R. v. Crowder, 2020 BCPC 209

Citation: R. v. Crowder 2020 BCPC 209 Date: 20201028 File No: 247401-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. NICOLE KATHLEEN CROWDER AND DANIEL ANDERSON CROWDER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: J. Langlois-Sadubin, M. Ball Counsel for the Defendant D. Crowder R.S. Fowler, Q.C. Counsel for the Defendant N. Crowder A.C. Nelson Place of Hearing: Vancouver, B.C. Date of Hearing: August 19, September 4, 2020 Date of Judgment: October 28, 2020

INTRODUCTION [ 1 ] Ms. Crowder and Mr. Crowder, are siblings, and they are before the Court to be sentenced for offences related to the trafficking and smuggling of anabolic steroids. Specifically, Mr. Crowder pled guilty to trafficking in steroids, possession of steroids for the purpose of trafficking and possession of identity documents that relate to another person. Ms. Crowder pled guilty to smuggling prohibited goods into Canada. The task for this Court is to identify sentences that are fit and appropriate.

CIRCUMSTANCES OF THE OFFENCES General Background : [ 2 ] In July 2015, the Canada Border Services Agency (“CBSA”) began investigating a group of individuals suspected of smuggling anabolic steroids into Canada. The investigation led to the identification of individuals who were ordering anabolic steroids from international sources and arranging for their shipment to Canada and the United States. The orders that were sent to Canada were delivered to various mailboxes that were rented under fictitious names.

The orders that were shipped to the United States were sent to mail boxes whereupon a member of the group would attend, re-package the orders, and then ship them to Canada. Once the steroids were in Canada, steroids were sold to end users. Approximately 123 shipments were seized from the group. These seizures have an estimated market value of $715,357 Canadian. Mr. Crowder’s involvement [ 3 ] Between June 2014 and February 2017, Mr. Crowder ordered anabolic steroids and other import-controlled substances from foreign suppliers. Some of the orders were placed by Mr. Crowder and others were placed at his direction.

Once the orders were filled, the items were shipped to Canada with documents falsely identifying the steroids and the import-controlled substances as admissible products. Identifiers used included; nail and hair accessories, soap bars and craft supplies. [ 4 ] Ultimately, the CBSA began investigating Mr. Crowder and others. The investigation revealed electronic communications in which Mr. Crowder and others discussed suppliers, quantities, types, and brands of anabolic steroids.

There were also discussions involving packaging, false customs declarations, mailbox addresses, false names and payment methods. [ 5 ] Investigators learned that Mr. Crowder made a minimum of 90 separate orders for the purchase of anabolic steroids and import- controlled substances. These orders were ultimately smuggled into Canada and it is estimated that Mr. Crowder paid approximately $105,179 in Canadian currency for them. The investigation also tracked payments of approximately $399,000 to suppliers in Greece, Slovakia, and Poland. [ 6 ] Several seizures were made during the investigation.

These seizures revealed that the steroids were shipped in the liquid and tablet format. Also revealed was the fact that steroids were sent directly to Mr. Crowder (in his name), some were sent to an alias used by him and some were sent to mail boxes controlled by him. An approximation of the seizures are as follows: a) 13.4 litres of anabolic steroids; b) 7204 tablets of anabolic steroids; and c) 1 litre and 1034 tablet of imported-controlled substances. [ 7 ] As for the mail boxes, Mr. Crowder rented 20 boxes throughout the lower mainland. He also arranged for others to rent mail boxes with fictitious names.

The sole purpose for the mail boxes was for the receipt of steroids and import-controlled substances. In total, the operation involved 34 mail boxes in Canada and 5 in the United States. [ 8 ] Eventually, search warrants were executed and investigators seized $21,860 in cash. Through the searches, the investigators learned (amongst other details) that Mr. Crowder advised purchasers on how to use the steroids that he sold hypodermic needles and that he personally injected some of the purchasers. It was also discovered that Mr.

Crowder conducted approximately 523 sales with an estimated revenue of $884,916. [ 9 ] Of note is, in January of 2013, Mr. Crowder was detained at the Vancouver International Airport and in his possession was 1073 tablets of anabolic steroids. The steroids were seized and Mr. Crowder was informed of their illegality. He was then released without charge. [ 10 ] As for the possession of the identity documents, the investigation revealed that Mr Crowder was instrumental in obtaining false identification for Ms. Crowder and other members of the group.

In this regard, he paid $500 for fraudulent California driver’s licenses. The licences were for Ms. Crowder, and in the names of Fiona Leigh Connor and Sarah James Wallace. Mr. Crowder also paid $350 for a fraudulent Washington State Driver’s license in the name of Kory Bequist. This license was given to co-accused, Kevin Britton, who used it to rent mail boxes, send payments and the shipping of parcels. Ms. Crowder’s involvement [ 11 ] Ms. Crowder’s actions were at the direction of her brother, Mr. Crowder, and served to facilitate his activities.

In this regard, she rented mail boxes, she placed orders, she shipped product to Canada and she smuggled items into Canada. [ 12 ] As for the mail boxes, Ms. Crowder rented three in Canada and three in United States. Twelve seizures were made from the Canadian boxes and these yielded 2140 mls and 2100 tablets of anabolic steroids with an approximate value of $37,875. The mailboxes

in the United States received 35 parcels all of which were later smuggled into Canada by Ms. Crowder and her then common-law spouse, Duane Loewen. [ 13 ] As for her involvement in acquiring the steroids. Ms. Crowder ordered anabolic steroids and import-controlled substances, she actively sought out suppliers and she submitted payments for product. The payments were by money order or by cash which involved hiding Euros inside magazines. [ 14 ] In terms of smuggling, Ms. Crowder would go to the United States and retrieve steroids and import-controlled substances from the US rented mailboxes.

Thereafter, she would mail the product to Canada or she would smuggle them in her vehicle. In fact, there were three occasions when Ms. Crowder was stopped and searched. In this regard, she was stopped on September 24, 2014, and she was in possession of 15 packages. She was then stopped on February 17, 2015, and again on November 17, 2015. In February, the authorities found 190 vials of Human Growth Hormone. In November, Ms. Crowder was detained after her and Mr. Loewen had gone in separate vehicles for the purpose of retrieving product from a mailbox. On their return, Mr.

Loewen’s vehicle was stopped and searched and the authorities located 770 ampules of anabolic steroids and 194 ampules of Human Growth Hormone. [ 15 ] Finally, electronic communication shows that Ms. Crowder was originally being paid $200 per package and that this changed to monthly flat rate amounts of $3,000 -$5,000. The communication also shows that Ms. Crowder’s involvement was from mid 2014 to February 2017.

COMMUNITY IMPACT [ 16 ] The Crown filed an impact statement that was prepared by Investigator Anderson wherein the investigator discusses the types of steroids, the different uses, the adverse effects, the illicit market and the associated enforcement and administration. Of particular note is the negative effects. These may include, cardiovascular issues, complications with the endocrine system, risk to the musculoskeletal system, and psychological changes including mania, depression, aggression, and mood disorders. PERSONAL CIRCUMSTANCES Daniel Crowder [ 17 ] Mr.

Crowder was born in 1977 and raised in the lower mainland. His parents divorced when he was young and he spent time between two homes. He currently enjoys a good relationship with both of his parents. [ 18 ] In his youth, Mr. Crowder was diagnosed with Attention Deficit Hyperactivity Disorder. He ultimately became a behavioural challenge which resulted in him being expelled from school in grades 3, 7, 9, and 10. [ 19 ] By 15 years of age, Mr. Crowder was living in Nanaimo, in the care of the province, and using a variety of street drugs including, cocaine, ecstasy, LSD, mushrooms and alcohol.

By 16 years of age, Mr. Crowder had dropped out of school and was living on his own. Eventually, Mr. Crowder left BC moving to Toronto, Miami, and Los Angeles where he worked in bars while pursuing an acting career. During this time, Mr. Crowder abused drugs and alcohol and his life was out of control. In fact, in 2009, he was convicted of drug related offences and he received an 18 month conditional sentence of imprisonment. [ 20 ] In 2007, Mr. Crowder returned to British Columbia and he enrolled in recovery programs.

As a result, he has enjoyed, but for a brief relapse, a sustained period of sobriety and abstinence. Mr. Crowder was in a relationship which resulted in two children. Although Mr. Crowder and his partner are separated, they share custody and parenting responsibilities. It is reported that Mr. Crowder is an involved father who participates in all aspects of his children’s lives. [ 21 ] As for employment, Mr. Crowder operates a consulting business and he is involved in a start-up company. Through his consulting business, Mr.

Crowder assists individual and corporate clients with fitness, nutrition and general health. The start-up company is an online retailer of high-end Italian suits. Mr. Crowder’s role with this company is unclear. [ 22 ] According to Mr. Crowder’s counsel, it is Mr. Crowder’s entrepreneurial flair which permitted him, a high school drop out, to excel in business, and yet, it is this same entrepreneurial flair that has brought him before the courts. Essentially, Mr. Crowder misapplied his entrepreneurial talents to an illegal enterprise. Nicole Crowder [ 23 ] Ms.

Crowder is 44 years old and she was raised in Richmond. Her parents divorced when she was five and thereafter she was raised by both of her parents. At 14, Ms. Crowder left school and she became a volunteer at a bird rehabilitation sanctuary. Shortly thereafter, she worked as a clerk at a local mall. Much of the money she earned supported her family, this was because her mother was disabled and could not work. [ 24 ] In 2002, Ms. Crowder started working at an animal shelter and in 2007 she became an animal cruelty investigator with the SPCA.

In this capacity, she attended the Justice Institute of British Columbia where she received a Special Provincial Constable designation. This was Ms. Crowder’s dream job; it combined her lifelong love of animals with her need to be employed. [ 25 ] In May 2011, Ms. Crowder was assigned to assist with the investigation into the death of 51 sled dogs. In this regard, she was assigned to the exhumation team and one of her tasks was to strip the fur off of the deceased animals so that the Veterinarians could examine them and document the injuries. [ 26 ] Ms.

Crowder’s involvement in the sled dog matter resulted in significant emotional trauma and by the fall of 2011 she was showing extreme signs of PTSD. She was withdrawn and depressed, she could not sleep, she lost focus, she abused alcohol and she had suicidal ideations. A reference letter filed on Ms. Crowder’s behalf confirms her emotional turmoil:

Not long after this event, I noticed Nikki started drinking heavily and often. She also had a noticeable roller coaster of emotions which were highly unpredictable and quite scary. She was calling in sick for work often and when she was at work, she was emotional and unable to focus and our supervisor was not very compassionate or helpful towards Nikki which made things much worse. Nikki’s angry and emotional behavior was becoming more erratic and dangerous towards her friends and towards herself. One evening Nikki contacted me seemingly trying to give away her personal items like her TV.

I drove over to her home and found her to be very intoxicated, very emotional and she had several registered guns out in the open on her bed. I was terrified of what I was seeing; Nikki was crying uncontrollably and unpredictable periods of rage, her house was a mess, her animals were very anxious and I was convinced that Nikki was a danger to herself and others … . I removed myself and her dogs from the house and I contacted the police who came and removed her and took possession of her guns. Nikki was transported to the hospital for assessment and psychiatric care where she spent several weeks. [ 27 ] Ms.

Crowder’s PTSD resulted in her being off of work for an extended period of time. For a portion of this period she had difficulty obtaining work place insurance benefits, however, by mid-2012, her work place injury was acknowledged and the insurer noted that she suffered “serious psychological impairment and functioning”. Thereafter, Ms. Crowder received extensive psychological and medical treatments lasting into 2016. Also, and with the assistance of her insurer, Ms.

Crowder received re-training, and in this regard, she re-attended the Justice Institute of British Columbia where she received training as a by-law enforcement officer. Ms. Crowder’s involvement in the offence before the court foreclosed her ability to work in this capacity. Currently she is on disability and earns extra money as a part-time delivery person. [ 28 ] Ms. Crowder is a deeply religious person. She is actively involved in her church and since 2016, she has attended Bible studies on a weekly basis.

She has taken a number of courses offered by her church and she has committed to a two-year Theology program. Of significance is, Ms. Crowder disclosed her involvement in the instant matter to her church well before the charges were sworn. Finally, and as noted in a letter from her church, Ms. Crowder is a valuable member of their community and she regularly assists the church and other parishioners. [ 29 ] Several letters were filed speaking to Ms. Crowder’s character. Although the letters are different, the writers present similar observations. Notably, Ms.

Crowder was a fun loving kind person and the events of 2011 caused significant personality changes. The letters also observe that since 2016, Ms. Crowder has been on the pathway to being the person that she was. They also describe Ms. Crowder’s profound remorse. In this regard, one writer observed: Recognizing the seriousness of the offense she committed, she makes no excuse for her bad decision resulting in this case. She is sincere in expressing deep remorse for her actions.

Shame and guilt over breaking her lifelong code of morals and ethics thus tarnishing her reputation continues to weigh heavy upon her. [ 30 ] Finally, Ms. Crowder addressed the Court whereupon she expressed regret and remorse. She also addressed her family and she apologized for the shame that she has brought to the family. Then, and to the surprise of all, she thanked the CBSA investigator for the kindness that the investigator displayed while dealing with her. Throughout these proceedings, I have noted that Ms. Crowder has been extremely emotional. SENTENCING POSITIONS Mr.

Crowder [ 31 ] The Crown submits that a fit and appropriate sentence is an 18 month term of imprisonment to be served conditionally in the community followed by probation for 18 months and a $50,000 fine. The Crown also seeks a forfeiture order and a 10 year firearms prohibition. [ 32 ] The Crown argues that the proposed sentence reflects the seriousness of the offences, acknowledges the aggravating and mitigating factors, it also deters and denounces, and it is in balance with similar to sentences imposed in like cases. In support the Crown relies on: R. v. Dahl, [2005] B.C.W.L.D. 4909 , affirmed, R. v.

Dhal, 2005 BCCA 113 , R. v. Doucette (April 7, 2014), Nova Scotia1648503 (NSPC), R. v. Eggleston (November 9, 2015), Manitoba 555-48777 (Man. Prov. Ct. ), R. v. Genjeh and Nelson (October 8, 2019), British Columbia 65334-1 (BCPC), R. v. Britton (October 23, 2019) British Columbia 247401-1 (BCPC) R. v. Loewen (October 23, 2019) British Columbia 247401-1 (BCPC), R. v. Paul and Sawler, [1997] O.J. No. 5848 . [ 33 ] Counsel for Mr. Crowder urges the Court to impose a 12 month conditional term of imprisonment, a $25,000 fine, and probation for 18 months.

Counsel argues that the proposed sentence is proportional, meets the objectives and purposes of sentencing and is reflective of the mitigating circumstances. Finally, counsel rejects the suggestion Mr. Crowder’s offences were sophisticated arguing that being caught shows an absence of sophistication. Ms. Crowder [ 34 ] The Crown submits that a 3 month conditional term of imprisonment, a $10,000 fine, and probation for 12 months is fit and appropriate. In support, the Crown outlines Ms.

Crowder’s financial motivation, the aggravating and mitigating circumstances and the sentences imposed on offenders for similar conduct. [ 35 ] Counsel for Ms. Crowder urges the Court to impose a conditional discharge and points to Ms. Crowder’s good character, her community support and her remorse as factors serving to reduce the requisite denunciation and deterrence thus supporting the imposition of a conditional discharge. As for the suggested fine, counsel argues that Ms. Crowder is of limited means and that a fine would be unduly harsh.

THE PURPOSE AND PRINCIPLE OF SENTENCING [ 36 ] As per s. 718, the fundamental purpose of sentencing is:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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 or to the community. [37] For matters involving controlled substances, s. 10 of the Controlled Drugs and Substances Act, sets out the purpose ofsentencing.

Section 10 states: 10

(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this

Part isto contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, andtreatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [38] As per the Criminal Code, the fundamental purpose of sentencing is achieved by imposing just sanctions that have focusedobjectives. In cases involving the smuggling and the distribution of anabolic steroids, the primary objectives are denunciation anddeterrence: Dahl, 2004 CarswellBC 3366.

It is important to note that these objectives can be achieved through a myriad of sentencingoptions. Some sentencing options are heavily weighted toward denunciation and deterrence, while others are less so. By way of example,a custodial sentence provides a greater degree of denunciation and deterrence, whereas a conditional discharge carries a lesser degree ofdenunciation and deterrence. [39] Of note is that the pursuit of denunciation and deterrence must not result in a sentence that is disproportionate.

As per s. 718.1 ofthe Criminal Code, proportionality is a fundamental principle of sentencing, hence, the sentence imposed must be proportionate to theseriousness of the offence and the offender’s degree of moral responsibility. As such, the more serious the crime and the greater thedegree of the offender’s responsibility the heavier sentence. The critical importance of proportionality and its application in sentencingwas discussed by Label J., in R. v.

Ipeelee, 2012 SCC 13 at para. 37: [37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — themaintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of theoffence.

This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justicesystem. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, atp. 533: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentenceproportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishmenthe received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [40] Wagner J., in R. v.

Lacasse, 2015 SCC 64, also commented on proportionality at para 12: [12] In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentenceimposed on an offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, theheavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences,but also on the moral blameworthiness of the offender.

Determining a proportionate sentence is a delicate task. … [41] In addition to proportionality, the concept of parity informs the sentencing process. Despite the desirable goal of parity, it mustbe remembered that sentencing is an individualized exercise wherein the unique circumstances of the offender must be considered:Lacasse, at 58. Similar cases [42] In Dhal, the offender was convicted after trial and he received an 18 month conditional sentence order, personal fines totalling$116,360 and corporate fines totalling $232,720.

As for the offences, the offender imported and distributed anabolic steroids through hiscompany over a two year period. The amounts involved exceeded 120 kilograms. The offender was 48 years old without a criminalrecord and separated with one child. [43] In Doucette, the offender pled guilty to a number of offences involving the smuggling of steroids, the possession and thetrafficking of steroids. Evidence suggested that the offender had been involved in the offences for a number of years.

Seized from theoffender were 2122 grams of powder, 1138 pills, 3252 gel capsules, 3793 “finished product” pills, 1056 capsules, 2762 millilitres of

liquid. The offender was 37 years old, he had no criminal record, and he had worked for several years as a substitute teacher. His offences were driven by his personal need for steroids. The offender was sentenced to a 20 month conditional term of imprisonment, $35,000 in fines and probation for a year. [ 44 ] In Eggleston, the offender pled guilty to smuggling steroids and he was sentenced to a conditional term of imprisonment for 2 years less a day.

The offender had a difficult upbringing, he was trained as a nurse and his involvement in the offence started with him using steroids in order to compete in body building and this led to an addiction which the offender funded by smuggling steroids.

In passing sentence, Rolston J., noted some of the sophistication used by the offender including; PGP encrypted texting, false identification, the renting of mailboxes, and the “fanning technique” which was the mailing of small amounts of steroids to several mail boxes. [ 45 ] In Ganjeh and Nelson, the Court accepted a joint submission and imposed on Nelson a $139,840 fine (paid from the money seized), an 18 month conditional term of imprisonment, followed by a period of probation. In this case, the offender pled guilty to offences involving the trafficking, possession and importation of steroids.

The offences occurred over two years and involved false identification, mail box rentals, evidence of making steroid pills, and the seizure of a quantity of steroids, money and associated items. The offender was 35 years old, divorced, a father of one and as a child, he suffered abuse and instability. The offender was introduced to steroids when he was 24 years old and he used them for competitive body building, he did not have a criminal record, he had some post secondary education and he operated his own business. [ 46 ] In Paul and Sawler, the offenders pled guilty to steroid related offences.

The passing of sentence was suspended and they were placed on probation for 3 years. The offenders were in their 30’s, they were first time offenders, they had community support and they had strong employment. Of note is they were convicted after a trial and both were courier’s who picked up the steroids from mail boxes and delivered them to various locations. [ 47 ] In Britton, the Court accepted a joint submission of an 18 month conditional sentence order, probation for 12 months and a $25,000 fine.

The offender, who had been involved with the Crowder’s, was involved in the ordering, smuggling, and selling of anabolic steroids and import controlled substances. The offender was 34 years old with a strong employment history, he had previously struggled with alcohol and he had letters of support. [ 48 ] In Loewen, the Court accepted a joint submission and `suspended the passing of sentence and placed the offender on probation for 18 months. The offender, who had been Ms. Crowder’s common law partner, pled guilty to smuggling steroids and import controlled substances.

His offences involved renting four mailboxes, attempting to smuggle 770 ampoules of anabolic steroids and 194 ampoules of Human Growth Hormone and going to mailboxes in the United States, where he would retrieve anabolic steroids and import controlled substances and ship them to Canada. The offender was 48 years old, he had two children, and as a result of the charges, he lost a job that he held for almost 20 years, he had new employment and he had support in the community. [ 49 ] The above cases are of assistance, however, sentencing is an individualized process.

I also observe that some of the sentences were the result of a joint submissions and imposed after guilty pleas, whereas, other sentences were imposed without the mitigation of a guilty plea, and some were done in the absence of a joint submission. ANALYSIS Mr. Crowder [ 50 ] Denunciation and deterrence are the primary sentencing objectives for Mr. Crowder’s offences. His offences were in the middle spectrum of seriousness. This is because the maximum available sentence for smuggling items into Canada is five years, and the maximum penalty for trafficking offences involving steroids is three years.

Hence, possibility of jail and the maximum available penalties informs me that Mr. Crowder’s offences were serious, but at the low middle of the spectrum. I find that Mr. Crowder’s degree of responsibility was high. Specifically, the only available conclusion that can be drawn from the information is that he engaged in a sophisticated scheme in order to satiate his appetite for money. As for the degree of sophistication, I respectfully disagree with counsel’s suggestion that the charges demonstrate a lack of sophistication.

Clearly, getting caught may signal that the activity lacked sophistication, however, in the instant case, Mr. Crowder’s activities were well thought out, multiple persons were involved, he used fictitious identification, he used multiple mail boxes, he had product shipped to Canada and the United States, and he employed the use of aliases which when combined they signal sophistication. [ 51 ] As for the aggravating and mitigating factors. Mr. Crowder’s criminal record is aggravating in that he has a dated drug conviction. It is also aggravating that Mr.

Crowder persisted in the distribution of anabolic steroids, a dangerous substance, despite knowing that his shipments had been intercepted and despite him being stopped at the airport wherein steroids were seized from him. [ 52 ] It is also aggravating that Mr. Crowder took advantage of the self-declaration processes used by CBSA and Canada Post. In this regard, both rely on users to honestly declare what they are shipping and what they are bringing into Canada. Exploiting these systems run the potential of making it more difficult for those who honestly use the postal and boarder services.

Ultimately this could slow the international importation and shipment of legitimate goods. [ 53 ] As for mitigation, Mr. Crowder’s guilty pleas are substantially mitigating. His pleas demonstrate some remorse and a waiver of his constitutional right to have the state prove the case against him beyond a reasonable doubt. Additionally, he has saved the state, and the witnesses, the time and expense associated with a trial. The current pandemic makes the last point of particular significance.

First, the trial of this matter would have necessitated the calling of several witnesses from multiple jurisdictions and although it would not have been impossible, it would have necessitated travel and movement during a period when health officials are recommending caution and reduced interaction. Second, resolving this matter by way of a plea and avoiding a trial saves court time, which is currently at a premium owing to the backlog that has accumulated during the pandemic court shut down. DECISION [ 54 ] There is nothing to suggest that Mr.

Crowder serving his sentence by way of a conditional sentence order would endanger the

safety of the community or that it would be consistent with the fundamental principles of sentencing. [ 55 ] As for the length of the conditional sentence order, I observe in Dhal , that the offender received an 18 month conditional sentence order without the mitigation of a guilty plea. In Britton and Loewen, the 18 month conditional sentence was the product of a joint submission, and as a result the sentencing judges gave the proposed joint submissions substantial deference. In contrast, counsel in the instant matter did not present the Court with a joint submission.

Additionally, Britton and Loewen, did not have the strong acknowledgment of the guilty pleas during the current pandemic. [ 56 ] Considering all of the factors, I conclude that a 15 month conditional sentence order combined with a fine and probation will satisfy the purpose and principles of sentencing. [ 57 ] As such, on counts 5, 9, and 10, I sentence Mr. Crowder to a custodial sentence of 15 months to be served conditionally in the community followed by probation for a period of 18 months.

Terms and conditions of the conditional sentence order: • You must keep the peace and be of good behavior; • You must appear before the Court when required to do so by the Court; • You must notify the Court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the Court or supervisor of any change in employment or occupation; • You must remain in British Columbia, unless you have prior written permission from the Court or your conditional sentence supervisor to leave the province; and • You must report on or before 4 pm. today, Wednesday, October 28, 2020, to a conditional sentence supervisor at 275 East Cordova Street, Vancouver, BC, and you must report thereafter as and when directed by your conditional sentence supervisor. • For the first 4 months of this order, you must not be outside your place of residence except: • On Saturday’s between 1 pm and 4 pm and only for the purpose of shopping; • For employment purposes provided that in advance of employment obligations you inform your conditional sentence order supervisor and provide them with the address of your employment, the hours of your employment and a name and phone number of a person who can verify your employment location and time; • For attending at and travelling to and from scheduled appointments with your conditional sentence order supervisor; • For travelling to and from and while completing any community work service that has been directed by your conditional sentence order supervisor; • For the purposes of fulfilling your parenting obligations as may be permitted by your conditional sentence supervisor; and • You must present yourself at the doorway of your residence to any police officer, correctional officer or your conditional sentence supervisor who attends to ensure 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 not possess or consume alcohol; • While outside your place of residence, you must carry a copy of this order on your person at all times; and • At the direction of and to the satisfaction of your conditional sentence supervisor you must complete 100 hours of community work service.

Such community work service must be completed on or before November 1, 2021.

Terms and conditions of the probation order: • You must keep the peace and be of good behavior; • 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 promptly notify the Court or the probation officer of any change of employment or occupation; • You must report in person to a probation officer at 275 East Cordova Street, Vancouver, BC, within 72 hours of your conditional sentence order expiring and you must report thereafter where and when and in the manner directed by your probation officer; • While outside your place of residence, you must carry a copy of this order on your person at all times; and • 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.

Fine

[ 58 ] On count 1, (smuggling items into Canada) you will pay $25,000 on or before November 23, 2020. In arriving at this amount, I have considered counsel’s submissions and I am satisfied that Mr. Crowder has the ability to pay the allotted fine and that the fine would not interfere with his rehabilitation and reintegration. Ancillary orders [ 59 ] Pursuant to s. 109 of the Criminal Code , Mr. Crowder is prohibited from possessing all items set out in this

section for a period of 10 years. Forfeiture [ 60 ] By consent, all seized items will be forteited. Ms. Crowder [ 61 ] Ms. Crowder’s offences and her circumstances calls for a sentence that is focussed on denunciation, deterrence and rehabilitation. As for denunciation and deterrence, the sentence imposed must express society’s condemnation for Ms. Crowder’s offences and it must communicate to others that there are consequences for capitalizing on the systems used by CBSA and Canada Post. As for specific deterrence, I find that Ms.

Crowder has fundamentally changed since her offences and, therefore, I do not see her committing further offences, as such, a sentence with the objective of specific deterrence is not required. [ 62 ] Turning to rehabilitation, I see this as an important component of Ms. Crowder’s sentence. This is because at the time of Ms. Crowder’s offences she was still suffering from PTSD and based on the submissions of counsel and the supporting materials, I am satisfied that had it not been for the PTSD and the consequences, I suspect that she likely would not have committed the offences.

As such, it is important that the sentence imposed supports the gains that Ms. Crowder has made. This approach not only benefits her, but it also benefits society by ensuring that Ms. Crowder continues to be free from the mental health challenges that contributed to her acting in a manner that was inconsistent with her core values and fundamental beliefs. [ 63 ] I conclude that Ms. Crowder’s offence was relatively serious.

In this regard, the maximum penalty for her offence is imprisonment for 5 years, the substances involved present a risk to the users, and she exploited the vulnerabilities contained within the operations of CBSA and Canada Post. As for her degree of moral culpability, I note that Ms. Crowder had not fully recovered from her PTSD at the time and I accept that she was in a fragile mental state which impacted her decision making.

Accordingly, I find that her moral culpability is reduced. [ 64 ] In terms of aggravating factors, I find that the dangerous nature of the substances, the exploitation of the boarder and postal services and Ms. Crowder’s continued involvement despite knowing that some of the shipments had been seized to be aggravating. [ 65 ] As for mitigation, I find the following to be mitigating; Ms. Crowder’s guilty plea, her genuine remorse, her community support and her commitment to helping others. DECISION [ 66 ] In my view, the sentence advocated by the Crown is disproportionate because it fails to consider Ms.

Crowder’s reduced degree of responsibility. A further concern is that the proposed fine lacks recognition of Ms. Crowder’s limited financial means. In this regard, she has no means to pay the fine suggested and I worry that a fine would cause her significant stress and anxiety with the possibly that her mental stability could be compromised. Simply, she does not have the means to pay and any fine could destabilize her rehabilitation: [ 67 ] Turning to the issue of a conditional discharge, I am guided by, R. v.

Fallofield (1973) 13 CCC (2d) 451 BCCA, and I note that the conditions precedent to the granting a discharge are; the granting of a discharge must be in the best interests of the accused and the discharge must not be contrary to the public interest: (at pg. 454). [ 68 ] As for the best interests of the accused, this generally presupposes that the accused is of good character, without a criminal record, that a conviction is not required to deter or rehabilitate the accused and that a conviction may have adverse consequences on the accused: Fallofield, at pgs. 454-455. [ 69 ] In terms of the public interest, despite the public interest in the objective of deterrence requiring the appropriate weight, a court is not precluded from judicious use of the discharge provisions: Fallofield, at pg. 455. [ 70 ] In considering an appropriate sentence for Ms.

Crowder, I make the following observations. The sentence imposed must deter, denounce and rehabilitate. Further, the sentence must reflect that her role was more of a worker than an organizer and that her weakened mental health factored into her offending. Finally, the sentence imposed must recognize Ms. Crowder’s, guilty plea, her genuine remorse, her support in the community, her lack of criminal record, and her strong rehabilitative prospects. [ 71 ] In my view, a conditional discharge would be in the best interests of Ms. Crowder and would not be contrary to the public interest. In this regard, it is in Ms.

Crowder’s interest to be free from a criminal record. This will permit her the unencumbered access to future employment prospects. As for the public interest, I find that the public interest a discharge will satisfy requisite degree of denunciation and deterrence. Moreover, and significantly, the public joins Ms. Crowder in seeing that she is rehabilitated. Specifically, by having a rehabilitative component to the order ensures that Ms.

Crowder’s mental health continues to improve and it is this improvement that will not only move her toward regular employment but also extinguish and possibility that her mental health will trigger anti social behavior. [ 72 ] Accordingly, and for the above reasons, I grant a conditional discharge and place Ms. Crowder on probation for a period of 15 months.

Terms and conditions • You must keep the peace and be of good behavior; • 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 promptly notify the Court or the officer of any change of employment or occupation; • You must report by telephone to a probation officer at 604-660-3777 and, thereafter, you must report where and when and in the manner directed by your probation officer this may include reporting in person or by telephone; • While outside your place of residence, you must carry a copy of this order on your person at all times; • You must attend participate in and successfully complete any counselling as directed by your probation officer; and • At the direction of and to the satisfaction of your probation officer, you must complete 80 hours of community work service.

Such community work service is to be completed on or before October 28, 2021, and must not involve working with animals or the SPCA. ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia