R. v. Williams, 2019 BCPC 325

Citation: R. v. Williams 2019 BCPC 325 Date: 20191121 File No: 175331 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RYAN DOUGLAS WILLIAMS REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M.J. BRECKNELL Appearing for the Crown: M. Adams Counsel for the Defendant: N. Brooks Place of Hearing: Victoria , B.C.

Date of Hearing: July 24, 2019 Date of Judgment: November 21, 2019 INTRODUCTION [ 1 ] Ryan Douglas Williams has pleaded guilty on Information Number 175331, by Indictment, to a single count of trafficking in Heroin and Fentanyl on June 27, 2018, contrary to Section 5(1) of the Controlled Drugs and Substances Act. [ 2 ] The Director of Public Prosecutions (the Crown) seeks:

a) a jail sentence of 21 months;

b) a Probation Order of 18 months;

c) a secondary designated DNA order pursuant to

Section 487.051(3) of the Criminal Code ; and

d) a firearms prohibition for 10 years pursuant to

Section 109 of the Criminal Code . [ 3 ] Defence counsel submits that Mr. Williams has “exceptional circumstances” as described in various cases and seeks a suspended sentence and a Probation Order. Defence counsel takes no position on the ancillary orders. OFFENCE CIRCUMSTANCES [ 4 ] In the afternoon of June 27, 2018, Mr. Williams encountered an undercover Victoria Police Officer in a well-known drug trafficking area near a safe consumption site in downtown Victoria. [ 5 ] Mr. Williams sold “three points” of “pants” being 0.3 grams of heroin for $50 to the undercover officer. Mr.

Williams acknowledged that the drugs included both heroin and fentanyl. The Crown acknowledged that the amount of fentanyl was not quantified and may have been a trace amount. However, even in trace amounts fentanyl can be fatal. [ 6 ] The Information was sworn on December 28, 2018, and Mr. Williams was arrested shortly after, more than 6 months after the offence occurred. MR. WILLIAMS CRIMINAL RECORD [ 7 ] Mr. Williams has a criminal history, including a youth record dating back to 1991 with at least 60 adult convictions including:

a) seven assault offences; b) 17 property offences;

c) two weapons offences;

d) two break and enter offences;

e) two obstructing a peace officer offences;

f) five threatening offences;

g) six mischief and related offences; h) 13 breach offences including one breach of a Conditional Sentence Order; and

i) six drug trafficking or related offences. [ 8 ] Mr. Williams’ last drug related offence, prior to the one before the Court, was in 2001. There were also two past periods where Mr. Williams had no convictions, from 2006 to 2014 and from 2014 to 2018. PRESENTENCE REPORT [ 9 ] The Presentence Report filed on July 10, 2019, covers several topics about Mr. Williams relevant to this decision which can be summarized as:

a) he is 42 years old;

b) he described himself as a difficult and rebellious child who, despite his mother’s best efforts to address those behaviours, eventually ended up in foster care at various times. While in foster care he was mistreated;

c) after a decade of having no fixed address, he obtained housing with four roommates at this time. Several of those roommates continue to actively use illegal substances and one has particular difficulties when under the influence of methamphetamine;

d) he had a history of employment as an insulation installer, a mover and a glazier, but he now receives Persons With Disabilities Social Assistance. He has aspirations of obtaining work in a variety of areas but he is currently employed by the Society of Living Illicit Drug Users (SOLID) as a crisis worker;

e) he practices harm reduction by self-medicating with marijuana. He has been abusing a variety of substances for over two decades. He is on the methadone program but continues to use heroin about once a week and methamphetamine approximately every second day. He did attempt treatment in 2013, and successfully transitioned into second stage housing but he did not complete that part of the program;

f) his compliance while on bail has included multiple failures to report. He expresses the wish to serve a non-custodial sentence believing that he can be a productive member of the community by continuing to help his peers who are suffering from homelessness and drug addiction;

g) he describes his past involvement in crime as largely being in “the wrong place at the wrong time”; and

h) he takes responsibility for the offence but initially maintained that he did not remember the incident. He stated that he does not

regularly sell drugs and explained that he might have been attempting to help a person who may have been dope sick. His plan to ensure no further offences occur would be to stop helping people who ask him to locate illegal substances for them. THE LAW Criminal Code [ 10 ] The purpose and principles of sentencing are set out in sections 718 through 718.2 of the Criminal Code which read, in part: a) 718 The fundamental purpose of sentencing is to protect society and 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 that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

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

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. b) 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. c) 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender,

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

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 and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. Case Law [ 11 ] The Crown provided the following cases to assist the Court:

a) R. White 2019 BCCA 281 ;

b) R. v. Lloyd 2019 BCCA 128 ;

c) R. v. Smith 2017 BCCA 112 ;

d) R. v. Hepworth , unreported, Kelowna Registry No: 87260-2-C, September 13, 2018;

e) R. v. Brideau , unreported, Kelowna Registry No:87274-4-C and 87502-1, November 13, 2018; and

f) R. v. Olenik 2017 BCPC 390 . [ 12 ] Defence counsel provided the following cases to assist the Court:

a) R. v. Wong 2019 BCPC 132 ;

b) R. v. Fernandes , unreported, New Westminster Registry No: 80263 -1, May 31, 2019; and

c) R. v. Joon 2017 BCPC 301 . [ 13 ] Both counsel also referred the Court to R. Voong 2015 BCCA 285 , the leading decision on “exceptional circumstances”. [ 14 ] Subsequent to counsels’ oral submissions, the Court became aware of two new decisions that may apply to this case and invited further written submissions from counsel. Those cases are:

a) R. v. Ruiz 2019 BCCA 323 ;

b) R. v. Narang 2019 BCSC 1238 . SUBMISSIONS Crown

[ 15 ] The Crown’s submissions, both oral and written can be summarized as follows:

a) there are no “exceptional circumstances” in this case;

b) the Defence submissions on fentanyl cross contamination is a “red herring”. It is not a mitigating factor to be mistaken about the presence of absence of fentanyl (see Lloyd );

c) the assertion that Mr. Williams was helping someone who was dope sick is without foundation because he had no recollection of the transaction until his recent proclamation that he now recalls the event;

d) Mr. Williams does not express any remorse for his actions. He suggests to the Court that he wasn’t harming society, in fact he was actually helping society; Remorse is an important factor considered in Voong ;

e) Voong does not rely on subjective aspects in applying the “exceptional circumstances” test. The Court should focus on the actions of an accused before and after their offence to see if they have turned their life around so the public is no longer endangered. Mr. Williams has not made those very important changes;

f) the most relevant part of the decision in Ruiz is the Court’s characterization of exceptional circumstances at paragraph 18 and that there is no litmus test for “exceptional circumstances” at paragraph 19;

g) the circumstances of Mr. Williams’s offence are not outside the norm for street-level trafficking offences. Additionally, while Mr. Williams should have the benefit of mitigating factors surrounding his upbringing and addiction, his personal circumstances are not outside the norm for trafficking offenders given his criminal record, continued drug addiction, and lack of insight into the harm caused by his offending. Therefore, the range in Smith should apply;

h) counsel for Mr. Williams’ submits that exceptional circumstances should be considered relative to the offender. That submission suggests that an offender should be considered exceptional if he or she has had difficult personal circumstances at the time of the offence but can now demonstrate some improvement relative to where he or she was at the time of the offence. This is counter to Ruiz where the Court endorses the sentencing judge’s decision that an offender must demonstrate objectively that they have turned their life around;

i) while Mr. Williams made money trafficking a controlled substance to an undercover officer, the Crown accepts that his offending was linked to his longstanding addiction. At sentencing, Mr. Williams admitted that he still uses drugs on a regular basis despite having been on the methadone program for some time. His untreated addiction combined with his criminal record and lack of insight into the harm caused by his offending should not satisfy the Court that he has turned his life around to the extent that the safety of the public is better served by a non-custodial disposition;

j) the sentence upheld by the Court of Appeal in Ruiz can be distinguished from the case at bar, in several important ways. First, the substance in Ruiz was methamphetamine which does not engage the higher sentencing range in Smith . Second, Mr. Ruiz’s level of involvement was described as “peripheral” and “limited” although he had a high degree of moral culpability. Mr. Williams was the sole party in the trafficking offence. He received some financial compensation for the drug transaction. Third, Mr. Ruiz had no criminal record. Mr.

Williams has an extensive record albeit with two breaks and rather dated convictions for cognate offences. Fourth, Mr. Ruiz had a wife and three children, one of whom has autism. Mr. Williams does not have any dependents. Fifth, Mr. Ruiz had not taken any steps to look for employment after losing his job due to the charges he faced. Mr. Williams has found employment with a harm reduction group since the offence. Given these distinguishing facts the sentence in Ruiz would not be an appropriate sentence here;

k) the decision in Narang is distinguishable from the case at bar in 3 main ways. First, Narang is a joint submission for a suspended sentence. Second the circumstances of the offence are distinguishable. Finally, Mr. Narang’s personal circumstances are distinguishable;

l) in Narang , Crabtree J. held that but for the exceptional circumstances demonstrated by Mr. Narang and the joint submission, Mr. Narang would be facing a period of jail time;

m) Mr. Narang was a youthful offender, 21 years old at the time of the offence and 24 at the time of sentencing. He had no prior criminal record. Following the offence, Mr. Narang went to residential treatment on his own initiative and, as of the sentencing date, had not used drugs in a year. Mr. Narang took steps to improve his education and had employment. He engaged in community work. Crabtree J. noted Mr. Narang took full responsibility for his offending and did not offer his addiction as an excuse. He acknowledged that he had impacted the community by profiting from selling drugs; and

n) Mr. Williams has not demonstrated the kind of change in his personal circumstances demonstrated in Narang . While Mr. Williams has attempted to get treatment for his addiction, he attended residential treatment in 2013 and did not complete the program. He is still regularly using illegal drugs. He has obtained employment since the date of the offence but he is working and volunteering in harm reduction while at the same time consuming and trafficking dangerous drugs. Defence [ 16 ] Defence counsel’s oral submissions on behalf of Mr. Williams can be summarized as follows:

a) he is a great guy who has been open and honest with authorities and has accepted responsibility for this offence right from the start;

b) he has only a Grade 7 education and is not a sophisticated person. He suffered abuse throughout his childhood and has some mental health issues. He dealt with these challenges by turning to drugs at an early age;

c) he has been a heroin addict for decades but has reduced his use to a maintenance amount. He is also on the Methadone program because quitting drugs is not like taking a magic pill;

d) although he acknowledges that fentanyl was present in the drugs sold, it could have been due to cross contamination;

e) Smith imposes on marginalized people the knowledge of the dangers of fentanyl but the Court must also allow for the street knowledge that when someone is dope sick they should be helped out. It is based on compassion;

f) the Victoria Police target the area around the safe consumption site where the offence occurred because they know that is where marginalized persons congregate to receive services and access resources;

g) the sale of drugs to the undercover officer was not to profit but to help a person who seemed in distress. It was not sophisticated and not a dial - a - dope operation;

h) he is now gainfully employed at SOLID. While working for SOLID he has administered Naloxone over 30 times and is helping and giving back to his community. He is in the trenches with the people who are harmed the most; the under privileged; the homeless, the forgotten people;

i) he has no further drug offences after his treatment in 2013. His subsequent offences were during a “bad year” for him. He has a strong relationship with his mother and some of his convictions arose from a misguided attempt to protect his mother. The uttering threats convictions were against his stepfather and they have repaired their relationship. He has a lot of support from his family and those he works with in his community of marginalized persons;

j) he has hopes and dreams to do better for himself and be a positive member of society;

k) Voong and S mith provide a non-exhaustive list of extraordinary circumstances. Objective criteria demonstrating improvement in a defendant applies to Mr. Williams and they are exceptional circumstances;

l) the case law provides for suspended sentences for many people who were involved with very sophisticated drug operations but who had the benefit of well – to - do families and social opportunities supporting them and available to them in the future;

m) there has to be a subjective component to the issue of exceptional circumstances. You cannot compare a person from an upper middle class background to a person like Mr. Williams who started with many deficits and obstacles to succeeding; and

n) all of the services available and necessary for him to move forward are available within the correctional system whether in custody or in the community. Although Guthrie House is an excellent facility there is no assurance he could serve a custodial sentence there. Mr. Williams finds community sentences helpful but does not like jail and the politics inside. Mr. Williams Statement [ 17 ] Mr. Williams spoke to the Court when invited to do so. His comments included:

a) he now recalled the events of June 28, 2018. It was a welfare day and he shared some extra heroin with the undercover officer who said he was dope sick;

b) he is now out of drug dealing, leaving it three days after June 28 when he got his housing. He is now away from the streets and is trying to survive; and

c) fentanyl has taken a toll on the street community in Victoria. He has lost over 100 friends to fentanyl. He has saved many friends and others with Naloxone. He hates fentanyl. SOLID is trying to get fentanyl off the streets. Support Letters and Comments [ 18 ] Defence counsel presented several letters from Mr. Williams’ family and associates. [ 19 ] Mr. Mohammed Adam has known Mr. Williams since 2017. He says the following about Mr. Williams:

a) he has known him since he moved into his housing resource. Mr. Williams has worked to help other residents resolve disputes and maintain their housing;

b) Mr. Williams has worked with clients of the safe consumption site to ensure they are treated respectfully;

c) Mr. Williams has made a lot of progress and development over the years and should not be sent to jail but face other consequences;

d) Mr. Williams’ mother has been very supportive because he doesn’t otherwise have the social infrastructure to overcome his mental and physical pain, poverty and homelessness; and

e) if he goes to jail he will lose his home, his social connections, and will end up on the streets. [ 20 ] Mr. Jesse Boorman is a staff member of the Portland Hotel Society who has worked with Mr. Williams at the safe consumption site. He describes Mr. Williams as an asset in that environment and he hopes to be able to continue to do so. [ 21 ] Mr. Mark Wilson is the Director of Operations of the SOLID Outreach Society. He says the following about Mr. Williams:

a) he has worked with SOLID for several months and has risen to a supervisory position where he trains others in distribution ofharm reduction supplies, cleaning up needles, naloxone training, and safer user education;

b) Mr. Williams has made steady and thoughtful contributions to the Society’s work in the community and SOLID looks forwardto his continued contribution in the areas of peer support, health education, and overdose prevention. [22] Mr. Gordon Grant is Mr. Williams’ stepfather and has known him for almost three decades. He says the following about Mr.Williams’:

a) their relationship was strained for many years due, in large part, to Mr. Williams’ drug addiction and associated criminalbehaviour;

b) in the past few years, and since Mr. Williams found stable housing, their relationship has improved;

c) he has been an asset in his living resource and has ensured the health and safety of other residents;

d) he has been able to maintain steady employment for over a year and his life is improving but he does need to work on his angermanagement; and

e) a jail sentence would be devastating for him and would set him back to where he was 10 years ago. He would lose hisemployment and his home and it would be a grievous loss to him, his family, and society. [23] The Presentence Report includes comments from two people who work in the same environment as Mr. Williams. [24] Paige Phillips, the Health Education Manager at SOLID has known Mr. Williams for two years. She comments that Mr.Williams helped at the temporary safe injection site located in the downtown core and assisted with people who were overdosing.

Hisregular assistance in that regard as a volunteer resulted in him being hired. [25] Lovisa Mackenzie, a harm reduction worker, at the safe injection site in Victoria described Mr. Williams as being helpful to herand her team and that he has been able to deal with many challenging clients with a gift of communicating in a fashion that de-escalatessituations. [26] Both Ms. Mackenzie and Ms. Phillips described Mr. Williams as a strong figure in the community and that he is empathetic andunderstanding when relating to others.

Guthrie House [27] The Court was provided with information about Guthrie House, a specialized facility within the Correctional system. To fullyinform myself of that option, I obtained further information from the BC Corrections website about the facility. [28] B.C. Corrections and the John Howard Society jointly deliver a unique program for offenders with addictions at the NanaimoCorrectional Centre. Guthrie House is a 55-bed therapeutic community separate from the rest of the centre. The program combines work,treatment, counselling and round-the-clock behavioural modelling to fight the root causes of addiction.

Inmates who are participating inthis program are called residents. [29] To qualify, residents must:

a) be serving a custody sentence of at least four months;

b) meet behavioural standards;

c) undergo drug testing; and

d) pass an assessment by their peers. [30] At the end of their sentence, after four months at Guthrie House residents are transitioned into the community, given assistancewith finding work and housing, and monitored for up to six months. According to a preliminary impact analysis, the program showspromise in helping offenders make changes in their lives, with reduction in reoffending of up to 44%. DISCUSSION [31] Although courts regularly rely on “ranges” with regard to sentencing, each case must be determined on its own set ofcircumstances as they pertain to the events and the offender.

It is generally accepted that sentences imposed in other cases may be of onlylimited assistance in determining a just and proper sentence. [32] This was discussed by the Supreme Court of Canada in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, where theCourt said at paragraph 81: [81] The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particularoffender’s conduct.

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’sconduct should be punished for encroaching on our society’s basic core values as enshrined within our substantive criminal law. As LordJustice Lawton stated in R. v. Sergeant, “society, through the courts, must show its abhorrence of particular types of crime and the onlyway in which the courts can show this is by the sentences they pass”.

The relevance of both retribution and denunciation as goals ofsentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectivelyharmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system

of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code … and later at paragraph 92: [92] …Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

For those reasons, consistent with the general standard of review we articulated in Shropshire , I believe that a court of appeal should only intervene to minimize the disparity of sentences with a sentence imposed by the trial Judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. [ 33 ] That concept was further addressed by the British Columbia Court of Appeal in R. v . Voong 2015 BCCA 285 at paragraphs 6 and 7 , where the Court said: [6] Imposing a sentence for criminal conduct is the purview of judges in the trial courts.

It is an individualized process, in that a sentence must be fashioned to take into account the circumstances of the offence, the circumstances of the offender, the moral blameworthiness of the offender, the principles of sentencing, and proportionality to the offence and the offender. [7] Much has been written about the philosophical principles that underlie our present-day sentencing ideology. For centuries, philosophers debated, and continue to debate, the role of punishment and the underlying ideology behind punishment.

As a result, the law has developed a number of sentencing principles, some conflicting, some ameliorating others, such as retribution and rehabilitation, and all that must be considered by the Judge who has to determine a “fit” sentence for the offender before him or her. It is not an easy task, and not a task that should come under microscopic scrutiny of the appellate court… [ 34 ] The most recent pronouncement from the Court of Appeal confirming that sentencing ranges are guidelines only and are not intended to set out a baseline minimum sentence in all cases, regardless of the circumstances is R. v.

Williams , 2019 BCCA 295 , where the Court said at paragraphs 57 and 58: [57] This Court has adopted the approach of sentencing ranges :because, in our view, they provide an optimal balance between furthering parity and individualization in a sentence. Sentencing ranges are not more rigid than starting points but simply reflect an overview of sentences that have previously been imposed for a particular offence.

They are intended to assist judges in arriving at a sentence that is consistent with sentences for similarly situated offenders, in similar circumstances—furthering the principle of parity— without constraining the judge’s discretion to go outside of the range to properly reflect the unique circumstances of the offence or the offender.

They do not set out “practical minimum and maximum sentences.” For example, in Voong , Justice Bennett, for the Court, upheld three sentences that fell below the sentencing range she identified. [58] Individual circumstances of the offence or the offender may require an increase or reduction from the range of sentence in order to ensure that the sentence is a proportionate one that properly reflects the offender’s moral blameworthiness. [ 35 ] The real contest between counsel is whether or not Mr. Williams circumstances since the offence amounts to “exceptional circumstances”.

If exceptional circumstances exist, Mr. Williams is entitled to the considerations described in Voong . If they do not the Court of Appeal has made it clear in Voong and other decisions that the sale of hard drugs containing fentanyl rarely exclude a substantial jail sentence. [ 36 ] The issue of “exceptional circumstances” was most recently addressed by the Court of Appeal in Ruiz where Groberman J.A. said the following in paragraphs 16 through 19: [16] I am not persuaded that the judge made any error in imposing sentence in this case. Mr.

Ruiz’s proven involvement in trafficking methamphetamine was peripheral, but was nonetheless important to the operation. He provided no explanation for his involvement and, in particular, denied that he was a drug user at the time of the offence. [17] The phrase “exceptional circumstances” was used by Bennett J.A. in R. v. Voong , 2015 BCCA 285 to describe situations in which drug traffickers — particularly those involved in “dial-a-dope” operations — might be given suspended sentences. She began her judgment by saying: [1] Those who embark in drug trafficking engage in serious criminal conduct.

Absent exceptional circumstances, in British Columbia, they should expect to be sent to prison. [18] It is important to recognize that “exceptional circumstances” is not a term of art, but rather a generalized description intended to encompass circumstances of the offender and of the offence that call out for a sentence that is well below the generally accepted range.

In Voong , Justice Bennett said: [59] …Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence.

There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. [19] There is, in short, no litmus test for “exceptional circumstances”. Further, as Bennett J.A. recognized in Voong , at para. 102 , there are degrees of “exceptional circumstances”. A sentencing judge, recognizing that suspended sentences may be imposed even for

trafficking of drugs, must evaluate the circumstances of the offence and of the offender and decide whether the situation is such as to call for a sentence that is lighter than those usually imposed for trafficking offences. [ 37 ] I agree with Defence counsel’s assertion that the exceptional circumstances criteria must have a subjective component. The cases on sentencing, including those addressed here make it clear that there must be a careful analysis of all the relevant circumstances in arriving at a fit sentence. [ 38 ] I also agree that it would not be fair to compare Mr.

Williams’ circumstances directly with someone who had the benefit of a stable and plentiful upbringing and turned to drug dealing for profit and adventure. It is clear that by first volunteering for and later becoming employed by SOLID Mr. Williams is assisting in his community on a daily basis and that is a strong mitigating factor. [ 39 ] However, Defence counsel’s characterization of Mr.

Williams’ good deeds among the marginalized and homeless comes with the spectre that at the same time he says he is helping he is also prepared to sell to others the very substance (fentanyl) that could cause them to overdose and then require his assistance to revive them. That is an extremely aggravating factor and must be an anathema to the underlying principles of SOLID and its attempts to bring assistance to the many less fortunate. [ 40 ] That behaviour must also be considered in light of Mr.

Williams stated view that he was, in fact, helping and not harming the community by his actions in dispensing a drug that he knows from first-hand experience has killed many of his friends and acquaintances as well as thousands in the British Columbia and across the country. Those circumstances and Mr. Williams’ knowledge of the situation from a first-hand perspective increases his moral blameworthiness. [ 41 ] Defence counsel also asked the Court to consider, within the context of exceptional circumstances, what the consequences would befall Mr.

Williams should he be sent to jail; loss of employment and housing and that he might end up back on the streets [ 42 ] The concept of exceptional circumstances and the collateral effects of a jail sentence was referred to in R. v. Leclerc 2017 BCCA 228 . In overruling the trial judge’s decision to grant the co-accused Mr. Lamar a Conditional Sentence Order, the Court said at paragraphs 31 and 32: [31] In my respectful view, the Judge erred in his characterization of circumstances in respect to both Mr. Lamar and Mr. Leclerc as exceptional.

They are not circumstances that have any unusual or special aspect of any force. [32] Concerning Mr. Lamar, the Judge first referred to Mr. Lamar’s remorse, his lack of a prior criminal record, the reliance of Mr. Lamar’s mother upon his assistance, and the negative impact incarceration would have upon Mr. Lamar’s business and the employment of his employees. The circumstances simply are not exceptional, unusual or special. While remorse and lack of a criminal record are mitigating circumstances, they are common, and do not rise to any unusual level.

Nor do I consider that the negative affect of incarceration on Mr. Lamar’s family and employees described by the Judge can be characterized that way. Such negative consequences of this scale are common unhappy effects that often spill out from criminal conviction. [ 43 ] Taking everything into account I am unable to conclude, even on a subjective basis, that Mr. Williams has made out a case for exceptional circumstances. [ 44 ] That being the case it would be easy to simply dismiss, as unmet, the objective non-exhaustive criteria described by Bennett, J.A. in Voong but it is important for Mr.

Williams and others to understand where he has not met that criteria. [ 45 ] Mr. Williams has a significant criminal record although his criminal activities have subsided in recent years. His steps toward rehabilitation are commendable insofar as his work with SOLID but he still maintains addictive behaviour with at least two illicit substances. He has found employment and housing which are both positives in his life. He does express limited remorse but does not accept or recognize the harm done to society by his actions. [ 46 ] At the end of the day Mr.

Williams’ circumstances do not go above and beyond the norm to justify a non - custodial sentence. However, in my view Voong and Williams do not automatically mean there can be no consideration of an offender’s particular circumstances in determining the length of a fit sentence and where it is best served. [ 47 ] For that reason, although I have determined that Mr. Williams must be imprisoned I am also of the view that with remedial assistance, along with the denunciation and deterrence such a sentence, he may be able to return to his work with SOLID or some other like-minded agency to assist others.

If he is admitted to its program, Guthrie Therapeutic Community would be of great benefit to him. DECISION Ancillary Orders [ 48 ] Count 1 on Information 175331 is a secondary designated offence. After considering the factors set out in

Section 487.051(3) of the Criminal Code , I am satisfied that it is in the best interest of the administration of justice to make an order in Form 5.04 authorizing the taking of samples of bodily substances from Ryan Douglas Williams for the purpose of registration in the DNA National Databank. These samples shall be taken while he is in custody. [ 49 ] Mr. Williams received a 10 year

Section 109 firearms prohibition in 2002. Therefore, pursuant to

Section 109 of the Criminal Code , Ryan Douglas Williams is prohibited from possessing any firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, ammunition and explosive substances for life. Sentence [ 50 ] Mr. Williams will serve a sentence of twelve (12) months in a provincial jail. The Court recommends that, if he qualifies, he serve the necessary amount of the sentence at the Guthrie Therapeutic Community located at the Nanaimo Correctional Centre. That will

allow him to work on his substance abuse issues and their underlying causes. [ 51 ] here will be a Probation Order for 12 months with the following terms and conditions after the sentence in jail:

a) You must keep the peace and be of good behaviour.

b) You must appear before the court when required to do so by the court.

c) You must notify the court or the probation officer 2 days in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

d) You must report in person to a probation officer at 836 Courtenay Street, Victoria, B.C., within three business days after your release from custody, unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different time frame. After that, you must report as directed by the probation officer.

e) You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer.

f) Without limiting the general nature of this condition, the intakes, assessments, counselling or programs may relate to: a. anger management b. alcohol or drug abuse c. mental health

g) You must complete 100 hours of community work under the direction of the probation officer. Your community work service must be completed by September 30, 2021, and may be completed for the benefit of SOLID or some other similar agency with the permission of the probation officer. ________________ M. J. Brecknell Regional Administrative Judge Northern Region Provincial Court of BC