentence of two years less a day.

Is that understood? [ 38 ] THE ACCUSED: Yes. [ 39 ] THE COURT: In addition, I am imposing a period of probation -- [ 40 ] THE CLERK: Is it two years less a day? [ 41 ] THE COURT: Yes. [ 42 ] Upon the completion of your custodial sentence, I am imposing a period of probation of one year on the following terms. You will keep the peace and be of good behaviour. You will appear before the court when required to do so by the court.

Within three business days after completion of your custodial sentence, you will report in person to the Sheriff’s office in Dawson Creek, and after that you will report when and as directed by your probation officer. [ 43 ] While on probation, you will reside at a residence approved in advance by your probation officer, and you will not change your residence at any time without first obtaining the written consent of your probation officer. [ 44 ] I am imposing a no-alcohol and no-drug condition, which means that you will not possess or consume any alcohol, any intoxicating substance or any controlled substance within the meaning of the Controlled Drugs and Substances Act except as may be prescribed to you by your physician.

You will not enter any liquor store, beer or wine store, bar, pub, lounge or nightclub. [ 45 ] Then, finally, I making the following ancillary orders:

i) a mandatory ten-year firearms prohibition order pursuant to s. 109(2) of the Criminal Code , as a result of your convictions on Counts 1 and 2; ii) because Counts 1 and 2 are secondary designated offences for DNA samples pursuant to s. 487.051(3) of the Criminal Code , I making an order authorizing the taking of a blood sample for the purpose of DNA analysis; and, iii) an order that you will forfeit all of the items seized at the time of your arrest, namely the vehicle, which I understand to be a truck, and the cash, which I understand was approximately $20,000. [ 46 ] Now Ms. Pineo? [ 47 ] MS.

PINEO: Your Honour, I do -- have drafted a form to order and -- sorry, My Lord, I am not sure if you’d like to see it or for me to briefly go through some facts so you can order certain items forfeited -- [ 48 ] THE COURT: Well, I understood that nobody contended it, so -- [ 49 ] MS. PINEO: I don’t -- I think it’s all by consent. [ 50 ] MR. McMURRAY: Yes. [ 51 ] THE COURT: Thank you. You are here representing the Director as well, are you?

[ 52 ] MS. PINEO: Do I have a -- [ 53 ] THE COURT: Well, you were here representing the federal Crown, now I have got an order -- [ 54 ] MS. PINEO: Well, the Director of the Public Prosecution Service of Canada, yes, as well. [ 55 ] THE COURT: All right. These are all of the items that were seized? [ 56 ] MS. PINEO: Yes. You’ll see, just to help Your Lordship -- you’ll see there are four different -- what they refer to as major exhibit charts. There is one from the residence of Alicia Farris -- sorry, I labelled it 201, 1100-13th Street, and that’s the safe house that I referred to earlier.

The second is the residence of Mr. Hambler, being Appendix B, and the third is a search warrant and a search of the truck. And fourth is some cash seized as a result of a sale of the two ounces of drugs that happened near the -- [ 57 ] THE COURT: Well, there are number of vehicles here. There are at least two. There is a Ford Edge -- [ 58 ] MS. PINEO: Yes, that’s not being sought. That’s actually been returned already. [ 59 ] THE COURT: All right. [ 60 ] MS. PINEO: And so you will see there are some items on there that belong to Ms. Farris, as well as the Ford Edge which has been returned.

You will see that in the search of the residence, there are some watches, et cetera, but they’ve also been returned. So there are certain items that are not being sought for forfeiture -- [ 61 ] THE COURT: And that is set out accurately in the draft order? [ 62 ] MS. PINEO: Yes. [ 63 ] THE COURT: All right. Mr. McMurray? [ 64 ] MR. McMURRAY: Yes, that’s fine, My Lord. [ 65 ] THE COURT: All right. There you go, Madam Clerk. [ 66 ] Is there anything else? I know I pre-empted a lot of the discussion today, but -- [ 67 ] MS. PINEO: Yes, and I think, there may just be one correction on the probation order.

I think Your Lordship told him to report to -- [ 68 ] THE COURT: Dawson Creek. [ 69 ] MS. PINEO: -- Dawson Creek Sheriff’s Services, and I think he reports to the Community Corrections, not the Sheriff. [ 70 ] THE COURT: All right. [ 71 ] MS. PINEO: It’s two different -- and I believe Madam Clerk knows that address. [ 72 ] THE COURT: Madam Clerk, if you could make that one correction then. [ 73 ] THE CLERK: Sorry, My Lord, and where -- [ 74 ] THE COURT: In Dawson Creek. [ 75 ] THE CLERK: Sorry, so -- and he’ll be reporting within three days of his release? [ 76 ] MS.

PINEO: His release at the probation office, just not the Sheriff’s office, I think. Yes. [ 77 ] THE CLERK: Yes, and that’s [inaudible] [ 78 ] MS. PINEO: Yes. [ 79 ] THE COURT: Different locations at different -- [ 80 ] MS. PINEO: Yes, exactly. [ 81 ] THE COURT: Okay. All right. Is there anything further, Ms. -- no? [ 82 ] MS. PINEO: I don’t believe so. [ 83 ] THE COURT: Mr. McMurray? [ 84 ] MR. McMURRAY: I don’t believe so, My Lord, no. [ 85 ] THE COURT: All right. Well thank you both. [ 86 ] Mr.

Hambler, I do want to say that I truly am impressed with what you have done with your life in the last couple of years. It is, as I said, to be applauded. If I could have, I would have tried to structure a sentence that worked better with your family, but

unfortunately I was unable to do that. [ 87 ] But that said, I do wish you the best of luck with you and your family, and I want to urge you, please, to put all of this behind you. Do your sentence, and then get on with your life. You are 37 years old. Now is the time to move on. [ 88 ] All right. So I do wish you the best of luck. [ 89 ] THE ACCUSED: Thank you. [ 90 ] MS. PINEO: And My Lord, if I may, I know this has been a bit convoluted, but I think that I would feel more comfortable just putting a bit of facts on the record in terms of what Mr.

Hambler possessed and why he was sentenced to two years less a day. [ 91 ] THE COURT: Well -- [ 92 ] MS. PINEO: I know -- [ 93 ] THE COURT: The two of you have spent a great deal of time, as I understand it -- [ 94 ] MS. PINEO: Yes. [ 95 ] THE COURT: -- discussing this, and you have come up with a joint submission which I have -- [ 96 ] MS. PINEO: Okay. As long as -- [ 97 ] THE COURT: -- at the end of the day accepted. [ 98 ] MS. PINEO: Thank you. I just -- [ 99 ] THE COURT: So I do not think there is any need -- [ 100 ] MS. PINEO: Yes, thank you. [ 101 ] THE COURT: All right.

I mean, you know what you are doing. [ 102 ] MS. PINEO: Thank you. [ 103 ] THE COURT: Had I been able to make an order -- or a sentence of consecutive intermittent 90-day sentences, there would have been probably a need to do that, but there is not any given what has happened. All right? [ 104 ] MS. PINEO: Thank you, My Lord. [ 105 ] THE COURT: Very good. Thank you, thank you all. “G.C. Weatherill J.”