R. v. Sanvictores Date:, 2017 BCPC 209

Citation: R. v. Sanvictores Date: 20170426 2017 BCPC 209 File No: 211150-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. CYRUS CARMELO CRUZ SANVICTORES ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: G. Law Counsel for the Defendant: S. Sugarman Place of Hearing: Surrey , B.C. Date of Hearing: April 26, 2017 Date of Judgment: April 26, 2017 [ 1 ] These are the oral reasons for the sentence in the matter of Cyrus Carmelo Cruz Sanvictores. Mr. Sanvictores is before the court on Information number 211150.

[ 2 ] I was invited to find him guilty of three counts of possession for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. I took this as a technical invitation to find him guilty. It is a subtle difference between the act of pleading guilty. [ 3 ] The trial began on May 30, 2016, and continued on May 31, 2016. The court time was occupied by a two-day voir dire wherein the defence alleged that Mr. Sanvictores' Charter rights had been violated. The decision of the court on the voir dire was that the arrest and search and seizure of Mr.

Sanvictores on that occasion was lawful. Immediately upon hearing the voir dire decision, Mr. Sanvictores changed his plea and the matter was put over to April 26, 2017, for sentencing. Circumstances of the Offences [ 4 ] The circumstances are very straightforward. On May 7, 2015, Cst. Popein who worked with the general detachment of Surrey RCMP, pulled up behind a Honda Civic at a red light. The Honda being driven by the accused went through the red light and was pulled over for a traffic stop violation. During a search, approximately $1800.00 worth of heroin, cocaine and methamphetamine was located.

Position of the Crown [ 5 ] The Crown seeks a six-month jail sentence. They point to the nature of the substance, the amounts of the drugs, the fact that the accused is not an addict and the possibility that the offence was motivated by profit as aggravating features of the offence. [ 6 ] The Crown also seeks a mandatory firearms prohibition, a DNA sample and a forfeiture order. Position of the Defence [ 7 ] Mr. Sanvictores seeks a suspended sentence. The thrust of his counsel's submission is that a suspended sentence generates its own inherent penalties such as the imposition of a criminal record.

Further, a period of probation will be able to incorporate other punitive measures such as community service work, as well as rehabilitative aspects, such as counselling. Important Aspect of Circumstances [ 8 ] The Crown, in their submission, conceded that this is not a dial-a-dope case . Ms. Sugarman, counsel for Mr. Sanvictores, sets out the actual facts which have not been challenged. Mr. Sanvictores had a high school friend. This friend asked Mr. Sanvictores take these drugs and move them from point A to point B. Mr.

Sanvictores was not being paid to do this. [ 9 ] On April 24, 2017, in these courts, I delivered a written judgment at R. v. Jeremy Thomas James that was filed. The decision surveys the law with respect to dial-a-dope sentencing ranges. While I appreciate we are not dealing with a dial-a-dope case, I remind myself of some of the law concerning exceptional circumstances. In that case, he had no record, was working, had a supportive family, had just had a child, and in that case he received six months' jail. He was approximately the same age as this young man, as well. [ 10 ] At paragraph 32 of R. v.

Krause , quoting from Voong , the Honourable Judge Sudeyko writes: After confirming the usual range of sentence, Madame Justice Bennett turns to the issue of exceptional circumstances: The exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of the main principles of deterrence and denunciation by way of a prison sentence.

Madam Justice Bennett continues: 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 better served by a non-custodial sentence. However, Parliament while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available.

Thus it will be the rare case where the standard of exceptional circumstances is met. [ 11 ] A brief further review of Court of Appeal authorities in British Columbia reminds me that when we are dealing with hard drugs, there is a reason why courts, more often than not, impose jail sentences. They are often profit-oriented and general deterrence and denunciation are to be key considerations when dealing with these sorts of cases. I mentioned earlier the case, R. v. Krause , [2015] BCPC 305, and it is a case where the Honourable Judge Sudeyko considered the issues that I am being asked to consider.

At paragraph 7, Judge Sudeyko asks: 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? [ 12 ] To be clear, this is not a dial-a-dope case. Thus, I do not believe I need to follow the exceptional circumstances cases. Specifically, I do not believe I need to make a finding that there are exceptional circumstances in this case in order to break free from the Court of Appeal range, although I do find the framework of the exceptional circumstances analysis helpful.

What are the Sentencing Principles ? [ 13 ] Relying on s. 10 of the Controlled Drugs and Substances Act which states that: ...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 to the community. [ 14 ] Further, relying on s. 718 of the Criminal Code , which states: 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. [ 15 ] 718(2)(

e) is also a provision that I consider. It demands that I consider all alternatives to jail that are reasonable in the circumstances. What are the Circumstances with Particular Reference to this Offender ? [ 16 ] Ms. Sugarman is correct when she submits that each offender's situation must be considered. This young man was born in Manila in the Philippines. He is 25 years old now and was 24 at the time of the offence. His parents arrived to Canada when he was seven years old and eventually, after moving around the Lower Mainland, he moved to Surrey where he graduated high school.

He worked hard during this time period, working in an auction house. [ 17 ] He has a supportive family. His father, who was present in court today, has worked as a janitor, a vacuum seller and installer of satellites. I take it from this work history that his father is a hard worker, and he is now an electrician with Shaw Cable. I am told that his son has been helping him on and off with these different jobs. [ 18 ] Mr. Sanvictores has said that he moved these drugs from one location to another location as a favour and that he was not paid.

There was no cell phone, no money, nothing else found in the car, which we often associate with dial-a-dope operations. [ 19 ] In the end, we have a very young man, who lives at home and is also supported by his mother, who, I am told, is also hard- working. I understand his sister is also present, and his mother and father have been able to show their support not only by their attendance and continuing support of their son, but as well, through letters of support which have been tendered in this sentencing. [ 20 ] It is further submitted that Mr. Sanvictores has distanced himself from his negative peer group.

Specifically, he has stayed away from the person that he was doing this favour for. [ 21 ] I am told that he has suffered from some depression but is seeking the assistance of a counsellor. These counselling sessions are also confirmed in one of the letters of support. I believe it was his mother who confirmed he is seeing a counsellor once per month. Greed or Peer Pressure ? [ 22 ] I find R. v. Ameeri , a February 2016 case from Justice Kent from the Supreme Court of British Columbia, very useful.

Due to the nature of how this sentencing has proceeded so quickly, I have not given either counsel an opportunity to address this case, although they are found in previous written decisions. In that case, the accused was indicted for unlawfully trafficking, and I appreciate there is a difference in this case. Here we are dealing with possession for the purpose, but one thing is similar. In the pre-sentencing report that Mr. Ameeri had in his case, it was written that the accused: Regrets his poor decision making.

Although he does not blame anyone for his actions, he does state that he was socializing with "bad friends" who happened to be more entrenched in a criminal lifestyle. Mr. Ameeri states that he was "young and dumb" at the time of the offence and is now focusing on making better decisions in his life that will benefit him and his family in the future. ... He states he no longer socializes with peers who are involved in criminal activities and denies any drug use himself. Currently, he is working full time... [ 23 ] There are similarities between Mr. Ameeri and Mr. Sanvictores.

You have separated yourself from some of the individuals that you were associating with. You have the ability to work. You have interests in school. This is important for you to understand: You are not the first, nor will you be the last, to feel pressure of 'peer pressure'. We all feel peer pressure, whether we are young, middle-aged or old like me. However, you have to recognize that in life we make choices. We make choices that affect our futures and our families and our communities. [ 24 ] I appreciate that you are an immigrant to Canada but you are not a new immigrant.

You have told me that "you never thought that you would be facing jail". Most people when they stand in these courts, who are facing jail, I would think, also had that same feeling. Certainly, you, in this court, are not the reason that your mother brought you here. She brought you here to share in the same dream that we all have, to have homes with happy, healthy family around us, to have the ability to go to school and to find work that we enjoy. I have worked as an attorney in the Philippines.

I came to appreciate the people in the Philippines and the hardship that some face around the country of the Philippines. Canada benefits from many immigrants, including hardworking people like your parents, who have sacrificed family ties to come here. [ 25 ] You have a responsibility to earn their trust and love and respect. You have the ability to work or to go to school and to be a

responsible Canadian citizen – a law-abiding citizen. [ 26 ] There was another immigrant named Christopher Diabikulu. He came to Canada from Congo when he was five. Unlike him, you have the support of your family. His mother left him at a young age. His father left him at a young age. When he was 23 years old, he trafficked in a hard drug and he had lots in common with you as well. In that decision, last September, called R. v.

Diabikulu , and at paragraph 30 of that decision, I wrote, "...his involvement in this crime was not driven by addiction or greed." He did it "to improve his social standing in his peer group." He did it because he wanted to fit in with his friends. He received eight months’ worth of weekends, that is, a three-month jail sentence. I said in that case, and I will repeat in this case: I do not believe that the extraction of the Conditional Sentence as a sentencing option means that there is a default position, whereby I should impose a suspended sentence. Of course, there are no two cases exactly alike.

The circumstances of each offender is always unique.

Summary of the Mitigating Factors [ 27 ] You started the trial. You are not to be faulted for that. To the contrary, there came a time when you had to make a difficult decision to either continue forward with the trial or accept responsibility by inviting me to find you guilty. While it is not an early guilty plea in the sense that the plea was not made prior to the commencement of the trial, I do accept that you wish to take responsibility. This is a significant signal to me that you are remorseful.

I can almost assure you that had you been found guilty at the end of a lengthier, more expensive trial, you would not be receiving the sentence that I am about to impose. [ 28 ] You have a supportive family. You were not motivated by profit. You have no criminal record. You have great prospects of rehabilitation. In other words, this offence is out of character. In my view, you come across as respectful and intelligent. You support your father in his work. In my view, I do not believe you need to be deterred. The arrest and court process has already made a significant impression on you.

I do not believe that I will see you again in these courts. [ 29 ] Sir, please stand up. For the crime of being in possession of drugs with the sole purpose of delivering those drugs from one place to another, I sentence you to a suspended sentence. [ 30 ] The probation attached to that suspended sentence will be for a period of 12 months. The conditions are that:

(1) You shall keep the peace and be of good behaviour.

(2) You shall report to Surrey Probation by 4:00 p.m., April 27, 2017, and thereafter as and when directed.

(3) You shall attend for, participate in, and complete any such counselling that you may be directed to do. I pause here for a moment to point out that it is possible that your current counselling will be sufficient but that is a decision that will be in the hands of the probation officer. However, I will mention this, that I am a bit worried that if you are using marihuana, and I do not know if you are or not, that often the use of marihuana and suffering from depression needs to be dealt with because those two do not go hand in hand; neither do alcohol and people who suffer from depression. That is something that you can share with your probation officer.

(4) You are not to possess or consume any drugs as defined in the Controlled Drugs and Substances Act unless you have a valid prescription. [ 31 ] I am satisfied that with the work ethic from your family and your future prospects of work, that you have the ability to pay what I would call an elevated victim fine surcharge, and I am imposing an elevated victim fine surcharge of $1,500.00 payable within 60 days. For counsels' benefit, I created that number in considering the amount of drugs that he was transporting from one point to another.

I understand it was a little higher, approximately $1,800.00, but I think $1,500.00 for a young person is enough. One of the other reasons I have imposed a higher fine is not because I think that you can buy your way out of trouble.

It was suggested by your counsel that community service work would be appropriate in the circumstances; however, I find your ability would be better spent focusing on your counselling, but also working hand in hand with your father; and whether you decided to become an electrician or go on to school and be something else, I think your time is better spent focusing on that versus completing community service work. [ 32 ] There is going to be a mandatory ten-year firearms prohibition. [ 33 ] I am going to order that a sample of DNA be taken. (REASONS FOR SENTENCE CONCLUDED)