R. v. Voss Date:, 2014 BCPC 43

Citation: R. v. Voss Date: 20140207 2014 BCPC 0043 File No: 29608-1T Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TYLER VOSS also known as JOHN TYLER VOSS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE T.S.WOODS Counsel for the Crown: P. Backhouse Counsel for the Defendant: B.E. Fitzpatrick Place of Hearing: Fort St. John , B.C. Date of Hearing: February 6-7, 2014 Date of Judgment: February 7, 2014 [ 1 ] THE COURT (Orally): John Tyler Voss is charged on a two-count information with simple possession of marihuana and

possession of cocaine for the purpose of trafficking. Crown has proceeded on one count only against Mr. Voss, that being the count of possession of cocaine for the purpose of trafficking. On a previous earlier appearance, Mr. Voss entered a plea of guilty to that charge. POSITIONS OF COUNSEL The Crown [ 2 ] The Crown seeks a custodial sentence for Mr. Voss in the range of nine to 12 months. It also seeks an order of forfeiture of some of the offence-related property, namely, cash and cell phones and other such items. Certain rings that were seized at the time of Mr.

Voss's arrest are not included amongst the items sought to be forfeited. [ 3 ] The Crown seeks a 10-years. 109 firearms prohibition, mandatory in these circumstances, and it also seeks an order that Mr. Voss supply a sample of his DNA for inclusion, for forensic purposes, in the DNA bank. Possession for the purposes of trafficking being a secondary designated offence, I have a discretion as to whether or not I require Mr. Voss to provide a DNA sample. The Defence [ 4 ] Mr. Fitzpatrick, on behalf of Mr. Voss, submits that the court should suspend the passing of sentence and place Mr.

Voss on probation for a period of 24 months with strict conditions. [ 5 ] As to the ancillary orders, Mr. Voss does not oppose the forfeiture or the DNA orders. He does, however, seek an exception under s. 113 of the Criminal Code with respect to the s. 109 firearms prohibition to permit him to carry out subsistence hunting and trapping. [ 6 ] I note at the outset that the Crown and the defence in this case are agreed that by reason of recent amendments to the Criminal Code , conditional sentences are no longer available for offenders like Mr.

Voss who have pleaded guilty to or been convicted of possession for the purpose of trafficking of cocaine, a

Schedule I drug. The fact that the maximum custodial sentence he faces is one of life imprisonment on the recent amendments removes a conditional sentence order from consideration. However, as counsel for Mr. Voss has pointed out, there has not been a corresponding amendment to the Code that rules out suspended sentences. [ 7 ] It can be seen from the sentencing positions that I have outlined that there is a wide gulf between what Crown and what defence counsel consider would be a fit and proper sentence for Mr. Voss given the specific factors at play in this case.

CIRCUMSTANCES OF THE OFFENCE [ 8 ] The offence date was December 31, 2012. The location was Watson Lake, a small northern community near the Yukon/B.C. border. Charges were waived down to Fort St. John from Watson Lake. Fort St. John is where Mr. Voss used to live and where he has now returned to live. [ 9 ] Following up on leads developed in a drug investigation, the RCMP attended on 31 December 2012 at Apartment Number 308, 807 Lakeview, in Watson Lake, at about 10:30 in the morning and forced entry into the apartment with a metal ram.

The lights were off in the apartment, and the occupants appeared to have been asleep before the hard entry. [ 10 ] An adult female and sometime girlfriend of Mr. Voss, one Shyla Botterill [phonetic], was on the couch in the living room sleeping with her three-year-old child. An adult male, Mr. Munch, was also in the apartment. [ 11 ] Mr. Voss was found standing in the doorway of the bedroom. [ 12 ] All three were arrested. [ 13 ] Police found that the screen to the window in the bedroom where Mr. Voss was standing had been removed. The window was open and police located two bags on top of fresh snow outside it.

Testing later revealed that the bags contained 22.5 grams of powdered cocaine and 56.2 grams of crack cocaine. The cocaine in solid form consisted of one large rock and five smaller packaged rocks. [ 14 ] Altogether, a total of 78.7 grams of cocaine was seized at the apartment. [ 15 ] A search of Mr. Voss's person incidental to arrest turned up $857 in his pocket. Police searched the bedroom, the doorway of which Mr.

Voss had been standing in when they forced entry to the apartment, and they located there five grams of marihuana, several cell phones, what appeared to be crack pipes, and a variety of other drug paraphernalia, including scales and a cutting agent. [ 16 ] In due course, Mr. Voss was charged with possession of the cocaine for the purpose of trafficking and with simple possession of the marihuana.

EFFECT OF THE OFFENCE ON VICTIMS [ 17 ] There is no victim impact statement before me, but like many judges who have ruled in other cases of this kind, I can and I do take judicial notice of the widespread adverse impact that cocaine use and cocaine trafficking visits upon our society. Its tentacles spread in all directions and they affect everyone in some fashion. Trade in addictive substances produces large profits for drug dealers, but those profits come at the expense of the vulnerable and of society at large.

That trade exploits crippling addictions and the unfortunate people who are in the grip of those addictions. They are the primary victims. It is a truly odious and reprehensible form of illicit commerce. [ 18 ] There are many secondary effects of cocaine trafficking. It draws heavily, for example, on the resources of law enforcement, the court system and the healthcare system. The trade in cocaine and other illegal drugs, though not this case specifically, spawns crimes of violence and many other forms of ancillary law-breaking.

[19] Professionals who serve in law enforcement, the court system and the healthcare system, together with the citizens who pay fortheir services through their taxes, are all, in a sense, also victims of these kinds of crimes. [20] I am going to quote from some cases that were referred to in the Crown authorities. One is R. v. Shusterman, 2012 BCSC 362. At paragraph 14 of Shusterman, Mr.

Justice Romilly quotes from a case called Martin which in turn quotes from cases called Butt andConyers, and I am going to read the passages from Martin that summarize what was said in Butt and Conyers because it is on point. [29] In R. v. Butt, 2010 NSCA 56 , [2010] N.S.J. No. 346 (C.A.), the Court of Appeal, at paragraph 43, noted that "cocainehas consistently been recognized by this Court as a deadly and devastating drug that ravages lives. Involvement in the cocaine trade, atany level, attracts substantial penalties ...

It is significant that the CDSA classifies cocaine as one of the drugs for which trafficking canattract a life sentence." However, in R. v. L.M. (2008), 2008 SCC 31 , 231 C.C.C. (3d) 310, the Supreme Court of Canada, inconsidering the imposition of maximum sentences indicated that they had become "almost theoretical" (at paragraph 18). [30] In R. v. Conyers, [2010] A.J. No. 940 (Q.B.), it was noted that the "societal damage caused by [cocaine] is notorious." Similarly,in Pushpanathan v. Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982, Mr.

Justice Corydescribed the "costs to society of drug abuse and trafficking" as being "significant if not staggering." He indicated that there "is anestablished connection between heavy drug use and crimes motivated by the need to finance a drug habit." Finally, Mr.

Justice Corynoted that drug trafficking is a matter "of grave concern in Canada, as it is throughout the world (at paragraph 91): These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly amatter of grave concern in Canada, as it is throughout the world. [21] In the other Crown case, R. v. Atter & Bogart, there is a passage that is to a similar effect.

At paragraph 6, Judge Joe says: One of the factors is there is so much money involved, but largely the factor that has to be kept in mind, I think, is the amount of hurtand suffering that is inflicted on the community by these drugs. [22] So these are judicial expressions of the same sentiment that I am expressing in these reasons, and that is that when we deal withtrafficking in a substance that is as harmful and addictive and destructive as cocaine, we are dealing with very serious subject matter. CIRCUMSTANCES OF THE OFFENDER [23] Mr. Voss's personal life history is troubled and complex.

I will take time to outline that history in some detail because, as willbe seen, it figures prominently in the logic that drives the sentence that I will impose upon him. [24] He is now 29. He was 27 at the time of the offence. Though his father was a Caucasian, Mr. Voss is aboriginal, his motherbeing a status member of the Telegraph Creek Band of the Tahltan First Nation. Mr. Voss himself is a status member of the same Bandand same First Nation. [25] He has lived most of his life in Fort St. John, but he was living in Watson Lake at the time of the offence. He is now living backin Fort St.

John. [26] Despite the turmoil in his young life, he managed to graduate from high school. He has partially completed training as agasfitter. He wishes to return to finish that training and pursue a career as a gasfitter in the oilfields. Since his arrest, he has acquiredvarious other certificates and credentials, steps taken toward ultimately being able to pursue an oilfields career. [27] Mr. Voss grew up in an unstable family where drug and alcohol use were prevalent from an early time.

Undoubtedly thiscompromised his upbringing. [28] There is evidence that his mother consumed alcohol during pregnancy, and so the pre-sentence report writer adverts to thepossibility that Mr. Voss may have been affected physiologically by that intrauterine exposure to alcohol. [29] Mr. Voss's grandmother and other extended family members were residential school survivors. Like many such survivors, theytook refuge in alcohol and in drugs as a way of coping with the trauma that they had experienced. With that came dysfunctionalparenting and a dysfunctional lifestyle generally. Sadly for Mr.

Voss and his siblings, those dysfunctional patterns descended to the nextgeneration. [30] Mr. Voss's mother displayed the same problems with alcohol and drugs as had her own parents, and she married a non-Nativeman, Mr. Voss's father, who as well suffered with drug and alcohol problems. Thus the cycle was repeated, and (as I have noted) Mr.Voss suffered from the effects of being raised by parents who had their own problems with alcohol and drugs and who were unable toprovide the care and support that parents without such challenges can provide. Their problems undoubtedly compromised Mr.

Voss'supbringing from a very early age. The reports before me persuade me that their problems compromised Mr. Voss's upbringing in a verysignificant way. [31] The family always lived off-reserve, and there was a reluctance within the family, for some reason, to integrate the childrenwith their Native culture. This resulted in a degree of estrangement of Mr. Voss from his own aboriginal heritage. [32] I should be clear. There was very little stability in Mr. Voss's household. Some sense of the quality of life in that household canbe gained from Mr.

Cadwallader's very helpful Gladue report, in particular at pages 3 and 4. Mr. Cadwallader writes [as read in]: Tyler [referring to Mr. Voss] reported that his parents separated when he was approximately five years old and attributed the breakdown

of his parents' relationship to their chronic use of alcohol. He said that while living in separate homes and co-parenting the children, his mother and father both continued to be "raging alcoholics" and to have other substance issues. This was corroborated both by Brenda and Tyler's older brother Carl.

Carl said their household and family was the "definition of dysfunction" and a reflection of the boom and bust nature of the community where "people make lots of easy money working in the oilfields and just drink it up." Carl said there was lots of violence between his parents all the time and that he witnessed them "bouncing one another off the walls" and beating one another up.

Concerning their home environment, Carl said that there were always lots of cousins and different people coming and going through the house but that when things became too sketchy, he and his siblings would simply seek sanctuary at his maternal aunt Shirley Cletheroe's home. Carl said that his aunt was like a second mother to him and his siblings and offered them the stability that was not available in their own home. [ 33 ] As was noted in that paragraph, Mr. Voss's parents separated when he was a young boy. Following the separation, he moved back and forth between the mother's and father's households.

The rules and standards and expectations in the two households differed, making for inconsistent learning conditions. [ 34 ] I pause to mention, however, the noteworthy fact that despite the troubled upbringing that he suffered in his adult life, Mr. Voss has endeavoured to maintain close connections with his mother and the surviving members of his family, both immediate and extended. Some of them have attended court appearances over which I have presided in this matter. Family members are supporting Mr. Voss as he works his way through this encounter with the criminal justice system. [ 35 ] Mr.

Voss's own abuse of alcohol began when he was at the tender age of 13. His marihuana use began at 14. [ 36 ] I wish to make particular mention of two significant traumatic events that occurred in Mr. Voss's life when he was a youth. The reports show that those events left a heavy imprint upon him and that they affect him still. [ 37 ] First, at a time when his grandmother was ailing and asked him to get her some throat medication, he was slow to respond. When he finally did take steps to respond, he found that she had been taken to hospital and ultimately she died of a throat ailment. Rightly or wrongly, Mr.

Voss carries considerable guilt with him to this day in relation to his failure to get medication to his grandmother promptly when she asked for it. [ 38 ] Second, an aunt of Mr. Voss's, and this is the Aunt Shirley who was described in the Gladue report as a second mother, was out partying late one night and called him at home by telephone to ask him to drive her home from the party. He did not do so as she had asked. She disappeared from the party, as it turns out, and has never been seen since. It is now thought that she was murdered. Mr.

Voss suffers with guilt at the thought that had he picked her up as she had requested, she would still be alive. [ 39 ] The reports before me associate these traumatic events and the guilt associated with them with Mr. Voss's increasing use of alcohol and drugs as a youth. [ 40 ] As a young adult, Mr. Voss also had to cope with the experience of seeing his mother suffer from cancer, another factor that affected him emotionally. [ 41 ] More tragic events befell Mr. Voss as he grew further into young adulthood. His father died of an aneurysm not long after his mother was diagnosed with cancer. Mr.

Voss consumed alcohol to excess at his father's wake and he wandered off only to be struck by a vehicle while crossing a road in the dark. He suffered severe injuries as a result of being struck by the vehicle, and he was for a time completely dependent on family members to meet his every need. He could not walk for a period of six months. [ 42 ] This accident, and another one, a single vehicle motor vehicle accident that caused him a serious back injury, introduced him to oxycodone and other prescribed opiate painkillers.

Having already established a pattern of self-medicating to help him deal with the other problems and chaos in his young life, this introduction to prescribed painkillers proved to be a very serious and negative turning point in Mr. Voss's life. [ 43 ] Once he began taking those prescribed painkillers to deal with the problems of serious pain resulting from his injuries, he soon found himself taking them to excess and developing a dependence on them. It was at this time, when he was in his early twenties, that his abuse of hard substances overtook his long-time abuse of alcohol and marihuana.

Thus his pattern of self-medicating settled upon the abuse of oxycodone and other opiates. It was a short step from there to cocaine. [ 44 ] At 21, he left his family home and he moved in with a girlfriend, a Ms. Vezina. He also began mixing with people who were involved in the drug trade. As a result, he fell under the influence of those people, and they exerted an unhealthy influence in his life. Cocaine entered the picture and did not leave the picture until his arrest in December of 2012. It must not be forgotten, however, that cocaine represents the last and most debilitating and serious drug Mr.

Voss turned to self-medicate. [ 45 ] His pattern of self-medication, it will be recalled, began when he was a young teenager. It was his means for coping with the chaos and instability of his troubled childhood. It progressed from alcohol to marihuana. The two accidents and the serious injuries brought him into contact with prescribed opiates. Overuse of those, still part of his pattern of self-medicating as a way of coping with a still chaotic and unstable life, led ultimately to his use of cocaine in increasing amounts. [ 46 ] Mr. Voss and Ms. Vezina had a child. His name is Ben. Ben is now seven. Mr.

Voss's increasing use of illicit substances during the early phase of his relationship with Ms. Vezina contributed to the breakdown of that relationship. The breakdown of the relationship because of drug involvement in turn affected Mr. Voss's involvement with his son Ben. The breakdown in the relationship with Ms. Vezina led to Mr. Voss moving back and forth between living on his own and living with his family members, thus reinstating more chaos in an already chaotic lifestyle. [ 47 ] His chaotic lifestyle and the limitations imposed by his injuries got in the way of legitimate work and further complicated

matters by interfering with his ability to pay child support to Ms. Vezina to support Ben. This ultimately led to his being denied access to his son by Ms. Vezina. The loss of all contact with his son has been an added source of emotional upset to Mr. Voss and is acknowledged in the reports as having been a contributing factor to his continued use of drugs. These economic and psychological pressures, coupled with mounting debt, contributed to Mr.

Voss's decision to turn increasingly to illicit drugs to self-medicate more aggressively and eventually to his entry into the illicit drug trade to fund an increasingly expensive cocaine habit. [ 48 ] We see in Mr. Voss's history the downward spiral that unfortunately is altogether too commonly seen in these courts. The cocaine habit increased his mounting debt. To pay his debt and to fund his ongoing need for cocaine each day, his involvement in the sale of drugs became more entrenched. [ 49 ] Mr.

Voss has, despite his troubled antecedents and his involvement in the drug culture since his early twenties, still, surprisingly, managed to have a relatively stable employment history. [ 50 ] There seems to be no question about Mr. Voss's work ethic or his ability to impress employers that he is talented and hardworking. This is proven by his absolutely stable employment and the commitment to a hardworking lifestyle that is reflected in his activities since his arrest and the cessation of his use of cocaine and all illicit substances. [ 51 ] Mr.

Voss's life started with an unstable foundation, began to unravel with the use and abuse of alcohol in his early teens, with the use and abuse of marihuana in his early teens, and finally with the use and abuse of oxycodone and then cocaine in his early twenties. It continued until his arrest on December 31 of 2012. [ 52 ] I say again that this is a sad but all too common story, particularly so within the aboriginal population. [ 53 ] Since his arrest, as I have noted, Mr. Voss has taken positive steps to turn his life around.

He is the subject of one of the most positive and hopeful pre-sentence reports I have ever read. I should mention the author by name. She is called Kathleen Stevenson [phonetic], and she has provided the court with a very helpful document. [ 54 ] The Gladue report written by Mr. Stuart Cadwallader is similarly positive and hopeful, and it too has been immensely helpful to me in the process of crafting a sentence for Mr. Voss. [ 55 ] I am indebted to and grateful to both Ms. Stevenson and Mr.

Cadwallader for the thought and effort and time that obviously went into the preparation of their exceedingly helpful reports. [ 56 ] Many letters have been written to support Mr. Voss in his sentencing, and they were filed in this proceeding. They were written by family members. They were written by employers. They were written by other people who know what Mr. Voss has been doing in the most recent time frame. These too have been helpful to me. [ 57 ] Mr. Voss's employers speak highly of him, as do his family members and his pastor. They all recognize in Mr.

Voss a man who is determined not to continue to make the mistakes that have descended down through the generations within his family to him and to his own detriment. [ 58 ] Very importantly, Mr. Voss comes before the court with no criminal record. Knowing his troubled history, is it remarkable to me that he comes before the court with no criminal record. I will say more about that later because it is a mitigating factor. [ 59 ] Mr. Voss does not shrink in any way from accepting responsibility for his criminal activity. He has insight into its causes and how it can be avoided in the future.

He admits responsibility for his actions, and he expresses what I consider to be very genuine remorse and regret. In the wake of his arrest and being charged, he has been strictly compliant with his release conditions. There have been no breaches of his recognizance, nor has he committed any new substantive offences while on bail awaiting the ultimate disposition of his charges. [ 60 ] He has impressed the pre-sentence report writer and the Gladue report writer with his attitude toward his offending and his rehabilitation. I am similarly impressed.

He has taken numerous proactive steps toward his own rehabilitation. I am going to quote from the pre-sentence report in that regard at pages 5 and 6. This is under the heading "Attitude and Receptiveness to Previous and Proposed Interventions" [as read in]: Mr. Voss has no prior contact with the criminal justice system so there are no previous interventions to make note of. Mr. Voss recognizes, however, that his primary risk factor contributing to the offence was his alcohol and substance misuse. Mr.

Voss and his family report that the subject has already taken steps to make positive changes and has also maintained a clean and sober lifestyle since moving back to Fort St. John a year ago. Mr. Voss is also willing to obtain counselling or programming to further support him in maintaining his lifestyle changes. It is also important to note that Mr. Voss has found and maintained employment since moving back to Fort St. John, and this will help to ease any financial need that he has. Mr. Voss takes responsibility for the offence.

He admits to possessing the marihuana and cocaine and admits to his selling of cocaine. Mr. Voss recognizes that he started selling because of his own alcohol and substance misuse, and he needed the money to support his own habit. Since the offence, Mr. Voss has made changes. He has maintained a clean and sober lifestyle for the past year. He is willing to attend further counselling or programming to address this need. It is also important to note that Mr.

Voss is remorseful for selling drugs to others since he knows the effect that substance abuse has had on his own life. [ 61 ] Plainly, poverty and the other deleterious effects associated with the conditions under which Mr. Voss grew up as an aboriginal person are relevant to sentencing. He grew up in an unstable household affected by the fallout from the residential schools tragedy. Parental alcoholism and drug use: these are factors that the research tells us appear disproportionately in aboriginal populations in Canada. [ 62 ] In his report, Mr.

Cadwallader summarizes the Gladue factors that have been at play in Mr. Voss's life. I am going to read from Mr. Cadwallader's report in that regard at page 14 [as read in]:

According to the Royal Commission on Aboriginal Peoples, a number of adverse factors that affect aboriginals in general are present in the personal history of Tyler Voss, including familial disintegration and dislocation; abuse - emotional, verbal, and spiritual; loss of parenting abilities; early and ongoing exposure to violence; chronic personal and family history of substance abuse; racism; loss of family members through substance misuse and violence; loss of language, culture, and traditions; and criminal involvement. [ 63 ] We know that aboriginal offenders are affected more adversely by incarceration than are non-aboriginal offenders.

That is something that I must also bear in mind when sentencing Mr. Voss as an aboriginal offender. [ 64 ] Parliament and the courts, in cases like Gladue and, more recently, Ipeelee , have acknowledged that these factors unique to our aboriginal population must be considered carefully in sentencing all aboriginal offenders. Ipeelee in particular tells us that sentencing judges must be much more attentive to the Gladue factors than they have been in the years since Gladue was decided. [ 65 ] I treat that admonition from the Supreme Court of Canada in Ipeelee seriously as I carry out the sentencing of Mr.

Voss for his serious drug offence. MITIGATING FACTORS [ 66 ] I will be brief in this review because I have touched on some of these mitigating factors already. [ 67 ] Mr. Voss made an early plea, and as a result, he relieved the court system and the witnesses who would have had to testify at his trial of the cost and inconvenience of participating in a trial. That is mitigating, and I treat it as such. [ 68 ] Mr. Voss has no previous criminal record. That is a very significant mitigating factor. [ 69 ] Mr. Voss cooperated with authorities throughout subsequent to his arrest. That is mitigating. [ 70 ] Mr.

Voss has made sincere expressions of remorse, and he has given indications of insight into the offending that brings him before the court today. That is mitigating. [ 71 ] I note that when Mr. Voss addressed the court in his own words, he struggled. The emotion was evident in his voice. I consider his expressions of remorse and regret reflected in the reports and then in his own words to have been sincere and heartfelt. [ 72 ] Mr. Voss has taken proactive steps to address his underlying problems, those being principally problems of addiction. He has taken steps to prevent recurrences of those problems.

This is mitigating. [ 73 ] I am going to expand a little bit here. There is very solid evidence before me on this sentencing of hard work on Mr. Voss's part, coupled with forward-looking steps that he has taken to set himself up for a lawful career working in the oilfields. In the course of preparing himself for that, he has taken and passed rigorous drug testing that is required as part of the process of gaining employment in the oilfields.

The test results back up his claim that he has been clean since his arrest. [ 74 ] There is a mitigating factor that relates to the involvement he had with the drug world being driven mainly by his need to feed his own habit. That mitigating factor is present, but I would say that it is present in a somewhat muted way. The Crown, rightly in my view, does not urge upon the court a commercial profit-making motive as an aggravating factor for sentencing Mr. Voss.

Nevertheless, the quantity of cocaine that was found in his possession goes beyond that which could be said to be for personal use only, obviously; he has been charged with possession for the purpose of trafficking. The circumstances in which he was found at the time of his arrest, surrounded by drug paraphernalia, bespeak an involvement in the illicit drug trade that was not at the bottom level. [ 75 ] While, as the Crown concedes, Mr.

Voss would not properly be characterized as an offender for whom a profit-making motive would figure as an aggravating factor, neither can he take the full benefit of the mitigation that an impulsive user or one who is involved solely to feed his own habit can claim. So there is mitigation attached to that aspect, but it is of a muted kind. [ 76 ] Mr. Voss has had no breaches or no new substantive offences while on bail. That is a mitigating factor. [ 77 ] Given the positive content in the pre-sentence report and the Gladue reports, and given the positive affirmations of Mr.

Voss's progress reflected in the letters that have been filed on his behalf from employers, family members, pastors, and the like, I will say that by reason of his self-motivated efforts to resolve his underlying problem with addiction, I consider Mr. Voss to represent a very low risk to the community. That, like the fact that Mr. Voss has no criminal record, is a very important mitigating factor in this case. AGGRAVATING FACTORS [ 78 ] There were no statutory aggravating factors cited to me either under the Code or under the CDSA . [ 79 ] Turning to common law aggravating factors, the fact that Mr.

Voss was involved in trafficking in cocaine in particular is an aggravating factor. Cocaine, especially in the crack form, is highly addictive. It is cheaper and more widely available; thus it infiltrates the community more easily than some of the other substances, to the detriment of all. [ 80 ] In this regard, I rely upon the words of Mr. Justice Romilly in the Shusterman decision at paragraph 32 , where Justice Romilly says: [32] The aggravating circumstances of the crimes are manifestly apparent considering that:

1. Shusterman was found by the court to be a drug dealer -- the narcotic which was found in his possession, and the possession of the scale, baggies and money support the reasonableness of this conclusion; 2. The illicit drug that he was found to be in possession of for the purpose of trafficking was crack cocaine -- a hard and highly addictive drug commonly associated with consequential criminality within our community. [ 81 ] I agree with the Crown that the comparatively large amount of cocaine which was found to be in Mr. Voss's possession, almost 80 grams worth over $6,000, is aggravating.

As Crown counsel submits, and as I have already acknowledged, the quantity of cocaine in Mr. Voss's possession invites the inference that Mr. Voss's involvement in the illicit drug trade, while not a profit-driven commercial enterprise, was nevertheless of a higher order than that associated with a street-level dealer. [ 82 ] Mr. Voss's involvement with a drug-dealing operation carrying on business out of an apartment where a three-year-old child was staying is an aggravating factor.

His activities clearly put that child at risk, both in terms of the dangers that attach to any such operation of its very nature and in terms of the dangers associated with the intervention of law enforcement. As counsel put it, police entered the apartment on the day that the arrest was made with their guns drawn after using a battering ram to breach the door. The child was not injured, but carrying on his drug-related activities in this way, Mr. Voss and others clearly placed the child in harm's way and showed a callous disregard for her safety.

That is an aggravating factor of which I must take account. [ 83 ] It is generally considered to be aggravating to commit an offence that takes advantage of a helpless victim. One might call all of the persons addicted to cocaine to whom Mr. Voss sold cocaine helpless victims, and I should think that no one knows better than Mr. Voss how helpless those victims are. PURPOSES, OBJECTIVES, AND PRINCIPLES OF SENTENCING Purpose of Sentencing [ 84 ]

Section 718 of the Criminal Code states, in terms of the purpose of sentencing, that "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." There is a similar provision found in s. 10(1) of the Controlled Drugs and Substances Act . Objectives of Sentencing [ 85 ] Denunciation, that is, condemnation: a formal, emphatic expression of disapproval.

A sentence must denounce the law- breaking of the offender. [ 86 ] The law is clear that the sentencing objectives of denunciation and deterrence are prominent considerations in cases like this one involving the drug trade. Mr. Justice Hill, in a case called R. v. Williams , [2010] O.J. No. 2971 , stated: As a general rule, denunciation and general deterrence are the paramount sentencing principles in instances of commercial trafficking . . . [ 87 ] We must remember, however, that the Crown concedes that Mr. Voss should not be sentenced as a commercial, profit- driven operator of a cocaine-dealing operation.

This lessens the applicability of the reasoning in the case I have just mentioned, but I have also acknowledged that given the quantity of cocaine and paraphernalia seized, Mr. Voss was operating at a level beyond that of a simple street-level seller. [ 88 ] Another objective of sentencing is separation of the offender from society where necessary. Because, for a variety of reasons, many of which have come up for discussion already, I see Mr.

Voss as being at a very low risk of reoffending, I will say now that I consider the case for removing him from society for society's protection to be weak. [ 89 ] Rehabilitation is a statutory objective of sentencing. It deserves substantial prominence in this case. The material before me persuades me that Mr. Voss's principal reason for involvement in drug dealing was to generate the revenues needed to feed an increasingly expensive habit, a habit that resulted from the unique concatenation of traumatic events and challenges that unfolded over the course of his very troubled life. [ 90 ] If Mr.

Voss's drug habit is broken permanently, then I am satisfied the motivation for him to return to unlawful drug-related conduct will be removed completely. [ 91 ] While there is a good deal of work still to be done, the initiative Mr. Voss has shown and the progress that he has made so far in his own rehabilitation, through proactive efforts that he instigated himself, gives the court reason to have high expectations for success in those continuing efforts. I believe Mr.

Voss when he says that he is poised to take further active steps, including residential treatment, to further advance the progress he has made so far. [ 92 ] Rehabilitative considerations should and will loom large in the sentencing logic that I apply when I ultimately pass sentence upon Mr. Voss. [ 93 ] Continuing with the other statutory objectives, the Code also addresses reparations for harm done to victims or the community and the promotion of a sense of responsibility in offenders plus acknowledgement of the harm done to victims and society generally.

I am mindful of those last mentioned objectives, and I aim to address them in the sentence I craft for Mr. Voss. [ 94 ] I turn to the principle of proportionality.

Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. There can be no room for argument that being involved in the

illicit sale of cocaine is a very grave offence, and as to the responsibility that Mr. Voss has for his offending, he has substantial responsibility, although I will acknowledge that for Gladue reasons, his moral blameworthiness may be said to be somewhat diminished, given the systemic factors that disadvantage aboriginal offenders and contribute to the higher likelihood that they will suffer economic, educational, and other deprivations and thus be at a higher risk of turning to unlawful activity. [ 95 ] The principle of restraint.

Section 718.2 (

d) provides that an offender must not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.

Section 718.2 (

e) says that all available sanctions other than imprisonment should be considered for all offenders, with particular attention to aboriginal offenders. I am particularly mindful of these latter requirements, and I am assisted by the Gladue report of Mr. Cadwallader and the pre-sentence report of Ms. Stevenson which give expression to the specific ways in which, by reason of his aboriginal heritage, Mr.

Voss has experienced disadvantages personally that can be traced to systemic factors within Canadian society. [ 96 ] Given the amplified deleterious effects that incarceration has been shown to have on aboriginal offenders, I approach Mr. Voss's sentencing with my mind wide open to the possibility of imposing sanctions other than imprisonment if I can be satisfied that the objectives and purposes of sentencing overall can be fulfilled by the use of those noncustodial sanctions. [ 97 ] The principle of commonality.

Section 718.2 (

b) provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This provision in the Code requires that I take guidance from the case law and endeavour to bring my decision into line with other decisions given on comparable facts, allowing always, of course, for factors that distinguish Mr. Voss's case from other cases. Every case is unique and sentencing is quintessentially an individualized process. It is my duty, while having regard to the comparable authorities, to tailor the sentence I impose upon Mr.

Voss to the unique contours reflected in his particular case. [ 98 ] The cases that have been placed before me by both counsel have been of great assistance. While I will not refer to all of them, I can assure counsel that I have read all of them. ANALYSIS [ 99 ] The divide between Crown and defence, as I acknowledged at the outset, is a wide one. Crown's position is, I think it is fair to say, more punitive. It puts the emphasis almost exclusively on the punitive aspects of sentencing, that is, denunciation and deterrence.

Apart from a reference to substance abuse management programming available in penal institutions, there is nothing in Crown's recommended sentence that speaks to the issue of rehabilitation. Defence's approach, on the other hand, lays the emphasis squarely upon rehabilitation. [ 100 ] Mr. Justice Romilly, in Shusterman , refers with approval to Clayton Ruby's sentencing textbook and to a starting point, and I will quote from that. The quotation from Ruby's text that finds its way into Shusterman is this: . . .

"[t]he starting point for trafficking moderate amounts [of cocaine] appears to be in the one-to-three year imprisonment range, depending on the commerciality of the offence" . . .

But I observe that that is a starting point in what is manifestly an individualised process of sentencing, and where individual factors and considerations that are relevant call for a departure from the starting point, a sentencing judge can be justified in departing from it. [ 101 ] In Shusterman itself, the court acknowledges that: For offences involving low to moderate level cocaine trafficking, where the accused is addicted to drugs, the courts usually impose shorter sentences of incarceration or non-custodial sentences.

However, the court must usually be satisfied that the offender shows promise for overcoming the habit. That is found at paragraph 26 of Shusterman . [ 102 ] That passage aptly describes the case at bar. Mr. Voss's case is one involving low to moderate cocaine trafficking, and Mr. Voss was addicted to cocaine himself. I repeat that the Crown does not cite profit-driven trafficking as an aggravating factor. [ 103 ] The material before me in the pre-sentence report and the Gladue reports, as well as the letters of reference, all point clearly to Mr. Voss showing considerable promise for overcoming his habit.

He has already provably done so for 13 months. [ 104 ] The Crown's authorities are presented in support of the Crown's position that a custodial sentence in the nine- to 12-month range is necessary for Mr. Voss. However, they are all distinguishable from the case at bar in some quite important ways. I will make the general point that none of them, for example, involve aboriginal offenders. Aboriginal offenders, by reasons of s. 718.2 (

e) of the Code, are entitled to have a sentencing judge consider "all available sanctions other than imprisonment should be considered for all offenders, with particular attention to aboriginal offenders" I lay emphasis on that last phrase and have been particularly guided by it. [ 105 ] Similarly, none of the offenders in the Crown authorities appear to have had as much trauma and instability in their lives as has Mr. Voss: trauma and instability that do not, of course, excuse his law-breaking conduct but that do set it in a context that is relevant for these purposes.

[ 106 ] I have gone to the trouble of reviewing that trauma and instability in detail earlier in these reasons because I truly believe that it makes Mr. Voss's case stand apart from many, and importantly, it makes Mr. Voss's case stand clearly apart from all of the cases relied upon by the Crown. [ 107 ] Beyond that, none of the offenders in the Crown authorities have come close to getting themselves so obviously and successfully turned around as has Mr. Voss. Mr.

Voss's proactive efforts to cease drug activity and to set himself up for success in an oilfield career as a gasfitter, against all odds, some might say, is uniquely impressive.

Nothing comparable is seen in any of the Crown cases. [ 108 ] I will comment briefly on the specifics of the Crown cases. [ 109 ] In Atter , the decision of Judge Joe and the case that is most comparable, perhaps, to the case at bar, the non-aboriginal accused had made important strides forward, but Judge Joe concluded at the end of the day that a custodial sentence was still necessary to give effect to all of the sentencing considerations he was required to entertain and which I am required to entertain. [ 110 ] I note that the quantity of cocaine in Atter was almost three times that involved here, over 230 grams of cocaine versus the slightly under 80 grams that Mr.

Voss possessed, and Mr. Atter got started in the drug trade for pure profit reasons, an aggravating factor recognized in many of the authorities but not at play in the case at bar. [ 111 ] While it is true that Mr. Atter eventually fell victim to the drugs he was selling himself, he could not claim, as can Mr. Voss, that he was set on a path toward drug abuse by a horrifying pattern of instability and trauma. He could not argue, as Mr.

Voss can, that his use and sale of hard drugs came on the heels of an addiction to prescribed medications that was made necessary by serious injuries suffered in two serious accidents. He cannot say that his drug habit was the extension of an addiction to prescribed medication that degenerated into a cocaine habit which became increasingly difficult to fund. Rather, Mr. Atter's dealings with hard drugs began as a commercial enterprise. [ 112 ] Shusterman provides some general guidance but, on its facts, is markedly different from the case at bar. Rather than having no record, as does Mr. Voss, Mr.

Shusterman had a record that takes about two pages to reproduce in the report at his sentencing. He was strictly a commercial operator, and in the words of Justice Romilly, "undeserving of the understanding extended to one suffering from a disease who traffics to support such a habit." That comes from paragraph 34 of Shusterman . [ 113 ] In Biernaczyk , a decision of I believe it is Judge Baird Ellan, the amount of cocaine at issue was worth $18,000, three times that at issue in the case at bar.

The offender had a somewhat troubled childhood, but he was non-aboriginal and the disadvantages he faced growing up are not comparable to those faced by Mr. Voss. Beyond that, Mr. Biernaczyk did not have the same catalogue of proactive accomplishments to point to that Mr. Voss has, post-arrest, and his actions were driven by "a clear profit intention" (paragraph 7) and not by his own addiction, as was the case with Mr.

Voss. [ 114 ] Lastly, Holt , while similar in the sense that the accused was addicted himself and took proactive steps to deal with underlying problems, is distinguishable in a number of other ways from the case at bar. There was not an early plea, for example. The accused was not aboriginal, and so there were no Gladue considerations to deal with, and Mr. Holt, unlike Mr. Voss, had a criminal record. [ 115 ] With regard to defence authorities, counsel for Mr. Voss places the heaviest emphasis on the very recent decision of Madam Justice Griffin in a case called Owens , R. v. Owens , 2014 BCSC 32 .

Though not on all fours with Mr. Voss's case -no case is - Owens is comparable in a number of important ways to the case at bar. [ 116 ] In the Owens case, Mr. Owens was given a suspended sentence for the possession of cocaine and marihuana valued at somewhere between $5,000 and $10,000. While the quantity of cocaine was smaller than that possessed by Mr. Voss, the street value of the drugs both offenders had in their possession was not greatly different. It will be recalled that the estimated value of the cocaine seized from Mr. Voss was about $6,000. [ 117 ] Like Mr. Voss, Mr. Owens had no criminal record.

Like Mr. Voss, Mr. Owens was deeply remorseful and showed real insight into his criminal behaviour. Mr. Owens, like Mr. Voss, was a youthful offender. At 21 years of age, he was a more youthful offender than Mr. Voss at 27, but I am willing to agree with counsel for Mr. Voss that both were youthful individuals when they committed their offences in the sense that neither had decades of maladaptive behaviour behind them that would have to be unlearned in the course of rehabilitation, and both had the bulk of their productively contributing years still ahead of them at the time of sentencing. [ 118 ] Counsel for Mr.

Voss cites cases, including R. v. Bates , that stand for the proposition that rehabilitative considerations loom larger in cases involving youthful offenders than they do in cases involving offenders who are older. That is, I believe, an incontestable and uncontested proposition. [ 119 ] Like Mr. Voss, Mr. Owens was strictly compliant with his release conditions. Like Mr. Voss, Mr. Owens took steps, although arguably less extensive and comprehensive steps, to turn his life around following his arrest and before sentencing. Like Mr. Voss, Mr.

Owens was a respected and reliable employee, and his employer took active steps to make that known to the court through the preparation of a letter of reference that was filed in the course of sentencing similar to the one that was filed in support of Mr. Voss at his sentencing. [ 120 ] Unlike Mr. Voss, Mr. Owens' motive for getting into the drug trade was a commercial one. He was short of money and he did it for profit. He did not sell drugs to fund a habit of his own. This, of course, is widely recognized to be an aggravating factor in drug offence sentencing.

It could be argued that given the absence of that aggravating factor in Mr. Voss's case, the sentencing approach to him should be more lenient than that taken with Mr. Owens. [ 121 ] Madam Justice Griffin determined that Mr. Owens was a proper candidate for a suspended sentence. It is plain that she was aware that that is an unusual sentence to impose in a case involving possession of drugs for the purpose of trafficking, cocaine especially, but performing what is manifestly an individualized process of tailoring her sentence to the unique circumstances that brought Mr.

Owens to court and to the unique contours of Mr. Owens' own life circumstances, she concluded that a suspended sentence was just and

fit. [ 122 ] At paragraph 46, she referred to the way her reasoning fit into the key elements of the statutory framework for sentencing, and in particular, the objective of rehabilitation and the purpose of promoting a sense of responsibility on the part of the offender. Paragraph 46: Here, there was no suggestion that a jail sentence would promote rehabilitation or a sense of responsibility for Mr. Owens. I am satisfied that Mr. Owens has taken personal responsibility.

He has a far greater chance at rehabilitation if he is to remain working than if he is to have to quit his employment to go to jail. [ 123 ] That reasoning, in my respectful opinion, applies equally to Mr. Voss, as does the following passage that comes before a discussion of the need to give rehabilitation prominence when sentencing youthful offenders. This is paragraph 51 of Madam Justice Griffin's decision in Owens : What is similar about this case compared to others shown to me by the defence is that Mr. Owens is a first-time offender and a young man who has shown considerable remorse.

His actions since the offence are consistent with his claim that he knows that what he did was wrong and he feels very badly about it and pledges to never engage in this conduct again. [ 124 ] I believe that a properly restrictive and demanding probationary order, like a properly restrictive and demanding conditional sentence order, can have general deterrent force. So too did Madam Justice Griffin when sentencing Mr. Owens.

At paragraph 57 she said this: A period of probation with terms is also a serious restriction on the liberty of an offender, and can put the offender to a much longer period of supervision than incarceration. In a case such as this I conclude it has a better prospect of truly re-integrating the offender into lawful society than does incarceration which will expose the offender to more entrenched criminals. [ 125 ] I say again that, like Madam Justice Griffin, I know that a suspended sentence is an unusual sentence to impose upon someone convicted of possession of cocaine for the purpose of trafficking.

But, for all the reasons I have outlined, Mr. Voss is an unusual offender and his case calls for a sanction that takes account of all of the challenges, some of them systemic, to which I have referred earlier. [ 126 ] As Madam Justice Griffin noted in Owens , s. 731(1), the provision of the Code that deals with suspended sentences, requires a sentencing judge who is considering a suspended sentence to have regard to the offender's age and character and to the nature and circumstances of the offence.

The provision goes on to provide, if those factors support it, that the passing of sentence may be suspended and the offender may be released on conditions contained in the probation order. [ 127 ] Probation orders plainly have a rehabilitative focus, and persons put on probation orders pursuant to the passing of sentence risk facing more severe sanctions if they do not comply with their conditions. [ 128 ] In order to scotch any suggestion that to impose a suspended sentence in a case of drug trafficking is so unusual as to be beyond the pale, I do note that among the authorities handed up by Mr.

Voss's counsel is the case of R. v. Ton Anh Nguyen , 2009 BCSC 1727 . In that case, an individual who trafficked in cocaine was given a suspended sentence, although admittedly the quantity of the cocaine and his level of involvement in the trade in cocaine were less than that seen in either Owens or in Mr. Voss's case. [ 129 ] I also note that in the recent case of R. v. Ilicic , 2012 BCSC 1486 , Mr. Justice Williams conditionally discharged an offender who possessed small amounts of both cocaine and marihuana for the purposes of trafficking.

As the Quicklaw headnote reads: . . . 31-year-old Ilicic had no prior record, he had substance abuse problems and had substantially rehabilitated himself since his arrest . . . [ 130 ] The parallels to Mr. Voss's situation are plain and obvious. This reasoning in Ilicic is similar to that seen in R. v. Charlie , 2008 BCCA 44 , in which the Court of Appeal declined to overturn a decision of Judge Gulbransen to give a second, 18-month CSO to an aboriginal offender who was found in possession of cocaine for the purpose of trafficking while he was already bound by a pre-existing CSO. [ 131 ] Mr.

Charlie was involved in a dial-a-dope operation when committing his second offence. However, Gladue factors, coupled with the proactive steps that Mr. Charlie had taken to turn his life around, led the sentencing judge and the appellate court to resist the Crown's argument that he should be required to serve a conventional custodial sentence. At paragraph 35 of the appellate decision in Charlie , Mr. Justice Frankel, with whom Justices Rowles and Saunders concurred, stated: It would be unjust, and counterproductive not only to Mr.

Charlie's interests, but those of society at large, to interfere with his successful efforts at rehabilitation by sentencing him a period of incarceration at this time. It is on this basis alone that I would dismiss this appeal. [ 132 ] There are other cases in which, prior to the recent amendments to the Code , offenders involved in drug trafficking had been, in fact, conditionally discharged. They include R. v. Matheson , [2007] N.S.J. No. 327 (Prov. Ct.) , a trafficking in marihuana case; R. v. Mansour , [2013] O.J. No. 1077 (Ont. C.J.) , a trafficking in marihuana case; R. v. Le , [2012] B.C.J.

No. 985 (S.C.) , a simple possession of 18 grams of cocaine case; and R. v. Mantione , [2007] O.J. No. 3583 (Ont. C.J.) , a case involving possession of marihuana for the purpose of trafficking and simple possession of cocaine. [ 133 ] None of these cases involved aboriginal offenders. However, they generally involved offenders with no records and for whom the prospects for rehabilitation were very promising.

[ 134 ] In explaining what he recognized to be an usual decision to discharge a person who possessed cocaine and marihuana for the purpose of trafficking, Mr. Justice Williams in Ilicic said this at paragraphs 18 and 19 : [18] I have given this matter careful consideration and I have ultimately concluded that this case is that rare and exceptional case where the imposition of a conditional discharge can properly be made. My conclusion is informed by the fact that this man has no criminal record.

It is informed by the fact that the activity in which he was engaged, that is, the trafficking of marihuana, was not, on the evidence before me, an organized and sustained and profit-driven endeavour. My conclusion is very substantially informed by the view I have adopted that this man has made a substantial rehabilitation of his life. [19] Finally, it is my view that imposing a criminal record upon him would be detrimental to his efforts to achieve and maintain a long-term functionality in the community and society, and particularly to secure employment.

The facilitation of that end is important to his rehabilitation. [ 135 ] Those comments apply mutatis mutandis to the case at bar, in my respectful view. [ 136 ] In Mantione , one of the discharge cases, the father of the offender had written a letter to the court that was filed in the course of sentencing. It was in many ways like some of the letters filed in Mr. Voss's case, especially by his siblings.

In that connection, at paragraph 20 of the decision in Mantione , Lampkin J. said this: [20] Angelo Mantione, while not condoning his son’s actions in any way, asks that the court not punish his son with extreme severity. The effect of the other letters is a request that the court show mercy for this one time mistake which they believe would not be repeated.

In his book 'The Family Story', the renowned Lord Denning, the best known British Judge of the last century and arguably the most erudite, said that one the qualities of a judge is 'to be merciful, so as to show that he too has that quality which droppeth as the gentle rain from heaven to the paragraphs 18 and 19: place beneath'.

This judge intends to follow that advice. [ 137 ] I do not consider it to be an error of law for a sentencing judge to incorporate, along with all of the other factors that must be considered under s. 718 and following of the Criminal Code , some measure of mercy in sentencing when the circumstances warrant it. In my view, and knowing what I know about his background and the path of misery that led him to his first run-in with the law, I believe that I am justified in approaching the sentencing of Mr. Voss in a merciful way. PARTICULARS OF SENTENCE [ 138 ] Mr.

Voss, would you stand up, please. [ 139 ] Taking all of the relevant principles and objectives and other factors that I have discussed in these reasons into consideration, I have concluded that the appropriate sanction for me to impose in this case is for me to suspend the passing of sentence and place you on an order of probation for a period of 30 months. [ 140 ] Before articulating the conditions that will apply during your period of probation, I need to hear from counsel for the Crown who has not been heard on those conditions, and I think it is fair to say that Mr.

Fitzpatrick has only spoken briefly about those conditions. That is something I think we will have to come back and deal with in the afternoon. [ 141 ] I will also, once we have worked out the conditions, deal with the ancillary orders that the Crown has sought, and with the question of the victim fine surcharge. (DISCUSSION) (PROCEEDINGS ADJOURNED FOR NOON RECESS) (PROCEEDINGS RECONVENED) (SUBMISSIONS RE TERMS AND CONDITIONS OF PROBATION ORDER) [ 142 ] THE COURT: All right. Let me see if I can then capture all of this in the language of a probation order. [ 143 ] Mr.

Voss, these are going to be the terms of your probation order that will govern for the entirety of the 30-month period of your probation. 1. You must keep the peace and be of good behaviour. 2. You must appear before the court when required to do so by the court. [ 144 ] Pausing there, there is a bit of a conflict between what we have been saying about where Mr. Voss would reside and the ability for him to possibly change his residence and the mandatory requirements of subsection 2 (c) . The way I will try to resolve that is to have paragraph 3 of the probation order to say the following. Do I have Ms.

Cletheroe's address somewhere?

[ 145 ] MR. FITZPATRICK: Your Honour, if I may -- [ 146 ] THE COURT: Is it in the recognizance? [ 147 ] MR. FITZPATRICK: On the front of the Gladue report, it does have the contact information for Mr. Voss. [ 148 ] MR. BACKHOUSE: [indiscernible] end of the recognizance, Your Honour. [ 149 ] THE COURT: Thank you. This is the 256 Road address? [ 150 ] MR. FITZPATRICK: Yes, Your Honour. The 256 Road is the current address for Ms. Cletheroe. [ 151 ] So paragraph 3: 3. You shall reside with your sister -- -- is it Brandy Cletheroe? [ 152 ] THE ACCUSED: Yes.

Brandy. [ 153 ] THE COURT: Brandy Cletheroe -- [ 154 ] THE ACCUSED: Cletheroe. [ 155 ] THE COURT: Sorry? [ 156 ] THE ACCUSED: Cletheroe, Your Honour. [ 157 ] MR. FITZPATRICK: Yes, Your Honour. B-r-a-n-d-y C-l-e-t-h-e-r-o-e. [ 158 ] THE COURT: Thank you. -- at 9553 - 256 Road, Fort St. John, British Columbia, and you shall notify the court or your probation officer of any change in your name, employment, or occupation.

You may only change your residential address with the written approval of your probation officer, save and except in circumstances where a temporary change in residence is necessitated by your participation in a residential treatment program approved of by your probation officer. [ 159 ] Counsel, are we all okay with that as paragraph 3? [ 160 ] MR. BACKHOUSE: Yes, Your Honour. [ 161 ] MR. FITZPATRICK: Yes, Your Honour. [ 162 ] THE COURT: Thank you. Insofar as it is Friday, I am going to make the first reporting requirement be within 72 hours. What is the address of the reporting location here in Fort St.

John? [ 163 ] MR. FITZPATRICK: Your Honour, I'll just see if I have it here. [ 164 ] THE COURT: Would it be the same address as the address of Ms. Stevenson who wrote the PSR? [ 165 ] MR. FITZPATRICK: Your Honour, I believe she is located in Dawson Creek. [ 166 ] THE COURT: Okay. [ 167 ] MR. FITZPATRICK: I know it is 100th Street. I just need the exact . . . [ 168 ] MR. BACKHOUSE: Your Honour, if I might put the phone down for one moment so I can grab it. [ 169 ] THE COURT: Thank you. [ 170 ] THE CLERK: Your Honour, I've got it here. It's 9941 - 101 Avenue. [ 171 ] MR.

FITZPATRICK: My apologies, Your Honour. [ 172 ] THE COURT: Mr. Backhouse, are you back? Not yet. [ 173 ] MR. BACKHOUSE: My apologies for the delay, Your Honour. Someone is bringing it to my office right now. [ 174 ] THE COURT: Well, actually, our talented registrar has found it for us. [ 175 ] MR. BACKHOUSE: Okay. Thank you. And I apologize for this delay. [ 176 ] THE COURT: That's fine, Mr. Backhouse. So I will incorporate that then. Paragraph 4 of the order, in terms of probation, Mr. Voss, reads as follows: 4. You must report to a probation officer at 9941 - 101 Ave, Fort St.

John, British Columbia, within 72 hours, and then you must

report thereafter as and when and in the manner directed by your probation officer. [ 177 ] MR. FITZPATRICK: Your Honour, I apologize for the interruption and delay, but I understand Monday may be a statutory holiday. [ 178 ] THE COURT: Oh, a statutory holiday. All right. I am going to specify the date then. That will be the 11th then. So backing up there, Madam Registrar. You must report by 4 o'clock p.m., on Tuesday, February 11, 2014. Thank you for catching that. Otherwise, the language stays the same. [ 179 ] MR. FITZPATRICK: Certainly. [ 180 ] THE COURT: 5.

You must remain within the jurisdiction of the court, that being the province of British Columbia, unless written permission to go outside the jurisdiction of the court is provided to you by the court or by your probation officer. 6. You must abstain absolutely from the consumption of alcohol or other intoxicating substances and from the consumption of drugs except in accordance with a medical prescription. 7. You must perform 80 hours of community work service to the satisfaction of your probation officer by the end of the twenty- fourth month of your 30-month probationary period. 8.

You must attend at, participate in, and complete to the satisfaction of your probation officer such psychological, therapeutic, or clinical assessments and/or counselling and/or programs specific to First Nations counselling, addictions, trauma, and/or educational/vocational programs as you are directed to attend at, participate in, and complete by your probation officer, including but not limited to attendance at and active participation with Northern Recovery Services and completion of the Tsow-Tun Le Lum residential treatment program. 9.

You shall have no contact, directly or indirectly, nor any communication of any kind with Jarrett Munch. 10. For the first 15 months of your 30-month period of probation, you shall abide by a curfew requiring that you be inside your place of residence between the hours of 10 p.m. and 6 a.m. daily, save and except that you may be outside your place of residence during curfew hours in the event of a medical or dental emergency or with the prior written consent of your probation officer, which written consent must be carried on your person. [ 181 ] I am not going to include a provision requiring that Mr.

Voss seek and maintain employment. If he has persuaded me of anything, he has persuaded me that he is determined to seek and obtain employment, and I do not think he requires the extra impetus of a probation order to have him carry out his stated objective. [ 182 ] So paragraph 11, now, Madam Registrar? [ 183 ] THE CLERK: Correct, Your Honour. [ 184 ] THE COURT: 11. You may possess one cellular telephone registered in your own name -- -- I cannot read my own writing here, Mr. Backhouse. Your next sentence in your recommended language was you -- [ 185 ] MR.

BACKHOUSE: You are to provide your cellular telephone number -- [ 186 ] THE COURT: Oh, Okay. Thank you. I have got it. [ 187 ] MR. BACKHOUSE: -- to your probation officer forthwith. [ 188 ] THE COURT: -- You are to provide your cellular telephone number to your probation officer forthwith upon your acquisition of a cellular telephone. You shall also provide your probation officer, forthwith upon demand, true copies of the records for your cellular telephone. [ 189 ] I want to go back to the curfew condition because I left out some content that I would like to include.

That is paragraph 10, Madam Registrar. [ 190 ] You shall present yourself at the door of your residence or at the telephone there in the event that your probation officer, an agent of your probation officer, or a peace officer seeks to confirm your compliance with your curfew condition. [ 191 ] I think that covers all of the probationary terms that we have discussed. Am I right? [ 192 ] MR. FITZPATRICK: Yes, Your Honour. [ 193 ] MR. BACKHOUSE: By my count, yes, Your Honour. [ 194 ] THE COURT: Thank you.

So we come to the ancillary orders. [ 195 ] I am going to make the s. 109 firearm prohibition for 10 years as sought by the Crown, Mr. Voss. As you know, under s. 113 ,

there is jurisdiction in the court to create an exception for certain uses, including uses associated with aboriginal subsistence hunting, but I agree with Mr. Backhouse that at the moment we are dealing in something like an information vacuum about that. The s. 109 firearms prohibition can be modified upon application, and if you put together the necessary material that speaks to your history of involvement in hunting and trapping, and what precisely you wish to be permitted to do, a court will hear that application and rule on it.

So the fact that I am making the prohibition, which is absolute until such time as it is changed, does not mean that it is necessarily going to remain in force for the entirety of the 10 years, but the onus will be on you to seek an exemption. [ 196 ] THE CLERK: The duration, Your Honour? [ 197 ] THE COURT: I'm sorry? [ 198 ] THE CLERK: The duration of the ban? [ 199 ] THE COURT: Ten years under s. 109. [ 200 ] Pursuant to s. 109(2) of the Criminal Code , you are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, crossbow, restricted weapon, ammunition, and explosive substance from today for a period of 10 years, and (

b) you are prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [ 201 ] I am going to exercise my discretion in favour of requiring you to provide a sample of your DNA, Mr. Voss. This is not a mandatory order. I have a discretion.

The offence with which you have been charged and to which you have entered your plea of guilty is a secondary designated offence, but I am satisfied that the relatively minor intrusion into your zone of privacy is more than outweighed by the public interest that accrues to the development of a DNA bank that both improves the likelihood that those who have committed offences and have not been apprehended and charged will be apprehended and identified as the perpetrators of the offences and, equally importantly, provides a resource by which those who have been wrongfully accused of offences can, in some cases, be exonerated through the use of DNA evidence. [ 202 ] So you are therefore subject to a DNA order pursuant to s. 487.051 of the Criminal Code .

The order will be in the form prescribed in Form 5.04. You are required to surrender yourself to police to provide a sample of a bodily substance that is reasonably required for the purpose of forensic DNA analysis, and you are directed to attend at the police station in Fort St. John, British Columbia, not later than Friday, February 21, for that purpose. [ 203 ] You can, I think, talk to Mr. Fitzpatrick.

I expect up here, as down in my part of the world, DNA samples are taken on particular days at particular times, and you can find out what those are and then, within the time frame I have given you, make your way to the station and provide the sample. [ 204 ] There is an application by the Crown for forfeiture of, as I understand it, the cell phones, cash, and drugs that is uncontroversial. The rings, Mr. Backhouse said, although they were seized, are not being sought to be forfeited, and if they have not been given back to you already, they will be, as I understand it. Mr. Backhouse, is that right? [ 205 ] MR.

BACKHOUSE: Yes, Your Honour. [ 206 ] THE COURT: The language of a forfeiture order is somewhat lengthy and complex. I think it is enough for me to say that a forfeiture order is being made today. Mr. Backhouse will, as Crown counsel normally do, supply an actual written forfeiture order for me to sign. [ 207 ] MR. BACKHOUSE: Yes, Your Honour. I will also list the paraphernalia seized on that order. [ 208 ] THE COURT: All right. I guess I forgot to mention those. There were scales and that sort of thing? [ 209 ] MR. BACKHOUSE: Yes.

There is a major incident flowchart, and I will identify the seized items on that chart and append it to the order. [ 210 ] THE COURT: Okay. Inasmuch as Mr. Fitzpatrick has not taken issue, on instructions, to the forfeiture order, is there anything that you think is on the list of those things that are to be forfeited that has not been mentioned specifically that could possibly be the source of disagreement? [ 211 ] MR. BACKHOUSE: No, Your Honour. [ 212 ] THE COURT: We are talking about paraphernalia only? [ 213 ] MR. BACKHOUSE: Yes, there is a wallet with Mr. Voss's ID. I will not include that.

The rest are all, I will say, true paraphernalia, either cell phones or a spoon with residue, marihuana grinders, score sheets/notebook, I believe pipe screens, items of that nature. [ 214 ] THE COURT: Are we content to proceed on that footing then? [ 215 ] MR. FITZPATRICK: Yes, Your Honour, we are. [ 216 ] THE COURT: All right. Is it your practice to send the forfeiture order to counsel for the offender in draft before sending it to the judge for signing, Mr. Backhouse? [ 217 ] MR. BACKHOUSE: I certainly will do so.

[ 218 ] THE COURT: Okay. Just because we are dealing here with a not-entirely-specified list of items, I think that would be the appropriate thing to do. [ 219 ] MR. BACKHOUSE: I appreciate the question, sir. [ 220 ] THE COURT: I think that takes us to the end of all of your ancillary orders. We only have the victim fine surcharge to talk about. [ 221 ] MR. FITZPATRICK: Yes. [ 222 ] THE COURT: This occurred at a time when the discretion to tailor victim fine surcharges to people's ability to pay victim fine surcharges remained within judges' hands, and so I retain the jurisdiction to require or not require Mr.

Voss to pay the victim fine surcharge. As I understand it, he is on solid financial ground now. He is working. He is building up the résumé and the dossier of credentials and licences and permissions and so forth he needs to take his place in the oilfields, and I would be surprised if Mr. Fitzpatrick were to make a submission that he is incapable of paying the victim fine surcharge, but I will hear him if he has such a submission. [ 223 ] MR. FITZPATRICK: I have no such submission, Your Honour. [ 224 ] THE COURT: All right. I am going to specify that the victim fine surcharge be paid by Mr.

Voss by Friday, the 28th of February 2014. [ 225 ] THE CLERK: The date again, sorry, Your Honour? The 28th? [ 226 ] THE COURT: Friday, the 28th of February, yes. [ 227 ] Mr. Voss, this is what Madam Justice Susan Griffin said to Mr. Owens at the end of her reasons for judgment in the Owens case, and as you will remember, the Owens case was a prominent part of your counsel's submissions to the court. It formed a prominent part of my reasoning, or guided my reasoning in a prominent way in your case. This is what she said to Mr. Owens: Mr. Owens, these are the Reasons for my Judgment.

I have one last thing to say to you. Do not for a moment lose sight of the seriousness of your crime. You were a bricklayer in a wall of harm. In giving you this chance, I expect you to live up to what you told this Court. I also expect you to reflect back to your community what it has shown to you: support, compassion and a belief that redemption is possible. I leave you with the same words. [ 228 ] Every judge, in sentencing someone, leaves with some residue of uncertainty as to whether or not he or she has done the right thing. I have very little uncertainty that I have done the right thing here.

I have taken your words to the court, both your own and those of your counsel, to be sincere and genuine. I believe you are the person I characterized you to be in my reasons for sentence, somebody who has learned a lesson and who can make the most of an opportunity to take a life that has been turned around significantly already and propel it forward in a lawful way. This is an opportunity. The way the sentencing has gone in this case is not the way the sentencing would have gone necessarily. One can easily imagine a different outcome.

So you now have an opportunity, through strict compliance with your probationary conditions and a continued dedication to a lawful way of living, to demonstrate that the court rightly placed the amount of confidence in you that it has in sentencing you in the way that it has sentenced you. [ 229 ] So I wish you well. [ 230 ] THE ACCUSED: Thank you, Your Honour. [ 231 ] THE COURT: I think that brings this matter to a conclusion. [ 232 ] MR. BACKHOUSE: One housekeeping matter, Your Honour.

There is a remaining count on the information, and I will direct a stay of proceedings with respect to that count. [ 233 ] THE COURT: What count number is that again, Mr. Backhouse? [ 234 ] MR. BACKHOUSE: On the copy of the information I have it is Count 1, and the allegation is possession of marihuana. [ 235 ] THE COURT: So there is a stay of proceeding on Count 1. [ 236 ] THE CLERK: Thank you. [ 237 ] THE ACCUSED: Thank you, Your Honour. (REASONS CONCLUDED)