R. v. Porter Date:, 2017 BCPC 330

Citation: R. v. Porter Date: 20170821 2017 BCPC 330 File No: 19150-2-C Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSEPH ABRAHAM PORTER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: S. Simpson Appearing for the Defendant: J. Watt Place of Hearing: Colwood , B.C. Date of Hearing: August 8, 2017 Date of Judgment: August 21, 2017

[ 1 ] THE COURT: Joseph Abraham Porter is before the court today for sentencing, having pled guilty to two counts of possession for the purposes of trafficking. In this instance, Mr. Porter, you were found on March 7, 2016, in possession of 21 baggies of fentanyl weighing five grams in total, and three baggies of methamphetamine weighing slightly less than five grams. The presence of fentanyl is the most significant aggravating factor in this sentencing. Others include, Mr. Porter, that you had a prior record for drug trafficking and that when arrested, Mr.

Porter, you were engaged in a dial-a-dope operation. [ 2 ] Given these factors and taking into account the circumstances I will touch on shortly, the Crown seeks a custodial sentence of 18 months' duration. [ 3 ] Mr. Porter is 33 years of age and a member of the James Smith Cree First Nation based in Saskatoon, Saskatchewan. In his relatively short life, Mr. Porter has experienced, as I understand the evidence I have heard on sentencing, neglect, physical abuse, abandonment, dislocation, and homelessness as a youth. Like many children of First Nations descent, Mr.

Porter left school before graduating. [ 4 ] He has, as I understand it, suffered the intergenerational effects of alcohol abuse, became a serious drug user in his youth, and was in fact first introduced to crack cocaine by his mother who died of a drug overdose several years ago. It is a childhood, to quote Greckol J. in R. v. Skani , 2002 ABQB 1097 , that "few mortals could withstand" without becoming seriously troubled. [ 5 ] Yet, Mr. Porter, your criminal record does not begin until 2015.

Still, in the normal course, as a person engaged in drug trafficking, you should, as Justice Bennett states in the first paragraph of her reasons in R. v. Voong , 2015 BCCA 285 , “expect to be sent to prison” and, as Mr. Porter stated to this court at the end of sentencing submissions on his behalf, he accepts that he deserves time, but Mr. Porter asks this court to take a different approach.

That is, to find that his is an exceptional case, that given his background and all that he has experienced, when balanced against the significant progress he has made since his arrest toward recovery, that this sentence should focus on his rehabilitation and that he should be granted a lengthy period of probation, rather than a custodial sentence. [ 6 ] These two positions frame the issue in the sentencing, and that is whether this is a case involving exceptional circumstances such that this court should depart from what an offender such as Mr.

Porter should expect, and that is a custodial sentence, frankly of some duration given the aggravating factors in this case. [ 7 ] If it is found that Mr. Porter is not an exceptional case and that the sentencing objectives of deterrence and denunciation have to take primacy in the circumstances, the question becomes whether the presence of fentanyl should operate to raise the range of sentence from anywhere between six to 18 months, to something like 18 to 36 months. [ 8 ] I have roughly outlined the offences on which I am sentencing you, Mr.

Porter, already, but for completeness of the record I will add the following. [ 9 ] On March 7, 2016, police were called to attend the Tim Hortons here in Colwood to investigate a complaint that you, Mr. Porter, were present and acting strangely. Upon arrest, police found a small amount of hash and GHB on your person, but those are not the subject of this sentencing. Police did find, in a tin box on your person, 21 baggies of fentanyl. The methamphetamine was located in the pocket, on your pocket, and police also found a cellphone that was ringing constantly. [ 10 ] It is conceded in this sentencing, Mr.

Porter, that you were engaged in a “dial-a-dope” operation, albeit at a very low level. You described yourself in this sentencing as a "low-level bottom feeder dealer." [ 11 ] You did admit to police after your arrest that the only way you could make money was by dealing drugs, but the Crown concedes this was not so much profit driven as it was a means to feed and enable a well-entrenched drug habit. Mr. Porter's drug habit began at an early age. It was not inevitable, but given his antecedents, it was predictable. [ 12 ] Mr. Porter's father is First Nations.

I will presume, in the absence of a Gladue report, that like his son, he too is or was a member of the James Smith First Nation in Saskatoon or Saskatchewan. [ 13 ] I am advised that Mr. Porter, Sr., is a residential school survivor and a sufferer of an alcohol abuse disorder. I know nothing else about Mr. Porter's father, who obviously separated from his mother while Mr. Porter was quite young. [ 14 ] Mr. Porter's mother is Caucasian and a person who clearly struggled for much of her life with an alcohol and drug abuse disorder. Mr. Porter's mother was just 17 when she gave birth to Mr. Porter.

She was a child giving birth to a child. Mr. Porter was fortunate, for a time at least, in that he was raised as a very young person by his mother's parents. Mr. Porter's maternal grandmother is in court here today for the sentence hearing and was present at the last sentence hearing and, I accept, clearly continues to offer support and care for her grandson to this day. [ 15 ] Mr. Porter's mother eventually remarried and had two more children. Mr. Porter was physically abused by his stepfather, yet when the couple separated, Mr.

Porter, then around age 14, relocated with his stepfather and two half siblings to Calgary without his mother. That arrangement lasted about a year. At age 15, Mr. Porter moved to Prince Rupert to live with his mother. By then, Mr. Porter's mother was clearly struggling with a well-entrenched drug habit. There are instances of her spending significant time in hospital, with Mr. Porter surviving homeless and on his own. [ 16 ] When Mr. Porter was 17, he and his mother moved to Victoria. By then, Mr. Porter had left school. When he was 18, two significant events occurred.

First, he was introduced by his mother to crack cocaine. Second, after he watched an emergency medical team attend to his mother as she struggled with what I understand was a drug overdose, he decided to seek help. [ 17 ] Mr. Porter attended the Miracle Valley Mission at age 18. In 2005, he attended to the Surfside Treatment Centre in Nanaimo where he stayed for 42 days.

[ 18 ] Mr. Porter was, against all odds, clean and sober for most of his twenties. During that time, he attended NA regularly and he became the father of two children, a girl when he was age 23 and a boy when he was age 25. Mr. Porter raised his children until approximately four years ago and that is when his life seems to have taken a turn for the worst. [ 19 ] Obviously, Mr. Porter's family life broke down. His counsel described Mr. Porter as being diagnosed approximately three years ago with borderline personality disorder. [ 20 ] Mr. Porter described himself as starting to feel crazy and starting to go crazy.

He started to use illicit drugs, GHB being a primary choice. His drug use resulted in a breakdown of a new relationship, his homelessness, and his loss of employment. It bears noting that Mr. Porter had then, and now again has, a good history of employment. [ 21 ] Mr. Porter was convicted of trafficking in GHB in September of 2015. At that time, he pled to a number of offences and received a global sentence of nine months. It is not clear whether when serving that sentence that Mr.

Porter was minded to engage in rehabilitation, but whether he was or not, two weeks before his release, he received the news that his mother had died from a drug overdose. [ 22 ] Mr. Porter has related the history of his childhood for the purposes of this sentencing. It is brutal, as I have tried to outline. Still, as counsel submits and I do not doubt, Mr. Porter loved his mother, she and he were very close. They were close in age, frankly. Together they shared a number of challenging and traumatic experiences, and they were clearly closely bonded. [ 23 ] Mr.

Porter found himself being released from his first custodial disposition, having been sentenced to custody as a first-time offender, a devastated man. Mr. Porter turned immediately to drug use. [ 24 ] That is a rough outline of the background of the person who was arrested last March 7, 2016. Since March 7, 2016, Mr. Porter has, by all accounts, changed and for the better. After a period of reflection following his arrest, Mr. Porter connected with counsellors at VIRCC and put together a bail plan.

He was released to VisionQuest where he spent nine months, before coming to Victoria for his preliminary hearing in this matter. [ 25 ] Mr. Porter, who was on his own in the community for the hearing, connected with old friends and relapsed. He did not return to VisionQuest. He was again taken into custody, but released a second time on bail, this time to the Keystone Recovery Society on the Lower Mainland, where it is submitted Mr. Porter has not looked back. [ 26 ] The evidence before me on this sentencing hearing supports without doubt that Mr.

Porter is seriously, genuinely, and effectively engaged in his own recovery. [ 27 ] Mr. Porter continues to try to reconnect with his First Nations heritage, but also attends counselling regularly. He has completed the 12-step program twice at Keystone. He is a volunteer at the AA centre, has an AA sponsor, and is himself an AA sponsor. Mr. Porter has taken a leadership role at his house in Keystone. He has also attended to other not insignificant matters, such as having his teeth, which were damaged by drug use, fixed and getting back his identification.

These are all, I find, significant steps when one considers where Mr. Porter started from. [ 28 ] Mr. Porter's supporters, many of whom attended this sentencing hearing, attest to his efforts. Mr. Porter's employer at Best Built Construction, Bill Hayer, writes of the changes he has seen in Mr. Porter since the spring of 2017. Mr. Hayer reports that Mr. Porter is dependable, sober, and clean, practices a spiritual way of life, is honest and level-headed. He is a valued employee. [ 29 ] A number of other members of Mr. Porter's AA group have written on his behalf.

Each has given up their anonymity to speak of the change they see in Mr. Porter. Each asks that he be given a chance to continue with his recovery. All are convinced that Mr. Porter will continue on his path to recovery and will not reoffend. [ 30 ] Mr. Terry Williams, the director of Keystone Recovery, travelled to the sentencing hearing from the Lower Mainland to speak on Mr. Porter's behalf. I accept that this is an unusual event and that Mr. Williams does not do this in the normal course. [ 31 ] Mr. Williams described Keystone as a zero-tolerance facility.

Its clientele are limited to six to eight men over age 35, though it is licensed for up to 10. Mr. Williams advised that he prefers working with the lower number. [ 32 ] Keystone is a 12-step assisted living facility. It abides by the principles of AA. Members attend mandatory meetings seven days per week, with the option of attending others as well. Mr. Williams says that Mr. Porter attends all the mandatory meetings and five or six extra meetings in the evenings.

Keystone provides drug and alcohol counselling and therapy is provided through government funding every two weeks. [ 33 ] Keystone residents are expected to do chores, get along with one another, and focus on their recovery. Clearly, they must stay drug-free and abide by the house rules which, in Mr. Porter's case, include a curfew. [ 34 ] Mr. Williams states that Mr. Porter is "not the same guy" who first entered his facility in the spring of this year. He felt Mr. Porter was not as angry, was more giving and less self-centred, but he had come to understand the value in helping others. [ 35 ] Mr.

Williams feels that Mr. Porter does have insight into the reason for his addiction and knows what he needs to do to overcome it. Mr. Williams comes at this with some personal experience. He added that he was doing what Mr. Porter was doing, except for the criminal part of it. [ 36 ] Keystone does not typically take someone just out of jail. In Mr. Porter's case, an exception was made, and Mr. Williams clearly feels rewarded by the results. [ 37 ] Mr. Porter's maternal grandmother wrote a letter in his support, as well as having been present, as I have noted, at the

sentencing hearing. Ms. Lang wrote of her grandson's unstable childhood with his mother, who had a mental illness and was addicted to cocaine. Like the others who wrote in his support, Ms. Lang is convinced that Mr. Porter is serious about changing his life. She writes that Mr. Porter has told her he is ashamed of what he has done and wants to be a better person. She believes him. [ 38 ] Mr. Porter also spoke at this sentencing. I found him to be calm, reasonable, forthright, and, most importantly, quite insightful generally. As I have noted, Mr.

Porter frankly conceded that in the normal course, he knew he deserved time. Still, given where he is at, at this point, where his head is at, as he put it, Mr. Porter hopes to be able to continue with his recovery. [ 39 ] His hope ultimately is to reconnect with his children and his aboriginal culture, continue to work and to maintain his sobriety. Mr. Porter is clearly remorseful for having committed these offences and not, I am satisfied, just because he was caught. [ 40 ] Notwithstanding the progress made by Mr.

Porter since his arrest last March 2016, the Crown submits that the second offence for trafficking, a serious criminal offence, merits a custodial sentence. Crown emphasizes that the sentencing objectives of deterrence and denunciation must take precedence over rehabilitation. [ 41 ] Crown adds further that given that one of the substances being trafficked by Mr.

Porter was fentanyl, the sentence must be substantial, again, to act as a significant deterrent to others. [ 42 ] It goes without saying that the trafficking of fentanyl must be discouraged in the strongest possible terms and that in the normal course, a custodial sentence will be a fit sentence. The Crown submits, as I have said, that the sentence should be as long as 18 months to send this message. [ 43 ] As in all sentencings, this court must ask itself what is the appropriate sanction under the Criminal Code for this offence committed by this offender. Mr.

Porter asks the court to focus on the second aspect of sentencing, the offender, as well as on the offence. He seeks a lengthy period of probation. [ 44 ] Alternatively, Mr. Porter asks the court to take into account a number of mitigating factors so as to reduce any custodial sentence to six months. [ 45 ] The sentencing provisions of the Criminal Code are set out in ss. 718 and 718.2 .

They provide 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 that have one or more of the following objectives . . . (

a) to denounce 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. [ 46 ] Other relevant sentencing principles include that a court imposing a sentence should take into consideration: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating [factors] 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 . . . should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 47 ] Generally speaking, what objectives the court chooses does depend on the circumstances of the offence and the offender. However, certain offences attract, in the established case law, certain sentencing principles or objectives.

As Justice Bennett wrote in Voong , at paragraph 18 , the courts have long held that general deterrence and denunciation must be the primary objectives in sentencing of drug trafficking, particularly “dial-a-dope” operations. [ 48 ] In Voong , at paragraph 44 , the court held that the normal range of sentencing for a first time offence “dial-a-dope” drug trafficker is between six to nine months. Still, as I will discuss momentarily, an exception may be made, but the circumstances must be quite unique and compelling. [ 49 ] In R. v.

Smith , at paragraph 45, 2017 BCCA 112 , the whole court accepted as a general principle the views expressed by Justice Newbury in dissent that not only must denunciation and deterrence be given primacy in sentencing in cases involving fentanyl, but the range should begin at 18 months' imprisonment. Again, as in Voong , the law will admit to an exception so as to reduce the range and/or the venue. [ 50 ] The first question in this sentencing is whether the circumstances are exceptional so as to justify a sentence that diverges from

the application of the principles of deterrence and denunciation by way of a prison sentence. [ 51 ] Mr. Porter submits his is such a case on two grounds: first, that he has shown he has turned his life around and that the protection of the public would be better served by a non-custodial sentence; second, and this is not entirely distinct from the first, Mr.

Porter submits that as an aboriginal offender, this court in this case ought to focus on restorative justice sentencing objectives, precisely because he has shown his willingness and ability to engage in recovery, even despite his life experience informed, in no small part, by his aboriginal ancestry. [ 52 ] While it is inarguable that a CSO as a substitute for real jail time can serve as an effective deterrent, as well as send a message of denunciation, a CSO is unavailable for this offence.

The choice in this case is effectively between real jail time and a suspended sentence. [ 53 ] In Voong , after stating the court's long-held position that deterrence and denunciation are the main principles to consider when sentencing a drug trafficker, Justice Bennett spoke of the nature of a suspended sentence and the deterrent value of such a sentence.

Justice Bennett also noted that suspended sentences were imposed in drug trafficking cases, even before a CSO became available, in cases involving exceptionally mitigating circumstances. [ 54 ] At paragraph 39 of Voong , Justice Bennett wrote, in part, that: A suspended sentence has been found to have a deterrent effect in some cases.

Because a breach of the probation order can result in a revocation and sentencing on the original offence, it has been referred to as the "Sword of Damocles" hanging over the offender's head. [ 55 ] As Justice Bennett noted at paragraph 19 of Voong , if an offender who is on probation is convicted of an offence, the suspension may be revoked and brought back for sentencing, at which point the court may impose any sentence that could have been imposed at the time.

It bears noting, however, that this is rarely done. [ 56 ] Still, the case authorities do support the proposition that probationary orders can have a deterrent value. They are no substitute for a CSO. [ 57 ] The range of sentencing for this offence under the Criminal Code is, as Justice Bennett notes in Voong , anywhere from a suspended sentence to life. The range in the case authorities is now anywhere from 6 to 36 months, because of the presence of fentanyl. [ 58 ] A suspended sentence can be imposed where exceptional circumstances are found.

These must be found to exist to such a degree that they can overcome what is effectively a presumption of custody in trafficking cases. [ 59 ] At paragraph 59 of Voong , Justice Bennett wrote that: Exceptional circumstances may include a combination of no . . . 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. [ 60 ] To quote the court: There must be something that would lead a sentencing judge to conclude that the offender had truly turned his . . . life around, and that the protection of the public [would be] better served by a non-custodial sentence. [ 61 ] In this case, Mr.

Porter has a record, but it is clear from Voong that that fact alone does not disqualify him from a non-custodial sentence. Mr. Voong's suspended sentence for a period of 30 months was upheld by the Court of Appeal, despite his having been convicted of two counts of possession for the purposes of trafficking. [ 62 ] On the other hand, the Crown points to the more recent decision of our Court of Appeal in R. v. Rutter , 2017 BCCA 193 , where, on appeal, a suspended sentence was replaced with a sentence of six months in custody, followed by a two-year probation order. Mr.

Rutter was a 22-year-old accused with no record, engaged in the dial-a-doping and trafficking of fentanyl. [ 63 ] In overturning the sentence below, the Court of Appeal found the sentencing judge made no express finding that exceptional circumstances existed.

Rather, the sentencing judge simply held that the suspended sentence would help the accused on the road to rehabilitation. [ 64 ] I accept that, in law, the principles of deterrence and denunciation must, except in the exceptional case, compel a sentence for drug trafficking, particularly in fentanyl, toward a custodial sentence of some considerable length. [ 65 ] Drug trafficking and, at this point in time, the trafficking specifically of fentanyl, is a scourge.

Every opportunity to erase this offending behaviour, no matter how feeble or futile, should be taken. [ 66 ] The imposition of a custodial sentence of some length is one way to accomplish this goal. It is not the only way. As the late Justice Wood, as he then was, wrote in R. v.

Preston , Unreported, July 5, 1990 (BCCA), in an oft-cited passage at page 281: . . . where . . . the danger to society results from the potential of the addict to commit offences to support her habit, and it appears to the court that there is a reasonable chance that she may succeed in an attempt to control her addiction, then it becomes necessary to consider the ultimate benefit to society if that chance becomes a reality. [ 67 ] Society can be protected from the evils of drug trafficking by the imposition of a custodial sentence.

General and specific deterrence are presumed to flow from such sentences, though clearly custodial sentences are no panacea. [ 68 ] Society is also protected when an offender rehabilitates his or herself. That, too, has the effect of meeting the overall purpose of

sentencing. A sentence focusing on rehabilitation can have a specific deterrent effect, even if it is by way of a probation order. [69] What this kind of sentence does not do is to send a message of general deterrence. Our Court of Appeal has already determinedthat even with respect to the offence of drug trafficking, this trade-off is appropriate in the exceptional case. An exceptional case maynot send a message of general deterrence, but nor does it open the floodgates. It does not send a message that the courts have relaxedtheir approach to sentencing for the serious offence.

It says merely that the court is prepared to make an exception for a particularindividual offender before it, given very particular circumstances. [70] I do not think that the average drug trafficker, even one motivated to sell because of an addiction, will fit the circumstancespresented in this sentencing by Mr. Porter. [71] It is the case that, like so many offenders who come before this court suffering from drug addiction, Mr. Porter suffered ahorrific childhood. His was perhaps more dysfunctional than many.

Only a very few are introduced to serious drugs by their parents,though that, too, is not unknown in these courts. [72] What makes Mr. Porter's case different or exceptional, in my view, is his early attempt at age 18 to take control of his own lifeand his own addiction; that he was able to remain sober throughout his 20s; that he had, for the most part, or has, for the most part, asolid record of employment. [73] Mr. Porter's descent into drug addiction in his early thirties does not defy explanation.

His relapse upon release from hiscustodial sentence which was imposed on him, even as a first-time aboriginal offender, is entirely understandable, though his decision totraffic to support that addiction cannot be tolerated. [74] His relapse after his arrest in March 2016, too, makes some sense in the circumstances. [75] Given Mr. Porter's antecedents, I find what I accept to be his genuine commitment to his rehabilitation to be exceptional. I findthat Mr.

Porter has demonstrated, in this sentencing hearing, first, remorse for his offending behaviour, a remorse which is not borne ofself-pity, but rather of an insight into the nature of the offences and the effect on the community generally. [76] Second, Mr. Porter has expressed shame for his actions, and I accept that he is ashamed by these offences. Given his personalhistory, Mr. Porter is in a better position than most to understand the havoc and tragedy these hard drugs have on the lives of drug usersand their families. [77] I accept that Mr. Porter has, in fact, truly turned his life around.

He has a solid network of supporters. Some, like hisgrandmother, are long-term supports. His network attended at this sentence hearing to support this application for lenience. Others tookthe time to write letters of support. His solid support network, his success at recovery to date, his history of accepting and seeking helpwhich demonstrate beyond doubt that Mr. Porter is capable of abstinence, his employment opportunities, and his long-term goal toreunite with his children all convince me that Mr.

Porter's chances of rehabilitation are excellent. [78] I could easily impose a custodial sentence in this case based on the offence alone, but when I consider the circumstances of boththe offence and the offender before me, I am satisfied that this is one of those exceptional cases where the protection of the public wouldbe better served by a non-custodial sentence. [79] I noted earlier that Mr.

Porter raised two grounds to support his submission for a probation order in these circumstances, thesecond being that when this court takes into account his aboriginal heritage, it ought to focus on restorative justice principles, evendespite the nature of the offence. [80] Mr. Porter relies, in this regard, on the reasons of Justice Bennett in R. v. Ladue, 2011 BCCA 101 , [2011] BCJ No.366 (BCCA). Ladue was subsequently upheld by the Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R.433, but counsel for Mr.

Porter directs this court to certain passages in Ladue he submits bear consideration. [81] In particular, at paragraph 60, quoting from the decision of the Court of Appeal in R. v. Jacko, 2010 ONCA 453, we arereminded that in sentencing aboriginal offenders, the court must do more than acknowledge restorative sentencing principles. There mustbe given "some tangible impact on the length, nature and venue of the sentence imposed." [82] Mr.

Porter submits that, given his rehabilitative efforts, his aboriginal heritage should inform the nature of the sentence in thiscase, that it should be a sentence served in the community, and one designed to further his rehabilitation, rather than a custodial sentencewhich may or may not upset his rehabilitation efforts, but which will certainly place him in an environment and with a cohort notconducive to rehabilitation. [83] It will certainly separate him from his support group, cut off his employment, and most likely delay, and if not as likelycounteract, his efforts towards rehabilitation and recovery. [84] Section 718(2)(

e) of the Criminal Code serves as the directive and a reminder to sentencing courts to exercise restraint andapply the principles of restorative justice when sentencing aboriginal offenders whenever possible. That

section is discussed at length inGladue, including the oft-cited passage that: . . . the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals andnon-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. [85] This passage is, as noted at paragraph 84 of Ipeelee, often misrepresented as it is overused. The Gladue, [1991] 1 S.C.R. 688,principles apply to violent offences. They apply to serious offences. There is no discretion as to whether to consider the unique situationof aboriginal offenders. The only discretion concerns a just and appropriate sentence.

[ 86 ] There is also, it bears noting, no onus on the aboriginal offender to establish a causal link between his or her background factors and the commission of the offences before the sentencing judge. In this case, Mr. Porter submits simply that he carries with him the burden of the intergenerational effect that colonial policy, displacement of aboriginal communities, and the residential school system have had on First Nations in Canada. [ 87 ] Mr. Porter's father is a residential school survivor, a sufferer of alcohol abuse disorder, and someone clearly unable to parent his son. Mr.

Porter lives with the effects of that, with the "what might have been" had his father been in a position to parent him, been healthy enough to parent him. But Mr. Porter's misfortune is compounded by a childhood and youth spent in the care of a mentally ill, drug-addicted, Caucasian mother. [ 88 ] Mr. Porter has, as I noted at the outset, as a result of all this, experienced poverty, social isolation, homelessness, his own drug addiction, and a loss of a beloved parent. All of these serve to reduce Mr. Porter's moral blameworthiness for this offence.

They also raise the question whether, in this instance, restorative sentencing principles should gain primary relevance as being the most appropriate means by which to bring about the prevention of further offending. [ 89 ] The reasons for Mr.

Porter's offending suggest, I find, that a non-custodial disposition would be a fit sentence in this case. [ 90 ] The second set of circumstances the sentencing judge is asked to consider under Gladue , being the types of sanctions which might be appropriate in a given case, bearing in mind the offender's particular community, seems to have little or no application in this case. It cannot follow from that that Mr. Porter's aboriginal heritage is of no moment.

He has, in part because of the history of colonialism and the residential school system, been raised separate and apart from his aboriginal community, yet Mr. Porter stands before the court an aboriginal offender, of that there is no doubt. [ 91 ] The remedial purposes of s. 718.2(

e) must still be met by the imposition of a fit sentence, given all the circumstances. I really have no sense of what Mr. Porter's community would consider a more effective means of achieving the objectives of sentencing for this offence. I do know that Mr. Porter has made sincere and significant efforts toward rehabilitation.

I know that his own support community, which is not insubstantial, can conceive of a more effective means of meeting the ultimate objective of sentencing, and that is by the imposition of a sentence that would continue to foster his rehabilitation and recovery. [ 92 ] I am convinced, for the reasons given, that this aboriginal offender, in these circumstances, should be granted a suspended sentence, even as I acknowledge the aggravating factors in this sentencing. I have not lost sight that this is a second offence for Mr.

Porter, and I have not lost sight of the fact that he is being sentenced for the trafficking of fentanyl, as well as methamphetamine. Deterrence and denunciation should predominate in this sentence, but for the fact that I find Mr. Porter presents as an exceptional case. [ 93 ] For these reasons, Mr.

Porter, I will suspend the passing of sentence for three years and I intend to impose conditions on you which I will refer to shortly. [ 94 ] At this point, it does bear noting that, given my decision to impose a suspended sentence, it is unnecessary for me to decide the other pressing question in this case, which is the range of sentencing for the offence of trafficking of fentanyl, given the offence date of March 7, 2016. I will, in the circumstances, leave that decision for another day. [ 95 ] Mr. Porter, I will have you stand, sir.

For the offence of possession of a substance, namely fentanyl, for the purposes of trafficking, on March 7, 2016, as well as for possession of the substance known as methamphetamine for the purposes of trafficking, also on March 7, 2016, I am going to suspend the passing of sentence for three years and I am going to place you on probation. [ 96 ] The conditions of your probation are as follows. Madam Clerk, it is the 2000 series. [ 97 ] First of all, Mr.

Porter, the mandatory conditions of the probation order, as in every probation order, are that you keep the peace and be of good behaviour, that you attend court if and when required to do so by the court, and that you not change your name or address without notifying the court or the probation officer or your employment or occupation. [ 98 ] There will be a reporting requirement, 2101, Madam Clerk, and that will provide that you will report in person to the probation office at this building before 4:00 p.m. today and thereafter as directed by the probation officer and in the manner directed by the probation officer. [ 99 ] 2203: You must at this point reside at a residence approved of in advance by your probation officer.

You must provide your probation officer with your phone number and you must not change your residence or your phone number without the written permission of your probation officer. [ 100 ] 2205: You must obey all the rules of your residence so long as they do not conflict with the terms of this order or the directions of your probation officer.

If there is a conflict, you must tell your probation officer about the conflict immediately. [ 101 ] 2209: For the duration of the first eight months of this order, you must obey a curfew by being inside your residence or on the lot on which the residence is located between the hours of 10:00 p.m. and 6:00 a.m. each and every day, except for these exceptions: • you must present yourself immediately to the door firstly of your residence or answer the phone during the curfew hours when any peace officer or probation officer attends to check at your residence or calls to check your compliance with the curfew conditions; • you may be away from your residence during the curfew hours with the written permission of your probation officer.

Such permission is to be given only for compelling reasons and you must carry the written permission when you are outside of your residence; • you may also be away from your residence during the curfew hours while in the course of your employment or when travelling directly to or returning directly from your place of employment. If requested, you must provide your probation officer with details of your employment, including location and hours of work;

• in the event of a medical emergency, and then only while at a healthcare facility or when travelling directly to or returning directly from the facility and, if requested, you must provide your probation officer with written confirmation that you went to the facility, signed by a representative of the healthcare facility to which you went; or, finally. • in the presence of a person approved of in writing by your probation officer, and again you will have to carry that written permission with you any time you are away from your residence during the curfew hours. [ 102 ] 2401: You will not possess or consume alcohol, drugs, or any other intoxicating substances, except in accordance with a medical prescription. [ 103 ] 2406: You will not possess drug paraphernalia, including but not limited to pipes, rolling papers, and syringes. [ 104 ] 2501: You must attend, participate in, and successfully complete any intake, assessment, counselling, or program as directed by the probation officer, and without limiting the general nature of the condition, the counselling should include alcohol or drug abuse counselling. [ 105 ] 2502: You must attend also and participate in and successfully complete any intake, assessment, counselling program, treatment, or residential treatment as directed by your probation officer as well, if that becomes necessary. [ 106 ] 2509 (Community Work Service): You will have to complete 80 hours of community work service, Mr.

Porter. That will be done under the direction of the probation officer and you should complete that within the first eight months of this probation order. [ 107 ] 2606: You will not possess or use any mobile communication device, except you may possess one cellphone with one phone number which can only be used for the purposes of contacting your probation officer, lawyer, or for lawful employment, or in an emergency.

You must provide your probation officer with the telephone number and service provider and not change either without the written permission of the probation officer. [ 108 ] This is a primary designated DNA offence, so I am making a DNA order as well. That will provide that -- both counts are primary designated, Madam Clerk, and so the order is made under 487.051(1), that I make the order in Form 5.03 authorizing the taking of samples of a bodily substance from you for the purposes of registration in the National DNA Data Bank. You are here or where is he? [ 109 ] MR.

WATT: He's in Surrey, so -- [ 110 ] THE COURT: Right, so I need a -- [ 111 ] MR. WATT: Perhaps within -- within seven days or within a week, he can attend. [ 112 ] THE COURT: Within a week, yes. [ 113 ] MS. SIMPSON: That is agreeable. [ 114 ] THE COURT: Okay, and I do not have the -- so I do have to put a date on this, Mr. Porter, and you do need to go and provide that sample. It is the 21st today, so I will have you do it by no later than August 31, alright? [ 115 ] THE ACCUSED: Alright. [ 116 ] THE COURT: You will have to attend the Surrey RCMP detachment office.

You are going to have to ask when they do those samples, because I do not think they do them any old time. [ 117 ] THE ACCUSED: I know that. [ 118 ] THE COURT: Yes, okay, great. So there is also a mandatory s. 109 and that provides that you are -- is this for life now? [ 119 ] MS. SIMPSON: Yes, Your Honour. [ 120 ] THE COURT: Yes, okay, so this is a lifetime ban on any firearm, prohibited weapon, restricted firearm, prohibited weapon, prohibited device, prohibited ammunition, crossbow, restricted weapon, et cetera, and that is now for life.

This is your second conviction, alright, so -- [ 121 ] THE ACCUSED: Does that affect like any future gaming or hunting or any -- like I need to -- [ 122 ] THE COURT: There is an exception in the Criminal Code . [ 123 ] THE ACCUSED: Good, okay. [ 124 ] THE COURT: Right, there is a cultural exception under the Criminal Code . [ 125 ] THE ACCUSED: Alright. [ 126 ] THE COURT: But that is something you are going to have to work through. [ 127 ] THE ACCUSED: Right, okay. [ 128 ] THE COURT: So you may get some help with that, but yes, that is -- until there is that exception made, that is right, there is, and I would not want you to be breaching any of these orders.

I will just leave it at that, alright.

[ 129 ] MS. SIMPSON: Your Honour, with respect to the final condition with the mobile cellphone. [ 130 ] THE COURT: Right. [ 131 ] MS. SIMPSON: Could I ask that you also include that it be a cellphone for which he receives a monthly bill for and that he provide that -- details of that monthly bill upon request to his probation officer? [ 132 ] MR. WATT: No issue. [ 133 ] THE COURT: No problem, okay, so I will make that, as well. Madam Clerk, did you get that? [ 134 ] THE CLERK: Yes, thank you. [ 135 ] THE COURT: Yes, so that is fair, alright. Okay, anything else? [ 136 ] MR.

WATT: No, thank you very much. [ 137 ] THE COURT: No, alright, thank you very much. [ 138 ] MS. SIMPSON: Thank you, Your Honour. (REASONS CONCLUDED)