R. v. Lawson, 2019 BCPC 103

Citation: R. v. Lawson 2019 BCPC 103 Date: 20190528 File No: 254132 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Division) REGINA v. MARCEL DION LAWSON REASONS FOR SENTENCE OF THE HONOURABLE JUDGE T.J. GOVE Counsel for the Crown: K. Lafontaine Counsel for the Defendant: D. Birch Place of Hearing: Vancouver , B.C. Dates of Hearing: May 21, 28, 2019 Date of Sentence: May 28, 2019 A Corrigendum was released by the Court on June 20, 2019.

The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] The accused, Marcel Lawson, has plead guilty to: Count 2: On or about the 18 th day of December 2018, at or near Vancouver, in the Province of British Columbia, did without reasonable

excuse, fail or refuse to comply with a long-term supervision order, by accessing the Internet, contrary to s. 753.3(1) of the Criminal Code . Count 4: On or about the 24 th day of December 2018, at or near Vancouver, in the Province of British Columbia, did without reasonable excuse, fail or refuse to comply with a long-term supervision order, by accessing the Internet, contrary to s. 753.3(1) of the Criminal Code . Criminal record [ 2 ] Lawson is a 37 year old aboriginal man who has a criminal record that starts as a youth and includes convictions for sexual offences as well as property offences.

The sexual offence convictions are: March 26, 1998 Sexual Interference Probation 2 years July 7, 2007 Sexual assault 10 months jail; 18 months probation January 21, 2008 Invitation to sexual touching 14 days; 3 years probation February 27, 2012 Invitation to sexual touching 1 day; 3 years probation August 31, 2015 Sexual interference 2 years August 31, 2015 Sexual interference 2 years (concurrent) plus 3 years credit for pre-sentence custody; Long Term Supervision Order for 10 years Suspensions of LTSO [ 3 ] Lawson was released from Correction Services Canada custody upon the expiry of his warrant of committal on August 30, 2017, on the Long Term Supervision Order (LTSO). [ 4 ] In September 2017 the release was suspended for failing to return to his residence.

The suspension was cancelled and he was released in October 2017 with a reprimand. The release was again suspended in January 2018 due to his conduct and attitude towards residence staff. The suspension was cancelled and he was released with a reprimand in April 2018. In June 2018 he was absent without permission from his residence and was suspended. This was cancelled in August 2018 with a reprimand. In September 2018 he was suspended due to having pornographic images on a cell phone. [ 5 ] On December 2, 2018 the suspension was cancelled and the LTSO reinstated.

The conduct that led to these suspensions did not result in new charges. He was ordered to reside at Belkin House in Vancouver. He secured full-time employment as a chef in a restaurant. This was the situation when the offences before the court occurred. Facts leading to charges [ 6 ] A search of Lawson and his room upon his return to Belkin House on December 30, 2018 revealed receipts for an internet café where he had used computers on December 18 and 24, 2018. Vancouver police arrested Lawson and the charges before the court were laid. He has been in custody ever since.

In his written statement dated January 7, 2019 Lawson says that he used a computer to talk to his daughter via Skype to wish her a merry Christmas. He says that he realizes that he should have asked his parole officer for permission. The prohibition on accessing the internet unsupervised was added to Lawson’s LTSO when he was released on December 2, 2018. In the index offence Lawson had used a telephone to contact the victim, leading to the offence. Years later he used the internet to locate and contact the victim, leading to his apprehension. Accessing the internet was not part of his index offences.

Material before the court [ 7 ] The Crown has filed a number of documents that fully set out Lawson’s background and assessments. I have benefitted from reading: • CPIC record • Long Term Supervision Order Certificate • 2015 Psychological/Psychiatric Assessment report • Assessment for decision related to the incident leading to the charges • Parole Board Decisions October 22, 2018 and March 15, 2019 • Statement of Marcel Lawson January 7, 2019 • Gladue Report April 30, 2014 Crown position on sentence

[8] The Crown’s position is that I ought to impose a sentence in the range of 12 to 18 monthes for the two counts. The Crownsubmits that because he was in custody pursuant to a suspension from December 30, 2018 until the charges were laid on March 26, 2019,he is not entitled to credit time in custody during that period as the time in custody will be credited to the LTSO. The Crown says thatLawson is entitled to credit for time spent in custody since March 26, 2019. [9] The Crown provided the court with a number of cases that set out the principles to be used when sentencing for breaching aLTSO.

The leading cases are R. v. Ipeelee and R. v. Ladue, 2012 SCC 13 (“Ipeelee”): [50] The foregoing characterization of the long-term offender regime is incorrect. The purpose of an LTSO is two-fold: to protect thepublic and to rehabilitate offenders and reintegrate them into the community. In fact, s. 100 of the CCRA singles out rehabilitation andreintegration as the purpose of community supervision including LTSOs. As this Court indicated in L.M., rehabilitation is the keyfeature of the long-term offender regime that distinguishes it from the dangerous offender regime.

To suggest, therefore, thatrehabilitation has been determined to be impossible to achieve in the long-term offender context is simply wrong. Given this context, itwould be contrary to reason to conclude that rehabilitation is not an appropriate sentencing objective and should therefore play “little orno role” (as stated in W. (H.P.), at para. 50), in the sentencing process. [51] This is not to say that rehabilitation will always be the foremost consideration when sentencing for breach of an LTSO.

The dutyof a sentencing judge is to apply all of the principles mandated by ss. 718.1 and 718.2 of the Criminal Code in order to devise a sentencethat furthers the overall objectives of sentencing. The foregoing simply demonstrates that there is nothing in the provisions of theCriminal Code or the CCRA to suggest that any of those principles or objectives will not apply to the breach of an LTSO. As with anysentencing decision, the relative weight to be accorded to each sentencing principle or objective will vary depending on thecircumstances of the particular offence.

In all instances, the sentence must be proportionate to both the gravity of the offence and thedegree of responsibility of the offender. [52] It would be imprudent to attempt to determine in the abstract the gravity of the offence of breaching a condition of an LTSO. Theseverity of a given breach will ultimately depend on all of the circumstances, including the nature of the condition breached, how thatcondition is tied to managing the particular offender’s risk of reoffence, and the circumstances of the breach.

However, a few commentsmay be instructive. [53] Breach of an LTSO is an indictable offence punishable by up to 10 years’ imprisonment. This can be contrasted with breach ofprobation which is a hybrid offence with a maximum sentence of either 18 months or two years’ imprisonment. In each of the presentappeals, the Crown places significant emphasis on this distinction, suggesting that the high maximum penalty indicates that breach of anLTSO is a particularly serious offence warranting a significant sentence.

My colleague, Rothstein J., reiterates this point at para. 123,concluding that the “necessary implication is that Parliament viewed breaches of LTSOs as posing such risk to the protection of societythat long-term offenders may have to be separated from society for a significant period of time”. [54] The lengthy maximum penalty certainly indicates that Parliament views the breach of an LTSO differently (and more seriously)than the breach of a probation order.

However, it would be too much to suggest that the mere existence of a high statutory maximumpenalty dictates that a significant period of imprisonment should be imposed for any breach of an LTSO. Breaches can occur in aninfinite variety of circumstances. Parliament did not see fit to impose a mandatory minimum sentence. Where no minimum sentence ismandated by the Criminal Code, the entire range of sentencing options is open to a sentencing judge, including non-carceral sentenceswhere appropriate.

In its recommendations, the Task Force specifically stated that a key factor to the success of a long-term offenderregime is “a speedy and flexible mechanism for enforcing the orders which does not result in lengthy re-incarceration in the absence ofthe commission of a new crime” (p. 19 (emphasis added)). [55] It is the sentencing judge’s duty to determine, within this open range of sentencing options, which sentence will be proportionateto both the gravity of the offence and the degree of responsibility of the offender.

The severity of a particular breach of an LTSO willdepend, in large part, on the circumstances of the breach, the nature of the condition breached, and the role that condition plays inmanaging the offender’s risk of reoffence in the community. This requires a contextual analysis. As Smith J.A. states in R. v.

Deacon,2004 BCCA 78, 193 B.C.A.C. 228, at para. 51, “the gravity of an offence under s. 753.3 must be measured with reference not only to theconduct that gave rise to the offence, but also with regard to what it portends in light of the offender’s entire history of criminal conduct”.Breach of an LTSO is not subject to a distinct sentencing regime or system. In any given case, the best guides for determining a fitsentence are the well-established principles and objectives of sentencing set out in the Criminal Code. [10] Ipeelee was an Aboriginal offender.

The Supreme Court of Canada in Ipeelee reinforced the principles from R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 when sentencing an Aboriginal offender, including for breaching a LTSO. Those principlesapply to Lawson, also Aboriginal. [11] The Crown provided a number of cases to demonstrate the range of sentences for breaching a LTSO. It is clear from the casesthat if the offender fundamentally frustrates the LTSO, such as by leaving a residential centre, the sentence will reflect that the breach isconsidered to be more serious.

In some cases offenders conduct, such as possessing pornography, related to the index offence. The courtshave treated these sorts of breaches more seriously. Breaches that were, albeit contrary to the LTSO, but more incidental in nature, wereseen as such. The only case where the breach was accessing the internet, there to check emails (R. v. Larocque, 2012 BCCA 216), was a sentence of six months custody. This is similar to Lawson using the internet to Skype his daughter.

Sentence [12] As instructed by Ipeelee, the breach here is not as grave as, for example, absconding and thereby both frustrating the offender’srehabilitation and potentially putting the public at risk. The breach here is at the lower end of seriousness. A six month sentence (180days) seems reasonable. Lawson has been in custody since December 30, 2018, 150 days. The British Columbia Court of Appeal inLarocque held that on sentencing the accused for breach of LTSO the court is not to give credit for the time spent in custody while undersuspension.

Credit for time in custody is only from March 26, 2019 when the Information was sworn. He has been in custody for 64 dayssince the Information was sworn which at 1.5 credit is 96 days of time credited It is, however, a fact that as a result of his breach,

Lawson has already received the consequence of 150 day in custody. [ 13 ] The sentence on each of the two counts is 180 days, concurrent: 84 days in addition to 96 day time credited. ____________________________ The Honourable Judge T.J. Gove Provincial Court of British Columbia CORRIGENDUM - Released June 20, 2019 In the Reasons for Sentence dated May 28, 2019 the following changes have been made: [1] The cover sheet should read: Counsel for the Crown: K.

Lafontaine [2] Paragraph 2 should read: March 26, 1998 Sexual Interference Probation 2 years July 7, 2007 Sexual assault 10 months jail; 18 months probation January 21, 2008 Invitation to sexual touching 14 days; 3 years probation February 27, 2012 Invitation to sexual touching 1 day; 3 years probation August 31, 2015 Sexual interference 2 years August 31, 2015 Sexual interference 2 years (concurrent) plus 3 years credit for pre-sentence custody; Long Term Supervision Order for 10 years [3] Paragraph 5 should read: On December 2, 2018 the suspension was cancelled and the LTSO reinstated.

The conduct that led to these suspensions did not result in new charges. He was ordered to reside at Belkin House in Vancouver. He secured full-time employment as a chef in a restaurant. This was the situation when the offences before the court occurred. [4] Paragraph 12 should read: As instructed by Ipeelee , the breach here is not as grave as, for example, absconding and thereby both frustrating the offender’s rehabilitation and potentially putting the public at risk. The breach here is at the lower end of seriousness. A six month sentence (180 days) seems reasonable.

Lawson has been in custody since December 30, 2018, 150 days. The British Columbia Court of Appeal in Larocque held that on sentencing the accused for breach of LTSO the court is not to give credit for the time spent in custody while under suspension. Credit for time in custody is only from March 26, 2019 when the Information was sworn.

He has been in custody for 64 days since the Information was sworn which at 1.5 credit is 96 days of time credited It is, however, a fact that as a result of his breach, Lawson has already received the consequence of 150 day in custody. _____________________________ The Honourable Judge T.J. Gove Provincial Court of British Columbia