R. v. Touchie Date:, 2017 BCPC 119

Citation: R. v. Touchie Date: 20170411 2017 BCPC 119 File Nos: 40608-2-C,40592, 36952-1 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHARON TONYA TOUCHIE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: S. Simpson, T. Patola Counsel for the Defendant: M. Munro Place of Hearing: Port Alberni , B.C. Date of Hearing: May 26, November 3, 2016 Date of Judgment: April 11, 2017

The Issue [ 1 ] Ms. Touchie has entered guilty pleas to one count of possession of methamphetamine for the purpose of trafficking, one count of simple possession of methamphetamine, one count of simple possession of 4-hydroxybutanoic acid (GHB), and one count of possession of a prohibited weapon (a knife with a spring-loaded blade). It is my task to sentence her for those offences. The Offences [ 2 ] On February 9, 2015, the police conducted surveillance at a house which they believed to be used for the sale of illicit drugs. They observed Ms.

Touchie delivering to another person a substance which they believed to be GHB. They arrested and searched Ms. Touchie. On her person, they found small quantities of methamphetamine and GHB, and a knife with a spring-loaded blade. [ 3 ] At about 1:20 a.m. on April 9, 2015, Ms. Touchie was a passenger in a vehicle in Port Alberni. The police observed behaviour near the vehicle which led them to suspect that drugs were being sold from it. They stopped the vehicle and searched it. In Ms.

Touchie’s handbag they found 17.1 grams of methamphetamine, valued at about $1700, some GHB, some documents which appeared to be records of drug transactions, and a cell phone containing text messages which appeared to relate to drug transactions. It is conceded that she was an active participant in a dial-a-dope operation. Mr. Munro says that she was selling only to support her own addiction, and there is no evidence to contradict that assertion. The Offender [ 4 ] Ms. Touchie is 38 years of age.

Her father is a member of the Hit-tat-soo First Nation, whose traditional territory is near Ucluelet, about 100 kilometres from Port Alberni. Her mother is a member of the Gitxsan First Nation, whose traditional territory is near Hazelton, British Columbia, about 500 kilometres north of Port Alberni. [ 5 ] Ms. Touchie was born in Ucluelet. She moved, with her parents, to Port Alberni at age 4. Her parents were binge drinkers and users of intravenous drugs. Her mother died when Ms. Touchie was 5. Ms. Touchie suffered sexual abuse from extended family members from age 2 to age 9. [ 6 ] At age 16, Ms.

Touchie entered into an intimate relationship with Mr. Martin, a member of the Uchucklesaht First Nation, whose traditional territory is about 40 kilometres from Port Alberni. They have two daughters, who are now young adults. Ms. Touchie describes the relationship as abusive. The relationship ended when Ms. Touchie was 26. The children remained in the care of Mr. Martin, and she is not now in contact with them. [ 7 ] About three months after the end of her relationship with Mr. Martin, Ms. Touchie entered into an intimate relationship with Mr. Rush. That relationship ended when Mr.

Rush received a prison sentence for assaulting her. She and Mr. Rush have twin daughters, now age 8. The girls live with Mr. Rush’s mother. Ms. Touchie has not seen them since 2015. [ 8 ] Shortly thereafter, Ms. Touchie entered into another intimate relationship which ended when her partner assaulted her. [ 9 ] Ms. Touchie says that she has no personal connection with the Hit-tat-soo First Nation or the Gitxsan First Nation. She was received by the Uchucklesaht First Nation as a consequence of her relationship with Mr. Martin, and is now a member of that First Nation.

However, she has been shunned by that community since that relationship ended. She says that she will reconnect with the Uchucklesaht First Nation when she is ready. [ 10 ] The Alberni Indian Residential School closed in 1973, one of the last in Canada to do so. While there is no indication that Ms. Touchie or her parents attended residential school, many members of the Hit-tat-soo and Uchucklesaht First Nations did. Ms. Touchie grew up in a society which was greatly influenced by the intergenerational effects of the residential school system.

Among the tragic, but common, effects of the residential school system are patterns of addiction and violence toward children, of the kind experienced by Ms. Touchie during her childhood. [ 11 ] Ms. Touchie has been prescribed medication for bipolar disorder and anxiety, but does not take that medication. In the past, she has self-medicated with alcohol and illicitly-obtained methamphetamine. The following passages are found in her presentence report: Despite [Ms. Touchie’s] acknowledgement of a drug problem, she is not willing to attend substance abuse counselling.

In the past, she attended an appointment with a substance abuse counsellor, and was offended by the counsellor and did not return. … Although [Ms. Touchie] acknowledges her drug addiction as being problematic, she is adamant that she does not want to attend substance abuse counselling. During his oral submissions on Ms. Touchie’s behalf, Mr. Munro said: I have spoken to [Ms. Touchie] this morning and if there was a counselling provision she is absolutely prepared to go to counselling and I appreciate what the presentence report says, but I am telling you something different this morning. [ 12 ] Ms.

Touchie completed high school, and has been employed in the past. For the past two years, she has been receiving disability benefits arising from her mental health issues. She has some skill with bicycle mechanics, and hopes to open a business refurbishing and reselling used bicycles. [ 13 ] Ms. Touchie was the subject of a peace bond, imposed upon her after an allegation of assault in 2013, but has no other criminal history.

[14] Ms. Touchie has been on bail, and subject to strict bail conditions including a curfew, since her arrest on February 9, 2015. Herconduct on April 9, 2015 was a clear breach of her bail condition to keep the peace and be of good behaviour, but there is no allegation ofany other breach of her bail conditions. Analysis [15] The principles governing sentencing for dial-a-dope offenders were stated by Justice Bennett in R. v. Voong, 2015 BCCA 285;[2015] BCJ No. 285; 325 CCC (3d) 267 at paragraph 59: In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug sellerwill be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptional circumstancesmay include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict,gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done tothe offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstances that areabove and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to concludethat the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSOsentences are not available. Thus, it will be the rare case where the standard of exceptional circumstances is met.

I observe that none of the respondents on the Voong appeal was an Aboriginal person. Different considerations may apply to Aboriginaloffenders, depending on their individual histories and circumstances: R v. Peters, 2015 MBCA 119; [2015] MJ No. 119; R v. McGill,2016 ONCJ 138; [2016] OJ No. 138 at paragraphs 88 – 95; R v. Racette, 2016 BCCA 275; [2016] BCJ No. 1435. [16] It would be too much to say that Ms. Touchie has “… truly turned her life around …”. She acknowledges that she continues tostruggle with methamphetamine addiction. Although she has expressed to Mr.

Munro a willingness to attend substance abusecounselling, she has not attended any such counselling during the two-year interval since her arrest. She remains unemployed. Mr.Munro informs me that she is agoraphobic and rarely leaves her home. She continues to lack constructive community supports, either inher First Nation or in Port Alberni. She has a long way to go if she is to become a constructive member of society. [17] However, there are hopeful signs, most notably the fact that she has been on bail since April, 2015, and is not accused of anymisbehaviour during that time. It is a fair inference that Ms.

Touchie has complied strictly with her bail conditions. Given her history,that is a notable achievement. [18] In Ms. Touchie’s case, I do not think it reasonable to expect that she could truly turn her life around in two years or less. Whenshe was arrested, she was a 36 year old methamphetamine addict with a family history of addiction, a personal history of childhoodsexual abuse and adult spousal abuse, bipolar disorder and anxiety disorder, who had been shunned by her First Nation and had no othercommunity to turn to.

In applying Voong, I think that one must make due allowance for the challenges faced by the offender. [19] In R v. Ipeelee, 2012 SCC 13 , [2012] 1 SCR 433; 2012 SCJ No. 13 at paragraph 67, Chief Justice McLachlin quotedwith approval the following passage from Professor Quigley’s

article "Some Issues in Sentencing of Aboriginal Offenders", in R. Gosse,J. Y. Henderson and R. Carter, eds., Continuing Poundmaker and Riel's Quest: Presentations Made at a Conference on AboriginalPeoples and Justice (1994), 269, at pp. 275-76: Socioeconomic factors such as employment status, level of education, family situation, etc., appear on the surface as neutral criteria. They are considered as such by the legal system. Yet they can conceal an extremely strong bias in the sentencing process.

Convictedpersons with steady employment and stability in their lives, or at least prospects of the same, are much less likely to be sent to jail foroffences that are borderline imprisonment offences. The unemployed, transients, the poorly educated are all better candidates forimprisonment. When the social, political and economic aspects of our society place Aboriginal people disproportionately within theranks of the latter, our society literally sentences more of them to jail. This is systemic discrimination.

At paragraphs 73 and 75, Chief Justice McLachlin said (underlining in the original): First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level ofmoral blameworthiness. This is perhaps more evident in Wells where Iacobucci J. described these circumstances as "the unique systemicor background factors that are mitigating in nature in that they may have played a

part in the aboriginal offender's conduct" (Wells, atpara. 38 (emphasis added)). Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limitedoptions for positive development. While this rarely -- if ever -- attains a level where one could properly say that their actions were notvoluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moralculpability. …

Section 718.2(

e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy the overrepresentationof Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particularattention to the circumstances of Aboriginal offenders in order to endeavor to achieve a truly fit and proper sentence in any particularcase. This has, and continues to be, the fundamental duty of a sentencing judge. Taking those matters into account, it does not seem reasonable to expect an offender like Ms.

Touchie to demonstrate at a sentencinghearing the same degree of successful self-rehabilitation as one would expect from an offender with a more benign history. [20] That observation gives rise to a difficulty. This case first came before me for sentencing on May 26, 2016. On that day, Isuggested to Mr. Munro that he might want an adjournment to afford Ms. Touchie an opportunity to take further rehabilitative action inthe hope of satisfying the criteria articulated in Voong. Mr. Munro accepted that suggestion and applied for the adjournment. Ms.

Simpson and Mr. Patola opposed the adjournment, pointing out, correctly, that a sentence should be imposed as soon as possible after aconviction or a guilty plea. The difficulty is that: (

i) Voong requires a jail sentence for dial-a-dope offenders unless they can demonstratesignificant accomplishments on the road to rehabilitation in the interval between arrest and sentencing; and (ii) some offenders aregenuinely unable to achieve those accomplishments in the brief interval commonly allowed between the date of conviction and the dateof sentence. Many of them will fail in the end, but fairness in sentencing requires that they have a fair opportunity. [21] I granted the adjournment, and heard further submissions on November 3, 2016. I confess that I hoped that Ms.

Touchie wouldtake better advantage of the five-month window of opportunity that I gave her. In particular, I hoped that she would enrol in one of theexcellent substance abuse counselling programs which are available to First Nations people in Port Alberni. Apparently, it took sometime for her to overcome her aversion to such programs. I attribute her recalcitrance to her personal history. [22] In its origin, the suspended sentence was intended to afford offenders the kind of opportunity which I extended to Ms. Touchie,the premise being that: (

i) if the offender complied with her probation conditions (which might include attendance at substance abusecounselling), the offender need not face jail; but (ii) if the offender did not comply, the Crown could bring the offender back to court andseek the jail sentence which might have been imposed at first instance: Criminal Code,

section 732.2(5). Justice Green explained theconcept in R v. McGill, 2016 ONCJ 138; [2016] OJ No. 1346 at paragraph 49: A "suspended sentence", however, has no settled term or duration. As s. 731(1)(

a) of the Code makes clear, a "suspended sentence" isone in which it is "the passing of sentence" that is suspended -- not service of the sentence itself. Where a person bound by a probationorder attaching to a suspended sentence is convicted of a breach of his or her probation order or (unlike the case with conditionalsentences) any other offence, a court may, as with breaches of the terms attending a conditional sentence, amend the optional conditionsof the order. However, unlike the case of conditional sentences, the court may instead extend the duration of the order for up to anadditional year.

Most radically, a court may, in the alternative, revoke the suspended sentence initially imposed and levy any sentence itcould have imposed in the first instance "if the passing of sentence had not [then] been suspended". As Chief Justice Lamer pointed out in R v. Proulx, 2000 SCC 5 , [2000] 1 SCR 61; [2000] SCJ No. 6 at paragraph 27, theconsequences for a person who receives a suspended sentence and probation, but fails to comply with the probation order, may, intheory, be more severe than the consequences for a person who fails to comply with a conditional sentence order.

In practice, that is notso, but only because Crown counsel rarely exercise the right to bring the former class of offenders back before the court to be sentenced. In my five years as a Provincial Court Judge, I have never seen that done. Experienced Crown counsel tell me that they have never doneit. It seems to me that this omission on the part of Crown counsel to utilize one of the important tools at their disposal has underminedthe credibility and efficacy of the suspended sentence. That, in turn, has created pressure to impose jail sentences on offenders like Ms.Touchie.

That is unfortunate, particularly because it makes it difficult to give effect to

section 718.2(

e) of the Criminal Code, whichrequires the court to consider “… all available sanctions, other than imprisonment, that are reasonable in the circumstances andconsistent with the harm done to victims or the community … with particular attention to the circumstances of Aboriginal offenders …”. [23] Suspended sentences and probation can be effective tools in the pursuit of the sentencing objectives set out in the CriminalCode.

However, they will not be so unless Crown counsel seeks meaningful sanctions for a failure to comply with the probationconditions which are an integral part of the process. [24] In the end, I think that fairness to Ms. Touchie demands that she have a further opportunity to satisfy the requirements ofVoong. I can’t delay her sentencing any longer.

The best I can do is to impose a suspended sentence and probation, in the hope that, ifshe fails to progress in the manner required by her probation conditions, Crown counsel will exercise their prerogative to bring her backbefore the court for appropriate sanctions to be imposed. Disposition [25] I suspend the passing of sentence and impose a term of three years’ probation on the following conditions. Ms. Touchie must:

a) keep the peace and be of good behaviour and attend court when required to do so by the court.

b) report in person to a probation officer no later than 4:00 p.m. today, and report thereafter as and when directed by her probationofficer.

c) reside in a place approved by her probation officer and not change that place of residence without the prior written permission of herprobation officer.

d) maintain a curfew between the hours of 9:00 p.m. and 6:00 a.m. daily, and remain within her residence during curfew hours unlessshe has the written permission of her probation officer to be outside her residence. If she has that permission, she must carry it with herand show it to any peace officer who asks to see it.

e) during curfew hours, present herself at the front door of her residence within 5 minutes of any peace officer knocking and making hispresence known.

f) not possess or consume any alcohol, or any controlled substance, as defined by the Controlled Drugs & Substances Act, exceptmedications prescribed for her by a medical doctor licensed to practice in British Columbia, and then only in the quantities prescribed.

g) not be found on any business premises where alcohol is the primary commodity for sale.

h) not possess any weapons, as defined by the Criminal Code, or any imitations thereof.

i) attend, participate in and successfully complete any counselling program to which she is referred by her probation officer, includinga full-time attendance program if she is referred to one.

j) take steps satisfactory to her probation officer to seek and maintain employment, which may include self-employment if she submits to her probation officer a business plan which, in the opinion of her probation officer, offers a reasonable prospect of success. April 11, 2017 _________________________________ T. Gouge, PCJ