R. v. MacGraw Date:, 2017 BCPC 116

Citation: R. v. MacGraw Date: 20170404 2017 BCPC 116 File No: 233284-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. SONYA LEE MACGRAW EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE MEYERS Counsel for the Crown: G. Angrove Counsel for the Defendant: A. Picard Place of Hearing: Vancouver , B.C. Date of Hearing: April 4, 2017

Date of Judgment: April 4, 2017 [ 1 ] THE COURT: Ms. MacGraw, this is a very difficult case. The reason your case is very difficult is that the Crown have asked for eight months for you, and your defence lawyer has asked essentially for a suspended sentence.

A huge difference between what they are asking for. [ 2 ] The Crown has given me case law from B.C. from what we call, "our Higher Courts", Superior Courts, and from Brothers and Sisters of my own Court, outlining generally that the Crown's sentencing position is certainly the guideline position for people who fall into a category such as yours, in terms of background, reason for selling, quantity of selling, and which drugs you are selling. [ 3 ] Your defence lawyer has asked me to go way beyond what our Superior Courts and my Brothers and Sisters have said is appropriate for people who are in your type of position, what you are doing, your record and so on.

It presents a real problem for me as a Judge because I look at you and I say, "Well, you were born into this world in what can only be called 'an extremely awful situation'." You grew up in an extremely awful situation. You were virtually on your own and on the street when you were 14 with no education, no skills, no real family of any kind, no mom or dad who were active in your life, and you were kind of thrown like, you know, onto the streets.

What are you supposed to do? [ 4 ] Well, it is not too surprising that what happened is that you ended up being on drugs, into prostitution, and fending for yourself in the only ways you could. Nobody ever gave you anything. Nobody was there to give you a helping hand, at least at a time that you were willing to take it. You ended up having a very awful childhood, very awful teenage years, and a very awful adulthood. You are now 37.

Basically, the Crown has said that you are not "exceptional", in the sense, "Well, every addict who comes before us here has the same kind of rotten background and so you are not exceptional." [ 5 ] I look at it and I say, "Well, when we talk about "exceptional", we should not be saying "exceptional for an addict." We should say "exceptional for a human being." You are exceptional for a human being; you are not exceptional for an addict. Your background mirrors unfortunately so many other people who have ended up in street prostitution and addiction and then selling to support your habits.

So you are not exceptional as far as an addict is concerned, but your background and what you have gone through is exceptional as a human being, a human being living in Vancouver in the year 2017. [ 6 ] The case law that the Crown has given me, your able counsel argues, does not say you have to have exceptional circumstances in order to vary from the general guidelines that are given. Crown say you do have to have exceptional circumstances. The Crown recommends eight months and that falls under the guidelines and that is what you are stuck with, say the Crown. [ 7 ] My job is to look at two things.

One is you as a human being, and two, is to look at society generally. I have to, in looking at that, consider what our Court of Appeal and our Supreme Court have said, and that is generally speaking, in drug trafficking, deterrence has to be the top category, rehabilitation number two. [ 8 ] I am going to first quote or mention some things about your offence and then quote from one of my Sister Judge Dhillon's Decision. She is a remarkable Judge in her own right, has also sat in the Drug Treatment Court for a while, and you probably were before her, for a while, as well.

She has a very grounded and ground-level view of drug trafficking addicts in Vancouver, and I want to quote some things that she has said. [ 9 ] Before I do, I just want to note that what you have pled guilty to, is trafficking on December 17th, 2014, trafficking in heroin. We know that when you were stopped by the police or caught by the police after they witnessed a few hand-to-hand sales by you, they said that you had three types of drugs on you. You had flaps ready for sale, some were of powder cocaine, some heroin, and then in your cargo pants, you had, I think, $398 altogether.

The drugs that you had -- I said three, but I think there were two. You had a total of, street value they say, about $270 altogether. The heroin that you had was 17 flaps of that were going to be sold, they said, at about $10 a half-point and the powder cocaine you had would have been sold at about $10 a flap.

You had cash on you, obviously indicative that you had been selling. [ 10 ] The Crown tell me that by way of your past record, in 2002 you had a conviction for robbery, you got three months, in April 2003, failing to abide by a court order, got a day; Prostitution, May 29th, 2003, which really is not of any consideration in my consideration today; an escape lawful custody, I am not sure what that was about, but that was in June of 2003, and you got a day; then in 2008, PPT, where you received time served equal to about 30 days; then a theft in June of 2011, you received a probation order, and then breach of an undertaking, May of 2016, and you received a day in jail. [ 11 ] Your defence lawyer tells me that you have tried to go through various methods of getting off your addictions.

Your Presentence Report confirms that. Your Presentence Report tells me that you were born into a violent relationship setting between your dad and your mom. You were taken into the Ministry's care at the age of 15 and then bounced from foster home to foster home. [ 12 ] During your teenage years, you were in the Mount Washington Centre. You aged out of care and then basically at the age of 19, you started living homeless on the streets or in shelters, from time to time. You had one, at that time, long-term "relationship" which ended due to violence by your partner.

You have no children. [ 13 ] You now have a boyfriend who was here yesterday. The Probation Officer described him as very supportive of you. [ 14 ] Your mother died in February of 2013, not that long ago, but she died of an accidental overdose from prescription medicine she was taking for her bipolar disorder. Your father, of course, you have had no contact with. You have a couple of sisters, but they are over in England and you do not have contact with them. [ 15 ] Your formal education was interrupted because by the time you were in middle school, you were already actively addicted.

You were living by prostitution, as it then was called. By the age of 14, you were no longer in school, you were not interested in

education, and you had never been employed. You have not had any skills other than the skill of working the streets, which means a lot of common sense and a lot of street smarts, but not skills in terms of being able to survive in a, let us call it "a legitimate job environment." [ 16 ] You are on social assistance. You have been a sex trade worker since the age of 13, and you are still doing it now because that is one of the only methods you have of supporting your addiction. Although your lawyer says you are not doing it now, the PSR says you stopped only recently.

Whether you are still doing it or not is really beside the point in the sense that, you know, are you going to do what you have to do to get your drugs. You are either going to get cured or you are going to do sex trade work, or you are going to sell. There are no other alternatives for you as things now stand while you are still either on or just off drugs. [ 17 ] The heroin habit that the Probation Officer says you were working off was a $250 a day habit or even $900 a day habit on cocaine.

As you heard me say, I think that is pretty high and unrealistic, but whatever it is, unless you are doing something, you are not going to be able to support that kind of habit. [ 18 ] The past two years, the Probation Officer said that you have tried really hard working on your addiction. You were accessing supports in the Downtown Eastside of Vancouver, and you were in a drug treatment program, but that has not worked for you and you had to leave that program.

You are currently on methadone, and according to the Probation Reports, been for the last eight months, and your cocaine use has stopped over the last few months and you are only using heroin, rarely. [ 19 ] The Probation Officer says you realize that you basically wasted 20 years of your life wrapped up in the type of lifestyle and addiction that you have had. According to your doctor, you are motivated to continue to deal with your addiction and you are keeping regular contact with him. You are going to therapy. [ 20 ] The question is where are you at now in terms of so-called, "turning the corner"?

There has not been a lot of months, maybe three or four, under your belt right now. Is that enough to say that you have turned the corner or is it not? [ 21 ] You certainly have the requisites to fall within what the Crown have said is the range of sentencing for somebody like you who has a conviction in the past for trafficking in narcotics,

Schedule 1. The case that I find most helpful for me is R. v. Dosanjh, which is the Decision of my Sister Judge Dhillon, made May 31st, 2016, in Vancouver. [ 22 ] The reason I find this Decision particularly helpful and of guidance to me is that, as I said, she is an exceptional Judge herself and very well-founded and knowledgeable about addiction, particularly in the Vancouver Eastside, and also, the Decision does go through the cases that the Crown Counsel and Defence have referred to. [ 23 ] I should tell you that in that case, Dosanjh's case, it was a dial-a-dope case. Dosanjh had used bear spray.

The cocaine that he had was powder and rock and heroin and he also had methadone. He had a prior related conviction. His last conviction was a PPT in July of 2009, when he got a 12-month conditional sentence order and he ended up receiving a sentence of six months. Also, it was noted that he had tampered with a urine sample during the course of drug treatment. [ 24 ] The parts that are of interest to me are when Judge Dhillon was analyzing addiction, addicted people and trafficking in Vancouver.

Normally I do not quote so extensively from a Judgment, but I will do so, here. [ 25 ] Page 4, paragraph 17: In terms of the analysis which a judge is required to apply, foremost in drug cases is the purpose and principles of sentencing set out in s. 718 through to 718.2 of the Criminal Code , and also under s. 10 of the Controlled Drugs and Substances Act .

Those sections set out the parameters that the judge must consider in determining what is . . . fit, just, and appropriate [sentences], having regard to the circumstances of the offence, the particular circumstances of the offender, and the case law which informs the range of sentence that has been imposed in other similar cases. I would say that it [is] commonly stated by courts at every level of this province, including R. v. Datt , 2014 BCCA 154 at paragraph 23 , that deterrence and denunciation are the essential objectives in cases involving hard drugs such as cocaine or heroin.

Having said that, sentencing principles also include rehabilitation which objective must also be considered for those offenders who are drug addicted and who expressly offend in order to support their addiction. This was most recently stated by our Court of Appeal in R. v. Dickey , 2016 BCCA 177 at paragraphs 64-65 . The B.C. Court of Appeal in R. v. Cisneros [C-i-s-n-e-r-o-s], 2014 BCCA 154 , [suggests] that an appropriate range for . . . first time [offenders] involved in trafficking of

Schedule I [drugs] is six to nine months. [ 26 ] Then Judge Dhillon goes on to talk about dial-a-dopers being the more serious offence such as it was in Dosanjh case but not in your case, where you are a street trafficker. [ 27 ] Paragraph 24, Judge Dhillon goes on to discuss the R. v.

Lloyd case which your Counsel and Crown have referred to. . . . the Supreme Court of Canada did not disagree with the proposition that the range of sentence for a repeat street level drug offender who [engage] in trafficking is between 12 to 18 months, and in that case 12 months was imposed . . . being the sentence imposed [initially] at the trial level. [ 28 ] Judge Dhillon commented on street-level drug traffickers, that is you, and says with one prior, 12 to 18 months is the range. Crown in your case has asked for eight months. [ 29 ] Judge Dhillon goes on at Paragraph 27 to say:

Dosanjh's record of a prior conviction for trafficking or [PPT] is aggravating in that it did not serve to deter him from a repetition of a second trafficking offence. [ 30 ] To some extent, that is true with you as well, albeit your last offence was in 2008, we are now in 2017.

You have had quite a number of years between when that happened in 2008 and now in 2017, where you were not convicted of anything. [ 31 ] Judge Dhillon comments with respect to the mitigating factors: [The] time in Drug Treatment . . . is [a mitigating factor], but not to the extent that would be available to a person who fully engaged in the program and moved through its phases, even with relapses and even with corrective measures that are so commonly made available to those participants in Drug Treatment Court who are moving forward in their recovery.

I would note that his nine months in Drug Treatment Court shows that [he] was given ample time to bring himself into a rehabilitative process, but he was not then clearly ready to engage in treatment. He did not get anywhere near to providing consistent attendance at the treatment centre or to providing consistent . . . urine [free samples] [sic] [as] an objective [form] for ascertaining progress towards [rehab]. . . .

His offending is related in part to his desire to support his addiction, and that lessens, in my view, the moral gravity of his offending, which is compelled by his addiction . . . [ 32 ] Just two more paragraphs, you will be happy to hear.

It is my view that Voong [which both counsel here refer to] expects that if there are to be exceptional circumstances that are tied to rehabilitation, that . . . must be [and she puts in quotes] "significant and objectively identifiable" evidence of rehabilitation for a period of time that helps [the] court to determine that rehabilitation has become the singular primary focus. A rehabilitated offender is an offender who is less likely to cause a concern for the protection and safety of the public. In order to be satisfied of that, there must be a track record of sustained rehabilitation.

When I say sustained, I say it must be a track record over many months, to the point that there is objective evidence that rehabilitation has taken hold and restored the individual to society, such that the protection of the public is enhanced and the court can have confidence that rehabilitation then rises to the forefront as a significant sentencing objective. . . . While the three months are laudable, I am of the view and I find that Mr.

Dosanjh has not attained a level of exceptional circumstances that would permit this court to give weight to rehabilitation over other sentencing principles . . . [ 33 ] Judge Dhillon goes on: I take into account the time that he put into Drug Treatment Court as preparatory to his more recent success in stabilizing himself in the community.

While his efforts . . . comply initially were less than optimal, there has been, fortunately for him, an absence of reoffending and [this] is a factor to be taken into account. . . . at the end of the day, [he] remains a repeat offender, having offended in a serious way, in my view, with respect to drug trafficking. [ 34 ] Dosanjh gets six months as opposed to the nine that were asked for by the Crown. [ 35 ] Where then, does that all take us then with respect to you? Judge Dhillon looked at exceptional circumstances in two ways.

One where you as an addict, you as a person, have exceptional circumstances, but also exceptional circumstances in what you have done in recent times for a long enough period of time to show that you are committed to getting out of this cycle. [ 36 ] The Crown say that you have not done enough, you have not shown any substantial change for a long enough period of time, plus there is no objective evidence by way of urine tests, or anybody coming forward and saying, other than being told by you, that you have been free of drugs.

And in any event, we are talking about a three-month period as opposed to anything much longer than that. [ 37 ] One of the real concerns I have in your specific case is your housing. I know, and you know too, that having stable housing is probably the very first step in being able to have some kind of regular organized life.

You have a place to go, you can shower, you can sleep, you cannot be interrupted, and it takes a huge amount of worry and stress away every day, knowing that you have a place to go every night and not have to worry about sleeping on the streets or looking from one couch to another to stay. [ 38 ] Your lawyer has told me, although he cannot guarantee that, in his view, you have about a month that that place is open to you.

After a month, you are back on the street unless they can find you another place. [ 39 ] You have served some time in jail, and that was 18 days, I think, and that enhanced credit gives you 27 days of credit which is roughly one month. [ 40 ] Your record, of course, is longer and a little more serious than in the Dosanjh case. You have in your past, a robbery, a PPT, and the last offence that you have is a breach of bail in 2006. So your record is worse that Dosanjh's was. Dosanjh had similarly struggled, gone through or tried to go through Drug Court, but was unsuccessful. Same with you.

Dosanjh was trying on his own to get clean and sober; you are trying with help now, to become clean and sober. [ 41 ] You have a relationship, both with a friend and your boyfriend, that is a stabilizing one in your life and you have a home, which is big plus. When I look at you, I say, "Well, you know, who has ever in your entire life given you a break?" I say "nobody".

Now, sure, we can always say that you have the exceptional fortitude to be able to fight all these things and strong people survive, but the reality of it is that you started from square one with nothing, and there have not been too many hands reaching out to you over the years.

So to blame you for being in a position where you cannot show me much by way of progress would be unfair. [ 42 ] Now, I might be totally wrong in saying, "Well, the Courts have given us guidelines, the Higher Courts, my Sister, Brother Judges, that say, 'There is no mandatory sentencing, that means Parliament says you have to send these people to jail.' But the guidelines are pretty tight, and they do not allow me much wiggle room, even if I have great sympathy for you." [ 43 ] So the Crown is saying, "Give her eight months and that will satisfy the community and satisfy the case law." Your lawyer has asked for, I think, too much for me to legitimately do and not have another Court look at it and say, "Well, you know, the Judge cannot just refuse to follow the guidelines." [ 44 ] I do see the guidelines however, as suggestions with opportunities for Judges to go below those guidelines.

I find that the main criteria that allows me to go below the guideline are: (

a) exceptional circumstances, and (

b) as a trial judge listening to what is said and studying what has been done by you allows me to say that you have turned a corner, although Judge Dhillon in her experience and her experience with Dosanjh , found that his turning the corner was not really something that she was prepared to accept. [ 45 ] In your case, I do not really know, I really do not, and probably you do not either, but I do not want to be the one to take that away the hope of opportunity. If you are going to do it, now is the time.

I mean, you are already 37 and if you are not going to do it in the next couple of years, you will probably be dead on the Vancouver Eastside in the next few years and you probably know that. I am not telling you anything you do not know, but you do have a place, you have a solid boyfriend who is not abusing you from what I am told, you have some friends who have been here with you yesterday and today, and you have a home. If you are going to do it, it is going to happen now.

If it is not going to happen now, it is never going to happen -- or, no, I should not say never, but the chances get smaller and smaller and smaller as time goes on. [ 46 ] So I am going to go beyond what probably others will likely say is way too far. I cannot let you off with a suspended sentence. You have to do some time. You have only done a month, I am going to give you another month, and I am going to consider that you have already done one month. I am giving you two months but I am knocking off one month of the time you have done already, so you will do one month of new time.

That will get you out in order to keep your place.

That will also allow some more time cold turkey, as it were, or at least on methadone to stay clean of the drugs. [ 47 ] When you get out, I am going to put you on a year's Probation: Be of good behaviour, keep the peace, tell the Probation Officer where you are living, not change your address without their okay, continue with any counselling and drug rehab, be it in-house or on an out-patient basis as directed and to the satisfaction of the Probation Officer. [ 48 ] Not to use any drugs except for prescription drugs that are made out in your own name. [ 49 ] I am not going put in, as counsel has said, you know, area restrictions.

I mean, if I say, "Stay out of here," you can go somewhere else. You are either going to sell or you are not going to sell. You will be smarter than I am, in figuring out a corner that I did not name, so I am not going to put that in. [ 50 ] So you have the one year on Probation. I am going to say no weapons, no knives except for the purpose of eating or preparing food or employment. The reason I am doing that, when you get into drugs, with all due respect to Mr. Picard, he says he does not see that many knives being used in transactions.

I think the knives are often used outside of the transaction when you do not pay your debts, for example. So no knives, no weapons. [ 51 ] I hope not to see you again. [ 52 ] I may be wrong. Some other Court may look at it and say, "Far too lenient," you know. Nothing I can do about it, but I have to do it as I see it, both in compliance with the law and in compliance with the human being that I have before me, that is you. [ 53 ] There will be the Ancillary Orders that the Crown asked for. I should have them somewhere here. The DNA Order, Lifetime Prohibition against Weapons. [ 54 ] Victim Surcharge here.

You will be out of work and out of the community for 30 days, so there really is no sense giving you two months later to pay because you will not be able to pay it. I find you in default now, one day concurrent. [ 55 ] Notwithstanding that I did not give much of what the Crown wanted, is there anything that I have missed on either the Probation side of it or the Ancillary Orders side, Counsel? [ 56 ] MS. ANGROVE: I am sorry, Your Honour, I might have just missed it, but you did impose the lifetime firearms prohibition? [ 57 ] THE COURT: Yes, I did. [ 58 ] MS.

ANGROVE: And then also in regards to the victim fine surcharge, I believe it is $200 per indictable count. [ 59 ] THE COURT: Well, she only did one. No? [ 60 ] MR. PICARD: It is $200 each, so even if there is just one -- [ 61 ] THE COURT: Four hundred. [ 62 ] MR. PICARD: -- it is still $200. [ 63 ] THE COURT: $200. [ 64 ] MS. ANGROVE: Correct. Okay, so --

[ 65 ] THE COURT: Yes. [ 66 ] MS. ANGROVE: -- it is the one day -- [ 67 ] THE COURT: And I am saying that anticipatory breach right now that she will never be able to pay that -- [ 68 ] MS. ANGROVE: Okay, thank you, Your Honour. [ 69 ] THE COURT: Thank you. [ 70 ] Anything else, though, I have missed or not? I do not think so, but I am always open. [ 71 ] MR. PICARD: No. [ 72 ] THE COURT: Mr. Picard -- [ 73 ] MR. PICARD: Thank you. [ 74 ] THE COURT: -- the Crown. All right. [ 75 ] MR. PICARD: Thank you, Your Honour. [ 76 ] THE COURT: All right, Ms.

MacGraw, you do not owe me anything, but do not prove me wrong, please, all right? [ 77 ] MR. PICARD: Oh [inaudible] [ 78 ] MS. ANGROVE: Your Honour, sorry, one more thing. [ 79 ] THE COURT: Yes. [ 80 ] MS. ANGROVE: In terms of the forfeiture of the $398 -- [ 81 ] THE COURT: Oh, yes, thank you, I did forget that. [ 82 ] MS. ANGROVE: I am -- I am sorry, but I do not have a forfeiture order for you today, so perhaps that can be forwarded to judge's chambers at a later date. [ 83 ] THE COURT: Yes, so it would be an Order of Forfeiture of the money, the drugs, and the drug paraphernalia found on Ms.

MacGraw on December 17th, 2014. [ 84 ] MS. ANGROVE: Thank you. [ 85 ] THE COURT: All right. [ 86 ] MS. ANGROVE: Thank you. [ 87 ] THE COURT: Thank you both, counsel. [ 88 ] MR. PICARD: Thank you. [ 89 ] THE SHERIFF: Order in Court. (REASONS CONCLUDED)