R. v. ONM, 2011 BCPC 97

Citation: R. v. ONM, SM & CWS Date : 20110401 2011 BCPC 0097 File No.: 27082-7-C Registry : Prince George : IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON DISCLOSURE PURSUANT TO S.486.4(2) CCC REGINA v. O. N. M. S. M. C. W. S. REASONS FOR SENTENCE OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M. J. BRECKNELL Counsel for the Crown: A. Mandell /G. McDonald Counsel for the Defendant ONM: J. Duncan Counsel for the Defendant CWS J.

LeBlond Place of Hearing Prince George, B.C Dates of Hearing: July 22, September 9, 10 and 11, November 16, 2009; March 17, 18, July 7, November 29 and 30, 2010 Date of Judgment: April 1, 2011 INTRODUCTION [ 1 ] The Defendant, O. N. M. (Ms. M.) pleaded guilty to three Counts on Information Number 27082-7-C on February 9, 2009, namely:

a) Count One: Kidnapping;

b) Count Two: Unlawful confinement; and

c) Count Five: Assault causing bodily harm.

[ 2 ] The Defendant, C. W. S. (Mr. S.) pleaded guilty to four Counts on Information 27082-7-C on February 9, 2009, namely:

a) Count One: Kidnapping;

b) Count Two: Unlawful confinement;

c) Count Three: Extortion; and

d) Count Five: Assault causing bodily harm [ 3 ] The Defendant, A. G. H. (Ms. H.) pleaded guilty to two Counts on Information Number 27082-5-C, namely:

a) Count One: Kidnapping; and

b) Count Three: Extortion [ 4 ] Ms. H. has already been sentenced to a jail term of two years less a day in a Provincial prison and three years of probation. She cooperated with the police and the Crown in proceedings against the other Defendants. That cooperation contributed to Ms. M. and Mr. S. changing their pleas to guilty on the first day of trial on February 9, 2009. [ 5 ] The Defendant, S. M. (Mr. M.) pleaded not guilty to all counts on the Information and went to trial in Supreme Court. That trial was conducted from January 18 to January 22, 2010 and Mr.

M. was found guilty on February 9, 2010, of all of the Counts on the Information, and was sentenced on April 22, 2010, to the following concurrent sentences to be served in a federal penitentiary:

a) Count One: Kidnapping - 12 years

b) Count Two: Unlawful confinement – 7 years

c) Count Three: Extortion – 5 years

d) Count Four: Assault with a weapon – 4 years

e) Count Five: Assault causing bodily harm – 3 years

f) Count Six: Sexual assault – 4 years, and

g) Count Seven: Uttering threats – 2 years. [ 6 ] He was also required to provide a DNA sample, was prohibited from possessing weapons for the rest of his life, and was ordered to register on the Sex Offender Registry for twenty years. Mr. M. appealed his conviction and sentence but later abandoned the conviction appeal. His sentence appeal was dismissed. [ 7 ] T.C. (a youth) was also involved in this matter. He pleaded guilty to assault and was sentenced to 18 months probation. He later died of an overdose. [ 8 ] All the offences that the Defendants M., S., H. and T.C. pleaded guilty to, and Mr.

M. was found guilty of, were committed against M. S. (Mr. S.(2)) and occurred between April 1 and April 8, 2008. [ 9 ] The Crown seeks a sentence of between ten and twelve years for each of Ms. M. and Mr. S., a firearms prohibition pursuant to s. 109 of the Criminal Code and a DNA Order. [ 10 ] Ms. M.’s counsel submits that her sentence should be between four to six years less time credited for pre-sentence custody but does not oppose the firearms prohibition or the DNA order. [ 11 ] Mr. S.’s counsel submits that he could now serve a community based sentence in light of his pre-sentence custody credit.

He does not oppose the firearms prohibition or the DNA order. PERSONAL BACKGROUNDS [ 12 ] The information concerning the personal backgrounds of the two Defendants and Mr. S.(2) is set out in the Pre-Sentence Reports and updates, the Victim Impact Statement, Counsels’ submissions, the statements made by others on behalf of the Defendants and by the Defendants before sentencing. Defendant M. [ 13 ] O. N. M. was born on February 9, 1986 and is now 25. [ 14 ] She is a First Nations person whose parents were residential school survivors. She knows little of her cultural background but

has expressed the desire to become more involved with it. Her father has become an established and respected member of his First Nations community. However, Ms. M. has not maintained regular contact with him. [ 15 ] Ms. M. was raised in a very dysfunctional family. She moved frequently, attending many schools. She lived in a home where violence among family members was common. Her mother was a drug dealer. Many of her extended family members have extensive criminal records and have spent time in federal penitentiaries.

Some family members have also been the victims of serious crimes; one was murdered. [ 16 ] In recent years Ms. M. has repaired her relationship with her mother and her mother’s partner. Her mother cares for Ms. M.’s four year old daughter, T., and lives in Dawson Creek to stay away from her past negative influences in Prince George. [ 17 ] Ms. M. left school achieving only an elementary education. She describes herself as being physically and mentally healthy. However, she has been involved in poly-substance abuse dating back to her pre-teen years.

She was heavily addicted to and regularly using a number of different substances including alcohol, crack cocaine, crystal meth and ecstasy right up until her arrest on these matters. She has no employment experience or vocational training. [ 18 ] Ms. M. has a criminal history of some 20 offences dating back to when she was 12. Many of those offences involved serious violence including robbery, assault with a weapon, uttering threats, unlawful confinement and assault.

In addition, she has several convictions for drug related activities and breaches of court orders. [ 19 ] Since being in custody on these matters, Ms. M. has become actively involved with the Phoenix Transition Society and has participated in numerous life enhancement and counselling programs. Those programs address anger management, life skills, relaxation, drug and alcohol abuse, First Nations culture, children who witness abuse, and Bible studies through the Mennonite Church. All these various programs amount to over 400 hours of participation. The supervisor of those programs describes Ms.

M. as working very hard and that she now understands several of her problems are learned behaviours which she is endeavouring to reverse and overcome. [ 20 ] Ms. M. has also volunteered considerable time while in custody to such charitable activities as Ovarian Cancer Canada, Whispers Walk for Hope, and Wigs for Kids. In addition to that, she has completed the Dogwood Program and is planning to further her education through the University of Northern British Columbia. [ 21 ] In her statement to the Court before sentencing, Ms. M. said she accepted responsibility for her actions, apologized to Mr.

S.(2), noted that she had made some bad mistakes and hoped to move forward in her life. Defendant S. [ 22 ] C. W. S. was born on July 7, 1988 and is now 22. [ 23 ] He describes himself as Métis but has had no ongoing involvement with that cultural community. [ 24 ] He was raised in a chaotic environment. His parents separated when he was very young and he grew up residing at various times with his mother or grandparents. He left school having completed Grade 9/10. He has a transient, temporary, low skilled employment history. [ 25 ] As a teenager, Mr.

S. was asked by his grandparents to leave their home because he refused to comply with their house rules and was participating in substance abuse. [ 26 ] He has been living on the streets since age 16 and has fully participated in the drug culture, describing it as fun.

He has been the victim of several violent attacks, has acted violently towards others and has seen violence being inflicted on others to the point he now describes himself as having become desensitized to violence. [ 27 ] From the age of 18 until he was arrested, he was actively involved in poly substance abuse and was heavily addicted and using numerous substances at the time of these offences including alcohol, crack cocaine and crystal meth. [ 28 ] He is generally physically and mental healthy but believes he may have suffered from depression in the past. [ 29 ] Mr.

S. has a criminal record dating back to when he was 17 including mischief, violence and drug possession. It is a much less serious record than Ms. M.’s. [ 30 ] Since being in jail Mr. S. has been cited on four occasions for disciplinary problems but has not had any difficulties in the past year. He also successfully completed the Dogwood Program. His plan is to eventually seek employment in the welding or auto body repair trades. [ 31 ] In his statement to the Court before sentencing, Mr. S. said he accepted responsibility for his actions, wished to apologize to Mr.

S .( 2), said that no one should be subjected to what Mr. S.(2) endured, and that at the time his judgment was hazy due to drugs and alcohol but now he is sober, and he wants to maintain his sobriety and do well upon his release. [ 32 ] Counsel for both Ms. M. and Mr. S. indicated the Defendants’ intention to resume their relationship together upon their release from custody. M. S. [ 33 ] Mr. S .( 2) is 56 years old. He has no criminal record. [ 34 ] Throughout most of his adult life, he has been employed as a plumber in various locations in north central British Columbia.

He has been married and divorced twice and has two adult children and one teenaged child from those marriages.

[ 35 ] For many years, he and his second wife operated several businesses in Vanderhoof , British Columbia and he was actively involved in many community organizations and festivities. [ 36 ] In 2000, he and his second wife separated and she filed for a divorce. This devastated Mr. S .( 2). Later that year he was introduced to the use of cocaine while attending a party. After that first use, Mr. S .( 2) began to use both powder and crack cocaine, initially recreationally, but eventually he became addicted. In 2002, Mr.

S .( 2) attended a rehabilitation facility for approximately six months. [ 37 ] After rehabilitation he returned to work as plumber but within a short period of time he was again actively using crack cocaine. His use of crack cocaine continued on a regular basis but he was able to maintain his employment until 2008 when his crack cocaine use led to the loss of his job. [ 38 ] After that, as a result of the offences committed against him by the Defendants and Mr. M., Mr.

S.(2) said in his Victim Impact Statement that he suffered, and continues to suffer, from a spectrum of physical, emotional and psychological difficulties.

THE EVIDENCE [ 39 ] The Crown made extensive submissions with regard to the facts alleged which substantiate the guilty pleas entered by the Defendants M. and S. [ 40 ] After several days of submissions on the evidence, including presenting arguments urging the Court to enter into a formal sentencing hearing, and convincing the Court to start that process, counsel for the Defendants eventually accepted the facts alleged by the Crown but with regard to some of those facts offered an alternative

interpretation from the Crown’s submissions. Where there are such differences in

interpretation or additional facts alleged by the Defendants, I include them in narrative

summary set out below. Pre-offence Activities [ 41 ] From approximately 2002 until 2008, Mr. S .( 2) regularly purchased cocaine from Mr. C. B. (Mr. B.) and Mr. B.’s common-law wife at a residence on U. Street in Prince George. That residence was being operated as a crack shack. [ 42 ] Over the years he knew Mr. B., Mr. S .( 2) came to know Ms. M. who was introduced to him as [nickname]. Mr. B. indicated to Mr. S .( 2) that Ms. M. was his boss. Eventually Mr. S .( 2) began to make purchases of cocaine directly from Ms. M. because the amounts he was buying were larger than Mr. B. would have on hand.

During his early dealings with Ms. M., Mr. S .( 2) would, on occasion attend her residence on V. Street, (the Residence), where she would sell to him and consume with him crack cocaine. The Residence was not used as a crack shack. [ 43 ] When Mr. S.(2) returned to Prince George in early 2008, he was spending a great deal of time at the crack shack and eventually started working for Ms. M. at that location both acting as a door man and selling crack cocaine. Her payment to him for his services was made in cocaine. Mr. S.(2) often worked in the crack shack with Mr. B., Mr. B.’s common-law wife, T.C. and Mr.

M., all of whom were working for Ms. M. [ 44 ] During his early dealings with Ms. M. he became aware both from her and Mr. S. that they were involved in a spousal relationship. He was told by Ms. M. that she and Mr. S. each operated their own drug business and that sometimes they would assist each other in those businesses. Mr. S .( 2) also observed the business cooperation between the Defendants including Mr. S. working occasionally at the crack shack. [ 45 ] Ms. M. and Mr.

S. lived together in the Residence, but they also had an additional safe house located elsewhere in the City where they would go to rest from time to time. [ 46 ] After working at the crack shack for some time, Mr. S .( 2) also began to act as a chauffeur and runner for Ms. M. He would provide rides to Ms. M. and Mr. S., in his 2007 Pontiac Torrent, as they transacted their business. Mr. S .( 2)’s car was of service to Ms. M. and Mr. S. because Mr. S.(2) and his car were not known to the police as being associated with drug dealing. [ 47 ] As time went on Mr. S.(2) became a more trusted employee of Ms.

M. and he would often be given large amounts of cash or crack cocaine to transport or hold for her. These duties were in addition to his selling cocaine for Ms. M. and acting as her chauffeur. [ 48 ] On or about April 1, 2008, Ms. M. gave Mr. S.(2) approximately $200.00 cash and a large amount of crack cocaine worth between $1,500.00 and $2,000.00 to hold for her, in addition to another amount of cocaine which Ms. M. wished Mr. S.(2) to sell for her. [ 49 ] By this point in time, Mr. S .( 2) was fully addicted to and regularly using crack cocaine. When given the cocaine by Ms. M., Mr.

S .( 2) had already been binging for several days. On this occasion, instead of holding Ms. M.’s stock for her, he spent the next several days consuming the cocaine she had entrusted to him. Throughout most of that time he was with Ms. H. and they visited a variety of different locations in and about Prince George. [ 50 ] At one point, he and Ms. H. parted company. Later Ms. H. encountered Ms. M. Ms. H. described Ms. M. as being very upset with what had transpired, shouting and screaming at her. Ms. H. was frightened and drove away. Ms. M. acknowledges shouting at Ms. H. but only to get her attention.

The Offences [ 51 ] Soon after her encounter with Ms. M., Ms. H. and her mother went to the crack shack where she met up with Mr. M. who directed her into a back room where Ms. M. was. Ms. M. was very upset about her missing crack cocaine and she shouted and cursed at Ms. H. The shoes Ms. H. was wearing, which Ms. M. said were hers, were taken from her, preventing her departure given the weather conditions.

[ 52 ] Ms. H., fearing that she might be attacked by Ms. M. (she had been attacked twice before) quickly offered to help locate Mr. S .( 2) and return him to Ms. M. In order to encourage her in that effort, Ms. M. at one point offered to pay Ms. H. $100.00. [ 53 ] Ms. M.’s counsel submitted that she was very concerned about her cocaine because she had to report to her supplier. She knew that violence would be visited upon her if she didn’t quickly recover the drugs or get paid for them. She also knew that to maintain order in her organization Mr. S .( 2) would have to be disciplined. [ 54 ] Ms.

H. began looking for Mr. S .( 2) and eventually he called her on her cell phone and they agreed to meet. When they met Mr. S .( 2) said that he may have to leave town. He said that for the past couple of days his cell phone, which had been given to him by Ms. M., was regularly ringing but he did not answer. He said that he was afraid of the repercussions that he would face for using Ms. M.’s cocaine. He knew he was in trouble and would be disciplined by Ms. M. by a beating. In the past Mr. S .( 2) had witnessed other people being punished that way for similar infractions. [ 55 ] Once Mr. S .( 2) and Ms.

H. were back together, Ms. H. had several cell phone contacts with cell phones which were in the possession of Mr. S., Mr. M. and Ms. M. Due to her intoxication Ms. M. was unable to recall if she spoke to Ms. H. There were phone calls between the cell phones in the possession of Ms. M., Mr. S. and Mr. M. over several hours before Mr. S.(2) was located. Based on the cell phone logs presented, various calls were made among those phones between April 1 and April 3, 2008, when they abruptly stopped late in that evening. [ 56 ] From the time Ms. M. had given Mr.

S .( 2) the large amount of crack cocaine until he was located by Mr. S. and Mr. M., was approximately two to three days. During that time Mr. S .( 2) had consumed all of that cocaine and some additional amounts he obtained elsewhere. He had by now been awake continuously for five or six days. In that state Mr. S .( 2)’s sense of reality concerning time was distorted. [ 57 ] Eventually, Ms. H. was able to direct Mr. S. and Mr. M. to meet her and Mr. S .( 2) at a pizza restaurant. While she and Mr. S.(2) were walking to the pizza restaurant, a car carrying Mr. S., Mr.

M., with a third male, who was driving, pulled up to them. [ 58 ] Mr. S. and Mr. M. jumped out of the car and grabbed Mr. S .( 2). Mr. S. told Mr. S .( 2) that if he struggled he would shoot him right there in the parking lot. Mr. S .( 2), who knew Mr. S. to be regularly armed with a knife and Mr. M. to be regularly armed with a steel rod, was fearful, and got into the car. Mr. S .( 2) sat in the back seat with Mr. M. and Mr. S. sat in the front passenger seat. [ 59 ] Once seated, both Mr. S. and Mr. M. punched Mr. S.(2) in the head several times and Mr. S. said to Mr. S.(2), referring to Ms.

M., “This is for treating my woman like a bitch”. [ 60 ] They then forced Mr. S.(2) to disclose where his car was parked and Mr. S. told him that because of his actions, Mr. S. now owned the car and that Mr. S.(2) would have to sign papers transferring the car to him. Mr. S .( 2)’s car was worth $35,000.00. [ 61 ] Once Mr. S .( 2)’s car was located, Mr. S.(2) was forced into the back seat with Mr. M. and Mr. S. drove that car. [ 62 ] The driver of the other vehicle and Ms. H. drove away. That driver was known to Mr. S .( 2) through his dealings with Ms. M.. Ms. M. had described that man to Mr.

S .( 2) as a friend. Mr. S .( 2) was unable to identify that person. [ 63 ] As Mr. S. started driving away with Mr. S.(2) and Mr. M., Mr. S.(2) was told that Ms. H. had given him up and that he was lucky that they had found him because if somebody else had they might have dumped him in the river. This talk frightened Mr. S .( 2). [ 64 ] Mr. S. drove to the Residence and he and Mr. M. forced Mr. S .( 2) inside and took him to the basement. [ 65 ] Not long after their arrival, Mr. S. and Mr. M. had a discussion about Ms. M. who was sleeping, having crashed from a lengthy period of crack cocaine use.

Initially they could not decide whether to wait until she was awake but eventually then concluded they would start dealing with Mr. S .( 2) immediately. [ 66 ] Mr. S. told Mr. S .( 2) that he was going to get a beating for what he had done to Ms. M. [ 67 ] Ms. M. contended that she intended to deal with Mr. S.(2) herself and although she intended to discipline Mr. S.(2) by beating him, she did not intend or authorize Mr. S. and Mr. M. to attack Mr. S.(2) in as vicious a manner as they did in the first beating. [ 68 ] Mr. S. and Mr. M. put on leather bike gloves and Mr. S. initiated the beating by punching Mr.

S.(2) five or six times in the head with a closed fist. [ 69 ] Then Mr. S .( 2) was repeatedly punched and kicked by both Mr. S. and Mr. M. He tried to deflect some of their blows with his arms. During this beating they were swearing at him, calling him names and demanding to know what he had done with Ms. M.’s cocaine. [ 70 ] Mr. S. demanded that Mr. S .( 2) empty his pockets which he did, removing a small amount of cash, cigarettes, a lighter and a metal crack pipe. Once that was done, the beating recommenced. Throughout this time Mr. S. and Mr.

M. were laughing and seemed to be enjoying themselves. [ 71 ] At one point, T.C. came downstairs and was told by either Mr. S. or Mr. M. to punch Mr. S .( 2). T.C. seemed hesitant but eventually did punch Mr. S .( 2) several times, but the blows were weak. T.C. then left. [ 72 ] After T.C. had departed, Mr. S. instructed Mr. S .( 2) to remove all of his clothing. He did so and then was instructed to sit back in the chair. His hands were tied behind his back and his legs were bound to the chair legs with packing tape so he could no longer defend himself.

He was then gagged by having one of his socks stuffed in his mouth and taped over. [ 73 ] Mr. S. and Mr. M. ’s attack on Mr. S.(2) recommenced with Mr. S. taking Mr. S.(2)’s metal crack pipe and heating the bowl

with a butane torch until it was red hot. He then pushed the hot pipe against Mr. S .( 2)’s chest, burning the flesh and saying to him “how do you feel about the pipe now?” [ 74 ] At some point during the beating, Ms. H. came into the basement and started going through some of Mr. S.(2)’s possessions saying she should be paid. Mr. S. told her not to worry because Ms. M. would pay her the $100.00. [ 75 ] While she was there, Ms. H. noted Mr. S .( 2) was choking on his gag and she insisted the gag be pulled out. Mr. S. was angry at her for intervening, saying she should have left Mr.

S .( 2) to die. [ 76 ] After Ms. H. left, the attack on Mr. S .( 2) continued with Mr. S. attempting to kick Mr. S.(2) in the groin and later urinating on him. At one point, Mr. S. kicked Mr. S .( 2) in the hip, severely injuring him. That injury still lingers. Mr. S .( 2) was barely able to remain conscious due to the pain from his injuries and his exhaustion from having been awake for several days. [ 77 ] At some point Mr. S. declared the beating was over. Mr. S .( 2) was released from the chair, taken upstairs and forced into a shower to clean up. While showering, Mr. M. threw laundry soap on Mr.

S .( 2) causing his eyes to burn and sting. After the shower he was given some clothing, taken to a bedroom and told to sleep on the floor until the next morning. [ 78 ] Mr. S. reiterated that he was taking Mr. S.(2)’s car and that there would be a discussion when Ms. M. awoke regarding how Mr. S.(2) was going to repay her for the lost cocaine. [ 79 ] The next day Ms. M. paid Ms. H. for her services by providing her with crack cocaine. At that time she told Ms. H. that Mr. S. and Mr. M. continued to hold Mr. S.(2). Later while she and Ms. H. were being held in jail, Ms. M. told Ms.

H. not to ever say anything about being paid. [ 80 ] The next morning, Mr. S .( 2) was taken from the bedroom and told to sit in a chair in the kitchen. Mr. S. left telling Mr. M. to guard Mr. S .( 2) and prevent him from leaving. [ 81 ] Ms. M. arrived and was very angry with Mr. S .( 2) for his actions, shouting and swearing at him. At one point she turned to him and demanded “why?” and then swung a metal crack pipe attached to a 10” piece of rubber tubing at him, smashing it across the bridge of his nose, cutting it and causing a permanent indentation in the cartilage. Ms.

M. contends she did not see any other injuries on Mr. S . ( 2) at that time. [ 82 ] Ms. M. told Mr. S .( 2) to clean up the kitchen, particularly the blood that had come from his nose injury. She then told Mr. M. to watch Mr. S .( 2) to make sure he didn’t leave. She then left the Residence. Ms. M. contends she did not leave Mr. M. with any instructions to do anything to Mr. S .( 2). [ 83 ] Mr. M. directed Mr. S .( 2) to clean the kitchen. While Mr. S .( 2) was doing so Mr. M. obtained a bottle of vodka and began drinking. Eventually Mr. M. ordered Mr.

S .( 2) back down into the basement and told him to sit down on a stool. Once seated, Mr. M. grabbed a golf club and with full force struck Mr. S .( 2) on the forehead, above his left eye, causing an immediate goose egg lump. Mr. M. began laughing, went over to Mr. S .( 2) and caused him further pain by pushing against the lump with his thumb. [ 84 ] After that, Mr. M. ordered Mr. S .( 2) to disrobe and again sit on the wicker chair where he had been beaten the day before. Mr. M. picked up a 10’ long piece of rope with a noose at one end and tried to tighten it around Mr. S.(2)’s neck but it would not tighten.

He then demanded Mr. S .( 2) retie the noose, which Mr. S.(2) did. Mr. M. then tightened the noose around Mr. S .( 2)’s neck. He then tied Mr. S .( 2)’s hands with his belt. Mr. M. tried to find something in the basement to throw the rope over, but was unable to do so. He then yanked Mr. S .( 2) out of the chair by pulling on the rope around his neck. [ 85 ] Mr. S.(2) got back into the chair, Mr. M. crouched down in front of him, close to his face, and told him what was happening now was all about him and it had nothing to do with the night before or the debt owed to Ms. M.

It was for his pleasure and satisfaction and that he intended to kill Mr. S .( 2). Mr. M. then began pounding on Mr. S .( 2)’s ribs, urinated on him and tried to hit him in the groin with the golf club, but missed. [ 86 ] Mr. M. then got an aerosol can, pointed it at Mr. S.(2) and sprayed it, holding a lighter in front of the spray causing a ball of fire to shoot out and burn Mr. S.(2) first on his chest and then subsequently on his penis and testicles. Mr. S .( 2) cried out in pain and Mr. M. gagged him by using a bandana. Eventually Mr. S.(2) fell to the floor, Mr.

M. continued to use the aerosol can and lighter to spray flames on Mr. S.(2)’s back and shoulder area. After that, Mr. M. again sprayed Mr. S .( 2) with the aerosol can, tried to light the moisture on Mr. S.(2)’s skin but it did not light. [ 87 ] At that point, Mr. M. kicked Mr. S .( 2) a few times and then forced him onto his stomach. Mr. M. picked up a box cutter and told Mr. S .( 2) that he was going to carve the name “goof” in his back. He then cut into Mr. S .( 2)’s back with the box cutter. Mr. M. then poured vodka on and urinated on Mr. S .( 2)’s injuries. Then Mr. M. turned Mr.

S .( 2) over, and then lifted him from the floor by grabbing his penis. [ 88 ] Mr. M. then forced Mr. S.(2) on to his hands and knees, picked up a tooth brush and then rammed the handle of the brush forcefully into Mr. S.(2)’s rectum. He then put on a rubber glove, forced his fingers into Mr. S .( 2)’s rectum and told him he was going to call a friend over who would come over and “fuck him in the ass”. He then took his fingers that had been in Mr. S .( 2)’s rectum and smeared them across Mr. S.(2)’s face, nose and eyes. [ 89 ] At about that time, Mr. S. returned and came into the basement.

When he saw what had happened to Mr. S.(2) he became angry at Mr. M., swore at him and told him that he had a job for Mr. S.(2), but that he couldn’t use him now because he had been beaten again and had bruises on his face. [ 90 ] Mr. S.(2) was taken back upstairs and Mr. S. apologized to him saying that he would beat up Mr. M. for what he had done. There was an angry exchange between Mr. S. and Mr. M. wherein Mr. M. was told not to touch Mr. S.(2) again. Mr. S .( 2) was again allowed

to have a shower. When he finished his shower, Mr. M. refused to give him any clothing but instead he was told to wrap the shower curtain around himself like a dress. Mr. S .( 2) was then given a slice of bread, the first food he had consumed in three to four days. [ 91 ] At some point afterwards, Mr. M. told Mr. S .( 2) that if he wanted any clothing, he would have to fight with T.C., but Mr. S.(2) refused. Soon after Mr. M. grabbed Mr. S .( 2)’s moustache, pulled on it and told him to shave it off. Mr. S .( 2) complied with that demand. [ 92 ] It was around this time that Mr. S. again left the Residence.

He had no further contact with Mr. S .( 2) after that. [ 93 ] Later, Ms. M. returned, made a derisive comment to Mr. S.(2) about the curtain he was wearing as a dress and ordered him to the back bedroom where he was permitted to dress in the clothing he was wearing the night before. [ 94 ] After he was dressed Mr. S .( 2) and Ms. M. had a discussion. Ms. M. demanded that she be repaid for the lost cocaine. Mr. S .( 2) indicated to her that he may be able to raise some money from family members. He called his sister on April 5, 2008, in an attempt to raise $2,500.00, but was unsuccessful. [ 95 ] Ms. M. told Mr.

S.(2) he was only permitted in the kitchen or bathroom areas of the house unless he was escorted by someone else and that he was not allowed to go into the living room as there was a large picture window in that room. [ 96 ] At some later point in time, Mr. S .( 2) was directed by Ms. M. to go out to buy her cigarettes and lottery tickets. He was warned that if he didn’t return they would find him and beat him again. He complied with that direction. [ 97 ] Later Ms. M. and Mr. S .( 2) went from the Residence to the crack shack. Mr. S.(2) said he still considered himself to be under Ms.

M.’s control and that he was required to raise the money to replay her or he would be further disciplined. [ 98 ] Mr. S .( 2) then told Ms. M. that he may be able to raise the money through a former employer. He called that person and they agreed to meet at a fast food restaurant close to the crack shack and the Residence. In their initial meeting Mr. S .( 2) described his situation to his former employer. His former employer said he would need to talk to his accountant first and they agreed to meet again. Although Ms. M. permitted Mr.

S.(2) to go to the first meeting on his own he observed that she and her mother arrived soon after driving his car and watched him for a period of time. [ 99 ] A second meeting was arranged to take place at local fast food restaurant on April 8, 2008. His former employer arrived and Mr. S .( 2) sat in his truck. His former employer told Mr. S .( 2) that he would not provide him with money but that he would take him to a restaurant so that he could eat. He then convinced Mr. S .( 2) to go to the RCMP detachment where he gave his first of several statements concerning this matter.

THE LAW The Criminal Code [ 100 ] There are several sections of the Criminal Code that have or may have application in this matter. They are set out below. [ 101 ] S. 21 says in part

(1) Every one is a party to an offence who

a) actually commits it;

b) does or omits to do anything for the purpose of aiding any person to commit it; or

c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [ 102 ] S. 267 says in part Every one who, in committing an assault,

a) carries , uses or threatens to use a weapon or an imitation thereof; or

b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.. . [ 103 ] S. 279 says in part

(1) Every person commits an offence who kidnaps a person with intent

a) to cause the person to be confined or imprisoned against the person’s will;

c) to hold the person for ransom or to service against the person’s will.

(1.1) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable . . .

b) in any other case, to imprisonment for life.

(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of

a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(3) In proceedings under this section, the fact that the person in relation to whom the offence is alleged to have been committed did not resist is not a defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force. [ 104 ] S. 346 says in part

(1) Every one commits extortion who, without reasonable justification or excuse and intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.

(1.1) Every person who commits extortion is guilty of an indictable offence and liable . . . in any other case, to imprisonment for life. [ 105 ] S. 467.1 says in

part 1) The following

definitions apply in this Act . “ criminal organization” means a group, however organized, that (

a) is composed of three or more persons in or outside Canada; and (

b) has as one of its main purposes or main activities, the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group. It does not include a group of persons that forms randomly for the immediate commission of a single offence. “ serious offence” means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation. 2) For the purposes of this

section and

section 467.11, facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed. 3) In this

section and in sections 467.11 to 467.13, committing an offence means being a party to it or counselling any person to be a party to it. [ 106 ] S. 718 through 718.2 say in

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

a) to denounce unlawful conduct;

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

c) to separate offenders from society, where necessary;

d) to assist in rehabilitating offenders;

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

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

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing. . . i. evidence that the offender, in committing the offence, abused a position of trust or authority inrelation to the victim. ii. evidence that the offence was committed for the benefit of, at the direction of or in associationwith a criminal organization . . . shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. CASES AND COMMENTARIES The Crown [107] The Crown provided cases and commentary on the following topics:

a) Kidnapping, unlawful confinement and extortion

i) R. v. Mulvahill [1993] B.C.J. No. 16 (BCCA) ii) R. v. Hernandez 2009 BCSC 474 iii) R. v. Deo 2007 BCCA 626 iv) R. v. Randhawa 2007 BCCA 598

v) R. v. Wong 2008 BCCA 64 vi) R. v. Lowman 2006 BCSC 1565 vii) R. v. Hui (BC CA), [1995] B.C.J. No. 1632 (BCCA) viii) R. v. M. and Berar, Unreported, Prince George Registry No. 27887-1, February 16, 2009 BCPC ix) R. v. M. 2010 BCSC 178 and unreported, Prince George Registry No. 27082, April 22, 2010 BCSC and 2010 BCCA 546

b) Criminal Organizations

i) R. v. Terezakis 2007 BCCA 384 ii) R. v. Tahvili 2008 BCSC 22

c) The Kienapple Issue

i) R. v. Chan 2008 BCCA 528 ii) R. v. Metcalfe (1983) 10 C.C.C. (3d) 14 (BCCA) iii) R. v. Narwel 2006 BCSC 570 iv) R. v. Prince (SCC), [1986] 2 S.C.R. 480

v) R. v. Tremblay (1997) (QC CA), 117 C.C.C. (3d) 86 (QCA)

d) Common and unlawful purpose

i) R. v. Kirkness (SCC), [1990] 3 S.C.R. 74

e) Sentencing Procedure

i) Sentencing – The Practioner’s Guide, Gary Cluewley and Paul McDermott, Canada Law Book, Aurora Ontario, 2009 Defendant M. [108] Defendant M. provided cases and commentary on the following topics:

a) Kidnapping, unlawful confinement and extortion

i) R. v. Mills (BC CA), [1998] B.C.J. No. 2105 (BCCA) ii) R. v. Ayach 2007 BCSC 398 iii) R. v. Berthelet 2008 BCSC 999 iv) R. v. Hernandez 2008 BCSC 1376

v) R. v. Nelson 2010 BCSC 125 vi) 6.36 Kidnapping, CRIM JI, 4th Ed., C.L.E.B.C. 2005 vii) 6.75 CRIM JI, 4th Ed., C.L.E.B.C. 2005

b) Common Unlawful Purpose

i) R. v. Viger (1985) (ON SC), 36 C.C.C. (3d) 18 (OHCJ) ii) R. v. Puffer (1976) 1986 ABCA 217 , 31 C.C.C. (3d) 81 (Man. C.A.) iii) R. v. Agustus, et al 1977 ALTASCAD 177 , [1977] A. J. No. 624 iv) R. v. Simpson [1988] I S.C.R. 3

v) R. v. Young 2009 ONCA 549 vi) Parties To An Offence, Gordon Rose, Carswell, Toronto Ontario, 1982 vii) 5.01 Common Unlawful Purpose, CRIM JI, 4th Ed., C.L.E.B.C. 2005

c) The Kienapple Issue

i) Kienapple v. The Queen [1975] 1. S.C.R. 729 ii) R. v. Sharif 2002 BCCA 95 iii) R. v. Pal 2007 BCSC 1495

d) Gladue Sentencing Purposes

i) R. v. Gladue (SCC), [1999] 1 S.C.R. 688 ii) R. v. Napesis 2010 BCCA 499

e) Sentencing Procedure

i) Canada v. Boulet (1990) (SK CA), 58 C.C.C. (3d) 178 (Sask. C.A.) ii) R. v. Poorman (1991) (SK CA), 66 C.C.C. (3d) 82 (Sask. C.A.)

f) Other Issues

i) R. v. Brennan 2003 ABCA 330

ii) R. v. Doherty 2006 BCPC 208 Defendant S. [109] Defendant S. provided cases and commentary on the following topics:

a) Kidnapping, unlawful confinement and extortion

i) R. v. Dorland [1995] B.C.J. No. 499 ii) R. v. Pupovic [2000] O.J. No. 4427 (OCA) iii) R. v. Beaudoin (BC CA), [1990] B.C. J. No. 1977 (BCCA) iv) R. v. Rode 2007 ABCA 393

v) R. v. Corbett 2004 BCCA 378 vi) R. v. Munson 2001 SKQB 542 vii) R. v. Radisic [2005] O.J. No. 4264 (OCJ) viii) R. v. Blair 2007 MBQB 287 ix) R. v. Berry 2006 ABCA 275

x) R. v. Anderson 2004 BCSC 447 xi) R. v. Brossault 2009 BCSC 464

b) Conditional Sentences

i) R. v. Cheung 2008 BCSC 1834 [110] Counsel for both Defendants relied on each other’s cases during their submissions.

SUBMISSIONS and DISCUSSION Presentence Custody Credit [111] Initially, there was some disagreement between the Crown and Defence counsel concerning the appropriate amount of credit tobe granted to each of the Defendants. [112] The Crown initially took the position that the Defendants should receive less than two for one credit. [113] There was also some disagreement for a period of time as to how much credit each of the Defendants should receive for theirpre-sentence custody time. [114] Each of the Defendants are entitled to separate amounts of credit because of the duration of their pre-sentence custody andbecause Ms.

M. served an additional custodial sentence while awaiting sentence on this matter. [115] Eventually, counsel were able to agree as to the amount of credit each of the Defendants should receive on a two for one basis upto and including December 2, 2010. I have continued that credit calculation up until today’s date. [116] On that basis, Ms. M. has served 500 days in custody and shall receive 1,000 days or approximately 33 months of credit. [117] Mr. S. has served 867 days in custody and shall receive 1,734 days credit or approximately 57 months of credit. [118] Ms. M.’s credit is less than Mr.

S.’s because she served another sentence since her arrest on these matters. The Kienapple Issue [119] Counsel for Ms. M. submitted that the principles of Kienapple should apply here with reference to the kidnapping and unlawfulconfinement offences. The principles described in Kienapple were further enunciated by the Supreme Court of Canada in Prince as

being sufficient proximity firstly between the facts and secondly between the offences which form the basis for the charges. [ 120 ] In Prince , Dixon, C.J.C., concluded in paragraph 20: …Does the same act of the accused ground each of the charges? As Côté demonstrates, however, it will not always be easy to define when one act ends and another begins. Not only are there peculiar problems associated with continuing offences, but there exists the possibility of achieving different answers to this question according to the degree of generality at which

an act is defined . . . Such difficulties will have to be resolved on an individual basis as cases arise, having regard to factors such as the remoteness or proximity of the events in time and place, the presence or absence of relevant intervening events… [ 121 ] In Sharif , the British Columbia Court of Appeal determined that the legal elements of unlawful confinement are subsumed in the kidnapping offence but that the factual nexus relating to the two offences must be examined to determine if the Kienapple principles apply. [ 122 ] Ms.

M.’s counsel relied on two cases. [ 123 ] In Sharif , the victim was kidnapped and confined for about twenty minutes before release. She was not injured. The British Columbia Court of Appeal found on those facts sufficient similarity of the offences that the confinement was subsumed by the kidnapping and Kienapple applied. [ 124 ] In Pal (the co-accused named in the Tahvili decision), the victim was kidnapped at gunpoint. Counsel submitted the victim was held for two days, but in fact it was approximately four hours, over two days before he was released. The victim was not injured.

Joyce, J., applied Kienapple without further analysis as to why with regard to the unlawful confinement in connection to Mr. Tahvili . [ 125 ] The Crown pointed to several cases where Kienapple was not applied. [ 126 ] In Chan , the victim was kidnapped, held for eleven days, and sexually abused by a co-accused. Chan was convicted after a trial and sentenced on both the kidnapping and unlawful confinement charges.

The sentence was reduced on appeal but Kienapple was not applied. [ 127 ] In Narwal , three separate victims were kidnapped in separate circumstances and confined for a variety of lengths of time between a few minutes, several hours, and five days. Separate and both concurrent and consecutive sentences were imposed for the three kidnappings and unlawful confinements. [ 128 ] In Berthelet , the victim was kidnapped and confined for eight hours during which time she was beaten and threatened with death before being released.

Concurrent sentences for kidnapping and unlawful confinement were imposed. [ 129 ] In Hernandez , the victim was kidnapped and confined for eight days. She was not injured but was threatened repeatedly with guns. Concurrent sentences for kidnapping and unlawful confinement were imposed. [ 130 ] In M. , at the end of her Reasons for Judgment, Bruce, J., refers to hearing further submissions on the Kienapple issue. In her sentence decision, she sentenced Mr.

M. to concurrent sentences for kidnapping (twelve years) and unlawful confinement (seven years) on facts that are identical to the facts in the case at bar. [ 131 ] In applying the Kienapple principles to the pleas of Ms. M. and Mr. S., and after consideration of the direction set out in Prince , the conclusions arrived at in the cases supplied by Counsel and the sentence imposed by Bruce, J., on Mr. M. arising from the same set of facts as the case at bar, I am satisfied that Kienapple has no application here and sentences can and should be imposed for both the kidnapping and unlawful confinement.

Criminal Organization [ 132 ] The Crown relied on Terezakis and Tahvili in submitting that Ms. M., Mr. S., Mr. M., T.C., Ms. H., and others worked together in a criminal organization as defined in s. 467.1 of the Criminal Code for the purpose of dealing in illegal drugs and that Mr. S .( 2)’s kidnapping and confinement were carried out to recover the money value of the drugs he consumed to benefit the criminal organization headed by Ms. M. [ 133 ] Defence counsel relied on the submissions that Ms. M. and Mr. S. were not involved in a common purpose to sell drugs.

They were spouses who occasionally helped each other out in their business ventures but were not generally working together. [ 134 ] Defence counsel further submitted that given they were not working together in a common drug enterprise there was no criminal organization which could benefit from the kidnapping and that the kidnapping was, in the words of s. 467.1 , the work of “a group of persons that forms randomly for the immediate commission of a single offence”. [ 135 ] With regard to the issue of criminal organizations, I am guided by the words of MacKenzie, J.

A., in Terezakis where he says at paragraph 34: The underlying reality is that criminal organizations have no incentive to conform to any formal structure recognized in law, in part because the law will not assist in enforcing illegal obligations or transactions. That requires a flexible definition that is capable of capturing criminal organizations in all their protean forms. The Code provisions are a response to that reality. Nonetheless, the persons who constitute "the group, however organized" cannot be interpreted so broadly as to ensnare those who do not share its criminal objectives.

[ 136 ] Ms. M. was the leader of the organization and others were her subordinates. Ms. M. and Mr. S., along with Mr. M., all shared the criminal objectives to sell illegal drugs and to benefit from the sale. Mr. S.’s spousal relationship with Ms. M. does not isolate him from benefitting from her business enterprises. His occasional assistance in her business, his active participation in the planning and implementation of Mr. S .( 2)’s kidnapping, confinement, and the extortion of Mr. S.(2)’s vehicle all demonstrate that his participation in Ms.

M.’s criminal organization was ongoing. [ 137 ] The submission that the kidnapping was either random or a single offence also does not stand scrutiny. [ 138 ] Firstly, the actions of Ms. M., Mr. S., Mr. M., and others were not random. It was a planned event designed to return Mr. S.(2) to Ms.

M. and to discipline him in a fashion that demonstrated to him and others in the organization that such behaviour would not go unpunished and to extract from him money for the lost drugs. [ 139 ] Secondly, it was not a single offence of kidnapping, but rather several offences which were planned and implemented including kidnapping, unlawful confinement, extortion, and assault causing bodily harm. [ 140 ] I agree with Defence counsel that the level of planning was not as deliberate or extensive as described in several of the other cases presented. There was an urgency and immediacy to finding Mr.

S .( 2) to try and obtain the drugs held or payment for them so Ms. M. would not come to harm. Nevertheless, there was a strategy put into place and tactical steps taken to locate, isolate, capture, discipline and extract payment from Mr. S.(2). There was direction given by Ms. M. to carry out the objectives and steps taken by Mr. S., Mr. M., and Ms. H. and others to meet that objective all for the benefit of the drug dealing enterprise led by Ms.

M. [ 141 ] On that basis, the Crown has satisfied me that the provisions of s. 467.1 apply here and the actions were taken for the benefit of a criminal organization and, as such, are an aggravating factor on sentencing. Gladue Principles [ 142 ] Ms. M. is a First Nations person. Her parents are residential school survivors. Ms. M. has had little contact with her cultural community but appears to have become more involved with that area while in prison. [ 143 ] Mr.

S. describes himself as Métis, but has had no involvement either before his arrest or since his incarceration with that cultural community. [ 144 ] Ms. M.’s counsel pointed to Gladue and Napesis in submissions with regard to what additional sentencing considerations should be taken into account in her circumstances. [ 145 ] Ms. M.’s counsel waived her right to a full Gladue report as described in Napesis , advising the Court that the Pre-Sentence Reports, the additional information supplied by others and Ms.

M., her participation in First Nations programming while in prison, and Counsel’s submissions would suffice. [ 146 ] Mr. S.’s counsel made no submissions on Gladue. The Crown made no submissions on Gladue. [ 147 ] Gladue must be considered in determining a fit sentence for Ms. M.

I conclude I have received sufficient information on her background in order to consider the Gladue principles. [ 148 ] It is clear that her upbringing was chaotic and unfortunate and fits within the parameters described in Gladue with regard to the unique circumstances of aboriginal offenders. [ 149 ] However, I must also be guided by other comments in Gladue , namely:

a) It would be unreasonable to assume that aboriginal people do not believe in the importance of such sentencing principles as denunciation, deterrence, and separation from the community; and,

b) The more serious and violent the offences, the more likely it is a practical reality that the terms of imprisonment will be close to the same for both aboriginal and non-aboriginal offenders. [ 150 ] In the final analysis in applying Gladue and Napesis to Ms. M.’s circumstances the mitigation available to her is much reduced because of her past lengthy and serious criminal record, her convictions for similar offences and the seriousness of the offences she has pled guilty to here. Abandonment [ 151 ] Mr. S. left the residence not long after Mr. S.(2) had suffered the second beating at the hands of Mr.

M. and had no further contact with Mr. S.(2) during the last two or three days of his confinement. His absence from the residence was not explained. [ 152 ] Mr. S.’s counsel submitted that the Court could find that Mr. S. had abandoned the continuing confinement of Mr. S.(2) and

from that infer a lesser involvement by Mr. S. in that regard which would then allow the Court to impose a lesser sentence on him for that offence. [ 153 ] The Crown contends, relying on Kirkness , that there was “no clear and unequivocal abandonment” by Mr. S. because his last involvement at the residence was to direct Mr. M. to watch Mr. S.(2) and to ensure he did not leave. In addition, he continued the offence of extortion by being seen in Mr.

S .( 2)’s car on April 9 and remained unlawfully at large until May 2, knowing that he was wanted by the police in these matters. [ 154 ] Although the principles of abandonment was set out in Wilson, J.’s dissenting judgment in Kirkness and was not discussed in the majority decision of Cory, J., it does have applicability in this case. [ 155 ] In order for abandonment to be demonstrated, two factors must be present including:

a) timely communication of the intention to abandon the common purpose; and,

b) the communication must be clear and unequivocal notice to the other participants of the intention to withdraw from the common purpose. [ 156 ] There were no such statements or actions by Mr. S. in this case. The reasons for his departure and absence were unexplained and in no way can be described as a clear and unequivocal abandonment of the continuation of the unlawful confinement of Mr. S.(2). Mr. S .( 2)’s Lifestyle [ 157 ] Ms. M.’s counsel suggested that Mr. S.(2) was aware of and expected to be disciplined as part of the code within the lifestyle he was enjoying and, as such, the punishment for Ms.

M. and Mr. S. for such discipline should be lessened. [ 158 ] I reject that contention for the reasons set out by Bruce, J., in M. where she says at paragraph 9: [9] In my view, as Silverman J. said in R. v. Hernandez , the justice system imposes a single standard of conduct for all persons in society. The character of the victim is irrelevant. Whether the complainant was a drug addict or an innocent party does not render the misconduct of the accused any less serious.

The law must protect all persons equally, and this court should not countenance a two-tiered justice system, one for those who are truly innocent and another lesser system for those who are blameworthy in some sense. [ 159 ] In addition, it must also be considered that, at least in the case of Ms. M., Mr. S.(2) was an employee under her authority and s. 718.2(a)(iii) may apply.

Sentencing Ranges [ 160 ] There was strong disagreement between counsel, based on the cases they provided, as to the proper sentencing range to be imposed in this case. [ 161 ] That divergence in approach may be in part explained by two cases from the British Columbia Court of Appeal, Mills and Deo . [ 162 ] In Mills , the victim was kidnapped in full view of others, confined in a van for a few hours, threatened with death by firearm and then was rescued and the perpetrators arrested by the police.

The kidnapping was an attempt to collect a $7,000.00 debt. [ 163 ] Each of the accused was sentenced by separate judges, one to four years and one to five years in jail. In dismissing the appeals of those sentences, McEachern , C. J. B. C., said the following: 10. Later Leggatt , J elaborated on the motive behind the kidnapping and characterized the respondents’ behaviour as a form of “vigilante-ism”: The victim in this case, I am told, had declared bankruptcy. This would appear to have been a debt collection.

As far as the Court is able to determine, no charges have ever been laid against the ex-judgment creditor. The amount of money they attempted to recover is not large when compared with other comparable cases, but certainly there is an element of vigilante-ism in this case which is most disturbing. 11. It appears that neither sentencing judge thought that this was a carefully planned or sophisticated offence. Madam Justice Morrison’s impression was as follows: It was a time of terror for Mr.

Sawczenko and his wife and children and grandchildren who were at his home and while this cannot in any way be described as the gang that could not shoot straight, there was a large degree of stupidity involved in the offence. It did not appear to have a great deal, if any, of preplanning or deliberation, taking place in the full view of another co-worker, in the light of day, with a truck that could be easily described and two persons who could also be easily described.

12. The impulsive and hapless nature of the offence distinguishes the case from the preponderance of those on which the Crownrelied for its argument that the range starts at 10 years. Also the length of the confinement was much shorter than in the kidnappingcases attracting sentences in the Crown’s range . . . . 16. However, the respondents in the present case were indicted on kidnapping which carries a maximum penalty of life; themaximum for forcible confinement is 10 years. The difference reflects Parliament’s view of the relative gravity of the two offences. 17.

The classic form of kidnapping, that which attracts penalties in the 10 years to life range, usually involves a carefully plannedscheme for ransom with a period of confinement much longer than several hours and where the victim is bound, gagged, and sometimesblindfolded. This case is technically a kidnapping but in my opinion it is more like the second group of cases. It bears a greaterresemblance to extortion or a robbery accompanied by a relatively short period of confinement.

I would put the appropriate range at fourto six years. [164] In light of the Mills decision, subsequent cases, including many of which were referred to here by both the Crown and theDefence, divided kidnapping sentencings into “classic” kidnapping leading to longer sentences and “technical” kidnapping resulting inlesser sentences. [165] In the later case of Deo, the Court of Appeal corrected any notion that kidnapping cases had to be categorized into one of twogroups when Finch, C. J. B. C., said the following: [6] I will deal first of all with the learned trial judge’s treatment of the case authorities.

Both appellants submit that the learnedsentencing judge erred in his

interpretation and application of Regina v. Mills (1998), (BC CA), 112 B.C.A.C. 283,129 C.C.C. (3d) 313, [1998] B.C.J. No. 2105 (2L) (C.A.). In their written submissions counsel for both appellants say that Millseffectively established two categories for the offence of kidnapping. One category was described as “the classic form of kidnapping”,attracting penalties in the ten year to life range. The other category consists of cases where a kidnapping “technically” occurs, but theoffence bears greater resemblance to an extortion or robbery accompanied by a relatively short period of confinement.

Such offences aresaid to attract sentences in the four to six year range.… [12] Reading the reasons in Mills as a whole, in my view it stands for the proposition that in the particular circumstances of thatoffence and for those offenders, sentences of four and five years, respectively, were not unfit.

With respect, however, I do not read Millsas establishing two distinct and exclusive categories for the offence of kidnapping, nor as ruling out the possibility of sentences forkidnappings in an “intermediate range” of seven to nine years. [13] Given the infinite range of personal circumstances of those convicted of kidnapping, and the infinite variety of circumstancesthat can occur in the commission of the offence itself, it seems evident to me that the full spectrum of penal consequences should beopen to a trial judge when sentencing for this offence.

Although this Court sometimes expresses views as to an appropriate range ofsentence for certain classes of offences, it has no mandate to exclude from consideration any sentence that is permitted by law under theCriminal Code. [14] While it may be useful to identify factors in the offence that demonstrate a lesser or a greater degree of culpability, at the end ofthe day the sentencing process requires the judge to consider carefully all factors relevant to both the offender and the offence, in fixing asentence, within any limits set by the code, that is fit in all the circumstances. [166] The approach mandated in Deo has largely been followed in subsequent cases although references to certain factors such asplanning and execution of the kidnapping, the reasons for the kidnapping, the nature and length of confinement, whether or not a ransomwas demanded, other offences committed in conjunction with the kidnapping and confinement, and harm, if any, done to the victimremain considerations in arriving at a fit and proper sentence.

Such was the approach used by Bruce, J., in M.. [167] In the circumstances of this case, I conclude that although time constraints and possible retribution being visited on Ms. M. ifshe did not get back the cocaine did not allow for lengthy and detailed planning of the kidnapping, planning and coordination did occurbetween Ms. M., Mr. S., Mr. M., Ms. H., and others to locate and then kidnap Mr. S.(2). [168] I also conclude that there was an expectation by both the Defendants, Mr. M. and others in their drug enterprise, including Mr.S.(2), that there would be physical retribution visited upon Mr.

S.(2) to teach him a lesson and as a demonstration to others that hisbehaviour would not be tolerated. [169] In light of that background, and the fact that Mr. S.(2) was kidnapped to assist Ms. M. in her predicament, she cannot convinceme that she was less culpable for the first beating than either Mr. S. or Mr. M., or that her plea to the charge of assault causing bodilyharm only applies to her later striking of Mr.

S.(2) with her crack pipe. [170] She cannot disavow her responsibility for what happened in the first beating on the basis that she wasn’t there to direct it andwould have required less of a beating had she been present. [171] I also reject the contention that when she saw Mr. S.(2) the next morning that she did not note any injuries on him when sheattacked him. Given the nature of the first beating, any reasonable person with even a modicum of observational powers would haverecognized Mr.

S.(2) was the victim of a severe physical trauma. [172] Having considered the case and statute law, and the facts of this case, I have to come to a different conclusion concerning thesecond beating of Mr. S.(2) by Mr. M. alone. [173] At the end of the first beating, Mr. S. indicated that that was the end of the discipline of Mr. S.(2). That wasn’t actually the casebecause Ms. M. assaulted Mr. S.(2) the next morning. However, when Mr. S. and Ms. M. left Mr. S.(2) in Mr. M.’s charge the next day,

there was no expressed or implied direction that Mr. S.(2) was to be further harmed or disciplined. [ 174 ] Based on the facts presented here and as found by Bruce, J., in M. , his attack on Mr. S .( 2) had nothing to do with what Mr. S.(2) had done to Ms. M., nothing to do with any money owed to Ms. M. and nothing to do with any directions to Mr. M. by either Ms. M. or Mr. S. [ 175 ] The second beating was carried out for Mr. M . ’s sadistic pleasure alone and there was no suggestion by the Crown that either Ms. M. or Mr. S. had any prior knowledge of or indication that Mr.

M. was prone to such violent and sadistic behaviour. As such, I am unable to conclude that s. 21(1) or s. 21(2) of the Criminal Code can be applied to Ms. M. or Mr. S. with regard to the second beating of Mr. S.(2). [ 176 ] Having said that, their actions after the second beating and throughout Mr. S .( 2)’s confinement do amount to aggravating circumstances with regard to the confinement. Mr. S .( 2) was not provided with any medical assistance after either beating, he was practically starved during his ordeal and he was treated in a humiliating fashion throughout the confinement. Ms. M. and Mr.

S. actively participated in that mistreatment. Guilty Plea [ 177 ] Both Defence counsel maintained that their respective clients’ guilty pleas on the first day scheduled for the trial of this matter should be considered as a mitigating factor for the following reasons:

a) It saved Mr. S .( 2) from having to testify at trial;

b) Although late in the day it was a result of new circumstances that arose from Ms. H.’s cooperation with the authorities;

c) The Crown’s witnesses were needed for the proceedings against Mr. M. in any event, and as such, the Crown’s preparation for trial was not greatly affected. [ 178 ] The Crown submitted that the Defendants’ guilty pleas should be given very little mitigating value for the following reasons:

a) The late acceptance of responsibility put the Crown to considerable effort in marshalling the complex evidence, preparing the experts and the other numerous witnesses to give evidence;

b) The refusal to make admissions on the part of the Defendants at the numerous pre-trial and trial confirmation hearings caused additional work for the Crown; and

c) The Defendants still required Mr. S .( 2) to testify at the sentencing hearing causing him additional distress. [ 179 ] I agree with that the guilty pleas of the Defendants are worthy of some mitigation on sentence despite the late acceptance of their responsibility for their actions. The Crown’s preparation for trial was still necessary for Mr.

M.’s trial, even though he made several admissions concerning some of the complex evidence. [ 180 ] However, the amount of mitigation must be tempered by Defendants’ counsel’s approach to the sentencing process, insisting over several months to refuse to accept the Crown’s allegations, requiring Mr. S .( 2) to be present on several occasions and eventually having to give some evidence, all of which undoubtedly caused him distress before Defence counsel finally accepted the Crown’s version of events subject to some further explanation made on some points. R. v. M. [ 181 ] Although Mr.

M. was found guilty of several more offences than either Ms. M. or Mr. S., his sentence and the reasons for it are worthy of careful consideration and application here because they arose from the same set of facts involving the same participants. In her sentencing decision concerning Mr. M., Bruce, J., said the following with regard to various aspects of the case: [5] Turning to the circumstances of the case at hand, the offences committed by Mr. M. are extremely serious.

He assisted others to carry out a plan to kidnap the complainant and transport him to a house where he was bound and gagged, and then beaten and tortured for several hours by Mr. M. and the other participant, Carlin S., as punishment for taking drugs belonging to Odessa M.. . . . [7] While there is no evidence to suggest that Mr. M. was anything more than a foot soldier carrying out orders given by Odessa and Carlin, his role in the kidnapping and unlawful confinement of the complainant carries with it a high level of moral culpability. . . [8] Mr.

M. argues that the circumstances of this case are not as serious and should not attract the same kind of condemnation of society as those where the victim is innocent and where ransom is the purpose of the kidnapping. He argues that the complainant, as a drug dealer involved with the other participants and thus on the same level, should be accorded less sympathy by the court. Further, he argues that the complainant should have expected that he would be punished for stealing drugs and that, as a consequence, the psychological harm is not as severe as with an innocent victim.

. . . [11] Given the level of violence involved in these offences, the harm inflicted upon the complainant, the planned and deliberatenature of the accused’s actions alone and in conjunction with the other participants, the duration of the beating and torture, and thegratuitous humiliation meted out by the accused alone and in conjunction with other participants, I find the principles of denunciation,general and specific deterrence, as well as the protection of the public must take priority in this sentencing.

The justice system mustimpose a sentence that adequately reflects society’s abhorrence of such violent and terrifying misconduct toward another human being. . . . [13] Crown also relies upon the deemed aggravating factor of a criminal organization; that is, Mr.

M. , Odessa, and Carlin acted inconcert for the benefit of their criminal trafficking business to both ensure the payment of the drug debt by the complainant, and as ameans of demonstrating to their other employees, if you will, what would befall them if they should engage in similar conduct. [14] Whether or not this is found to be a criminal organization as defined by the Code, I find the motives behind the kidnapping,forced confinement, beating, and torture of the complainant to be an aggravating factor. Not satisfied with the repayment of the moniesowing, Mr.

M. and the others used prolonged torture and threats to extort far more than what was owed by the complainant for thepurpose of sending a message to their other employees. In other words, their motives were to extract obedience and loyalty with the threatof violence beyond what anyone could endure. This is clearly something that our society should condemn in the strongest possibleterms. . . . [21] I have read the authorities relied upon by the Crown and defence. In my view, there are no categories of kidnapping cases towhich particular ranges of sentence attach.

Each case must be decided on its own facts, after due consideration for the aggravating andthe mitigating circumstances. . . . [23] In this case there is some evidence that the kidnapping was planned, but not that it was a sophisticated design. During thebeating, items were used as weapons, but these were not used to abduct the complainant. While Mr.

M. does not appear to have played asignificant role in the planning of the abduction, he was actively involved in carrying out this act and in all aspects of the complainant’slater confinement and beating. . . [24] I have outlined the mitigating circumstances earlier and find that, while they must be given some weight, it is the punitiveobjectives in sentencing that must be accorded primary important in this type of case. . [182] Those reasons were further commented on in the appeal decision when Low, J.

A., for the Court of Appeal said: [4] On 9 February 2010, the trial judge convicted the appellant of these serious offences after a six-day trial. The victim was a 56-year old male drug addict who worked from time to time as a trafficker for Odessa M., a higher level drug dealer, to support his habit.The victim used for his own purposes some of the drugs entrusted to him by M., as well as some money belonging to her.

In revenge andin order to extort money from the victim, the appellant and others kidnapped the victim and transported him to a house in Prince Georgewhere he was bound, gagged, beaten and tortured for several hours. He was confined for about five days, although during some of thistime he was permitted to leave to attempt to raise the money demanded. He returned under fear of further reprisal. … [12] The appellant contends that the trial judge erred in not giving weight to the fact that the victim did not need to be rescued orexchanged for ransom.

The fact that the victim got away from his captors without requiring the intervention of others is not a factor toconsider. [13] I do not consider the absence of a ransom demand to be a factor at all in the sentencing. Severe and threatening steps were takento attempt to extract from the victim more than the money he owed to his drug boss. … [20] The global effective sentence of 12 years in the present case, in my view, was at the low end of the scale for more seriouskidnapping and extortion cases when one considers cases such as R. v.

Abrosimo (2007), 2007 BCCA 406 , 225 C.C.C. (3d) 253(B.C.C.A.) (18 years); R. v. Narwal, 2006 BCSC 570 (17 years); R. v. Nguyen (and Hernandez) (2009), 2009 BCCA 546 , 277B.C.A.C. 120 (13 years); and R. v. Poon (2008), 2008 BCCA 64 , 231 C.C.C. (3d) 166 (B.C.C.A.) (12 years). In addition, thiscase has the added component of sexual and other assaults committed in a manner that is extremely disturbing.

[21] There are no circumstances in this case that would justify a sentence below the lower end of the range in cases of this nature. Given the length of the unlawful confinement, the assaults of the victim by the appellant, and the appellant’s degradation of the victim, this is more than a kidnapping and extortion case.

An effective sentence longer than 12 years might well have been fit, but there is no argument available to the appellant that the global sentence of 12 years was for any reason unfit. [ 183 ] It is those decisions, based on the same facts as the ones before the Court here, that must be the starting point in the arriving at a fit and proper sentence for Ms. M. and Mr. S. Additional Aggravating Factors [ 184 ] The Crown maintained the following were additional aggravating factors:

a) Ms. M. paid Ms. H. for her assistance in finding Mr. S .( 2);

b) Ms. M. was the boss and the controlling mind of the organization;

c) Mr. S. and Mr. M. threatened Mr. S .( 2) during the kidnapping;

d) Mr. S. and Mr. M. beat Mr. S .( 2) on the first occasion because he took Ms. M.’s drugs;

e) Mr. S. and Mr. M. enjoyed beating Mr. S .( 2) on the first occasion;

f) Mr. S. was the controlling influence during the first beating and in doing so involved Mr. M. regarding the second beating;

g) Mr. S. caused a permanent hip injury to Mr. S .( 2) during the first beating;

h) The beatings were severe and lengthy;

i) Mr. S .( 2) was confined for an extensive period of time before he was able to affect his release. [ 185 ] Neither Defence counsel strongly contested the alleged aggravating factors set out by the Crown but both suggested that the weight to be given to them should be minimized. Additional Mitigating Factors [ 186 ] Both Defence counsel relied on the following additional mitigating factors:

a) The level of intoxication of Ms. M. and Mr. S. during the events;

b) The fact that the kidnapping was not a deliberately planned out affair but was occasioned by the urgency of the circumstances;

c) Both Defendants have taken active steps to rehabilitate themselves since they have been incarcerated. [ 187 ] The Crown did not strongly contest those mitigating factors. [ 188 ] With regard to the mitigating factors I conclude that there are valid reasons to consider the following as additional mitigating factor:

a) The Defendants’ relatively young age; Sentencing Principles [ 189 ] Based on the cases presented by counsel in this matter, it is clear that the principles of denunciation, specific deterrence, general deterrence and separation from society for the protection of the public must take priority in these types of cases. [ 190 ] In addition, in cases like this, considerable weight must be given to the punitive objectives set out s. 718 through 718.2. [ 191 ] The Court must impose a firm but fair sentence that indicates to the Defendants the seriousness of their conduct and reflects society’s abhorrence and disgust of their actions against another member of our community.

[ 192 ] That is not to say that in deciding the case, the Court is oblivious to or rejects the attempts taken by the Defendants to rehabilitate themselves and their own acceptance of responsibility for the harm they caused Mr. S.(2) and to the community. The fact that both Defendants have done so puts them in a much different position in that regard then Mr. M. [ 193 ] In determining the gravity of the offences here, the degree of responsibility of both Defendants, and the sentences imposed on others who participated in these events, but particularly Mr.

M., careful consideration is necessary. [ 194 ] I have already found as an aggravating factor the issue of these offences benefiting a criminal organization but I also conclude that in the case of Ms. M. that there is an additional aggravating factor of abuse of her position of authority in relation to Mr.

S.(2). [ 195 ] However, when considering all of the principles and purposes of sentencing in this matter, the facts in this case, the personal circumstances of both Defendants, the different criminal records of both Defendants, the aggravating and mitigating factors I have discussed, the relevant case law, particularly Deo and M. , and the submissions of counsel, I come to the conclusion that both Defendants should face the same global sentence but with some differences in the individual counts pled to before consideration of their pre-sentence custody credit. [ 196 ] I also conclude for the same reasons I have described above and despite Low, J.

A.’s comments in M. that their sentences should be less than Mr. M. received (twelve years) for the following reasons:

a) They acknowledged their responsibility for their actions;

b) They expressed remorse;

c) They have taken steps to rehabilitate themselves;

d) They are young and still capable, with effort, of becoming contributing members of society. DECISION DNA Order [ 197 ] Each of kidnapping, unlawful confinement, and assault causing bodily harm are primary designated DNA offences. [ 198 ] Ms. M. has already been sentenced on two occasions to mandatory DNA orders and Mr. S. has been sentenced on one occasion to a discretionary DNA order. [ 199 ] Nevertheless, each of Ms. M. and Mr. S. will be required to provide a sample of their DNA to the DNA National Databank for the three offences mentioned above which constitute Counts 1, 2 and 5 on the Information.

Firearms Prohibition [ 200 ] Ms. M. has already been prohibited on four previous occasions pursuant to s. 109 of the Criminal Code . [ 201 ] Therefore, it is again appropriate to prohibit her from possessing firearms of any sort for the rest of her life pursuant to s. 109 of the Criminal Code . [ 202 ] Mr. S. has received a discretionary firearm prohibition once under s. 110 of the Criminal Code . [ 203 ] Therefore, it is appropriate to prohibit him from possessing firearms pursuant to s. 109 as follows:

a) any firearm other than a prohibited firearm or restricted firearm and any crossbow, restricted weapon, ammunition, or explosive substance for a period of 10 years; and,

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. Sentences for the Offences [ 204 ] I have determined the mitigating and aggravating factors applying to each of the Defendants with regard to the offences that they

have plead guilty to. I have applied, where appropriate, the Gladue principles. I have rejected the argument that Kienapple applies in this situation. I have concluded that these crimes were committed for the benefit of a criminal organization. [ 205 ] I have given careful consideration to counsels’ submissions and the case law provided. I have carefully considered the principles and purposes of sentencing as set out in s. 718 through 718.2 of the Criminal Code . I have given particular consideration to the sentencing of Mr.

M. by Bruce, J., because that sentencing applies to very similar circumstances to those at bar. I am also mindful of the statements of Low, J. A., on Mr. M.’s appeal, that in the circumstances an effective sentence of longer than twelve years might well have been fit. [ 206 ] In light of all of those considerations, I conclude that the sentences to be a

[…]