R. v. Edgar Date:, 2014 BCPC 20

Citation: R. v. Edgar Date: 20140117 2014 BCPC 0020 File No: 226843-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DANIEL GEORGE EDGAR EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. LOW Counsel for the Crown: L. Witten Counsel for the Defendant: F. Arbabi Place of Hearing: Vancouver , B.C.

Date of Hearing: January 17, 2014 Date of Judgment: January 17, 2014 [ 1 ] THE COURT: Fifty-five-year-old Daniel Edgar has pled guilty to breaching, on June 25, 2012, his long-term supervision order which was imposed upon him on June 15, 2004. Both the Crown and the defence agree that a term of imprisonment is the appropriate sentence. The only issues to be determined are the length of the sentence and whether it can be served in the community. [ 2 ] A pre-sentence report, a Gladue report, and Mr. Edgar's criminal record have been entered as exhibits. [ 3 ] According to the reports, Mr.

Edgar is a member of the Ditidaht First Nation whose territory is on Vancouver Island. Many members of Mr. Edgar's community and extended family were victimized by the residential school system. As a result, Mr. Edgar was born into and raised in a dysfunctional community, many members of which were affected by substance abuse plus sexual and physical abuse. Mr. Edgar and his five siblings accordingly suffered as children at the hands not only of their parents, but various relatives. [ 4 ] At the age of six, Mr. Edgar and his eight-year-old sister were left by their parents at the Port Alberni Residential School.

Over the next six years, Mr. Edgar was emotionally, physically, and sexually abused at the school. The abuse included repeated anal rape by one of the male teachers. [ 5 ] Years later, while Mr. Edgar was serving a federal sentence, this male teacher was charged and convicted of numerous sexual offences he had inflicted on the students at the Port Alberni Residential School. The teacher was given a lengthy federal sentence. In a tragic irony, Mr. Edgar's former teacher was sent to serve his time in the same institution where Mr. Edgar was incarcerated. Mr.

Edgar was warned by officials to stay away from his former teacher and did so. Nonetheless, and quite understandably, Mr. Edgar was deeply troubled by the near presence of his old tormenter. [ 6 ] When Mr. Edgar was 12, he and his sister ran away from the Port Alberni Residential School and made their way to the Downtown Eastside of Vancouver, where they knew their uncle was located. However, their uncle was incapacitated by alcoholism and unable to care for them. Virtually homeless, Mr. Edgar himself started using alcohol. [ 7 ] After a year in Vancouver, Mr.

Edgar returned to his reserve, but plagued by alcoholism and the traumas he had already suffered as a child, Mr. Edgar was unable to go to school and continued drinking heavily. He dropped out of school at age 16, having only completed Grade 7. I do not know if he came to the attention of the youth justice system as a teenager, but Mr. Edgar told the authors of the reports that he was involved in delinquency at this time. [ 8 ] Mr.

Edgar's first adult conviction was recorded in 1979, when he was convicted of a break and enter and placed on probation for two years. [ 9 ] His parents died in 1994 and 2001 respectively. Mr. Edgar has also lost contact with all his siblings, except the sister who ran away with him from the residential school. Indeed, she remains Mr. Edgar's only substantial family contact to this day. [ 10 ] Mr. Edgar has entered into a number of relationships during his life, some of which produced children, five in all. All of those relationships ended due to physical and substance abuse, and Mr.

Edgar today has only very limited contact with any of his children. [ 11 ] He has had little meaningful employment. [ 12 ] Although he claims to have quit using alcohol in 2006, while serving a federal sentence in 1997, he took up using cocaine and heroin, and in 2012 commenced using crystal methamphetamines. [ 13 ] In short, Mr. Edgar's life experiences reflect virtually all of the factors which arose from the systemic neglect of First Nations people across Canada, as discussed by Mr. Justice Cory in the seminal case of Gladue . [ 14 ] Mr. Edgar's life experiences are clearly reflected in his criminal record.

Apart from a number of relatively minor offences, Mr. Edgar was convicted of his first violent offence in 1989; a spousal assault involving a whiskey bottle, for which his sentence was suspended for six months under a probation order. [ 15 ] In 1994, he received a three-year sentence for raping a female cousin after luring her into a motel room on a false pretext. After serving approximately two years of his sentence, Mr. Edgar was granted statutory release, but he was recommitted within nine months for violating the terms of his release. [ 16 ] Within a year of finishing this sentence, Mr.

Edgar was given an indeterminate sentence as a dangerous offender following his conviction for repeatedly raping, while heavily intoxicated, a nanny who was working in the home of one of Mr. Edgar's relatives. Mr. Edgar successfully appealed his sentence and a new hearing was ordered by the B.C. Court of Appeal. At the new hearing on June 15, 2004, Mr. Edgar was given a two-year jail sentence to be followed by a long-term supervision order for eight years. [ 17 ] Mr. Edgar's performance on his long-term supervision order has not gone well. The order was suspended three times in 2005.

The Crown did not have particulars of those breaches, but believed the breaches concerned substance abuse. In 2006, the order was again suspended for two breaches involving substance abuse. In due course, Mr. Edgar was charged for these two breaches, and ultimately, globally sentenced to a year in jail. [ 18 ] In 2008, the order was again suspended when Mr. Edgar failed to report that he was in a relationship with a woman. He was subsequently charged with this breach, and ultimately effectively sentenced to three years' jail. He was paroled from this sentence in December of 2010.

[ 19 ] The evidence is a bit unclear, but it appears that pursuant to his long-term sentencing order, three different samples of Mr. Edgar's urine were taken between January 1 and April 25, 2012. The samples revealed that Mr. Edgar had been consuming methamphetamines. As a result, his long-term sentencing order was suspended on April 28, 2012, and he was returned to custody. [ 20 ] On September 19, 2012, Mr. Edgar was charged with the breach which is now before me for sentencing. Following a bail hearing, October 18, 2012, Mr. Edgar was released on an undertaking.

However, his release could not be effected until November 5, 2012, when he obtained a placement at the Belkin Halfway Community Residential Centre, as required by the undertaking. As a result, Mr. Edgar spent 46 days in pre-trial custody, for which the Crown agrees he is entitled to a one-for-one credit against any sentence I impose. [ 21 ] In January of 2013, while on bail for the charge before me and while bound by the long-term sentencing order, Mr. Edgar was employed via the Hopes Action Values Ethics (HAVE) culinary training program. His fellow employees complained that Mr.

Edgar was verbally abusive towards them. The complainants alleged that some of the abusive remarks were sexual in nature. As a result of these complaints, Mr. Edgar's employment with HAVE was terminated and his long-term sentencing order was again suspended for the statutory period of 90 days. [ 22 ] However, no charges were laid for this breach, as the complainants were not interested in following through as witnesses for the Crown. Mr. Edgar has never admitted these allegations. Neither the pre-sentence report nor the Gladue report provide any information concerning the allegations.

Indeed, while the reports indicate that Mr. Edgar's employment with HAVE was terminated due to his use of drugs in 2012, the reports make no mention of him being terminated in 2013. [ 23 ] Curiously, Mr. Edgar's former supervisor at HAVE was interviewed by the author of the Gladue report. She continues to have a high regard for Mr. Edgar, and the report does not reveal that she had any concerns arising from the allegations made against him in January 2013. [ 24 ] The Crown was very clear in their submissions to me that I was not to take into account January 2013 allegations when determining a sentence for Mr.

Edgar. [ 25 ] Mr. Edgar was returned to the community in April of 2013. According to the reports, he has since been complying properly with the terms of his long-term sentencing order. His twice-weekly urine tests have all been returned negative. By July 2013, he successfully completed a maintenance program related to the National Intensive Sexual Offender Treatment Program, which he had earlier successfully completed in 2000, plus subsequently over the years, a number of related maintenance programs. [ 26 ] His parole officer told the author of the pre-sentence report that Mr.

Edgar currently is maintaining his stability and has not posed any concerns to his case management team since April 2013. [ 27 ] Most significantly for Mr. Edgar, since August of 2013, he has been residing at the Circle of Eagles Lodge Society halfway house, where he has connected in a very positive way with elder Joe Fossella. Through Mr. Fossella, Mr.

Edgar, for the first time in his life, is coming to grips with the physical and emotional trauma he suffered in the residential school system and, moreover, suffered as a child at the hands of his family and other community members. [ 28 ] In addition, he has been successfully referred to other aboriginal support services offered under the auspices of the federal parole system. Further, with the assistance of his older sister, he is now taking

part in programs offered by the Vancouver Aboriginal Friendship Centre Society, which includes regular attendance at powwows, Alcoholics Anonymous, and/or Narcotics Anonymous meetings, and potlatches. He has also been able to attend, with the help of his sister, at potlatches at his home reserve on Vancouver Island. [ 29 ] Mr. Edgar's case management team quite properly recognizes that these are early days for Mr.

Edgar and that he needs to demonstrate a long and constant period of stability, sobriety, and positive progress over a longer period than the eight months which have elapsed since his last release back into the community in April of 2013. [ 30 ] Nonetheless, it is clear from both the Gladue and the pre-sentence reports that his case management team is cautiously optimistic about Mr. Edgar's prospects. Indeed, so is Mr. Edgar.

I accept his statement to the court that this is the first time in his life that he has been under the influence of a First Nations elder, and the first time that he has been able to commence constructive work on repairing the damage caused to him during his appalling childhood. Mr. Edgar expressed confidence that, regardless of any sentence I may impose, he is firmly on the path to sobriety and a better life if, for no other reason, as stated in the reports, that he has for the first time in his life come to believe in his own self worth. [ 31 ] This is Mr.

Edgar's fourth conviction for breaching his long-term sentencing order. The Crown, relying on a number of similar sentencing authorities and the circumstances of Mr. Edgar's continuing inability up to April of 2013 to comply with his long-term sentencing order, has submitted that the only fit sentence is one of imprisonment for between 12 and 18 months. [ 32 ] The defence submits that I should consider a nine-month jail sentence and, given the promising recent developments in Mr.

Edgar's life, submits that he should be allowed to serve his sentence under the terms of a conditional sentence order. [ 33 ] The Crown is opposed to the imposition of a conditional sentence order, because not only would such a sentence not properly address the issues of specific deterrence or protection of the public, but given the terms of Mr. Edgar's long-term sentencing order, a conditional sentence order would, at best, be redundant. [ 34 ] Counsel have provided me with copies of relevant sentencing authorities. I have read them all, but will only be referring specifically to R. v.

Ipeelee , 2012 SCC 13 , and R. v. Ladue , 2011 BCCA 101 . [ 35 ] Of the sentencing authorities before me, Ladue is the most relevant, not only because the B.C. Court of Appeal's approach to sentencing Mr. Ladue was upheld by the Supreme Court of Canada in Ipeelee , but also because Mr. Ladue's personal circumstances and

circumstances of offending were very similar to those of Mr. Edgar. [ 36 ] Ipeelee contains instructions not only for sentencing offenders generally, but for sentencing those who are convicted of breaching their long-term sentencing orders. Ipeelee also provides specific instructions concerning the sentencing of aboriginal persons, particularly those who are convicted of breaching their long-term sentencing orders. It is not necessary to reiterate those instructions in detail, but I have concluded the following basic principles apply to sentencing Mr.

Edgar. [ 37 ] First, a sentence must be proportionate to the gravity of the offence and the moral blameworthiness of the offender. ( Ipeelee para. 37 ) [ 38 ] Second, while all of the principles of sentencing set out in the Code apply when sentencing for a breach of a long-term sentencing order, it must always be borne in mind that the primary purpose of a long-term sentencing order is to rehabilitate an offender with a view to reintegrating the offender back into the community, while protecting the community during this process from the risk of reoffending. ( Ipeelee at paragraphs 47 to 48, 50, and 55 ) [ 39 ] Third, s. 718.2(

e) is Parliament's direction to judges sentencing aboriginal offenders to look into the root causes of their offending and endeavour to remedy those causes to the extent possible through the sentencing process:

Section 718.2(

e) does not mandate better treatment for aboriginal offenders than non-aboriginal offenders. It is simply a recognition that the sentence must be individualized and that there are serious social problems with respect to aboriginals that require more creative and innovative solutions. ( Ipeelee para. 71 quoting an extract in part from R. v. Vermette ) [ 40 ] Mr. Ladue's personal circumstances and offending were very similar to those of Mr. Edgar. Due to a horrific childhood, Mr. Ladue developed substance abuse issues and, while intoxicated, committed serious sexual assaults.

He was ultimately placed on a long-term sentencing order. [ 41 ] Mr. Ladue's long-term sentencing order was suspended many times and his sentence for the fourth resulting charge of breaching that order was reviewed by the B.C. Court of Appeal. All of Mr. Ladue's breaches involved substance abuse. He had not committed further sexual or other substantive offences while on a long-term sentencing order. His fourth breach was committed in part as a result of being sent to a halfway house located in the Downtown Eastside of Vancouver, where Mr.

Ladue was overwhelmed by the easy availability of illegal drugs and alcohol in the surrounding community. [ 42 ] Ultimately, the B.C. Court of Appeal sentenced Mr. Ladue to one year jail to be served in an institution, reasoning that while his repeated failure to abstain while on release required time back in prison, he also needed time to regain his sobriety and find an appropriate facility which, upon his release, could provide him with services reflecting his aboriginal background and needs.

There was no discussion by the court as to whether the sentence could be served in the community. [ 43 ] The Supreme Court of Canada reviewed and upheld Mr. Ladue's sentence ( Ipeelee paragraphs 95 and 96 ), holding that the sentence was proportionate to the nature of Mr. Ladue's offence and the degree of Mr. Ladue's culpability, plus the sentence properly emphasized the sentencing objective of rehabilitation. [ 44 ] Mr. Edgar is and has been for over 40 years addicted to drugs and alcohol. While intoxicated, he has demonstrated a propensity for very serious violence.

Therefore, when he breaches his long-term sentencing order by using intoxicants, the breach must be regarded as significant. [ 45 ] On the other hand, the root cause of Mr. Edgar's offending lies within the dreadful circumstances of his childhood which, until recently, through no fault of his own, have not been addressed in a meaningful way. Therefore, despite the risks when he abuses substances, Mr. Edgar's culpability in repeatedly returning to the comfort of intoxicants is reduced. [ 46 ] I have therefore concluded that in Mr.

Edgar's case a one-year jail sentence would be proportionate to the gravity of his offence and the degree of his culpability. That leaves the issue of whether Mr. Edgar should be allowed to serve his jail sentence in the community.

Counsel were unable to find any authority where the provisions of s. 742.1 of the Code were considered when sentencing an offender who has breached a long-term sentencing order. [ 47 ] While there are similarities between being bound by the terms of a long-term sentencing order and the terms of a conditional sentence order, I do not agree with the Crown that a conditional sentence order would be merely redundant. [ 48 ] While the result of a breach for both a conditional sentence order and a long-term sentencing order is a suspension of the order followed generally by incarceration, there are two fundamental differences between the orders. [ 49 ] First, if Mr.

Edgar breaches a term of his conditional sentence order, he will almost certainly serve the balance of his sentence in custody, which will have already been determined. However, unless he is convicted of breaching his long-term sentencing order, his time in custody following a suspension of that order cannot exceed 90 days. [ 50 ] Second, and significantly, the onus on the Crown to prove a breach of a conditional sentence order is substantially lower than the onus the Crown must meet to prove a breach of a long-term sentencing order.

In addition, unlike an offence under s. 753.3, the method of proof of a breach under a conditional sentence order is quite perfunctory. [ 51 ] Ipeelee instructed trial judges that the full range of sentencing objectives set out in the Criminal Code apply to offences pursuant to s. 753.3 of the Code , and did not preclude the use of a conditional sentencing order when sentencing in these circumstances.

Indeed, Ipeelee points out at paragraph 54 that: Where [there is] no minimum sentence . . . mandated by the Criminal Code , the entire range of sentencing options is open to a sentencing judge, including non-carceral sentences where appropriate. [ 52 ] Some of the prerequisites of s. 742.1 are clearly met in Mr. Edgar's case, as there is no minimum sentence for his offence, nor does the maximum sentence of 10 years' jail fall with any of the exceptions set out in s. 742.1(

c) through (f). [ 53 ] With the exception of a 90-day period next to April 2013, Mr. Edgar has been in the community on comprehensive bail terms, including a curfew, since November 5, 2012. [ 54 ] Although the reports only state he has been sober since April 2013, there is nothing in the reports to suggest he was not also sober between November 2012 and April 2013. Given the Crown's position concerning the events of January 2013, despite the suspension of his long-term sentencing order in January 2013, there is no indication that Mr.

Edgar breached his long-term sentencing order or committed other offences since his release in November 2012. [ 55 ] Although none of the reports before me clearly assess his risk to reoffend, it is plain that those supervising Mr. Edgar are confident that so long as he remains sober, his risk to reoffend is low. Furthermore, Mr. Edgar's offending since being placed on his long-term sentencing order in 2004 have all been offences against the administration of justice, as opposed to engaging in any substantive criminal behaviour, particularly violent sexual offences. [ 56 ] I am satisfied that if Mr.

Edgar was allowed to serve a sentence in the community while bound by appropriate conditions, this would not endanger the community as contemplated by s. 742.1. [ 57 ] The only remaining issue is whether allowing Mr. Edgar to serve a sentence in the community is consistent with the fundamental purpose and principles of sentencing as set out in ss. 718 to 718.2 of the Criminal Code . [ 58 ] Since Proulx , it has become trite to say that a conditional sentence order can meet all of the sentencing objectives, even for violent offending.

However, none of the sentencing authorities put before me, particularly Ipeelee and Ladue , contemplated sentences other than institutional incarceration for offending similar to that of Mr. Edgar. The issue for Mr. Edgar, given the similarity of his personal circumstances and offending to that of Mr. Ladue, is whether a conditional sentence order for Mr. Edgar meets the requirements of s. 718.2 (b). [ 59 ] While I have already determined that, like Mr. Ladue, Mr. Edgar's repeated failure to abstain from intoxicants while on release warranted a one-year jail sentence, two factors distinguish Mr.

Edgar's situation from that of Mr. Ladue in determining whether that sentence should be served in an institution. [ 60 ] Unlike Mr. Ladue, Mr. Edgar has demonstrated over 14 months since November 5, 2012, that he has achieved sobriety. This demonstrates to me that, despite his repeated breaches, Mr. Edgar has a strong desire to succeed, and I am referring in part to Ladue , paragraph 63 . [ 61 ] In addition, Mr.

Edgar has obtained a placement in a halfway house which he and his management team think is very appropriate to his needs, particularly as this placement has brought him into contact with elder Joe Fossella. [ 62 ] Like Mr. Ladue, Mr. Edgar: . . . is addicted to drugs and alcohol, which can directly be related to how he was treated as an Aboriginal person. He has not reoffended in a manner which threatens the safety of the public. He will ultimately be released into the community without supervision.

Unless he can manage his alcohol and drug addiction in the community he will very likely be a threat to the public. ( Ladue , paragraph 63 ) [ 63 ] Mr. Fossella is assisting Mr. Edgar in finally coming to grips with the circumstances of Mr. Edgar's background which have played an instrumental

part in his offending. This assistance is vital to the successful rehabilitation of Mr. Edgar, which is critical to the protection of the public. ( Ladue , paragraph 82 ) [ 64 ] If Mr. Edgar is required to serve a sentence in an institution, these very promising developments will come to an end. While it would be open to Mr. Edgar to resume working with Mr. Fossella upon his release from jail, there is a real risk that the circumstances all inmates face in prison may undermine Mr.

Edgar's current motivation and he will not be able to resume this work. [ 65 ] The Supreme Court of Canada in Ipeelee at paragraph 66 quoted with approval Professors Roach and Rudin, who had written: . . . [if an innovative] sentence can serve to actually assist a person in taking responsibility for his or her actions and lead to a reduction in the probability of subsequent [offending], why should such a sentence be precluded just because other people who commit the same offence go to jail? [ 66 ] Given his personal circumstances and the circumstances of his offending, allowing Mr.

Edgar to serve a jail sentence in the community would not only be proportionate to the gravity of his offending and his moral blameworthiness, but will facilitate his continuing rehabilitation which, if successful, will end Mr. Edgar's criminality, and thereby protect the general public and his community.

[ 67 ] Please stand up, Mr. Edgar. [ 68 ] Mr.

Edgar, I sentence you to 319 days in jail to be served in the community pursuant to the following conditions. [ 69 ] First of all, and I am summarizing the statutory conditions, he is to keep the peace and be of good behaviour; he is to report to a supervisor at 275 East Cordova Street before 4:00 p.m. today, January 17, 2014, and thereafter as directed; he is not to leave the Province of British Columbia without the written permission of his supervisor, and he is to keep his supervisor advised of his name, address, and occupation. [ 70 ] There are additional conditions. [ 71 ] He is to take counselling as directed by his supervisor, and complete that counselling to the satisfaction of his supervisor. [ 72 ] He is to reside only at a residence approved of by his supervisor. [ 73 ] He is to comply with the terms of his long-term sentencing order to the satisfaction of his supervisor. [ 74 ] For the first six months of this order, he is not to be found outside his place residence, except in the event of a genuine emergency or with the express written permission of his supervisor for the purpose of complying with any term of this conditional sentence order or his long-term sentencing order.

That permission is to be carried on his person at all times when he is outside his place of residence. [DISCUSSION WITH COUNSEL] [ 75 ] THE COURT: He is to present himself at the door of his residence upon the demand of his supervisor or any other peace officer to ensure his compliance with the terms of this conditional sentence order. [DISCUSSION WITH COUNSEL] [ 76 ] THE COURT: He is to obey all of the rules and regulations of his residence to the satisfaction of his supervisor. [ 77 ] Mr.

Edgar's record will reflect that he has served 46 days in pre-trial custody and he is entitled to a one-for-one credit for that time in pre-trial custody. If it is of any assistance to anyone in recording this in his record, his effective sentence is therefore one year in jail. [DISCUSSION WITH COUNSEL] [ 78 ] THE COURT: As I understand it, Mr. Arbabi, he has virtually no income? [ 79 ] MR. ARBABI: He does not, Your Honour. [ 80 ] THE COURT: I waive the victim fine surcharge because, given the date of the offence, that is still open to me. [ 81 ] Mr. Edgar, could you stand again, please.

I think I have tried to make it very clear to you, Mr. Edgar, that I accept that you have received very few chances in your life. I am giving you a chance today. I sincerely hope you take full advantage of that, because I do not want you leaving here under any illusions. If you do not comply with the terms of this conditional sentence order, you are going to be arrested, you will be back in front of me, I probably will have no other alternative, excepting to order that you serve the sentence in custody.

All right, and I hope that that does not happen, sir. [ 82 ] THE ACCUSED: If -- I'm not going to promise, but I'm going to do my best, like I've been doing my best since this happened, since when I got arrested in June. I've been doing my best and -- [ 83 ] THE COURT: I know that, Mr.

Edgar -- [ 84 ] THE ACCUSED: -- you know, my best has been working for me. [ 85 ] THE COURT: -- and you do not need to say anything further about that. [ 86 ] THE ACCUSED: And -- and of course my health right now, my blood level's gone way down, I'll be going to the doctor a lot, to the -- to injections. [ 87 ] THE COURT: Well, that is fine, you will have to discuss that with your supervisor and also the people at your halfway house. [ 88 ] THE ACCUSED: And which -- which -- so I got a parole officer and -- [ 89 ] THE COURT: Mr. Edgar, I think that you should raise these concerns with Mr.

Arbabi, and he can give you some advice on it. Okay. [ 90 ] THE ACCUSED: Okay, thank you.

[ 91 ] THE COURT: All right. [ 92 ] THE ACCUSED: Thank you, Your Honour. [ 93 ] THE COURT: I wanted to wish you the best of luck, sir, before you go. [ 94 ] THE ACCUSED: Thank you. (REASONS CONCLUDED)