R. v. Wagner, 2023 BCSC 1181

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Wagner, 2023 BCSC 1181 Date: 20230602 Docket: 34383-1 Registry: Vancouver Rex v. Pier-Yves Wagner Before: The Honourable Madam Justice Matthews On appeal from: Provincial Court of British Columbia, March 24, 2023 ( R. v. Wagner , Vancouver Docket No. 31324-1, 33818-1) Oral Reasons for Judgment at

Summary Conviction Appeal Counsel for the Crown/Respondent: S. Bains Counsel for the Accused/Appellant: S. Mandanici Place and Date of Trial/Hearing: Vancouver, B.C. June 2, 2023 Place and Date of Judgment: Vancouver, B.C. June 2, 2023 [ 1 ] I delivered these reasons orally. I have edited them without changing the substance. Overview [ 2 ] This is an appeal of a sentence pronounced by a Provincial Court judge on a charge of theft over $5,000 to which the offender, Pier-Yves Wagner, pled guilty on March 24, 2023.

The sentence imposed by the Provincial Court judge was a six-month conditional sentence with several conditions in addition to the mandatory conditions on a conditional sentence order. I will come to those momentarily, but those conditions are a central feature of this

summary conviction appeal as they are said to be harsh and unworkable, including setting up the offender to fail. [ 3 ] The positions at sentencing was straight jail time. The Crown also sought a one-year probation with a single condition; that is that the offender not possess any break-in tools. On this appeal, both the Crown and defence remain of the view that a short period of straight jail time is the appropriate sentence. [ 4 ] The Provincial Court judge, as is apparent from the conditional sentence, departed from the recommendations of Crown and the position of defence.

She did so in a manner that is asserted to have resulted in a harsher sentence, without providing the opportunity for counsel to make submissions on her intended sentence and the one she eventually imposed. [ 5 ] On this appeal, both Crown and defence agree that had the sentencing judge advised counsel of the direction in which she intended to go and heard submissions on the six-month conditional sentence and conditions that were imposed, they would have made submissions and provided factual information and legal submissions that would have impacted the sentence in a material way. [ 6 ] Both Crown and defence on this appeal agree that the court should set aside the sentence imposed by the sentencing judge and substitute a sentence of one day, recognizing 17 days of credited time. [ 7 ] The

summary conviction appeal is brought pursuant to s. 687(1) of the Criminal Code, R.S.C. 1985, c. C-46 which provides for a court to vary the sentence within the limits prescribed by law for the offence of which the accused was convicted, or dismiss the appeal. For the reasons that follow, I allow the appeal and vary the sentence in accordance with the position of both Crown and defence. Legal principles [ 8 ] The Criminal Code sets out at ss. 718 , 718.1 , and 718.2 the principles that apply when a court sentences an offender.

They include denunciation, deterrence, separating offenders from society where necessary, assisting in rehabilitating offenders, providing reparations, and promoting a sense of responsibility in offenders.

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence.

Section 718.2 provides a list of factors or principles that a sentencing court should take into account, including parity, that an offender should not be deprived of liberty if less-restrictive sanctions are appropriate, and that all available sanctions other

than imprisonment that are reasonable in the circumstances and consistent with the harm done should be considered. [ 9 ] As I have stated, s. 718 lists rehabilitation as an objective of sentencing. In R. v. Lacasse , 2015 SCC 64 , citing R. v.

Proulx , 2000 SCC 5 at para. 82 , the Supreme Court of Canada emphasized that in certain cases, rehabilitation is a consideration that can and should be given more weight than denunciation and deterrence, and in all cases it is a main objective of criminal law. [ 10 ] With regard to appeals of sentences, the Supreme Court of Canada in Lacasse and the British Columbia Court of Appeal in R. v. Woolsey , 2021 BCCA 439 , citing Lacasse among other cases, have set out guidelines for the standard of review and applicable principles when conducting a sentencing review.

The starting point is deference to a sentencing judge's decisions and the narrow right of intervention to vary a sentence arises where the sentence is demonstrably unfit or the sentencing judge made an error in principle that had an impact on the sentence: Woolsey at para. 26 citing Lacasse at para. 44 . [ 11 ] Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of aggravating or mitigating factors. [ 12 ] In R. v.

Nahanee , 2022 SCC 37 , the Supreme Court of Canada addressed the appropriate approach when a sentencing court is considering exceeding the positions put forward by the Crown and defence on sentencing.

In particular, the Court held that if a judge does so without providing opportunity for the Crown and defence to make further submissions, and those further submissions would impact the sentence, then an error in principle has occurred which justifies intervention by a reviewing court. [ 13 ] At para. 59, Justice Moldaver for the court described three circumstances where an error in principle that would warrant intervention by the appellate court can occur: 1) if the failure to provide notice and receive further submissions impacts the sentence; 2) if the sentencing judge failed to provide reasons, or provided unclear or insufficient reasons; and 3) if the sentencing judge provided erroneous reasons for imposing a harsher sentence.

Discussion of the Alleged Errors in Principle in this Case [ 14 ] In this case, both defence and Crown have made submissions that the first two types of the errors described in Nahanee have occurred in this case and have materially impacted the sentence imposed leading to a sentence that is not fit and, in particular, not proportionate in this case. [ 15 ] The sentence imposed by the sentencing judge differed from those proposed by the Crown and defence. The Crown sought imposition of 30 days of jail time less credit for time served, plus one-year probation.

The single condition that Crown sought to be imposed on the probation was that the offender not possess any break-in tools. [ 16 ] The defence proposed jail time of one day with credit for time served was appropriate. [ 17 ] As I have stated, the sentence imposed by the sentencing judge was a six-month conditional sentence order, with terms that I will come to. In

summary, it differed from those proposed by the Crown and the defence as follows:

a) The sentencing made a conditional sentence order whereas both Crown and defence proposed straight jail time.

b) Related to the imposition of a conditional sentence order, the conditions attached were not ones that were included in or were addressed by either the Crown or defence.

The conditions imposed that were not mandatory conditions but rather those that were imposed at the discretion of the sentencing judge are as follows: i. for the first two months of the conditional sentence order, a curfew of every day of the week from 8:00 p.m. to 8:00 a.m.; ii. for months 3 and 4, a curfew from 10:30 p.m. to 6:00 a.m.; iii. the accused was required to abstain absolutely from the consumption of alcohol, non-prescribed medications, and all other intoxicants; iv. Mr.

Wagner was required to attend for, participate in, and complete to the satisfaction of his conditional sentence supervisor all substance abuse counselling and programming as directed by his conditional sentence supervisor; v. Mr. Wagner was to perform 50 hours of community work service to the satisfaction of his conditional sentence supervisor and community work supervisor no later than July 24, 2023; and vi. Mr. Wagner was not to possess tools outside of his residence or place of employment.

c) The conditional sentence order sentence is a sentence of incarceration, as explained by the Supreme Court of Canada in Proulx , but not one that can be compared day-for-day with straight jail time. However, it is not contested that a six-month conditional sentence order is more harsh than the Crown's proposed sentence of 30 days less time served, plus one year probation. [ 18 ] The defence points to several errors in principle, but focused on these during submissions on this appeal:

a) The sentencing judge did not ask for submissions on the sentence imposed that exceeded the positions of Crown and defence. If submissions had been sought, the sentencing judge would have heard submissions that would have impacted whether the sentence

proposed was a fit and just sentence and proportionate to the offence.

b) A conditional sentence order as a structure was inappropriate because the offender had several breaches on his records and was not suitable for a conditional sentence order. A conditional sentence order was, in essence, setting him up for failure and was bound to result in incarceration for a period of time far in excess of what was proportionate to the offence committed.

c) The sentencing judge's reasons were inadequate. Such as they are, they reflect that she emphasized deterrence and did not give appropriate consideration to rehabilitation, especially given Mr. Wagner's judicially recognized vulnerabilities that reduce his moral blameworthiness. [ 19 ] I turn to the first alleged error in principle and the submissions that would have been made had the sentencing judge alerted counsel to the sentence she was considering. [ 20 ] I agree that in the circumstances of this case, the sentencing judge's sentence was harsher than that proposed by the Crown and defence, because:

a) The conditions imposed were significant restrictions on Mr. Wagner that had not been the subject of submissions, other than the prohibition on break-in tools, and were, in the circumstances of Mr. Wagner, in large part unworkable;

b) The length of the conditional sentence order when compared to a fit sentence or compared to the jail time proposed by the defence and recommended by the Crown; and

c) The facts of this case are such that the conditional sentence order was likely to result in lengthy actual incarceration because the conditions were such that Mr. Wagner was likely to breach; and

d) The combination of the substance of the conditions and the length of the sentence made the sentence significantly harsh compared to the offence and the positions of Crown and the defence. [ 21 ] In order to understand the submissions that would have been made had the sentencing judge alerted Crown and defence to the type of sentence and length of sentence and conditions she was considering, it is necessary to understand Mr. Wagner's circumstances and the circumstances of the offence. [ 22 ] Mr. Wagner was born and raised in Quebec City. His close family still resides there.

In 2011, when he was in his early twenties, he was the victim of an aggravated assault which resulted in a lengthy hospitalization. He was treated with opioids for the injuries he received and due to the length of time that he was prescribed those drugs, he was addicted to them by the time they were no longer necessary to control his pain. He has never been able to completely stop from the consumption of opiates, and has not been able to work since that time. [ 23 ] In 2016, Mr. Wagner moved to British Columbia. After moving here, he has never had a fixed address.

He has been homeless and using shelters for significant portions of the time he has been residing here. More recently, he has become involved with a woman he describes as his girlfriend. They live together have been trying to address their addictions. I understand his girlfriend also has an addiction to opiates. His girlfriend's mother has allowed her to live at her residence in Langley for two to three days per week. I have been advised and Mr. Wagner has deposed in an affidavit that that is the maximum time they are permitted to reside with his girlfriend's mother.

I understand she finds their residence in her home to be somewhat overwhelming and stressful and so limits it. When they are not living with her, they live on the streets or in shelters. [ 24 ] Mr. Wagner has deposed, and his counsel has advised me, that he has made considerable efforts, more successful lately than in the past, to overcome his addiction to opiates, but he has not ever been successful for an extended duration. He has deposed that it is not possible for him to completely abstain from use of opiates. [ 25 ] Counsel for Mr.

Wagner stressed a principle that has been emphasized by the Supreme Court of Canada in many cases, that where an accused person is vulnerable such that their moral blameworthiness is diminished, then that must be taken into account. Mr. Wagner, as I will describe, is a person who meets that definition due to his background and the circumstances in which he found himself when he committed this offence, including a long-term addiction to opiates. [ 26 ] Cases that discuss the principle of assessing moral blameworthiness against the circumstances of vulnerable persons include R. v.

Hilbach , No. 2023 SCC 3 at para. 92 . [ 27 ] At the sentencing hearing, Mr. Wagner was present, of course, and addressed the court through a translator or an interpreter, as French is his first language and he struggles with English. The record reveals that the

interpretation was an unsatisfactory state of circumstances and may be part of the reason why the sentencing judge did not appreciate that there were relevant facts about which she was not fully apprised. During the hearing, the interpreter confirmed that her French is Parisian. Mr. Wagner, as I have said, was born and raised in Quebec City. He is Quebecois. The spoken languages are different between those regions. The interpreter indicated difficulty understanding and translating what Mr. Wagner was saying. [ 28 ] There were statements on the record that Mr.

Wagner had been in detox and that he had been drug-free for two and a half months. It appears that the sentencing judge formed the impression that his recovery was more advanced than it is. [ 29 ] Mr. Wagner has a lengthy criminal record. However, this offence, which occurred in September 2020, is the last offence on his record and significantly his record does not disclose any offending between then and when he was sentenced in March 2023, a period of some two and a half months, which indicates that he is making progress in his rehabilitation.

The evidence is that his offending has been to support himself as he cannot work and support his drug addiction. [ 30 ] Mr. Wagner has sworn an affidavit that is in the record on this appeal. He is currently 36 years old. He describes himself as

homeless and unemployed. His homelessness is another significant factor that the sentencing judge either did not appreciate or misunderstood. As I have stated, Mr. Wagner is currently permitted to reside with his girlfriend at her mother's home two to three days a week. That was the circumstance also at the time of the sentencing and through the somewhat garbled

interpretation that I have described, the sentencing judge may have appreciated that Mr. Wagner resided with his girlfriend's mother. That is not the case. It is common ground on this appeal that he is permitted to stay there two to three nights a week, but other than that, he resides on the streets or in shelters, and that, of course, significantly impacts the feasibility of the curfew conditions that were imposed by the sentencing judge. [ 31 ] Given the

interpretation and translation issues, I have the benefit of more complete and more clinical information than what the sentencing judge was likely able to appreciate. It is now apparent that Mr. Wagner was trying to convey that he did not reside full-time with his girlfriend's mother. I do not fault the sentencing judge, for the reasons I have given, for not understanding that at that time. The problem lies in her not doing what she ought to have done by asking for submissions on a sentence that differed significantly from what was being proposed, including a curfew condition.

That step would have teased out the fact of a non-permanent residence that made a curfew condition unworkable. [ 32 ] I agree with the submissions that I have heard that, had the sentencing judge alerted counsel to the fact that she was planning to divert from the sentence proposed by the defence and that recommended by the Crown, she would have received submissions that would call into question whether the conditions pertaining to the curfew were workable or appropriate, given Mr.

Wagner's lack of a permanent residence, and whether the condition that he not consume alcohol or drugs in any form, other than prescription drugs, was workable or feasible given his acknowledged continuing addiction and his evidence that he, despite being extremely motivated over the past two years to stop using opiates, he has relapsed on many occasions and it is impossible for him to abstain completely from the use of opiates. [ 33 ] In addition, had counsel had the opportunity to make submissions on the conditional sentence, the condition of 50 hours of community service would have been called into question, given Mr.

Wagner's background of not having been able to work since he was assaulted some 12 years ago. [ 34 ] I agree with the submissions of counsel for Mr. Wagner and the Crown that the sentencing judge erred in principle in a manner that had a material impact on the sentence by failing to alert counsel and provide an opportunity to make submissions on the sentence that the court imposed. In particular, she should have received submissions on the workability of the conditions and whether the length of the conditional sentence order, six months, was proportionate to the offence, given the high likelihood that Mr.

Wagner would breach the conditions and would end up serving a significant portion of that sentence in jail. [ 35 ] It is not necessary to go further than that, but I would also observe that the reasons of the sentencing judge do not adequately set out why the judge imposed a conditional sentence order and why she did so for the length of time she did and with the conditions she imposed. [ 36 ] The transcript of her reasons at para. 1 provide, in a few sentences, the rationale for the sentence as follows: [1] THE COURT: This is a very serious charge.

You stole significantly valuable items, financially valuable items to sell and put drugs in your arm. You also stole a religious icon which was of incredible sentimental value to the victim. That is why I asked you where it went, because I was hoping perhaps it could be returned to her. You tell me you are off drugs and I will trust you, so I am going to give you, sir, a six-month conditional sentence order which is a sentence of jail in the community.

If you do what I am telling you -- At that point there was some interruption in the proceedings, but what I have read is the substance of the sentencing judge's reasoning. What follows that portion is her imposition and description of the conditions. [ 37 ] I agree with the submissions that the thrust of what the sentencing judge was emphasizing was deterrence. To the extent that she considered rehabilitation, it seems that again erroneously she was of the view that Mr. Wagner had conquered his addiction issue and so did not pose a threat to society in the same manner that he would if he was still addicted.

That is different from taking into account rehabilitation and fashioning a sentence to promote it. [ 38 ] I conclude that the reasons were not adequate to describe why the judge imposed the sentence she imposed, given that it differed from what was proposed by the defence and recommended by Crown. Varied Sentence [ 39 ] I agree with the submissions of defence and Crown that this is an appropriate case for the Court to vary the sentence and as the Court is entitled to do, pursuant to s. 687(1) (

a) of the Criminal Code . [ 40 ] In the circumstances of this case, I am of the view that a conditional sentence order, at least one with the conditions imposed, is not appropriate. On its face, a conditional sentence order does not more effectively deter in the circumstances of this case than straight jail time, assuming the conditions are met.

If the conditions are not met, as I have concluded they are not likely to be, the conditional sentence order will provide for significantly more jail time, especially in this case given the long conditional sentence. [ 41 ] In addition, this conditional sentence order, despite some conditions directed at rehabilitation, does not further rehabilitation because the circumstances of Mr.

Wagner are that he is much more likely to offend the condition of abstinence from drugs or the curfew condition than to be able to take advantage of any drug rehabilitation that might be available to him. [ 42 ] I agree with Crown and defence that a relatively short period of straight jail time is a fit sentence. Before the conditional sentence order sentence was imposed, Mr. Wagner spent seven days in custody due to breaches. That time equates to 11 days of time served.

He has also since breached the conditional sentence order, which has resulted in a further four days of incarceration, equating to six days of time which he would be given credit for, for a total of 17 days of credit time.

[ 43 ] Both Crown and defence submit that, given that at the time of sentencing Mr. Wagner was two and a half years free of offending and was making progress towards reducing his dependency on opiate drugs, 17 days of effective time served achieves the statutory objectives of sentencing, especially taking into account that he has also been under the conditional sentence order sentence for over two months now. I therefore submit that a fit sentence going forward is one day with credit for 17 days' time served.

Disposition [ 44 ] I am persuaded, for the reasons I have described, that such a sentence is fit and proportionate in this case. The appeal is allowed. I substitute a sentence of one day with credit for 17 days of time served. “Matthews J.”