R. v. Shaw, 2020 BCPC 210

Citation: R. v. Shaw 2020 BCPC 258 Date: 20200714 File No: 30263-1, 30263-4-S Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHANNON ROSE SHAW ORAL REASONS ON CONDITIONAL SENTENCE ORDER BREACH HEARING OF THE HONOURABLE JUDGE D. PATTERSON Crown Counsel appearing by teleconference: C. Ducluzeau Counsel for the Defendant: A. Turton Place of Hearing: Prince Rupert, B.C. Date of Hearing: July 14, 2020 Date of Judgment: July 14, 2020 [ 1 ] THE COURT: All right, these are my reasons. [ 2 ] Ms.

Shaw is before the court today, having been arrested on July 13, 2020, in relation to a breach of the conditional sentence order that I imposed on April 22, 2020. The conditional sentence order was 120 days in length and is to be followed by eight months of probation. [ 3 ] The substantive offence for which Ms. Shaw pled guilty on Information 30263-1 was that Shannon Rose Shaw, on or about the 13th day of July, 2019, at or near Prince Rupert, in the Province of British Columbia, did, without lawful excuse, enter a dwelling house

at 7-801 Borden Street with intent to commit an indictable offence therein, contrary to s. 349(1) of the Criminal Code. [4] At the time of her sentencing, it was urged upon me by counsel that a conditional sentence order would be appropriate forMs.

Shaw, even though she has a 13-page criminal history, as set out in Exhibit 1 to these proceedings, which include: numerousbreaches of undertakings, reconnaissances, probation orders, conditional sentence orders, and several applications by the Crown torevoke bail and/or conditional sentence orders. [5] At the time of her initial sentencing, that is on April 22, 2020, I observed in court and learned from what counsel told me thatMs.

Shaw was one of the nicest people one could want to meet and know, as long as she was in a sober condition. [6] The prosecutor has told me today that, within the first week of my having imposed the conditional sentence order on April 22,2020, Ms. Shaw breached. Ms. Shaw apparently had been impaired by alcohol, or at least had alcohol in her system, and that is why theRCMP wrote a report and recommended the original breach of conditional sentence order. As a result of the initial breach, my brotherJudge Stewart suspended the conditional sentence order and gave Ms.

Shaw six days in jail, with the conditional sentence order resumingupon her release from custody on April 30, 2020. [7] Since April 30, 2020, Ms. Shaw has spent time both in Prince Rupert and in Kitkatla, which is a small Tsimshian First Nationcommunity on Dolphin Island, which you have to get to either by floatplane or by boat. What Ms. Shaw has not done is stay in contactwith her conditional sentence supervisor, Ms. Jackson, as she should have done. Ms. Shaw’s failure to stay in contact with her supervisorhas led to Ms.

Jackson submitting a second conditional sentence order breach allegation on June 15, 2020, after which an unendorsedwarrant issuing for Ms. Shaw’s arrest. [8] Today, July 14, 2020, Ms. Shaw has admitted the second breach submitted by Ms. Jackson, so it is not a question of whether Ineed to find that there has been a breach. Rather, it is a question of what are the appropriate next steps in light of the admission of thatbreach. [9] R. v. Proulx, 2000 SCC 5, is the leading case out of the Supreme Court of Canada with regard to conditional sentence orders. Iam instructed per Mr.

Justice Lamer at paragraph 39 of Proulx that: “More importantly, where an offender breaches a condition without reasonable excuse, there should be a presumption that the offenderserve the remainder of his or her sentence in jail. This constant threat of incarceration will help to ensure that the offender complies withthe conditions imposed: see R. v. Brady (1998), 1998 ABCA 7 , 121 C.C.C. (3d) 504 (Alta. C.A.); J. V. Roberts, "ConditionalSentencing: Sword of Damocles or Pandora's Box?" (1997), 2 Can. Crim. L. Rev. 183.

It also assists in distinguishing the conditionalsentence from probation by making the consequences of a breach of condition more severe.” [10] I am also reminded by the leading British Columbia Court of Appeal decision in R. v. Langley, 2005 BCCA 478, that thedisposition that I determine is appropriate in the case of a conditional sentence order breach should turn on the particular circumstancesof the offender, in this case Ms. Shaw. [11] Finally, as we have discussed during the course of this hearing today, the burden is upon Ms.

Shaw to prove an alternativedisposition, other than termination of her conditional sentence order, is appropriate. [12] The first step for me is to consider whether the presumption of termination is rebutted.

The factors I need to consider, as per theLangley decision out of our Court of Appeal, are as follows: the nature, circumstances, and timing of the breach; any subsequent criminalconduct and sentences for that conduct; changes in the plan for community supervision; the effect of termination on the appropriatenessof the sentence for the original offence; and the offender’s previous criminal record. [13] If the presumption is rebutted, then I, as the judge hearing this matter, must then go on to consider those same factors todetermine which options are appropriate.

It would be an error of law for me not to properly consider the factors. [14] So I am going to consider the factors, and I am going to do them in a slightly different order than I just set out. I am going to startwith Exhibit 1, which is the JUSTIN conviction list, which is Ms. Shaw’s history of interaction with the criminal justice system.

I amdoing so in the context of her being a First Nations woman, a proud member of the Tsimshian Nation, and all of the various Gladuefactors that come into play with her being a First Nations woman. [15] In Gladue, (SCC), [1999] 1 SCR 688, which was a decision of the Supreme Court of Canada, we are taught thatsentencing judges have to undertake the process of sentencing aboriginal offenders differently in order to endeavour to achieve a truly fitand proper sentence in a particular case. That concept is located in paragraph 33.

Then in paragraph 37, the Supreme Court instructssentencing judges that they should pay particular attention to the circumstances of aboriginal offenders because their circumstances areunique and different from those of non-aboriginal offenders. [16] And I am urged and taught by the Supreme Court that in dealing with aboriginal offenders, I must use restraint when it comes toimprisonment, and in fact I am told that, when it comes to aboriginal offenders, imprisonment may be a less appropriate and less usefulsanction. [17] Now, to be clear, this is not a sentencing in the traditional sense.

It is a determination as to what the appropriate outcome shouldbe as a result of, not Ms. Shaw’s first, but her second, admitted breach of the conditional sentence order that I imposed on April 22, 2020.Accordingly, the breach in the present case has to be considered in that context. [18] Ms. Shaw’s criminal history is remarkable for the number of breaches she has been convicted of, which gave me some hesitationon April 22, 2020, at her original sentencing. Ms. Shaw’s record of breaching again gives me hesitation today. I have to consider ifMs.

Shaw will abide by the conditions of her conditional sentence order, if I was to reimpose it today. [19] So now we go and look at the nature, circumstances, and timing of the breach in this particular case. Again, I note that this is the

second breach of my conditional sentence order, and she received six days real jail after her first breach by my brother Judge Stewart. [ 20 ] The nature of the breach is significant because a conditional sentence order is not supposed to be a get out of jail free card. It is supposed to be a jail sentence, albeit served within the community, with limitations on one’s right of liberty of movement, and other factors, as set out in the conditional sentence order. [ 21 ] There is no doubt in my mind that, in spending her time in Kitkatla and in Prince Rupert, Ms.

Shaw has many hurdles to overcome that other people in populated areas of the province and the country do not face. I also have no doubt that that Ms. Shaw’s issues are compounded by many of the unique factors that she faces as a First Nations woman with health issues, trying to divide her time between a very small village on an isolated island, and here in the community of Prince Rupert. [ 22 ] I put that into context, but I also have to consider the words I heard from Ms. Jackson, who told me that something needs to change with regards to Ms.

Shaw and her conditional sentence order. [ 23 ] So when I consider all of the factors together, including the original conditional sentence order that I imposed, which, quite frankly, could have been an in custody jail sentence of four months jail or longer, I can reach no other conclusion but that some additional real jail, and by real jail I mean inside a correctional centre as opposed to being served in the community, is appropriate for Ms. Shaw. But, and this is a big but, I am also not without hope for Ms.

Shaw and her ability to follow a conditional sentence order. [ 24 ] So what I am going to do is essentially the same thing that Judge Stewart did with regard to Ms. Shaw’s first breach of the April 22, 2020 conditional sentence order, with one change. Whereas Judge Stewart suspended the conditional sentence order and sent Ms. Shaw to jail for six days, I am going to suspend the conditional sentence order and send Ms. Shaw to jail for 12 days. [ 25 ] In conclusion, I am ordering the suspension of the conditional sentence order and I am ordering that Ms.

Shaw spend a portion of the sentence, specifically 12 days, in custody. I am also ordering that the conditional sentence order resume, with some modifications, on Ms. Shaw’s release from custody. I am giving Ms. Shaw credit for yesterday, which is two days credit, so Ms. Shaw must spend 10 new days in custody as of today. Madam Clerk, is that clear? [ 26 ] THE CLERK: Yes. I am just unsure as where to note the credit. But I can -- [ 27 ] THE COURT: Well, we do not need to. You can just say specifically 10 days. [ 28 ] THE CLERK: Thank you, Your Honour.

And Your Honour, when the conditional sentence resumes, is it resuming with no changes? [ 29 ] THE COURT: It is going to resume with the following change. [ 30 ] THE CLERK: Thank you. [ 31 ] THE COURT: That change will be in relation to condition #5. It will now read as follows: You must report by telephone to a conditional sentence supervisor at 132 First Avenue West, Prince Rupert, British Columbia, at 1 (877) 602-2288 by and within 24 hours of your release from custody.

If the office is closed, you must continue calling daily during regular business hours until you have spoken to a supervisor and received further direction to report. After that, you must report by telephone or in person as directed by your supervisor, at a minimum once every calendar week. [ 32 ] So Ms. Shaw, do you understand that condition? [ 33 ] Ms. Shaw, do you understand that condition? [ 34 ] THE CLERK: We lost connection. [ 35 ] THE COURT: No, I believe she is there still. [ 36 ] THE CLERK: Mr.

Sheriff, can you hear us? [ 37 ] THE SHERIFF (via teleconference): Yes, she said she understands. [ 38 ] THE CLERK: Thank you. [ 39 ] THE COURT: Thank you. So it is now going to be a weekly reporting condition. I know that adds burden to you, but quite frankly it also adds burden to Ms. Jackson. [ 40 ] I am also changing condition #9. I am changing it by deleting it in its entirety. What that means is that condition #10 is also going to have to be deleted. It also means that condition #11 has to be deleted. [ 41 ] This is not a bail situation.

If this was a bail situation, I would revisit the prohibition on alcohol and drugs, and other intoxicating substances, but as I did on April 22, 2020, I am going to remind Ms. Shaw, she is prohibited from possessing or consuming alcohol, drugs, or other intoxicating substances, except with a medical prescription given to her by a licenced British Columbia medical doctor. [ 42 ] It is a jail term. If she was in custody, she would not be getting alcohol or drugs. [ 43 ] And so I am removing the curfew, as you have heard, Ms.

Shaw, but I am adding the additional reporting, and I truly wish you the best of luck following these conditions. [ 44 ] Ms. Turton?

[ 45 ] MS. TURTON: I just note that Your Honour is requesting that she report -- I forget how many hours you said -- but then her release -- if when she is released, going ten days forward, it will be on the 31st of July. [ 46 ] THE COURT: Yes. [ 47 ] MS. TURTON: And then the Monday, the 3rd of August, is a civic holiday. [ 48 ] THE COURT: Correct. So what she will have to do, she will have to phone in each day on the weekend and then phone in on the first business day that it is working. [ 49 ] So she is going to get released before the ten days are up. [ 50 ] MS.

TURTON: Ah -- very good. [ 51 ] THE COURT: She will only have the first -- [ 52 ] MS. DUCLUZEAU: She could be released on the 21st, Your Honour. She will only get to serve seven? [ 53 ] THE COURT: That is correct. [ 54 ] THE CLERK: I'm just looking at the calendar. [ 55 ] THE COURT: All right. Any questions, Ms. Shaw, about those changes that I made to your conditional sentence order? [ 56 ] And I cannot hear you. I need you to say yes or no. Any questions? [ 57 ] THE ACCUSED (via teleconference): No. [ 58 ] THE COURT: All right.

Did you understand them, yes or no? [ 59 ] THE ACCUSED: [Indiscernible/teleconference] [ 60 ] THE COURT: Was that a yes? [ 61 ] THE ACCUSED: Yes. [ 62 ] THE COURT: Thank you. [ 63 ] I am going to waive the need for a justice of the peace to read the conditions of the varied conditional sentence order to Ms. Shaw, as she has acknowledged that she understands, and do you agree to follow those conditions, Ms. Shaw, yes or no? [ 64 ] THE ACCUSED: Yes. [ 65 ] THE COURT: Yes. So she has also agreed to follow those conditions. Ms. Ducluzeau, anything from the prosecution’s point of view that I have missed? [ 66 ] MS.

DUCLUZEAU: No, Your Honour. [ 67 ] THE COURT: Thank you. Ms. Turton? [ 68 ] MS. TURTON: No, Your Honour. I have raised my concern. [ 69 ] THE COURT: Thank you. [ 70 ] Ms. Shaw, you will have a copy of that conditional sentence order variation provided to you. Now the difficulty -- and officer, you may not know the answer to this -- will she receive that at the RCMP detachment or is she going to have to come to the Prince Rupert courthouse to get her copy of the variation of the order? [ 71 ] THE SHERIFF: Your Honour, we'll make sure she has a copy before she leaves.

Also we'll forward it to the police. [ 72 ] THE COURT: Truly appreciate that. Thank you very much. (REASONS FOR SENTENCE CONCLUDED)