R. v. Madison Date:, 2015 BCPC 323

Citation: R. v. Madison Date: 20151116 2015 BCPC 0323 File No: 233055-1-T Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MERLE CLAYTON MADISON REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: T. Warren Counsel for the Defendant: A. Mayes Place of Hearing: Vancouver , B.C. Date of Hearing: August 19, 2015 Date of Judgment: November 16, 2015

INTRODUCTION [ 1 ] Mr. Madison pleaded guilty to possessing cocaine for the purposes of trafficking. A sentencing hearing was conducted wherein the Crown argued all the circumstances supported a sentence of imprisonment for a period of 12 months. Mr. Madison’s counsel argued Mr. Madison’s circumstances are exceptional and therefore the court should suspend the passing of sentence and place Mr. Madison on probation. CIRCUMSTANCES OF THE OFFENCE [ 2 ] In early 2013, the police in Grande Prairie, Alberta received information about a phone number that was associated to a dial-a- dope operation.

The police commenced an investigation and quickly linked the number to Mr. Madison. [ 3 ] Mr. Madison was placed under surveillance and the police saw him make several meets which were consistent with drug transactions. [ 4 ] On June 26, 2013, the police arranged to meet Mr. Madison on the pretext that they were drug purchasers. When Mr. Madison arrived at the meet location he was arrested and searched. [ 5 ] During the search of Mr. Madison the police located several small baggies of cocaine totalling 7.0 grams and three small bags of MDMA totalling 1.5 grams.

Also located was a cell phone which was ringing and receiving incoming texts. The police answered some of the calls and noted the callers were calling in order to arrange the purchase of drugs. [ 6 ] After his arrest Mr. Madison was released on bail. He eventually obtained permission from his bail supervisor to come to British Columbia. Once in British Columbia Mr. Madison entered a recovery program and had his charges waived to this jurisdiction. MR. MADISON’S CIRCUMSTANCES [ 7 ] Mr. Madison is 40 years old. His childhood was traumatic with neglect and abuse.

His parents were affected by addiction and they separated when he was two years old. His mother formed a relationship with another man and this individual regularly and severely beat Mr. Madison. Some of the beatings were so severe that Mr. Madison lost consciousness. At the age of six an uncle began sexually abusing Mr. Madison. [ 8 ] By 13, Mr. Madison was full of anger. He began fights and eventually left the family home to live with his biological father in Grand Prairie, Alberta. This situation did not last as Mr. Madison’s father was an intravenous cocaine user. As such, Mr.

Madison moved back to British Columbia and he began living with his aunt. [ 9 ] At 16, Mr. Madison left school and he started working out of town in the oil camps. According to Mr. Madison he formed friendships and relationships with people who were like him “broken” and “damaged”. [ 10 ] In 1997, Mr. Madison was remanded in custody and he ultimately served a federal sentence for manslaughter. The sentence expired in 2002. [ 11 ] Mr. Madison spent the next years in various relationships, one which resulted in a daughter. One relationship lasted five years and involved deception, and drug use.

During this relationship Mr. Madison worked on the oil rigs and thereafter supported himself by selling drugs. The relationship became violent and Mr. Madison served a term of probation for assaulting his partner. [ 12 ] Mr. Madison’s criminal history includes, break and enter (1994), breach of probation (1995), breach of probation (1996), manslaughter (1999), and assault (2011). [ 13 ] A psychological assessment confirms Mr. Madison suffers from depression, post-traumatic stress disorder, and anxiety. In the past 10 years he has attempted suicide on three occasions.

He is currently under the care of a psychologist and a general practitioner. [ 14 ] The pre-sentence report details Mr. Madison’s battle with alcohol and drugs. He started drinking at 15. He tried recovery in 2012 and was sober for about a year and then he relapsed which led to his offending. Once charged Mr. Madison began using cocaine, MDMA and alcohol. He recalls not caring about anything and he decided to “party until his heart stopped beating.” [ 15 ] In October of 2013, Mr. Madison entered Together We Can Recovery Program. Mr.

Madison has gained insight into his addiction and he has developed skills to assist him in maintaining his sobriety. To date, Mr. Madison has been sober for 2 years. [ 16 ] Mr. Madison maintains his sobriety by attending three to four Alcoholics Anonymous meetings daily, getting support from three AA sponsors and counsellors and he regularly practices self- care. [ 17 ] Mr. Madison has experience managing a second stage recovery home operated by the Together We Can Recovery Society and he now works at their first stage facility. Mr.

Madison’s performance while connected with the Together We Can Recovery Society is documented in a letter from Kyla Ford, Administrative Assistant: Clayton, has ardently engaged the recovery process and is a shining example of growth and transformation. He has managed two TWC’s second stage houses and is currently managing our largest house which holds 17 clients. Some of his responsibilities include food orders, house maintenance and client relations.

Clayton has selflessly offered his time as a volunteer at clothing drives, detox panels, toy drives and he also recently become [sic] a support worker at our main facility. His is an inspiration to newcomers and a valued member of the TWC team.

[ 18 ] In

summary, Mr. Madison’s pre-sentence report details a chaotic abusive childhood which contributed to making Mr. Madison an angry, self-loathing person who found self-worth through the use of drugs. Fortunately, the report also outlines that Mr. Madison is a person who has worked extremely hard and has enjoyed success in sustaining control over his emotions and his addiction. [ 19 ] The Crown concedes that Mr. Madison was addicted to drugs and that he has been clean and sober for over two years. ANALYSIS [ 20 ] The purpose and principles of sentencing are set out in ss. 718 - 718.2 of the Criminal Code .

The relevant sections are s. 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 21 ] A fundamental principle of sentencing is found in s. 718.1: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 22 ]

Section 718.2 sets out other sentencing principles. This

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

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

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 and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 23 ] The purpose of sentencing as it relates to drug offences is found in s. 10 of the Controlled Drugs and Substances Act, wherein the relevant portions read: Purpose of sentencing 10.

(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 to the community. Position of the parties [ 24 ] The Crown argues a fit and appropriate sentence is a 12 month custodial sentence. In support of their position the Crown argues that denunciation and deterrence are the primary sentencing objectives. The Crown also points to the serious nature of the drug, the circumstances of the offence, and Mr. Madison’s criminal history.

While acknowledging that Mr. Madison was addicted to drugs, the Crown points out his addiction was not so severe that he was lowered to dealing at the street level. [ 25 ] In arriving at their sentencing position the Crown relies on R. v. Bui, [2013] BCCA 168 for the proposition that, when charges are waived from another province, the sentencing court is to give consideration to the range of sentences in the originating province.

[ 26 ] With respect to ranges the following are examples of the range available: R. v. Schmidt, [2011] ABCA 211 , the Crown appealed a sentence of 18 months custody followed by 18 months’ probation after the accused pled guilty and was sentenced on two counts of possessing cocaine for the purposes of trafficking. The circumstances of the offences were, the accused was stopped by the police and they located 4.7 grams of cocaine and six cell phones. The offender was released on bail and stopped just over a month later. At that time the police searched him and located 3.7 grams of cocaine and four cell phones.

The court characterized the offences as, “These were dial-a-dope schemes of trafficking beyond a minimal scale.” At the time of the offences the accused was 19, he did not have a criminal record and there was a positive pre-sentence report indicating the accused had turned his life around and completed two terms at a local college. The Court of Appeal allowed the appeal and substituted a sentence of two years less a day.

In holding the sentencing judge erred, the Court of Appeal observed the sentencing judge focussed on rehabilitation as the sentencing judge believed the accused was an addict despite there being no credible medical evidence to support such a finding. This, according to the Court of Appeal, resulted in the sentence failing to adequately address the primary principles of denunciation and deterrence. R. v. Legerton, [2015] ABCA 79 , the Crown appealed an effective sentence of 12 months where the accused had spent the time in pre- trial custody subject to 22 hour lockup.

The circumstances leading to the accused’s sentence was the accused pleaded guilty to selling, and being participant in a dial-a-dope scheme wherein he sold .8 of a gram of crack cocaine. At the time of the offence the accused was on judicial interim release for an unrelated offence. At the time of the offence the accused was 25 years old and he had an unrelated criminal record.

In dismissing the appeal the court considered the range for a number of cases from British Columbia and concluded the sentence imposed reflected an individualized approach to sentencing and concluded that the sentence imposed was not outside the range. R. v. Pearson , [2014] ABPC 137 , the accused sold crack cocaine on three occasions within the context of a dial-a-dope operation. He pled guilty to two counts of trafficking and was sentenced to a concurrent sentence of 14 months. The accused was 18 at the time of his offences and he was bound by a youth probation order. He did not have an adult criminal record.

The accused started using drugs at 13 years old and he became addicted. At the time of sentencing the accused had recently taken steps to overcome his addiction. He was maintaining a drug-free lifestyle and working full time. In imposing sentence the Honourable Judge Redman, acknowledged there can be a substantial reduction in sentence when it is appropriate to emphasize rehabilitation. [ 27 ] Counsel for the accused urges the court to impose a non-custodial sentence. Counsel points out Mr. Madison’s circumstances are exceptional and justify a departure from the range of sentences.

In this regard, counsel points to the extensive rehabilitative steps Mr. Madison has taken as well as his contribution to those who suffer from addictions. Aggravating and mitigating factors [ 28 ] I find the following to be aggravating, first, the highly addictive nature of the drug involved. Mr. Madison’s offence was committed in the context of a dial-a-dope operation; hence, his methods amplified his ability to spread the drug throughout the community. I also find it aggravating that Mr. Madison comes before the court with a criminal record albeit unrelated. [ 29 ] There are several mitigating factors. Mr.

Madison’s guilty plea is highly mitigating. In this regard, he saved the state the time and expense associated with a trial. I also note, Mr. Madison is remorseful and he has demonstrated insight into the harmful nature of his offence. A further significant mitigating factor is the extensive progress Mr. Madison has taken towards rehabilitating himself. Finally, it is mitigating that once Mr. Madison was on the road to rehabilitation, he began helping others with their rehabilitation.

Analysis [ 30 ] Those offences committed in the context of a dial-a-dope scheme demand a sentence where the primary objectives are denunciation and deterrence. Accordingly, if there are no exceptional circumstances, offenders should expect to be sentenced to a term of imprisonment: R. v. Voong, [2015] 285 , paragraph 1. [ 31 ] Recently, there has been significant discussion, on the fitness of suspending the passing of sentence and placing an offender on probation who has been convicted of a drug offence in the context of a dial-a-dope operation.

Much of the discussion was triggered by Criminal Code amendments wherein conditional sentences became unavailable for trafficking related offences. [ 32 ] The discussion referred to has identified a tension where some are of the view that the only available sentence for trafficking offences is a period of imprisonment. This issue was put to rest in R. v. Fargo, [2015] BCCA 187 .

Whereas, there were those who are of a view that, in appropriate circumstances, a court could suspend the passing of sentence and place the offender on probation. [ 33 ] The debate, as to the appropriate circumstances, was clarified in Voong where the court noted absent, exceptional circumstances, that sentences for dial-a-dope offences were typically 6 - 9 months incarceration and in some cases as high as 18 months:

paragraph 59. [ 34 ] The court then went on to observe there can be exceptional circumstances wherein the objectives of sentencing can be met by suspending the passing of sentence and placing the offender on a probation order. [ 35 ] At paragraph 59 of Voong the court provided guidance to sentencing judges on what might constitute exceptional circumstances.

In this regard the court stated: …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 subsequently 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. [ 36 ] Considering the above, I find Mr. Madison’s personal circumstances are exceptional as contemplated by Voong . Specifically, Mr.

Madison has shown remorse and insight into the harmful effects of his actions. He has made significant sustained rehabilitative progress and he has submersed himself in a culture that is supportive of his continued recovery. Moreover, he now has employment within an environment that will assist in his continued recovery. Decision on sentence [ 37 ] Were it not for Mr. Madison’s exceptional circumstances it is my view that a fit and appropriate sentence would be incarceration for a period of 12 months. However, as indicated, I have found that Mr.

Madison’s personal circumstances are exceptional and therefore it is my view that objectives of deterrence, denunciation and rehabilitation can be met by suspending the passing of sentence and placing Mr. Madison on probation for a period of 18 months.

The terms and conditions of the probation are as follows: You must keep the peace and be of good behaviour; You must appear before the court when required to do so by the court; and You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. You must report by no later than 4:00 pm Wednesday, November 18 th 2015, to a probation officer at 275 East Cordova Street, Vancouver, BC and thereafter as and when directed by the probation officer.

You must attend, participate in and successfully complete any counselling that maybe directed by your probation officer. For the first 12 months of this order you are bound by a curfew where you must not be outside your residence between the hours of 11:00 pm to 6:00 am seven days per week, unless, you have written permission from your probation officer in which case you must carry such permission on your person.

You must present yourself at the doorway of your residence to any peace officer, probation officer or correctional officer who attends at your residence for the purpose of ensuring your compliance with your curfew. You must not possess or consume those drugs as defined by the Controlled Drugs and Substances Act, except those drugs for which you have a medical prescription. You must complete 100 hours of community service work. This work must be completed at the direction and to the satisfaction of your probation officer. Such work must be completed on or before November 17, 2016.

Ancillary Orders [ 38 ] Pursuant to s. 109 of the Criminal Code , you are prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life. [ 39 ] Pursuant to s. 487.051 and after considering Mr. Madison’s background, the offence that he has been sentenced for and the circumstances of that offence, as well, as his privacy rights and his right to the security of the person all balanced against the best interests of the administration of justice, I direct that he provide a sample of his DNA.

____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia