R. v. Trider Date:, 2017 BCPC 166

Citation: R. v. Trider Date: 20170403 2017 BCPC 166 File No: 24207-2C Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HOLLY ALLISON TRIDER ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE HEWSON Counsel for the Crown: H.M. McSheffrey, Q.C. Counsel for the Defendant: D.J. White Place of Hearing: Nelson , B.C. Date of Hearing: April 3, 2017 Date of Judgment: April 3, 2017

[ 1 ] THE COURT: Madam Clerk, these are reasons for sentence on court file number 24207-C2. Holly Allison Trider has pled guilty to trafficking in MDMA. [ 2 ] The Crown is seeking a sentence of six months' incarceration, or, in the event that exceptional circumstances are established, and intermittent sentence of three months. The defence is seeking a suspended sentence or an intermittent sentence of three months' duration. [ 3 ] The issue before me is what is an appropriate sentence for Ms. Trider in her circumstances and in the circumstances of this offence?

That will turn on a consideration of whether or not the evidence and the information before me establishes the existence of exceptional circumstances as that phrase was considered in the decision of our Court of Appeal in R. v. Voong . [ 4 ] The statutory range of sentence for the offence of trafficking is very broad. The Criminal Code provides a maximum sentence of life in prison. There is no minimum sentence. A conditional sentence order is not available. [ 5 ] I am going to discuss Ms. Trider's circumstances before I turn to the circumstances of the offence. Ms. Trider is 26 years old.

She was born in Fredericton, New Brunswick. She is the mother of a four-year-old child named Sequoia. She and Sequoia's father share custody of the child. Ms. Trider has lived in Nelson since she was 19 years old. She has a large number of connections and supports in the community. She was on social assistance at the time of the offence. Mr. White, counsel for Ms. Trider, had described her finances and for the mother of a child they were very tight circumstances. She is now employed part time at the Kootenay Bakery. She has no medical health issues.

In particular, she is not one of those persons who come before the court addicted to the substances that they are trafficking in. She was described as a very healthy lady who pursued a healthy lifestyle and took pride in it. [ 6 ] The following facts have been established as the circumstances of the offence. In August of 2016 the Nelson Police Detachment conducted an undercover operation in order to clean up trafficking at various parts in the city. The undercover operator met a man named Julian who offered to supply him with MDMA.

They referred to it by the street name of "molly." Julian originally referred to a source, a female source, who he said was a good supplier, but was unable to contact that person and arranged the first buy through another party. However, in the course of that first transaction, the undercover police officer obtained a phone number. He sent text messages over the next few days to that phone number before eventually arranging a meeting. Ms. Trider showed up at the meeting. She gave the police officer her real name. The two of them got into Ms. Trider's car, a 1989 sedan that had seen better days. Ms.

Trider sold the police officer $100 worth of MDMA. He paid for the drugs in marked bills. When he asked about the quality of the drugs she said, "This is not my normal stuff." Ms. Trider offered to sell the undercover operator more drugs the following Tuesday. The officer left the car and Ms. Trider drove away. She was stopped some distance away and found in possession of the marked bills, along with some more MDMA, a very small amount, and some psilocybin. Her cellphone was seized from her. She was in possession of $40 at the time of her arrest. [ 7 ] Ms. Trider has no record of criminal convictions.

This is to the best of my knowledge her first involvement with the criminal justice system. Mr. McSheffrey for the Crown was very fair in pointing out that although MDMA is a

Schedule 1 drug, it is not as dangerous as other

Schedule 1 drugs like heroin, cocaine, and certainly not as dangerous as fentanyl. He was also fair in describing this as an unsophisticated operation, somewhere near the lower level of dial-a-dope drug-dealing. [ 8 ] Let me turn to the objectives of sentencing. The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718 of the Criminal Code says that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe community by imposing just sanctions that have one or more of the objectives stated in that section. [ 9 ] The objectives that are important in this case are numerous. The first is denunciation. Denunciation is a statement of our community's condemnation of conduct that has encroached on our basic code of values and for that reason should be punished. The second important objective is general deterrence.

That is an attempt to discourage other potential offenders from committing this sort of offence and to educate the general public about the consequences of this sort of offence. The third is specific deterrence. This is an attempt to discourage Ms. Trider from committing further offences through the fear of further punishment. [ 10 ] Another objective is rehabilitation. Rehabilitation can be the best protection our community has and is usually the main objective for youthful offenders like Ms. Trider.

However, it will normally not be the primary objective where the offender lacks significant remorse or denies responsibility for the offence. [ 11 ] A fifth objective is reparation. This is an attempt to return the community to the position it was in before the offence was committed. A sixth objective is the promotion of a sense of responsibility in offenders.

This objective includes an acknowledgement of the harm done to the victims and to the community. [ 12 ] Any sentence should be increased or decreased to account for any relevant aggravating or mitigating circumstances relating to the crime or to the offender. In this case, there are several aggravating factors. The first is the prevalence of the crime of drug trafficking, not only in this city but across the province. The second is that the crime was motivated by financial gain. Ms.

Trider found herself in difficult circumstances and turned to trafficking in drugs in order to earn income, which she later spent on herself and her child. The third aggravating factor is the type of drugs sold. Despite the fact that these drugs were not drugs like cocaine or fentanyl, it is still a

Schedule 1 listed drug, and for that reason alone has to be regarded as a serious drug. A fourth aggravating factors is the fact that there were further offences planned. In the course of her conversation with the undercover police office, Ms. Trider made it clear that she was prepared to traffic again with that officer in the future. [ 13 ] Alongside those aggravating factors though I have to consider the numerous mitigating factors in this case. The first is the fact that Ms. Trider entered a guilty plea before setting the matter down for trial.

That has relieved the Crown of the obligation of proving its case in court and it is an early indication that she is someone who is willing to accept the consequences and take responsibility for her conduct.

[14] A second mitigating factor is Ms. Trider's absence of a criminal record. As she indicated in the statement that was read to thecourt by her counsel, she is aware that she is almost inevitably going to receive a criminal record as a result of these sentenceproceedings, and that is going to remove from her the ability to travel freely. It is going to make other parts of her life equally difficult. [15] A third mitigating factors is Ms. Trider's youth. At the age of 26, and although she is a mother, she is still a very young personwith the rest of her life ahead of her.

Another mitigating factor is her previous good character. Her previous good character is attested toby the number of people that have come to court today to support her and by the many letters written by people that are present here incourt and by others about Ms. Trider. She enjoys the support of her extended family and she has obligations to her daughter, Sequoia. [16] Another mitigating factor is that Ms. Trider is now a productive member of society.

She is employed part time and based on theinformation provided to me in the various letters from people in the community, the time that she is not spending with her child andworking seems to be taken up almost completely by her volunteer activities. [17] Ms. Trider has cooperated with authorities from the time of her arrest forward. As the Crown has fairly indicated, Ms. Trider'soffence was unsophisticated. Her behaviour since the date of this offence has been laudable.

Her volunteer work particularly withagencies that support addictions work in the community suggests that she is somebody -- and I should say it is fairly rare -- who seekseven before sentence to make right what they have done wrong. [18] The final mitigating factor that I need to consider is remorse. I was referred to a passage in a decision of the Honourable JudgeDoulis called R. v. Large, which is reported at 2016, BCPC 340. The passage that Judge Doulis was citing was from a case called R. v.Anderson, , a decision of our Court of Appeal.

At paragraph 45 of Anderson the court said: The factor of "remorse" is often important. Insofar as it might be suggested that the court should regard those who come before it in asubmissive or contrite manner as deserving of more lenient treatment than those who accept their predicament with whatever fortitudethey are able to summon, there would be little in this factor which could assist the sentencing judge.

But to the extent that an accusedperson is able to demonstrate that he or she has, since the commission of a crime, come to realize the gravity of the conduct, and as aresult has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending,the existence of remorse in this sense obviously has much importance. [19] I find in Ms. Trider's case that there is evidence of significant remorse. I base that conclusion on the letter read to me by hercounsel, which was written by Ms. Trider.

I base that on the words that she spoke here in court in public in front of her friends andfamily, and on the references to her remorse that are a consistent theme of the letters provided, which have been marked as Exhibit 1. [20] The concept of remorse is a broad concept.

It includes remorse for consequences to the offender herself, remorse for theconsequences of her behaviour to her family and friends, and remorse for the consequences of her behaviour to the broader community. [21] The test of remorse is not a search for what caused it, but a search for evidence that the offender has changed her conduct inresponse to the remorse. I find that Ms. Trider since her arrest for this offence has changed her conduct in ways that have been attestedto by the people present here in court, and that those changes in her conduct are significant indicators.

The change in her conductsignificantly reduces the likelihood of further offending. [22] Before I move on, I must refer to Ms. Trider's offer to engage in public speaking with young people in the community. Throughher counsel, she offered to attend as many as five times at different high schools to engage in that sort of public speaking. I have nodoubt that her offer is sincere.

However, it raises some concern for me because there is a very small step between having an offenderengage in public speaking and exposing an offender to the sort of public shame that we see in cases foreign jurisdictions where peopleare made, for example, to stand on a sidewalk wearing a sandwich board about the offence that they have committed. There is no systemcurrently in place in the Kootenays, or any other part of the province with which I am familiar, in which people can engage in the sort ofpublic speaking that Ms. Trider is proposing.

There is no one to whom I can delegate responsibility for making sure that the conditionsunder which she would speak in public are appropriate.

However, as I said, I take her offer as sincere and I can see that a great deal ofgood might come of it if the conditions under which such a talk is conducted are appropriate both for her and for the young people thatshe is speaking to. [23] There will be a probation order and I intend to order as a condition of probation that she engage in public speaking at least once,but I intend to remain involved at least to the extent of contacting the probation officer to ensure that the conditions under which thatoccurs are appropriate. My contact may involve my attendance with Ms.

Trider at any public speaking event. [24] In

summary then, and after considering all of the objectives and principles and factors that I have just referred to, I am satisfiedthis is one of the rare cases in which exceptional circumstances justify departure from the range of sentence set out in R. v. Voong. [25] Ms. Trider, would you please stand? I am not going to impose a term of incarceration either on an intermittent basis or on astraight time basis. I am going to place you on probation. The term of the probation order will be three years. The conditions of theprobation order will be as follows: [26] You must keep the peace and be of good behaviour.

You must appear before the court when required to do so by the court. You must notify the court or the probation officer in advance of any change of name or address and properly notify the court or theprobation officer of any change of employment or occupation. [27] You must report by phone and speak to a probation officer at the Castlegar Community Corrections office by three o'clock p.m.today. If the office is closed you must try again the next business day and continue calling until you have spoken to a probation officerand received further direction to report.

After that you must report as directed by the probation officer. [28] When first reporting to the probation officer you must inform him or her of your residential address and phone number. Youmust not change your residence or phone number without written permission from your probation officer.

[ 29 ] For the first 12 months of this order, you must obey a curfew by being inside your residence between the hours of 10 o'clock p.m. and six o'clock a.m. each day, except

a) with the written permission of your probation officer; such permission is to be given only for compelling reasons. You must carry the permission with you when you are outside your residence during the curfew hours;

b) while in the course of your employment or when travelling directly to or returning directly from your place of employment. If requested, you must provide your probation officer with details of your employment including location and hours of work;

c) in the event of a medical emergency and then only while at a health facility or when travelling directly to or returning directly from a health facility.

If requested, you must provide your probation officer with written confirmation that you went to the health facility signed by a representative of the health facility to which you went. [ 30 ] You must present yourself immediately at the door to your residence and you must answer the phone when any police officer or probation officer attends at your residence or calls your phone to check your compliance with the curfew condition of this order. [ 31 ] You must attend, participate in, and successfully complete any intake assessment, counseling, or program as directed by the probation officer. [ 32 ] You must complete 40 hours of community work under the direction of the probation officer.

Your community work service must be completed by January 1, 2018. [ 33 ] With your consent, you will attend once in the company of your probation officer to address an appropriate group of students about the consequences of drug trafficking. [ 34 ] In addition to being bound by the terms of this probation order for a term of three years, there will be a number of ancillary orders. There will be an order of forfeiture with respect to the drugs seized and the cellphone. Those matters can be forfeited pursuant to s. 16 of the CDSA as offence-related property. [ 35 ] There will be a DNA order.

The DNA order will require Ms. Trider to provide samples of her bodily substance for the purpose of registration in the National DNA Data Bank. Those samples must be provided no later than May the 1st, 2017, at three o'clock p.m. [ 36 ] There will be a firearms prohibition under s. 109 of the Criminal Code . The firearms prohibition will be for a term of 10 years. [ 37 ] There will be a victim surcharge payable in the amount and at the time set by regulation, which should be $200 60 days from today's date. [ 38 ] Mr. McSheffrey, were there any additional ancillary orders that the Crown was seeking? [ 39 ] MR.

MCSHEFFREY: Yes, there was. When I was asking for forfeiture I omitted to ask you for an order in respect of this brown leather pouch. The officer mentions it when he was buying the drugs. She took the drugs from that brown leather pouch. When she was arrested there were further drugs found, I think it was further MDMA, in that pouch, so I would ask that the brown leather pouch be forfeited as well. [ 40 ] THE COURT: Mr. White, is there any issue with respect to that? [ 41 ] MR.

WHITE: No issue. [ 42 ] THE COURT: The forfeiture order will be for the drugs, the phone, and the brown leather pouch, Madam Clerk. [ 43 ] MR. MCSHEFFREY: And I take it as implicit in your firearm prohibition order that the firearms is the 10-year prohibition. The other matters are -- [ 44 ] THE COURT: Yes. [ 45 ] MR. MCSHEFFREY: -- for life? [ 46 ] THE COURT: Yes. [ 47 ] MR. MCSHEFFREY: And, forfeiture, firearms, data bank. No, those are everything and I have directed Madam Clerk already to enter stays of proceedings on Counts 2 and 3. [ 48 ] THE COURT: Thank you, Mr. McSheffrey. Is there anything further, Mr.

White? [ 49 ] MR. WHITE: No, Your Honour. Thank you. [ 50 ] THE COURT: Thank you. [ 51 ] THE CLERK: [Indiscernible/rapid speech] I didn't hear, but the reporting, is that set Nelson Police Department? [ 52 ] THE COURT: No, she is to report by phone to a probation officer. [ 53 ] THE CLERK: Oh, sorry, reporting for the DNA. Just [indiscernible/overlapping speakers]. [ 54 ] THE COURT: That will be at the Nelson Police Detachment. [ 55 ] THE CLERK: Thank you. [ 56 ] MR. MCSHEFFREY: One of the things that I noticed from the sentence that was imposed on Mr. Large by your sister judge

was that she made an order that Mr. Large provide to, she says the CSO supervisor but in fact it's a probation officer, copies of her monthly cell bills, cellphone bills. Obviously, if Ms. Trider were required to share with her probation officer her monthly cell bills, it might deter her from ever engaging in dial-a-dope operations. I would ask that you might give some consideration to that. [ 57 ] THE COURT: Thank you, Mr. McSheffrey. There is -- [ 58 ] MR. MCSHEFFREY: It is page one -- under paragraph 75 of that decision, and it is subparagraph (i). [ 59 ] THE COURT: I am -- thank you, Mr. McSheffrey.

I am certain that in the case before Judge Doulis that was an appropriate order to make. I am not satisfied, given my conclusions about Ms. Trider's remorse, and the unlikelihood of her committing further offences that it is necessary to impose such a condition in this probation order. [ 60 ] MR. MCSHEFFREY: Thank you. [ 61 ] THE COURT: But thank you. That is all [indiscernible/voice dropped]. (REASONS FOR SENTENCE CONCLUDED)