R. v. Boucher Date:, 2018 BCPC 13

Citation: R. v. Boucher Date: 20180126 2018 BCPC 13 File No: 36293-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JORDAN MATTHEW BOUCHER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: I. McFadgen Counsel for the Defendant: S. Runyon Place of Hearing: Campbell River , B.C. Date of Hearing: November 22, 2017 Date of Judgment: January 26, 2018

The Issue [1] Mr. Boucher has entered guilty pleas to two counts of possession of narcotics (heroin and cocaine) for the purpose oftrafficking. It is my task to sentence him for those offences. Mr. McFadgen, for the Crown, seeks a sentence of 6 months’ jail. Ms.Runyon, for Mr. Boucher, seeks a suspended sentence and a period of probation, or in, the alternative, a 90-day jail sentence to be servedintermittently. The Offence [2] During the few weeks preceding August 19, 2015, Mr. Boucher was the subject of police surveillance.

The police believed thathe was selling drugs from his vehicle, and observed behaviour which confirmed them in that belief. On August 19, 2015, they followedMr. Boucher to a local convenience store. In the parking area, Mr. Boucher had an encounter with another man, in which something waspassed from Mr. Boucher’s hand to that of the other man. The police arrested Mr. Boucher.

During a search of his person and vehicleincidental to his arrest, they found 5 grams of cocaine and 2 grams of heroin, divided into 25 “spit balls”, three cell phones, $180 cash, aknife and a can of bear spray. [3] No evidence was tendered at the sentencing hearing. Mr. McFadgen presented a

summary of the Crown’s allegations. Ms.Runyon was admirably clear and specific about what is, and is not, admitted by Mr. Boucher. He admits that he was in possession ofheroin and cocaine on August 19, 2015 for the purpose of trafficking. He admits nothing else. In particular, he does not admit that hewas engaged in a dial-a-dope operation, and does not admit that he engaged in drug trafficking on any day other than August 19, 2015. [4]

Section 7 of the Canadian Charter of Rights & Freedoms guarantees to Mr. Boucher “… the right to … liberty … and the rightnot to be deprived thereof except in accordance with the principles of fundamental justice …”. One of the principles of fundamentaljustice is that “… where the Crown advances aggravating facts in sentencing which are contested, the Crown must establish those factsbeyond reasonable doubt …”: R. v. D.B. [2008] SCR 3; 2008 SCC 25 , [2008] SCJ No. 25 @ paragraphs 78 - 79.

Mr.McFadgen says that I can infer: a. from the presence of the cell phones and from some messages said to be found on the cell phones, that Mr. Boucher wasengaged in a dial-a-dope operation; and b. from the weapons and the amounts of drugs and cash found in Mr. Boucher’s vehicle, that August 19, 2015 was not his first dayon the job as a drug trafficker. There is no evidence of any connection between Mr. Boucher and any of the cell phones. I was not provided with the text of themessages on the cell phones, and no evidence was tendered about them.

Lacking any personal experience of drug trafficking, I am not ina position to say: (

i) what quantities of drugs are advanced (presumably on credit) by drug wholesalers to novice, street-level retailers; or(ii) whether weapons are more commonly carried by dial-a-dope traffickers than by other traffickers. In the absence of evidence, Icannot conclude that the inferences suggested by Mr. McFadgen have been established beyond a reasonable doubt. The Offender [5] Mr. Boucher is 22 years of age. On the date of the offence, he was 20. His mother was a drug addict, who died of an overdosewhen Mr. Boucher was in grade 9. Shortly thereafter, he dropped out of school. He has six siblings.

Two of them suffer fromHuntington disease and a third from autism spectrum disorder. While a teenager, Mr. Boucher became addicted to heroin, cocaine andfentanyl. He remains addicted to fentanyl. He says that he began trafficking drugs to feed his own addiction, and that the proceeds ofhis sales were sufficient only to purchase the drugs which he consumed. [6] Mr. Boucher has one previous conviction, for simple possession of marijuana in 2013, for which he received a $200 fine and aterm of 6 months’ probation. [7] Mr. Boucher has been in the community on bail since August, 2015 (a period of 27 months).

The Crown does not allege anybreach of his bail conditions, or any other wrongful behaviour, during that period. [8] Mr. Boucher’s family doctor provided the following report: Jordan has been a patient at this office since May, 2016. He has attended regularly for treatment and counselling since then. He has been seeing the counsellor here since October, 2016 and is receiving counselling for anxiety, depression and drug addiction.

He is trying hard to improve his condition and will continue to attend here. * * * Jordan is working hard to overcome his addiction, he attends my office regularly and also is attending the pharmacy every day now tocollect his methadone dose. A few months ago he was not managing to attend every day. The fact that he is taking his methadone dosage on a daily basis now will enable him to maintain gainful employment which he wasunable to do 3 months ago.

[ 9 ] Mr. Boucher’s counsellor reports that: Jordan has been coming to see me for counselling since April 10 this year [2017]. Whenever we made an appointment, he was faithful in both meeting the date and the times. Over this period of 10 months he has contributed in the 10 consultations. Other than this punctuality, he has made some progress in understanding his condition, but was initially ambivalent about confronting the same and being prepared to do something about it.

But I am delighted to say that there has been some improvement in this regard, and with much more work I would like to anticipate further improvement. Despite the fact that he initially found work on a fish farm (from which he was dismissed) he was able to find further work (“roofing”) which speaks well of his intention to his being a productive member of society. [ 10 ] Ms. Runyon explains that Mr. Boucher was not strong enough to work long shifts at the fish farm, and was dismissed for that reason. He found new employment with a local roofing contractor on October 11, 2017, and remains employed there.

His new employer says that he “… has proven to be a consistent and reliable employee, who for as long as I can see will gainfully be employed by my company … for long as he chooses to be …”. Discussion [ 11 ] Mr. McFadgen relies upon the following passage from R. v. Voong 2015 BCCA 285 ; [2015] BCJ No. 1335 @ paragraph 59: In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptional circumstances may 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 to the 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 are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that 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. Voong was a dial-a-dope case. Justice Bennett referred to the seriousness of dial-a-dope trafficking (as distinct from other forms of trafficking) at paragraphs 16 - 17 and 44 - 57 of her reasons for judgment.

At paragraph 16, she described dial-a-dope offences as “… particularly insidious …”, and as posing a greater danger to communities than other forms of drug trafficking. [ 12 ] Mr. Boucher’s efforts at self-rehabilitation are commendable and, given his history, probably represent the best he can do. However, his rehabilitation remains a work in progress and the outcome remains in doubt. If this were a dial-a-dope case, I would be forced to conclude that Mr.

Boucher had not shown that he had “… truly turned his life around …”, and that, accordingly, a custodial sentence would be required by Voong . [ 13 ] However, this has not been shown to be a dial-a-dope case. I think that the very substantial, and apparently successful, steps taken by Mr. Boucher since his arrest indicate that the protection of the public would be best served in this case by encouraging him to continue on the course he has followed in the past six months or so. Applying the principles stated in R v.

Alidina 2016 BCPC 123 ; [2016] BCJ No. 931 , I suspend the passing of sentence and impose a term of 3 years’ probation on the following conditions. Mr.

Boucher must: 1. keep the peace and be of good behaviour, and attend court when required to do so by the court; 2. report in person to a probation officer no later than 4:00 p.m. on January 26, 2018, and report thereafter as and when directed by his probation officer; 3. provide his probation officer with his residential address and not change that address without prior notice to his probation officer; 4. not possess or consume any controlled substance, as defined by the Controlled Drugs & Substances Act , except in accordance with a valid medical prescription issued by a doctor licensed to practice in British Columbia; 5. attend, participate in and successfully complete any counseling program to which he is referred by his probation officer, including a full-time attendance program if he is referred to one; 6. take steps satisfactory to his probation officer to secure and maintain full-time employment.

January 26, 2018 ______________________________ T. Gouge, PCJ