R. v. Krause Date:, 2015 BCPC 305

Citation: R. v. Krause Date: 20151028 2015 BCPC 0305 File No: 202029-C2 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JORDAN KRAUSE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. SUDEYKO Counsel for the Crown: Chris Tait Counsel for the Defendant: Paul Doroshenko Place of Hearing: Surrey , B.C. Date of Hearing: September 18, 2015 Date of Judgment: October 28, 2015

INTRODUCTION: [ 1 ] Between August 21st and September 11th, 2012, Jordan Krause (“the Defendant”) sold just over 2 grams of cocaine for $200 to undercover police officers. Although there were three separate transactions, the Crown has proceeded on a single count of trafficking cocaine covering this time period. The Defendant, who is jointly charged with a Jordan Roy, pleaded guilty on June 26, 2015 to that single count. [ 2 ] This was a “dial-a-dope” operation. In short, that is where a “customer” calls a phone number, places an order and the dealer delivers the drugs to a location for a drug for money exchange. Cocaine is a

Schedule 1 drug under the Controlled Drugs and Substances Act (“ CDSA ”). In essence, it is a “hard” drug. [ 3 ] The Crown says that even for a first time offender, such as the Defendant, the sentencing objectives of deterrence and denunciation are paramount and the range for this type of offence is 6 - 9 months in prison, absent exceptional circumstances.

The Crown relies on a series of decisions of the BC Court of Appeal that support that position. [ 4 ] The Crown also points out that this was not a single transaction and that the Defendant was not a simple courier, as well as the fact that this was for profit, rather than to support an addiction. They say those factors are aggravating and that there are no exceptional circumstances. Thus, the Crown seeks a 9 month prison term. [ 5 ] The Defendant argues that a non-custodial sentence may be appropriate even in the case of a dial-a-dope trafficking of a hard drug.

The Defendant cites three British Columbia Provincial Court and one British Columbia Supreme Court decision where that was found to be the case. [ 6 ] While the Defendant did not concede that exceptional circumstances are required, he also says that the circumstances in this case support a “non-custodial sentence”. He points to an accumulation of factors, including his previous clean criminal record and good character, his remorse and relatively early guilty plea, his youthfulness, his strong employment record, and his current employment and positive family circumstances.

In addition, the Defendant emphasizes that he made a moral decision to end his involvement in the drug trade and cut his ties with that world, before he was arrested. The Defendant seeks a suspended sentence with a 2 year probation period. Alternatively, the Defendant seeks a 9 month Conditional Sentence Order (CSO), including that in the definition of a non-custodial sentence. [ 7 ] The issue here is: Do the circumstances of this offence and this offender, when applying and balancing the appropriate sentencing purposes, principles and objectives, support a non-custodial sentence?

CIRCUMSTANCES OF THE OFFENCE [ 8 ] In August, 2012, the police were not looking for the Defendant. Rather, they had the name of Jordan Roy associated to a particular telephone number and a dial-a-dope operation. The police called that number and asked for Roy. However, it was the Defendant on the line and the police then proceeded to arrange a purchase and an exchange that occurred on August 21, 2012. The undercover police officer met with the Defendant and received .46 grams of cocaine for $40. [ 9 ] On the two subsequent occasions, the arrangement was the same.

The police called and asked for Roy, but the Defendant was the one handling the transaction and he supplied .80 grams for $80 on August 24, 2012, and .84 grams for $80 on September 11, 2012. On one occasion, the undercover police officer observed the Defendant complete another similar drug transaction. Some negotiation of price and the possibility of a slightly larger amount to be purchased at some future time took place between the Defendant and the undercover police officer, and the Defendant acknowledged that he was tired from “working the line ... 24/7”.

He said Jordan Roy would be taking over. [ 10 ] The police, for whatever reason, did not arrest the Defendant at that time or soon after. It was not until August 21, 2013, a full year following these transactions, that the Defendant was arrested and charged. He was placed on bail conditions. It has taken an additional two years, partly because of the unavailability of some counsel, for these matters to reach this stage. There have been no additional charges or allegations of continued involvement by the Defendant. CIRCUMSTANCES OF THE OFFENDER [ 11 ] The Defendant was born and raised in the lower mainland.

His mother suffers from Multiple Sclerosis. His parents split up when he was 15 and that may have influenced his decision to leave school a few years later without graduating. However, he began working from a young age and has, for the most part, been steadily employed. [ 12 ] In the summer of 2012, the Defendant found himself in the rare circumstances of being unemployed. He began living with someone (not the co-accused Jordan Roy) who it turned out was running a dial-a-dope drug trafficking operation. The Defendant was then 24 years old. He had no criminal record.

But this operation presented an apparent opportunity for quick money and he took it. [ 13 ] However, the Defendant says that he chose to remove himself from this lifestyle, and he did so without being arrested or charged; indeed without even a perceived threat of police intervention. I certainly accept what he says, in that no additional charges or even allegations have been made during the year following the offence. In addition, no charges or allegations have followed his arrest

and while on terms of bail. The Defendant must have been on the police “radar” after the initial transaction in August, 2012. [ 14 ] The Defendant has supportive family. He disclosed his charges to them and while they have assisted him, it is not assistance without conditions. I was provided with a letter from his father (and step mother) advising that they have taken a tough stand with him. It also confirms that he has been living together with them since May 2015 under strictly-imposed rules, which he has followed.

They have seen a positive change in him, including maintaining ongoing stable employment and a productive lifestyle. [ 15 ] I was also provided with a letter from a former employer that describes his skills and work ethic in relation to work he performed in 2014, as well as a letter from his current employer confirming his ongoing training to become a journeyman glazier. He is clearly a valued worker. LEGAL ANALYSIS: PURPOSE, PRINCIPLES, AND OBJECTIVES OF SENTENCING Legislation [ 16 ]

Section 718 - 718.3 of the Criminal Code (as it read at the time of the offence in 2012) provides the statutory framework for sentencing. [ 17 ] Specifically,

section 718 provides that the “Fundamental Purpose” of sentencing is to “contribute … to a just, peaceful, and safe society by imposing just sanctions” that have at least one of the stated 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 acknowledgement of the harm done to victims and to the community. [ 18 ] The “Fundamental Principle” of sentencing is stated in

section 718.1: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [ 19 ] In turn, “Other Principles” that a Court must consider are provided at

section 718.2: “A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or decreased 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; (

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

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

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders...” [ 20 ] In turn, the CDSA in relation to this category of offence essentially combines the stated purpose and at least some of the objectives of sentencing in the Criminal Code : “Sentencing

(1) Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and the community.” [ 21 ] There are specific aggravating circumstances set out in s. 10(2) of the CDSA that must be considered, none of which apply to the facts of this case. [ 22 ] Within this extensive statutory framework, trial courts have significant discretion to come to a fit or appropriate sentence. Indeed that is reflected in the provision of the Criminal Code itself: “718.3

(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts the person who commits the offence. “ Case Law [ 23 ] The Supreme Court of Canada in R. v.

Nasogaluak , 2010 SCC 6 at paragraph 43 and 44 , describes the wide, but not unfettered, discretion that a sentencing court has in each case: “The language in ss.718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender … No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the circumstances of the case.

The relevant importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating and mitigating factors ensures that each case is decided on its facts, subject to overarching guidelines and principles in the Code and in the case law. (para. 43) The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code. But it must be remembered that while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules.

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing… “(para. 44) IS THERE A RANGE OF SENTENCE IN THIS CASE? [ 24 ] The statutory range of sentence for the offence of Trafficking in a

Schedule 1 drug under the CDSA is from a suspended sentence to life imprisonment. [ 25 ] However, the BC Court of Appeal has also addressed, in a number of decisions, the issue of the appropriate range of sentence in these trafficking cases by way of a dial-a-dope operation. The Crown relies on several of these decisions, beginning with R. v. Tran 2007 BCCA 613 and further articulated in R. v. Ladret 2012 BCCA 401 ; R. v. Barrick 2012 BCCA 83 ; R. v. Gill 2013 BCCA 320 ; R. v. Cisneros 2014 BCCA 154 ; R. v. Oates 2015 BCCA 259 and R. v.

Gillespie 2015 BCCA 290 . [ 26 ] These cases all recognize the particular evils of trafficking in a hard drug through a dial-a-dope operation and to the sentencing objectives of deterrence and denunciation. That is captured in this comment from the Court in R. v. Gill (supra): “[22] It is well-known that dial-a-dope operations enable a pervasive and rapid dissemination of illicit narcotics that wreak destruction to the individuals that use them and to our community. The proliferation of these operations has significantly increased accessibility to these drugs, and their harmful effects.

As a result, the courts have routinely recognized that the primary objectives in imposing sentences for trafficking in this manner must be deterrence and denunciation.” [ 27 ] In turn, most of those decisions and others clearly establish that the BC Court of Appeal has indeed imposed a general range of sentence of approximately 6-9 months (sometimes longer) imprisonment for even a first time trafficker of a hard drug in a dial-a-dope operation. In R. v.

Cisneros (supra) at para. 13 and 14, the BC Court of Appeal refers to this range: “The case before us is a straightforward case in which the offender was involved in a busy dial-a-dope operation. While he had no criminal record, this was not an isolated event, as he conceded in his sentencing submissions. There were no extraordinary circumstances

that would take this case out of the ordinary sentencing range. I agree with the Crown’s assessment that the ordinary sentencing range for a first offender in a crime of the nature involved in this case isapproximately 6-9 months’ imprisonment.” (see also R. v. Gill at para. 23; R. v. Gillespie at paras. 4, 17; R. v. Barrick at paras. 21-23; and R. v. Oates at para. 27). ARE EXCEPTIONAL CIRCUMSTANCES REQUIRED TO TAKE IT OUTSIDE OF THAT RANGE? [28] From a review of this same case law, including the Courts’ comments in R. v.

Cisneros referred to above, it is clear that the BCCourt of Appeal has indeed established that where the factual basis brings the case within the usual range of sentence, only “exceptional”or “out of the ordinary” circumstances will justify a non-custodial sentence. (see also R. v Gill at para. 24; R. v. Gillespie at para. 6; R. v.Ladret at para. 8; R. v. Tran at para. 6; and R. v. Oates at para. 27) WHAT ARE THOSE EXCEPTIONAL CIRCUMSTANCES? [29] In each of the Crown cases referred to above, the BC Court of Appeal do not find exceptional circumstances.

To that extent, thecases can provide little guidance on what amounts to exceptional circumstances. At most, these cases provide some minimal guidanceon what does not amount to exceptional circumstances. [30] However, in contrast to those cases, the Crown also forwarded the recent decision of R. v. Voong 2015 BCCA 285. In Voong,Madame Justice Bennett reviews four trial court sentencing decisions, including that of Voong, Taylor, Charlton and Galang. Each casehas the similar aspect of being a dial-a-dope operation and trafficking in a hard drug.

In the case of Charlton, Voong and Taylor, theywere selling drugs to support a drug habit and had criminal records, including a related record for Voong and a lengthy record forCharlton. Galang was a young first offender and was assisting a friend with a drug debt. In all cases the sentencing court had imposed asuspended sentence with probation. The common issue was whether these were fit sentences. [31] Indeed, in all but Taylor, the BC Court of Appeal found a suspended sentence with probation to be a fit sentence.

Acceptingthat there were “exceptional circumstances” in each of these other cases, the Court focused primarily on the rehabilitation of theoffender. [32] After confirming the usual range of sentence, Madame Justice Bennett turns to the issue of exceptional circumstances: “[45] The exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of the mainprinciples of deterrence and denunciation by way of a prison sentence. … [59] …Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towardsrehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of theoffences, 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 thatwould lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the publicwas better served by a non-custodial sentence. However, Parliament while not removing a non-custodial sentence for this type ofoffence, has concluded that CSO sentences are not available.

Thus it will be the rare case where the standard of exceptionalcircumstances is met.” [33] I now turn to the cases submitted by the Defendant. [34] In R. v. King 2004 BCPC 616 , 2004 BCPC 0616, the facts related to trafficking cocaine by way of a dial-a-dopeoperation. It was a single transaction, but some evidence of involvement in an ongoing enterprise. The Court recognized that thedefendant was young, had no criminal record, expressed remorse, pleaded guilty, and had a very strong recognition of the harm causedby this sort of offence.

The Court concluded that a 6 month sentence was appropriate and could be served on a CSO. [35] In turn, R. v. Owens 2014 BCSC 32, although not clearly a dial-a-dope case, involved trafficking from the offender’s home.

The Court found sufficient circumstances through the offender’s young age, significant and genuine remorse, and previous clean recordto impose a suspended sentence with probation. [36] In each of these cases, no mention is specifically made of exceptional circumstances, although it’s not difficult to see how thecircumstances in each case would be consistent with the broad description of exceptional circumstances provided by Madame JusticeBennett in R v. Voong (supra). [37] In R. v. Weiss, a 2015 BC Provincial Court (Richmond Registry 58336-1) decision of the Honourable Judge Smith, the

defendant’s difficult family circumstances, guilty plea, lack of a criminal record, good employment history and extreme remorse wereenough to be considered “significant mitigating factors” to “tip into the unusual or out of the ordinary”. In essence these circumstanceswere found to be exceptional. [38] Finally, the Defendant provided the 2014 BC Provincial Court sentencing decision of the Honourable Judge Gulbransen in R. v.Galang 2014 BCPC 240 , 2014 BCPC 0240, which was appealed to the BC Court of Appeal in R. v. Voong (supra), as discussedabove.

Although the BC Court of Appeal increased the probation term from 1 year to 3 years and imposed a curfew, the suspendedsentence was upheld. The BC Court of Appeal suggests his Honour Judge Gulbransen looked for and found “exceptional circumstances”in the R. v. Galang (supra) case. I read his decision as avoiding that term and instead focusing on the balancing of the primary objectivesof denunciation and deterrence against those of rehabilitation and reintegration.

He looks at the offender’s youth, the relative low levelof trafficking, lack of criminal record, early guilty plea, good employment record and good prospects. He concludes at para. 38 asfollows: “In my view, the goals of rehabilitation and reintegration into the community outweigh the goals of deterrence and denunciation in theseparticular circumstances.” [39] It would appear that the BC Court of Appeal found that those “particular circumstances” were exceptional. [40] I pause here to comment on the cases of both Crown and Defence.

While all of these cases are to a great degree similar withrespect to the circumstances of the offence, they are all different, to varying degrees, with respect to the circumstances of the offender. Indeed none of these cases is so similar with respect to all of the circumstances so as to cry out for the principle of parity to apply andimpose the same or similar sentence. Sentencing is an individualized process. I prefer the approach of His Honour Judge Gulbransen inthe BC Provincial Court sentencing decision in R. v.

Galang (supra) at para. 3: “As in most sentencing proceedings, this decision must focus on the application of general legal principles to the specific circumstancesof the offence and the offender. The focus is not on determining whether the sentence imposed in another case should apply in this case.” [41] Returning to the issue of exceptional circumstances, from a review of the case law it is my view that not only are the examplesprovided by the BC Court of Appeal in R. v. Voong (supra) “not exhaustive”, they may or may not apply, or will have differing degreesof weight in any particular case.

There may be circumstances of the offender that precede the offence (i.e. no criminal record), or helpexplain the criminal conduct (i.e. the desperation of an addiction), or involve behavior after the offence (i.e. steps taken towardsrehabilitation). Rehabilitation may be for a criminal orientation or for a drug addiction. A youthful person’s immaturity may be apositive consideration while an older first time offender may be given credit for a longer previously clean record.

Trafficking purely forprofit may increase moral culpability over a drug addiction but be a better risk for long term successful rehabilitation. The particularcircumstances and combinations of circumstances are, it would appear, almost limitless. [42] In the end, what amounts to exceptional circumstances so as to receive a non-custodial sentence may greatly vary, but it will bethat which, after considering all of the aggravating and mitigating circumstances, causes the Court to conclude that the primaryobjectives of denunciation and deterrence are outweighed by other objectives of sentencing.

Another way of looking at it is: If, on all ofthe circumstances, the primary objectives of denunciation and deterrence are outweighed by other objectives of sentencing so as to leadto a non-custodial sentence, then those circumstances are exceptional. APPLICATION OF THE ANALYSIS TO THE FACTS OF THIS CASE: [43] I conclude that the basic facts of this case--trafficking of a hard drug through a dial-a-dope operation--bring it within the usualrange of sentence as established by the BC Court of Appeal of 6-9 months imprisonment.

It is the aggravating circumstance of thetrafficking being a dial-a-dope that brings it within that range. [44] I agree with the Crown that the Defendant was more than a simple courier in that he was the contact and at times negotiator. This was also more than a single transaction. Both factors are aggravating. [45] However, I also find that these rather small transactions over the approximately three week time period in August andSeptember 2012, reflected in the Crown’s decision to lay a single count information, represents a relatively brief foray into the drugtrafficking world.

It was involvement in an existing operation, rather than as an initiator or “head” of the operation. I would add that incases of a single transaction (typically followed by a quick arrest), there is often evidence of ongoing involvement with the operation. That is also the case here. [46] Although I do not necessarily agree with the Defendant that this was an early guilty plea in that it came almost two years aftercharges were laid, I accept that there are some neutral explanations, including unavailability of counsel, to explain that delay.

And whilea very early guilty plea accepting responsibility may be even more mitigating, a guilty plea without putting the Crown to the proof of thecase is still to the Defendant’s credit. This guilty plea came without a preliminary hearing and following re-election to Provincial Court. [47] I further accept, as was presented through his counsel, that the Defendant is remorseful for his involvement in this matter. Thatis reflected not only in his guilty plea, but also the letter of support from his family.

I also find that the Defendant was youthful at 24 atthe time of the offence, and of previous good character, having no criminal record of any kind. All of these factors are mitigating. [48] However, the strongest factor that is mitigating on behalf of the Defendant is the rehabilitation and recognition of the harmdone to society through his decision to remove himself from the drug trafficking world before there was any police involvement. It is in

fact the case law provided by the Crown (to their credit) that most assists the Defendant in regard to this aspect. In R. v. Voong (supra),the BC Court of Appeal refers to this circumstance: “[54] Similarly, in R. v. Amhaz, 2013 BCCA 348 , the offender appealed a six-month incarceration sentence imposed after aguilty plea for one count of trafficking in cocaine, involving a continuing dial-a-dope operation. He was 25 years old and had no criminalrecord. He was selling drugs to pay off debts. Mr. Amhaz was not arrested until five months after the offences occurred. Shortly afterthe offences, Mr.

Amhaz’s family performed an “intervention”, and as a result, by the time he was charged and sentenced, he had madeprofound changes in his life. [55] Saunders J.A. discussed the need for some “out of the ordinary” circumstances that would permit a non-custodial sentence to beimposed. In allowing the appeal, and substituting a CSO, Saunders J.A. said this, at para. 19: While Mr.

Ahmaz’s involvement in the illegal business is to be deplored, and must be reflected in the sentence imposed, the fact he leftthis criminal lifestyle before engagement with the criminal justice system, reinforced by his assumption of an appropriate employmentrole and his move towards stable family life, is a feature that should have been reflected in the sentence imposed, in my respectful view.This feature demonstrates self-directed rehabilitation before contact with the criminal justice system, and distinguishes the case fromthose to which I have referred.

In my view it comes within the descriptions ‘particularly positive’ and ‘out of the ordinary’.” [49] In short, the BC Court of Appeal in R. v. Ahmaz 2013 BCCA 348 (and confirmed in R. v. Voong (supra)) recognizes that self-directed rehabilitation by leaving a criminal lifestyle before police or court intervention (together with appropriate employment and astable family life) is an exceptional circumstance. That is what happened here.

It is perhaps only fortuitous that the Defendant was notarrested for a whole year after the offence, but his decision to remove himself from that criminal lifestyle without even the apparentthreat of police intervention, is certainly mitigating. His ongoing positive behaviour while on bail for a further two years following hisarrest is also to his credit. [50] In conclusion, I find there are exceptional circumstances in this case.

I make this finding not simply on the basis of this pre-arrest self-directed rehabilitation, but more generally on the basis of all of the circumstances, including the Defendant’s previous goodcharacter reflected in no criminal record, his youth at that time, his guilty plea, his expression of remorse, and his positive employmentand family support, such that the primary sentencing objectives of denunciation and deterrence are outweighed by the objectives ofassisting with the continued rehabilitation of the Defendant. The Defendant has turned his life around.

He has a strong employmenthistory and current employment going forward, as well as family support that is focused on his rehabilitation. To send him to prison nowwould do more harm than good and the public protection would be better served by a non-custodial sentence. A SUSPENDED SENTENCE OR A CSO? [51] Because this offence goes back now more than three years, it pre-dates changes to the Criminal Code in November 2012 thatremoved the availability of a CSO for this offence.

While the decision by Parliament to remove the CSO option is a relevantconsideration to the analysis of an appropriate sentence, the Defendant has available to him a CSO, and that is a sentencing option forthis Court. [52] In this case the Crown, while maintaining that the appropriate sentence is a 9 month prison term, also briefly addressed theissue of a suspended sentence versus a CSO and suggested there would be no need to “drop to a suspended sentence” in this case becausea CSO is available.

I am not sure that would be the appropriate characterization or analysis. [53] Turning firstly to a suspended sentence, in R. v. Voong (supra) the BC Court of Appeal examined whether suspended sentencescould achieve the primary goals of deterrence and denunciation in these sorts of offences and concluded, depending on the case, thatthey can. The Court noted that even before a CSO was available, in rare and exceptional circumstances, the courts imposed a suspendedsentence.

In addition, the Court also considered the fact that a suspended sentence could, in the event of a breach of probation terms,actually result in a worse sentence, whereas a CSO breach would result at most in the sentence being converted to a prison term for theremaining duration. Finally, the Court, while recognizing the more punitive aspect of a CSO versus the purely rehabilitative aspect of aprobation order, concluded that a probation “condition need not be punitive in nature in order to achieve deterrence and denunciation” (R.v. Voong supra para. 43). In

summary, the Court may impose a suspended sentence, so long as the term and conditions of the probationsatisfy the primary objectives of deterrence and denunciation. [54] Assuming either a CSO or a suspended sentence may be imposed, I return to the other principles of sentencing in the CriminalCode and specifically sections 718.2 (

d) and (e). Firstly, would a CSO in these circumstances cause the Defendant to be “deprived ofliberty, if less restrictive sanctions may be appropriate”? Secondly, would a CSO fail to consider “all available sanctions other thanimprisonment that are reasonable in the circumstances”? I must answer yes to both questions.

Since either a CSO or suspended sentencemay be imposed, and a CSO is a prison sentence-- albeit to be served in the community-- it both deprives liberty and its imposition failsto consider other available reasonable sanctions other than imprisonment. [55] That analysis aside, the issue of whether a CSO should be imposed is even simpler than that. The first question to be asked iswhether I am sentencing the Defendant to imprisonment? If not, then that effectively ends the inquiry (see

section 742.1 of the CriminalCode). Indeed I am not sentencing the Defendant to imprisonment, for all of the reasons stated in this decision. Therefore, a CSO is notan option in this case. [56] However, in order to be an appropriate sentence, and reflect the primary objectives of denunciation and deterrence, theconditions of probation while rehabilitative must also serve those objectives. I propose to do that with the following sentence: [57] I am suspending the passing of sentence and imposing a 2 year probation term, to include the following conditions:

(1) You shall keep the peace and be of good behavior;

(2) You shall appear before the court when required to do so by the Court;

(3) You shall notify the Court or your probation in advance of any change of name, or address, and promptly notify the Court or any probation officer of any change of employment or occupation;

(4) You shall report in person to a probation officer by no later than 4:00 p.m. tomorrow to Surrey Corrections at 13545 64 th Avenue in Surrey, British Columbia, and you shall thereafter report as and when directed by your probation officer and in the manner directed by your probation officer;

(5) You shall reside at a residence approved of by your probation officer and not change that residence without the prior consent of your probation officer;

(6) You shall obey the rules and regulations of that residence;

(7) You shall perform and complete, at the direction of, and to the satisfaction of your probation officer, 240 community work service hours. Such community work service, wherever possible, shall be completed for the benefit of those suffering from the effects of drug and/or alcohol addiction; [ 58 ] I also make the following orders: Pursuant to

section 109 of the Criminal Code and mandatorily: You shall not possess any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance for a period of 10 years; Pursuant to

section 487.051 of the Criminal Code : You shall attend at the Surrey RCMP detachment office within 2 weeks and submit to the taking of a sample of your DNA for inclusion in the National DNA Databank, in accordance with the provisions of

Part XV of the Criminal Code . [ 59 ] Subject to any further submissions of counsel with respect to the terms, that is my sentence. _______________________ The Honourable D. Sudeyko Provincial Court Judge