R. v. Connal, 2018 BCPC 418

Citation: R. v. Connal 2018 BCPC 418 Date: 20180810 File No: 224590-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. ALLEN GORDON CONNAL ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. GAFFAR Counsel for the Crown: D. Melnyk Counsel for the Defendant: J. Boxall Place of Hearing: Surrey , B.C. Date of Hearing: August 8, 2018 Date of Judgment: August 10, 2018 A Corrigendum was released by the Court on February 8, 2021. The corrections have been made to the text, and the

Corrigendum is appended to this document. INTRODUCTION [ 1 ] Allen Gordon Connal has entered five guilty pleas relating to the possession for the purposes of trafficking of multiple illicit drugs including fentanyl, which occurred in Surrey on April 26, 2016. [ 2 ] The Crown argued that the aggravating circumstances in Mr. Connal's case, and his particular circumstances, place him in the accepted range for drug possession for the purposes of trafficking offences, which is between six to 18 months.

Accordingly, the Crown seeks the following sentence: 12 months in custody, each count concurrent to each other, due to the presence of fentanyl, but that this sentence should be consecutive to his existing sentence. [ 3 ] The defence position centred on the fact that Mr. Connal is currently serving another sentence from Alberta, and whether the British Columbia sentence can be reduced to permit Mr. Connal to qualify for day parole and the offered residential treatment as part of his Alberta sentence.

The defence proposed a suspended sentence or up to a six month custodial sentence to be served concurrently, or at the same time, as the Alberta sentence. [ 4 ] This sentencing poses some challenges on the issue of whether the defence proposals for reducing the sentence are authorized by law. I must also consider whether Mr. Connal qualifies for exceptional circumstances, which might permit a lower sentence than the usual range. OFFENCES & OFFENDER [ 5 ] I will now provide a brief overview of the offences and the offender. OFFENCES [ 6 ] On April 26, 2016, the police conducted a vehicle stop. Mr.

Connal was driving and was the lone occupant of the vehicle. The police observed the drugs in plain view and arrested Mr. Connal. When the police searched the vehicle they found cash in the amount of $195 and three cells phones, as well as drugs packaged in smaller baggies as follow: 0.19 grams of heroin and fentanyl combined; 0.13 grams of fentanyl alone; 1.22 grams of heroin, fentanyl and cocaine combined; 1.06 grams of methamphetamine; and 3.51 grams of crack cocaine. [ 7 ] At the time of these offences, Mr. Connal did not have a criminal record.

However, in November of 2016 he was discovered in a residence in Alberta with the following quantities of drugs: 78 grams of cocaine; 14 grams of methamphetamine; 26.9 grams of marihuana; and 5.9 grams of fentanyl. [ 8 ] In October of 2017, Mr. Connal was sentenced on three counts of possession for the purposes of trafficking, and sentenced to a global sentence of 42 months less time credited for time served of 10 months, for a remaining sentence of 32 months in custody. At this time, by my calculations, he has approximately 23 months remaining on his sentence.

He is eligible for day parole in October of 2018, and has been accepted to the Kinghaven treatment facility operated by the Correctional Service of Canada. His warrant expiry date is in July of 2020. BACKGROUND OF OFFENDER [ 9 ] I turn now to the background of Mr. Connal. [ 10 ] The Pre-Sentence Report prepared, as well as submissions of counsel, described Mr. Connal's background. He is 34 years of age at this time, and was born and raised in the Lower Mainland. He has a Grade 12 education.

He was close to his mother when growing up but was physically abused by his father who has since passed away, as of 2016. [ 11 ] Mr. Connal has a nine-year-old son from a previous three-year relationship that ended due to his substance misuse. He indicated to the probation officer that he continued to pay child support for an extended period of time. [ 12 ] He has maintained fairly steady employment since his late teens, until he was let go from his work with CN Rail in late 2015, after a workplace accident that led to the discovery that he was using illicit substances while working.

Since late 2015, he has lacked lawful employment. AGGRAVATING & MITIGATING FACTORS [ 13 ] I turn now to the aggravating and mitigating circumstances of these offences and the offender. The aggravating and mitigating circumstances may tend to increase or decrease the sentences. AGGRAVATING CIRCUMSTANCES [ 14 ] I will begin with the aggravating circumstances. [ 15 ] First, with regard to the aspects of the offences, there were multiple drugs found. One of those drugs was fentanyl, which is an incredibly serious and dangerous drug.

I have reviewed the materials of the Crown and, in particular, the BC Coroners Service Reports detailing illicit drug overdose deaths in British Columbia from 2007 until 2017. I will also note, however, that pursuant to the decision in R. v. Smith , which is a B.C. Court of Appeal decision of 2017, the offence range that would normally apply to these offences is going to be different for Mr. Connal, because his offence occurred prior to the truly dangerous nature of fentanyl coming fully into the public attention.

Therefore, he is outside of the range identified in Smith of 18 to 36 months, but I still must consider the presence of fentanyl as

an aggravating factor. I also note, as an aggravating factor, that this is what has been termed a “dial-a-dope” operation, given the twoadditional cell phones that were found, in addition to Mr. Connal's own personal cell phone, when he was arrested. A “dial-a-dope”operation is a mobile drug distribution operation that permits drugs to be distributed quickly and over a wider area. [16] I have already described Mr. Connal's criminal record, but I must note that it is an attenuating aggravating factor here becausethis offence occurred prior to the offence that is present on his criminal record.

Technically, this April 2016 offence is his first offence. [17] There have been no court order violations. Mr. Connal was not on bail terms after he was arrested in April of 2016 and, therefore,was not on bail terms when he was arrested in November of 2016 in Alberta. [18] His risk assessment is not an aggravating factor. In fact, his insight into his addiction, and the fact that he turned himself in to thecourt in Alberta (after he missed a court date) demonstrate that he has developed, and continues to develop, insight into the need tochange his life and address his health issues.

MITIGATING CIRCUMSTANCES [19] I turn to the mitigating circumstances. [20] By his guilty plea, Mr. Connal has indicated that he has accepted responsibility for his offences. I also note that he acceptedresponsibility from the day of his arrest when he provided a statement to the police with regards to his culpability. [21] I note that he has also saved the court considerable resources. [22] He has expressed remorse and I accept it to be clear and sincere. That is a mitigating factor. [23] I note, as a mitigating factor, that Mr.

Connal has suffered a number of motor vehicle accidents that caused him skull and headinjuries, and impairs, to this day, of his cognitive functioning and memory. I also note that his health issues were augmented when hebecame dependent on opiates that he used for pain management after his second motor vehicle accident. Mr. Connal functioned in thecommunity while using drugs illicitly, until it was discovered after the CN Rail workplace accident. He has since become addicted. Heentered rehabilitation in 2015 and was apparently doing well until his father passed away in 2016. Then, he relapsed. [24] Mr.

Connal's rehabilitation efforts are a mitigating factor. He has demonstrated, throughout his incarceration, clear motivationand rehabilitative efforts. He has attended AA meetings while in custody. He has tried to organize himself with regards to vocationaltraining. Through no fault of his own, he has been deemed not eligible for substance abuse programs while in custody – apparently,because he was presumed to have taken some of that programming while on remand.

In any event, he is now slated for the KinghavenTreatment Centre if he obtains day parole in October of this year. [25] I note that he has an identifiable employment plan for the future when, and if, he is able to manage his substance misuse. [26] He has support in the community. I note that his family and friends have been present in court throughout these proceedings. Inote that the Pre-Sentence Report indicates clear and ongoing family and community support for Mr. Connal.

ANALYSIS LEGAL PRINCIPLES [27] I turn now to the legal principles. [28] There are many legal principles that I must apply to this sentencing that are contained in s. 718 through 718.2 of the CriminalCode. I have considered them all. Some of them may overlap. Counsel have also provided numerous cases during their submissions,which I have reviewed. For the record, I am going to list the cases. [29] The Crown has provided me with R. v. Smith, 2017 BCCA 112; R. v. Rutter, 2017 BCCA 193; R. v. Voong, 2015 BCCA 285;R. v. G.P.W., [1998] BCJ No. 838 BCCA, as well as R. v.

Hunt, 2016 NLCA 61, dissenting appeal allowed for the dissenting reasonsby the Supreme Court of Canada 2017 SCC 25; R. v. Cardinal, 2017 ABPC 81. [30] The defence has provided me with R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 SCR 206; R. v. Voong already cited; andR. V. Olenik, 2017 BCPC 390. In addition, the defence has provided R. v. Johnson, 2012 ONCA 339; R. v. Parry, 2012 ONCA 171; R.v. Bueger. The decision I have is unreported. It is registry number CA018489, decision rendered December 16, 1994. The defence hasalso provided with me R. v. Hassan, 2012 BCCA 201; and R. v.

Giroux, 2018 ABCA 56. [31] I have also considered the decision in R. v. Chan, 2015 BCSC 481. Impact on the Community [32] I turn to the impact on the community. [33] Regardless of Mr. Connal's drug addiction, his offences have a clear and serious impact on the community. The sale of cocaine,fentanyl, heroin and methamphetamine wreaks havoc, illness, crime, violence and death on vulnerable members of our community. Itdestroys the lives of drug users, their families and their community. Denunciation & Deterrence [34] Accordingly, denunciation and deterrence loom large in this sentencing.

Clearly, I must impose a sentence that reflects thecommunity's condemnation of Mr. Connal's conduct. I must also impose a sentence that serves to deter others from similar conduct.

[ 35 ] I acknowledge that general deterrence is attenuated when dealing with drug addicts who may mentally lack good judgment, and whose ability to weigh the consequences of their actions fluctuates unpredictably. Proportionality [ 36 ] The sentence should be proportionate to the seriousness of the offences, and Mr. Connal's degree of responsibility. I have already described the seriousness of the offences, but I note that the quantities in this particular case are not as large as in many other cases, and reflect a street level drug trade. However, it is acknowledged that it is a “dial-a-dope” operation. Mr.

Connal's degree of responsibility is high, but not as high as someone who would have been fully aware of the dangers of fentanyl in late November 2016. [ 37 ] The courts have acknowledged that drug addiction is an illness. The rehabilitation of a drug user is not simply a matter of choosing whether or not to use drugs. Hinkson J.A., as he then was, emphasized this dilemma in R. v.

Hansen , 2012 BCCA 142 at para. 26 : “Drug addiction is an illness...’characterized by a loss of control over the need to consume the substance to which the [drug user is addicted]’”: Hansen at para. 26 , citing Canada (Attorney General) v. PHS Community Services Society , 2011 SCC 44 . Separation from Society [ 38 ] In considering the degree to which Mr. Connal must be separated from society, I must consider that no weapons were found, and no violence is alleged in the circumstances surrounding this offence. Specific Deterrence [ 39 ] With regards to Mr.

Connal's specific deterrence, I acknowledge the profound effect of being arrested, being placed in custody and serving a sentence in custody -the profound effect it has had on Mr. Connal. He has developed an increasing insight into the need to change his life and address his addiction issues. Rehabilitation [ 40 ] His rehabilitation provides the greatest assurance that he will not commit similar offences, and provides greater protection for the public.

I note that he has used his time in custody to access the treatment that was available to him, and I have explained why he was not permitted to access counselling while serving his federal sentence to this point, but that he will soon have the opportunity to access residential treatment. [ 41 ] The B.C. Court of Appeal continues to emphasize: The importance of considering whether there is a reasonable chance that the offender may succeed in an attempt to control his addiction in order to avoid imposing a sentence that addresses the protection of the public at the expense of rehabilitation.

Hansen at para. 27 . [ 42 ] In the Hansen case, the court assessed the offender's circumstances to determine if there was any potentially workable treatment plan: Hansen at para. 29 . [ 43 ] Mr. Connal seems to be motivated to maintain sobriety, and committed to manage his addiction with the help of the Correctional Services, as well as his friends and community support. Had he done nothing to address his drug issues, his prognosis would be worse. His actions in custody, and his motivation to deal with his addiction, in combination with community support and the Correctional plan, improve his prognosis.

These factors represent a potentially workable treatment plan. SENTENCE CALCULATION [ 44 ] I turn now to my decision. [ 45 ] When sentencing on multiple offences, I must first determine whether the sentences will be served concurrently or consecutively, before I indicate the appropriate effective sentence for each count. I must then assess the applicable range and the totality of the sentences. [ 46 ] The defence in this case seeks to reduce the amount of time Mr. Connal will serve in custody. Mr. Connal seeks a suspended sentence, or up to a six month concurrent sentence to his Alberta sentence. Mr.

Boxall has argued that the sentence can be reduced in four ways. 1) Delay as Mitigating Circumstance [ 47 ] One: The delay in charging Mr. Connal has prejudiced his ability to deal with the charge earlier, and will impact his ability to receive day parole and an organized residential treatment program in October 2018, according to Mr. Boxall. This delay should be considered a mitigating circumstance that reduces his sentence to a suspended sentence. [ 48 ] I have carefully considered Mr. Boxall's position. He argues that the delay in charging Mr.

Connal and bringing the matter before the court was unfair, and has had a very negative impact on Mr. Connal. At the present time, Federal Corrections has deemed him ineligible for any sort of programs in custody. No explanation is really given for this failure to offer programs, or why Mr. Connal is ineligible. However, they have arranged for Mr. Connal to attend the Kinghaven treatment facility if he qualifies for day parole. [ 49 ] The problem for Mr.

Connal is that if I impose a sentence for the Surrey matter that is consecutive to the Alberta matter, he will no longer be eligible for day parole in October 2018 and the residential treatment program during this time period. 2) Denial of Earlier Resolution

[50] Mr. Boxall notes that the offence occurred in April 2016. In July 2016, Mr. Connal attended court for the date required on hisPromise to Appear, but his charge was not yet approved nor on the court list. The Information charging Mr. Connal with this offence wasnot laid until December 8, 2017. In other words, his charge was not brought before the court for one year and eight months, which wasless than two months after he had been sentenced for the Alberta drug matter. Mr.

Boxall submits that he would have dealt with theSurrey matter much earlier, if the Surrey matter had been before the courts prior to the Alberta sentencing. [51] During submissions, I raised an issue concerning my ability to review the conduct of the police and the Crown. Normally, thecourts do not consider delays in the investigation, or in the laying of criminal charges when considering trial issues or alleged Charterbreaches of personal liberty pursuant to s. 7 of the Charter, or trial delay pursuant to s. 11(

b) of the Charter. The Supreme Court ofCanada has held that, "courts are not authorized to supervise the operation or efficiency of police investigations," or determine when theCrown was in a position to lay charges absent an allegation or finding of abuse of process: Mr. Justice Hoegg of the NewfoundlandCourt of Appeal, in dissent in R. v. Hunt, 2016 NLCA 61 at paras. 65 through 67, and 71 through 72; Appeal allowed by the SupremeCourt of Canada for the reasons of the dissent 2017 SCC 25. [52] Mr. Justice Hoegg in Hunt cited Mills v. The Queen, [1986 ] (SCC), 1 SCR 863; R. v.

L.(W.K.) (SCC), [1991] 1 SCR 1091; R. v. Rourke, (SCC), [1978] 1 SCR 1021; and R. v. Kalanj, (SCC), [1989]1 SCR 1594. [53] However, Mr.

Boxall argued that the more recent case of Nasogaluak, reiterated that harm or prejudice caused to an offender canbe considered as a mitigating circumstance upon sentencing: Nasogaluak at para. 54. [54] The Supreme Court of Canada stated that courts could examine alleged Charter breaches and state misconduct that do not rise tothe level of a Charter breach when sentencing an offender: Nasogaluak at paras. 50 and 53. [55] I am permitted to consider the alleged breach or misconduct if it caused prejudice to the offender that was relevant and probativeto the sentencing process: Nasogaluak at para. 53. [56] Accordingly, I may consider state misconduct without requiring the offender to prove that the incident complained of amountedto a Charter breach. [57] The Supreme Court of Canada provided several examples where excessive but not unconstitutional delay was attributable to thepolice or the Crown, and used as a mitigating factor in determining a fit sentence: Nasogaluak at paras. 53 and 54. [58] The Supreme Court of Canada later noted that, if the facts relate to the offender or offence, and involve misconduct by stateagents in the course of the events leading to an arrest to charges or to other criminal procedures, those facts become relevantcircumstances on sentencing: Nasogaluak at para. 63. [59] By inference, such misconduct that results in pre-charge delay and prejudice to the offender, may be considered as a relevantcircumstance on sentencing. [60] Mr.

Boxall is unable to point to any apparent reason for the one year eight month delay in charging Mr. Connal. He notes thebasic nature of the arrest (a traffic stop with one person in the vehicle), and that the substances were analyzed by June 8, 2016. His firstcourt date was supposed to occur in July. [61] In the end, I acknowledge that this still unexplained delay is unacceptable and excessive. The public and accused person deservebetter. It has had a prejudicial effect on Mr. Connal insofar as he may not be eligible for Kinghaven in October of 2018. To that extent, itdoes have some mitigating value.

However, I also note that if this charge had been before the courts earlier, either it or the Albertaoffence would have been considered an aggravating factor showing a continuum of offending, and subject to a consecutive sentence. 3) Totality & Proportionality to Justify Concurrent Sentence [62] Mr. Boxall's second [sic] argument is that a consecutive sentence of six months, or the 12 months sought by Crown, would createan unduly long or harsh sentence. I am permitted to consider the overall length of custody due to the combined effect of the Albertasentence and the Surrey sentence.

He is already serving a 32-month sentence, and has approximately 23 months remaining on thatsentence. A suspended sentence or a six-month sentence to be served concurrently, or at the same time as the remainder of the pre-existing Alberta sentence, is an appropriate and just sentence, according to Mr. Boxall. [63] The underlying thrust of the defence position is that I impose a sentence concurrent to the ongoing Alberta sentence. Mr. Boxallargues that a consecutive sentence would create an overall period of incarceration that is disproportionate to the seriousness of the Surreymatter and Mr.

Connal's blameworthiness. [64] The Crown opposes a concurrent sentence. Ms. Melnyk emphasizes the separate and distinct time period in offences in Alberta. Legal Test for Concurrent vs. Consecutive Sentences [65] The test for imposing concurrent or consecutive sentences is well-known. I must consider "whether the acts constituting theoffence were part of a linked series of acts within a single endeavour": R. v. Li, 2009 BCCA 85 at para. 42. [66] Concurrent sentences may be imposed where there is a reasonably close connection between the offences, such as in time andplace: R. v.

Johnson, 1996 NBJ No. 478 (QL) (17 paras.) (NBCA). [67]

Section 718.2(4)(

c) permits me to impose consecutive sentences when an offender is convicted of more than one offence.Consecutive sentences are usually imposed when the offences involve separate victims, and/or distinct and separate transactions: R. v.G.P.W., 1998 BCJ No. 838 (QL) (BCCA).

[68] If this charge had been brought in a timely fashion, Mr. Connal could have dealt with it sooner or in conjunction with the Albertacharges. That is the argument of Mr. Boxall. His argument is that, at that point, the totality principle would have applied to reduce thesentence than that of a consecutive sentence imposed at this time. He also argues that it would have permitted me to impose a concurrentsentence. [69] It must be remembered that Nasogaluak dealt with a reduction of a sentence because excessive delay could be considered as amitigating factor.

It did not deal with converting what would normally be a consecutive sentence into a concurrent sentence. However,Mr. Boxall argues that the more recent and flexible approach adopted by the Supreme Court of Canada, applies to permit me to considerthe concurrent sentence both as a mitigating factor and in order to ensure that the sentence is fit, just and appropriate, a concurrentsentence. A sentence that is unduly long or harsh offends the sentencing principle of totality. [70] The Johnson, Parry, and Bueger decisions were provided to me by Mr. Boxall.

Johnson dealt with a position provided bydefence counsel that the sentence be imposed concurrently, but also that the already existing sentence be considered when imposing thenew sentence to ensure that it complied with the principle of totality. At para. 18 of Johnson the court stated: In short, a combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences inquestion or the overall culpability of the offender.

The overall length of the custodial period imposed must still relate to and reflect thevariety of sentencing goals, including denunciation, deterrence (specific and general), rehabilitation, the need to separate offenders fromsociety where necessary, and the general imperative of promoting respect for the law and the maintenance of a just, peaceful and safesociety...

In this regard, the authorities recognize that where the ultimate effect of the combined sentences is to deprive the offender ofany hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns: see R. v.C. (J.A.) (1995) (ON CA), 26 O.R. (3d) 462 (C.A.).

This point was reinforced by Lamer C.J. in M.(C.A.), at para. 74. [71] The court in Johnson distinguished between a single judge imposing sentences on a series of offences, and a situation where asentencing judge must impose a fit sentence on an offender convicted of one or more offences where that offender is, at the same time,serving the remainder of a sentence for a previous conviction or convictions.

The Ontario Court of Appeal found there was no distinctionbetween these two types of scenarios in s. 718.2(c). [72] The court in Johnson also pointed to a long line of authority in Ontario and in other jurisdictions, that recognized that thecourt can consider the overall length of a custodial period, which may include a pre-existing sentence, in determining whether theprinciple of totality is offended, and whether the sentence that the judge is now going to impose is unduly long or harsh. [73] There are numerous cases cited in paragraph 19 of the Johnson decision.

I am not going to cite them here. [74] I note that the decision in R. v. Parry is cited in the Johnson decision as well. [75] The decision in R. v. Bueger, which is a decision of our Court of Appeal is clear. At paragraph 21 the court states: ...I think that a sentencing court must appreciate the totality of what will result from the commission of the offence. The overall length ofcustody bears upon at least two sentencing factors: the protection of the public and rehabilitation.

And the court goes on to acknowledge that a sentencing judge may consider the exiting custodial period in determining the impact of theoverall length of the combined sentences. [76] What none of these cases deal with, is whether a sentence can be converted from a consecutive sentence to a concurrent sentencethrough the principle of totality and, unfortunately, I am unable to locate legal authority for that principle. [77] In these particular circumstances, the sentence will be consecutive.

However, I will consider the totality of the sentences indetermining whether the sentence needs to be reduced to reflect the overall length of the sentence that Mr. Connal will serve; todetermine and acknowledge the need to not have a sentence where the ultimate effect of the combined sentence is to deprive Mr. Connalof any hope of release or rehabilitation. 4) Range of Sentence & Exceptional Circumstances [78] I turn now to the range of sentence. [79] I have identified the range as provided by our Court of Appeal in R. v. Voong. Also in R. v. Voong, I must determine whetherexceptional circumstances apply to Mr.

Connal that might reduce his sentence. Such exceptional circumstances include: no criminalrecord; significant and objectively identifiable steps towards rehabilitation for the drug addict; gainful employment; remorse; andacknowledgement of the harm done to society as a result of the offences (as opposed to harm done to the offender as a result of beingcaught). [80] I pause to note that the Pre-Sentence Report speaks to Mr. Connal's attitude towards these offences: The subject pled guilty to the current offence and shows remorse for his actions.

He explains feeling regret for his offences that have notonly affected himself but his family members and the members of the public to whom he sold illicit substances. The subjects states thatif he could go back in time he would change everything and would have chosen not to transport or sell drugs.

I accept that expression of remorse and acknowledgement of the harm done to society. [81] I must be able to identify a "justifiable case specific basis" that "would lead a sentencing judge to conclude that the offender hadtruly turned his or her life around, and that the protection of the public was subsequently better served" by the proposed lower sentence: R. v. Carrillo, 2015 BCCA 192 at paras. 29 and 31, citing R. v. Nasogaluak (citation already given); Voong, (citation already given); andR. v. Marks, 2016 BCCA 480 at para. 17.

[ 82 ] I am going to quote now from Carrillo at para. 31 : It is, however, important to acknowledge that deciding a fit sentence is not a science; there may not be a “single appropriate sentence for a similar offender and a similar crime” ( C.A.M . at para. 92). A judge may impose a sentence outside the identifiable range where there is a justifiable case-specific basis for doing so ( Nasogaluak at para. 44 ). [ 83 ] Sentencing judges are "on the front lines of the criminal justice system", and must use their experience and abilities to assess the submissions of the parties.

I am entitled to make my decision after hearing the submissions, gauging the relevant factors and assimilating impressions that can be difficult to articulate: Carrillo at para. 32 , citing L.M . , 2008 SCC 31 .

Such impressions include the sincerity of expressions of remorse, and whether there is a reasonable possibility of rehabilitation, as well as, a genuine motivation for it: Carrillo at para. 32 . [ 84 ] The court has observed, as it did in Carrillo at para. 33 , that an offender may present as "a changed man based on the entire record including defence counsel submissions at sentencing from the time he committed the offence." This characterization in that court's view, justified the judge's departure from the typical or usual range of sentence. [ 85 ] I find that most of the exceptional circumstances identified in Voong apply to Mr.

Connal except for gainful employment due to his current incarceration, and the fact that he does not have a criminal record, though I note that this offence occurred first in time. [ 86 ] In all of the circumstances, and after balancing all of the factors that I must, I find that I am unable to impose a suspended sentence on Mr. Connal. The need for denunciation and deterrence, as well as his conduct after this particular offence, prevent me from imposing a suspended sentence. However, the principles that I have spent a great deal of time describing do compel me to lower Mr.

Connal's sentence from the established range. [ 87 ] I note the positions of Crown and defence but, in my view, after I balance all of the principles, and factors, and circumstances before me, I consider that a three month sentence consecutive to the currently-serving sentence, shall be imposed on Mr. Connal on each count concurrent to each other. [ 88 ] I also impose forfeiture of the items that I have articulated, except for the Samsung telephone.

So I am going to articulate those again because I was not very precise during my decision. [ 89 ] There will be a forfeiture order for cash in the amount of $195; two ZTE flip cell phones; and all drugs seized in this particular matter. [ 90 ] I am making an order pursuant to s. 109 for a mandatory weapons prohibition as follows -- [ 91 ] THE CLERK: For how long? [ 92 ] THE COURT: I am getting there, Madam Registrar. Just a moment, please.

You are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance for a period of 10 years. [ 93 ] There is a mandatory DNA order pursuant to s. 487.051. I do impose the order. A sample of DNA will be taken from you, Mr. Connal.

I do so due to the prior conviction from Alberta, as well as the similarity between the offences and the nature of drugs that were located on your person, or in the vehicle. [ 94 ] With regards to a victim fine surcharge, given the custodial status over the past lengthy period of time, I am making it payable immediately. I find you in default. You are sentenced to one day in custody per count concurrent to each other, and concurrent to all other sentences. [ 95 ] Just for the record, I neglected to deal with the Chan decision. I wanted to draw the attention of the parties to the Chan decision, which is the B.C.

Supreme Court decision that considered R. v. Johnson . I note that in Chan , counsel conceded that a consecutive sentence was appropriate but the principles of totality were upheld, and the pronouncement of Johnson with regards to totality as between a separate offence and a consecutive sentence, were upheld at paragraphs 12, and 13, and 15. That has, in large part, driven my decision on whether a consecutive sentence needs to be imposed. [ 96 ] MS.

MELNYK: Your Honour, if I may, with respect to the weapons prohibition, s. 109(3) of the Criminal Code says that any subsequent offences are subject to a lifetime prohibition. [ 97 ] THE COURT: I am sorry. Did I say 10 years? [ 98 ] MS. MELNYK: Yes, Your Honour. [ 99 ] THE COURT: My apologies.

It should be a lifetime, and I had that written down. (REASONS FOR SENTENCE CONCLUDED) CORRIGENDUM - Released February 8, 2021 In the Oral Reasons for Sentence dated August 10, 2018, the following changes have been made: [1] Paragraph number [13] has been added to the following paragraph: [13] I turn now to the aggravating and mitigating circumstances of these offences and the offender. The aggravating and mitigating

circumstances may tend to increase or decrease the sentences. [2] Paragraph [29], the spelling of R. v. Vueger is incorrect and should read R. v. Bueger, as follows: [29] The defence has provided me with R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 SCR 206; R. v. Voong already cited; andR. V. Olenik, 2017 BCPC 390. In addition, the defence has provided R. v. Johnson, 2012 ONCA 339; R. v. Parry, 2012 ONCA 171; R.v. Bueger. The decision I have is unreported. It is registry number CA018489, decision rendered December 16, 1994. The defence hasalso provided with me R. v. Hassan, 2012 BCCA 201; and R. v.

Giroux, 2018 ABCA 56. [3] Paragraph [36], the spelling of R. v. Hanson is incorrect and should read R. v. Hansen, as follows: [36] The courts have acknowledged that drug addiction is an illness. The rehabilitation of a drug user is not simply a matter ofchoosing whether or not to use drugs. Hinkson J.A., as he then was, emphasized this dilemma in R. v. Hansen, 2012 BCCA 142 at para.26: “Drug addiction is an illness...’characterized by a loss of control over the need to consume the substance to which the [drug user isaddicted]’”: Hansen at para. 26, citing Canada (Attorney General) v.

PHS Community Services Society, 2011 SCC 44. [4] Paragraph [40] the spelling of Hanson is incorrect and should read Hansen, as follows: [40] The B.C. Court of Appeal continues to emphasize: The importance of considering whether there is a reasonable chance that the offender may succeed in an attempt to control his addictionin order to avoid imposing a sentence that addresses the protection of the public at the expense of rehabilitation.

Hansen at para. 27. [5] Paragraph [41] the spelling of Hanson is incorrect and should read Hansen, as follows: [41] In the Hansen case, the court assessed the offender's circumstances to determine if there was any potentially workable treatmentplan: Hansen at para. 29. [6] Paragraph [69] the spelling of Vueger is incorrect and should read Bueger, as follows: [69] The Johnson, Parry, and Bueger decisions were provided to me by Mr. Boxall.

Johnson dealt with a position provided bydefence counsel that the sentence be imposed concurrently, but also that the already existing sentence be considered when imposing thenew sentence to ensure that it complied with the principle of totality. At para. 18 of Johnson the court stated: In short, a combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences inquestion or the overall culpability of the offender.

The overall length of the custodial period imposed must still relate to and reflect thevariety of sentencing goals, including denunciation, deterrence (specific and general), rehabilitation, the need to separate offenders fromsociety where necessary, and the general imperative of promoting respect for the law and the maintenance of a just, peaceful and safesociety...

In this regard, the authorities recognize that where the ultimate effect of the combined sentences is to deprive the offender ofany hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns: see R. v.C. (J.A.) (1995) (ON CA), 26 O.R. (3d) 462 (C.A.). This point was reinforced by Lamer C.J. in M.(C.A.), at para. 74. [7] Paragraph [74] the spelling of Vueger is incorrect and should read Bueger as follows: [74] The decision in R. v. Bueger, which is a decision of our Court of Appeal is clear.

At paragraph 21 the court states: ...I think that a sentencing court must appreciate the totality of what will result from the commission of the offence. The overall length ofcustody bears upon at least two sentencing factors: the protection of the public and rehabilitation. ______________________________ The Honourable Judge D. Gaffar Provincial Court of British Columbia