R. v. Melanson Date:, 2011 BCPC 81

Citation: R. v. Melanson Date: 20110113 2011 BCPC 0081 File No: 172709-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRANDON LAWRENCE MELANSON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. B. HICKS Counsel for the Crown: H. Blair Counsel for the Defendant: M. Berry Place of Hearing: Surrey, B.C. Dates of Hearing: January 13, 2011 Date of Judgment: January 13, 2011 [ 1 ] THE COURT : Brandon Melanson is before the court to be sentenced on a charge of possession of marihuana totalling 48 grams for the purpose of trafficking on the 8th of January, 2009, two years ago.

His date of birth is November of 1989, so at the time these events occurred he was 18 years of age. Am I right about that? [ 2 ] MR. BERRY: Yes. [ 3 ] THE COURT: By my calculation, 18 years of age, relatively early in his 18th year, actually, and he is now before the court two years later as a 20-year-old addressing this charge. He has no previous history, either as a youth or an adult. This is the only matter which is before the court to be dealt with. [ 4 ] The circumstances are that the police attended an area because of gunshots heard. There is no suggestion that Mr.

Melanson was involved in whatever it was that precipitated that. But in the course of that investigation the police dealt with a vehicle driven by another individual. Mr. Melanson was one of three people in the vehicle. He was in the passenger seat, and around about him and, of course, within easy access to him and to others in the vehicle was marihuana in a number of baggies packaged for distribution, and there is really no issue, he takes no issue with his involvement in a marihuana trafficking operation on this particular day with the other people involved.

[ 5 ] Through counsel he explains that he was strong-armed into participating in this endeavour in order to allow a friend of his to drop out. That friend had to deliver up somebody else to take on his role. Mr. Melanson, I am told, says that he was enticed to a gathering and essentially strong-armed into that role, and that is how he found himself there. [ 6 ] A Pre-Sentence Report has been prepared. That is a positive Pre-Sentence Report.

There is nothing in it that indicates long-term concerns that have been brought to my attention, or issues that have not been, or are not being addressed, have not been addressed in the years since these events took place. [ 7 ] I am also informed by counsel that when Mr. Melanson was arrested he, of course, was unable to deliver up the proceeds for the marihuana that he had, and his family received threatening phone calls which were very worrisome, had an effect on him, and ultimately led his family to relocate him to Regina for a period of time.

He returned for court and that immediately prompted the return of the phone calls, at least intensifying them. [ 8 ] His father is here in court with him. His father, I understand, is disabled and not able to work, and has indicated through the probation report, Pre-Sentence Report, that Brandon is remorseful and distressed over his having been involved in this operation. [ 9 ] The courts in this province have directed sentencing courts like this one to look harshly on what are essentially dial-a-dope drug trafficking operations which appear to be of the sort that Mr. Melanson was involved in on this night.

The reasons for that are set out in several decisions. Frankel is a decision of the Supreme Court which is often quoted, but it is not the only decision in which the courts point out that these types of offences are insidious in the community. They present great risks to young people and members of the community who can easily acquire drugs through this route. They require premeditation and planning in order to be involved. They, of course, produce an income for drug traffickers, and it is, of course, illegal activity.

For all of these reasons, and particularly because of the particular concerns and risks they create in the community, the courts are directed to consider custodial jail sentences on first offenders, even when they are young with no prior record. [ 10 ] That does not exclude consideration of other options, however, and the courts have also imposed other sentences in appropriate circumstances where the principles of sentencing, when properly balanced, permit that to occur. [ 11 ] The Crown here is seeking a conventional jail sentence of six months, but if that is not to be imposed, then a conditional sentence order in the 12-month range with certain conditions.

Mr. Berry has proposed, considering the particular circumstances, the youth of Mr. Melanson, his background, the absence of any previous history, and the circumstances under which he came to be involved in this operation, and the impact it has had on his family, that I consider a conditional discharge.

He urges on me that there is a relatively, on the information we have, very low expectation that this individual would commit further offences or be a risk of any sort, and that it would be in his interest and not contrary to the community's interest that he be conditionally discharged. [ 12 ] No authority is presented for a discharge in circumstances like this specifically. A young man, just at the cusp of his adult years, involved in a marihuana, not a hard drug trafficking operation, having been drawn into it in the circumstances described by Mr. Berry.

That has caused me to reflect on what a proper outcome should be here. I have to balance the deterrence and community safety concerns that the Court of Appeal and other courts in this province have highlighted against the rehabilitative values of a probation order, following which a discharge might occur. Deterrence, of course, is a significant issue. [ 13 ] When I consider all of the circumstances in this case it is certainly, in my view, open to consider a discharge. I take account of all of the points that have been made by Mr. Berry.

I also take account of the explanation that has been provided which is untested. It is a challenge to accept an explanation of strong-arming into this situation where that is untested, but it is put forward and it is not contested by the Crown, and so I give it some weight in determining what an appropriate outcome is. I do not view it as determinative in any way. [ 14 ] What I do view as significant is the fact that, as I have indicated, Mr.

Melanson was only barely an adult at the time this offence was committed, that he was dealing with marihuana, that he has no other record, no youth history, and he has acquitted himself in a very positive way, based on the Pre-Sentence Report, since these events occurred. In my view, it is in his interest and it is not contrary to the community's interest that he be conditionally discharged on this offence. [ 15 ] He will be placed on a probation order for a period of 15 months. Mr. Melanson, if you could stand up, please? The conditions are that you keep the peace and be of good behaviour.

You are to report to a probation officer before four o'clock in the afternoon tomorrow, the 14th of January, 2011, and thereafter as directed by the probation officer. You are to reside where directed by the probation officer and you are not to change that address without the prior written approval of the probation officer. [ 16 ] During the first six months of the probation order you will be bound by a house arrest condition.

You are not to be outside of your place of residence, except for the purposes of attending court when required to do so, attending to your probation officer, attending to your legal counsel, attending to any medical or dental appointment, attending to community work service as directed by your supervisor.

You may be away from your residence where you have the prior written approval of your supervisor, in which case you are to carry that with you and produce it on request of the probation officer or peace officer. [ 17 ] You may be outside of your residence between the hours of 9:00 a.m. and 12:00 noon Saturday or Sunday of each week for the purpose of attending to personal banking, or other similar personal business. You may be away from your residence when travelling directly to or from any of these commitments.

You are to attend at the door of your residence or by telephone to confirm compliance with the house arrest condition. [ 18 ] The following conditions will apply.

Further, you are to abstain absolutely from the possession or consumption of alcohol, or any non-prescription drug or any substance controlled under the Controlled Drugs and Substances Act of Canada , unless you have a medical prescription for that substance issued in your name by a qualified medical practitioner. [ 19 ] You are to complete 20 hours of work service to the satisfaction of your probation officer and community work service officer before the conclusion of the third month of the probation order.

You are to have no contact, directly or indirectly, with Ryan Randy Robert Scribner, or Brittany Ann Louise McCargar, those are the two co-accused. You are not to attend at any place of residence, school

or employment of those individuals that you know of or learn of while this order is in effect. [ 20 ] You are not to possess any cellular telephone or other similar personal communication device, except, you may possess a cell phone if you are employed for the purposes of your employment, and you are to provide the telephone number of that cell phone, and any change of number to your probation officer. [ 21 ] You are not to be inside any private motor vehicle unless the registered owner of that vehicle is present, or where you have the written approval of the registered owner, in which case you are to produce that written permission on request of a peace officer. [ 22 ] The victim fine surcharge will apply.

In terms of additional conditions, Ms. Blair, I am just looking, is this a DNA order offence? [ 23 ] MS. BLAIR: I believe it's a secondary designated offence. [ 24 ] THE COURT: Secondary. [ 25 ] MS. BLAIR: We're not asking for a DNA order. [ 26 ] THE COURT: Yes, Mr. Berry? [ 27 ] MR. BERRY: Is she -- [ 28 ] MS. BLAIR: No, we aren't. [ 29 ] MR. BERRY: You're not? Okay. [ 30 ] THE COURT: You are not? Oh, I am sorry, I misheard that. I will decline, then, to make that order. I just need to be reminded every time because I can never remember. Are there firearms prohibition provisions? [ 31 ] MS.

BLAIR: I believe the ten-year mandatory prohibition applies in the circumstances. [ 32 ] MR. BERRY:

Section 109, yes. [ 33 ] THE COURT: Yes, it is a 109 condition, and there will be a firearms prohibition order that will be reviewed with you by the justice of the peace before you leave the courthouse today, for a period of ten years. [ 34 ] MS. BLAIR: And on the issue of forfeiture, Your Honour? [ 35 ] THE COURT: Forfeiture, no issue there. [ 36 ] MR. BERRY: That's fine, no issue there. [ 37 ] THE COURT: All materials related to the offence will be forfeited, as sought by the Crown. [ 38 ] MS. BLAIR: At this time I would like to direct a stay of proceedings with respect to the co-accused, Mr. Scribner and Ms.

McCargar. [ 39 ] MR. BERRY: I was here as agent for them this time, for Mr. Nozick, and he was counsel for one, if not both. So that's all I know. Your Honour, did you include, I may have just not have heard it, but did Your Honour include an exception with respect to the house arrest for work, as well? [ 40 ] MS. BLAIR: I don't believe Your Honour stated that. [ 41 ] THE COURT: Yes, I did not say that? All right.

In addition to the enumerated reasons why you may be away from your residence, you may be away from your residence for the further purpose, and this can simply be included in that list, when attending to your employment pursuant to a work

schedule provided on the letterhead of your employer, and signed by your employer, and approved of by your supervisor. [ 42 ] MR. BERRY: Thank you. [ 43 ] THE CLERK: And time to pay on the victim surcharge? [ 44 ] THE COURT: Time to pay on the surcharge? [ 45 ] MR. BERRY: Oh, could he have -- it was just the regular amount, Your Honour? [ 46 ] THE COURT: I did not enhance it. [ 47 ] MR. BERRY: You didn't enhance it, okay. A month should do it, I think. [ 48 ] THE COURT: February 28th, 2011, the victim fine surcharge is due and payable on or before that date.

You can pay it this afternoon if you have the money. [ 49 ] MR. BERRY: I wonder, in terms of the wording, Your Honour, I don't mean to be picky, but in terms of the wording for the work, it sounds like he needs permission, he needs a letterhead from his employer, but can he -- I mean, if he could go to work to get that because he's working full-time, if he can go there, get it forthwith, basically, and then get it to his supervisor, if that's possible?

[ 50 ] THE COURT: Well, I have used the standard condition routinely -- [ 51 ] MR. BERRY: Okay. [ 52 ] THE COURT: -- and it has not presented a problem. [ 53 ] MR. BERRY: Okay. That's fine. [ 54 ] THE COURT: I expect that if he contacts his supervisor and arranges for him to fax a copy of it to the probation officer, then that will probably be adequate. [ 55 ] MR. BERRY: Thank you. (REASONS FOR SENTENCE CONCLUDED)