R. v. Hemmingsen, 2018 BCSC 1665

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hemmingsen, 2018 BCSC 1665 Date: 20180606 Docket: 40596-2 Registry: Port Alberni Regina v. Linda Jane Hemmingsen Terrence Edward Victor Hemmingsen Before: The Honourable Mr. Justice Crossin Oral Reasons for Sentence Counsel for the Crown: C. Gibson Counsel for the Accused: J. Watt Place and Date of Trial/Hearing: Port Alberni, B.C. June 5, 2018 Place and Date of Judgment: Port Alberni, B.C. June 6, 2018 [ 1 ] THE COURT: On June 5, 2018, Mr.

Hemmingsen pled guilty to the following offence: … on or about the 3rd day of April, 2015, at or near the City of Port Alberni, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 2 ] The charge arose from the participation of Mr. Hemmingsen in a dial-a-dope operation. The nature of the role of Mr. Hemmingsen in the operation was somewhat unusual. The operating mind of the enterprise was a man named Doucette. In the spring of 2015 Mr.

Hemmingsen and his wife, Linda, allowed Mr. Doucette to use their home as somewhat of a waystation for his business. Mr. Doucette kept his product and paraphernalia at the house and used the home as a basis of operation. [ 3 ] Our courts have emphasized time and time again that drug trafficking, regardless of the circumstances, is conduct that rips apart the fabric of our society and can only be described as destructive and denigrating to all concerned. It is a serious criminal offence and absent unusual or exceptional circumstances, offenders will be imprisoned.

The public interest demands it. [ 4 ] The Crown submits that imprisonment is in fact the just and fit sentence in these circumstances and seek a term of imprisonment of seven months. Counsel on behalf of Mr. Hemmingsen submits that a suspended sentence is the appropriate sentence. It is submitted that the totality of the information before the court reveals those exceptional circumstances exist in the case at bar. [ 5 ] The circumstances of the offence are relatively straightforward. [ 6 ] Mr. Hemmingsen, for reasons that I will outline momentarily, had, by the spring of 2015, become addicted to cocaine. Mr.

Doucette was the local supplier of drugs, or at least one of the suppliers. Mr. Hemmingsen was one of Mr. Doucette's customers. [ 7 ] One of the many poor decisions Mr. Hemmingsen made at this time was to become friendly with Mr. Doucette. One of the considerations of this relationship was that Mr. Hemmingsen allowed Mr. Doucette, in March 2015, to use the home of Mr. Hemmingsen as the base for his drug operation. It is unclear whether this was his only base of operation, but clearly Mr. Doucette kept drugs and drug paraphernalia at the home of Mr. and Mrs. Hemmingsen for the purposes of his enterprise.

The consideration to Mr. and Mrs. Hemmingsen for this use of their home was cocaine. Cocaine at a bargain price. [ 8 ] Mr. Hemmingsen did not directly participate in the operation. He did not sell drugs nor courier drugs. He consumed drugs. In return he provided Mr. Doucette with a place of business. [ 9 ] The RCMP in Port Alberni had Mr. Doucette under surveillance. On April 3, 2015, Mr. and Mrs. Hemmingsen were arrested at their home and charged. Mr. Doucette was arrested and charged the same day. [ 10 ] Upon the arrest of Mr. and Mrs.

Hemmingsen, the RCMP searched downstairs and seized 71 grams of cocaine, packaging material, scales and $656 in cash. The cocaine, I am advised, had a street value of between $4,000 and $7,100. [ 11 ] The charge against Mrs. Hemmingsen has been stayed. Mr. Doucette has fled. Mr. Hemmingsen was released on bail forthwith and has been at liberty without incident since that time.

[12] On the surface, the life circumstances of Mr. Hemmingsen would not, to the uninitiated, foreshadow him becoming addicted tococaine. [13] Mr. Hemmingsen is 56 years of age. He has been married for 33 years. He has two grown children. He is a local man. He wasborn in Port Alberni and, but for a brief period after leaving high school, has been a member of this community for his entire life. He hasno criminal record. It appears he had a relatively happy, relatively uneventful childhood.

He was hired at the mill in Port Alberni in 1987and until about 2008 -- by then he was well into his 40s -- there appeared nothing untoward on his horizon. [14] Beginning in 2008, however, there began a series of events, misfortunes and bad decisions that have essentially broughtMr. Hemmingsen before the court today. [15] This chain of circumstances appears to have started in relation to his financial affairs. His mother-in-law passed away inapproximately 2006, leaving a gift of inheritance to Mr. and Mrs. Hemmingsen in the amount of $170,000.

The funds were invested, butunfortunately fell victim to the economic downturn in 2008. It was a blow to the family. [16] Most unfortunately, around the same time, Mrs. Hemmingsen was diagnosed with cancer. She required a single mastectomy.These events required Mr. Hemmingsen to take stress leave from work at the mill. He began a protocol of antidepressants. In or aroundthis time, his father was also diagnosed with cancer. [17] Mr. Hemmingsen appeared to overcome these events and went back to work in 2009.

Beginning in 2011, however, anotherseries of events caused somewhat more profound difficulties; some of his own making. [18] Mrs. Hemmingsen underwent another mastectomy. In this timeframe as well, his father and sister-in-law continued to fight theirown battles with cancer. Mrs. Hemmingsen was advised the gene that was causing such cancerous chaos in her own body may well havebeen passed on to her children. [19] Mr. Hemmingsen was required to take another medical leave in 2011. His depression deepened.

He was prescribed at least threemedications for depression and anxiety by his general practitioner and a psychiatrist. He believes he was ingesting prescription drugs atan unhealthy rate. The ingestion of prescription drugs ultimately led to a diagnosis of tactile hallucinations. [20] In addition, during this period of 2011 to 2014, it was revealed to him that his daughter had been sexually assaulted and hadcontracted a certain disease as a result.

His father continued to have issues with cancer. [21] His sister-in-law succumbed to the disease in 2013. [22] In the midst of this, he turned to the solace of cocaine. He was introduced to the drug by a friend. He was soon addicted andwasting away what was left of the inheritance. His dealer of choice, as previously referenced, was Mr. Doucette. His physical, as well asmental health, continued to suffer. During this time frame of addiction, he was diagnosed with having suffered a series of strokes. It wasin this context in the spring of 2015 that he allowed Mr.

Doucette the use of his home. [23] The arrest, however, appeared to have an immediate cathartic effect. Subsequent to his arrest, his consumption of cocaineceased. He abandoned the drug culture and everything associated with it. He almost immediately returned to work at the mill andremains employed there to this day. He has reconnected with his friends, colleagues and family. His life is not without concerns. He isgrossly overweight. He has high blood pressure. He has developed Type II diabetes and is on appropriate medication. [24] Mr.

Hemmingsen spoke to the court directly at the sentencing and expressed his deep shame, regret, and remorse. I accept thosestatements as genuine declarations of contrition. [25] The statutory framework for the purpose of sentencing in this matter is found in the Criminal Code, R.S.C. 1985, c. C-46 andthe Controlled Drugs and Substances Act, S.C. 1996, c. 19.

In particular, I have reference to sections 718, 718.1, 718.2 and 731.1 of theCriminal Code and s. 10 of the Controlled Drugs and Substances Act. [26] The application of these principles and the seriousness with which our courts view drug trafficking has been the subject of agood deal of jurisprudence over the years. Twenty years ago, the court in Pushpanathan v.

Canada (Minister of Citizenship andImmigration, (SCC), [1998] 1 S.C.R. 982, made these stark observations: . . . it is impossible to underestimate the harm that is done to Canadian society in the form of criminal activity, often violent, by thetrafficking of illicit drugs.

Unfortunately, there are also other costs associated with illicit drug trafficking and use, which reflect thewidespread harm caused by these activities. [27] There are often significant and tragic consequences that serve to emphasize that the harm caused by trafficking in illicit drugs isvery properly a matter of grave concern in Canada as it is throughout the world.

Our Court of Appeal has established clear sentencingguidelines in order for the courts to apply our criminal sentencing regime to properly reflect the public interest in that grave concern. [28] The primary objectives must be deterrence and denunciation. Madam Justice Neilson for the court, in R. v. Gill, 2013 BCCA320, captured the point as follows: It is well known that dial-a-dope operations enable a pervasive and rapid dissemination of illicit narcotics that wreak destruction to boththe individuals who use them and to our community.

The proliferation of these operations has significantly increased accessibility tothese drugs, and their harmful effects. As a result, the courts have routinely recognized that the primary objectives in imposing sentencesfor trafficking in this manner must be deterrence and denunciation. [29] The Court of Appeal has set down the precise guidelines for cases like the one at bar and these guidelines have been succinctlyarticulated by Groberman J.A. for the court in R. v. Cisneros, 2014 BCCA 154. The court stated as follows at para. 13:

[13] The case before us is a straightforward case in which the offender was involved in a busy dial-a-dope operation. While he had no criminal record, this was not an isolated event, as he conceded in his sentencing submissions. There were no extraordinary circumstances that would take this case out of the ordinary sentencing range. [14] I agree with the Crown’s assessment that the ordinary sentencing range for a first offender in a crime of the nature involved in this case is approximately 6-9 months’ imprisonment.

Even before the option of giving a conditional sentence of imprisonment for such offences was removed by amendment to the Criminal Code , such sentences were very much the exception. [ 30 ] Since the decision of our Court of Appeal in R. v. Voong , 2015 BCCA 285 , our trial courts have been assisted in assessing the kinds of circumstances that may take a particular case out of the ordinary sentencing range. It is with respect to the comments of Madame Justice Bennett for the court that guide the analysis at para. 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. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. [ 31 ] In the final analysis, Mr. Hemmingsen has pled guilty to a serious criminal offence. He is now 56 years of age. In my view, the seriousness of his conduct is magnified given the fact that he was the father of two children at the time he was aiding and abetting Mr. Doucette. [ 32 ] I do not know the streets of Port Alberni but I see the streets of other cities. Streets where young and old are living in despair, and dying, due to the ingestion of drugs, including cocaine. I see parents like Mr.

Hemmingsen, searching desperately and tragically for their children who had visited the Mr. Doucettes of the world. Mr. Hemmingsen was to be a role model to his children. He betrayed many people, but no more so than his children. [ 33 ] The evidence and materials before the court, however, suggest Mr. Hemmingsen was seriously compromised during this period of his life generally, and in and around of March 2015, in particular. [ 34 ] There are letters filed in support of Mr. Hemmingsen by his friends and colleagues. He is described as a decent, trustworthy and hard-working person.

The theme of the letters is that he fell out of character and has now reclaimed his life. His involvement in the enterprise that is the subject matter of the indictment was to aid and abet Mr. Doucette as described. Mr. Hemmingsen did not himself traffic in drugs. His motive was essentially to feed his addiction. [ 35 ] The evidence before the court is that Mr. Hemmingsen has long left behind his drug use and is once again a productive and appreciated member of the community of Port Alberni. Since his return to work in 2015, he advises he has become a better man and a better employee.

The letters from his colleagues and supervisors echo his own thoughts on the matter. [ 36 ] His employment provides the only source of income, the source of medical coverage, and the source of a renewed pride in self. Mr. Hemmingsen put it this way. His arrest, his return to work, and his colleagues and friends, saved his life. [ 37 ] Mr. Hemmingsen has pled guilty. This can properly be viewed as indicative of remorse and the commencement of a rehabilitative journey. [ 38 ] In this particular case, however, in my view, his sense of remorse, regret and commitment to change is to be found at a much earlier stage.

Mr. Hemmingsen has advised the court that he disclosed to his friends and colleagues very shortly after arrest of the circumstances of the offence and his deep regret and shame in relation to this conduct. This is confirmed in many of the letters of support. He has “openly talked about what happened, and taken responsibility”; and demonstrated “sincere remorse;” to reflect some of the language in the letters. [ 39 ] Mr.

Hemmingsen has advised the court that he has, for the last three years, embarked upon essentially a process of healing through counselling and dialogue with people in his own community. [ 40 ] In my view, the comments of Mr. Justice Schultes, a very experienced criminal jurist in this province, are apposite the case at bar. He states as follows in R. v. Van Der Walt , 2017 BCSC 557 : [68] . . . These rehabilitative efforts, which I find are meaningful, are related to the concept of remorse as it was described in R. v. Anderson : The factor of "remorse" is often important.

In so far as it might be suggested that the court should regard those who come before it in a submissive or contrite manner as deserving of more lenient treatment than those who accept their predicament with whatever fortitude they are able to summon, there would be little in this factor which could assist the sentencing judge.

But to the extent that an accused person is able to demonstrate that he or she has, since the commission of a crime, come to realize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending, the existence of remorse in this sense obviously has much importance. [69] I am satisfied that it is in that sense that Ms. Van Der Walt has demonstrated a degree of remorse by her subsequent conduct and lifestyle.

[70] The important aggravating factors are almost self - evident -- her participation in the particularly harmful commercial enterprise of dial - a - dope distribution, in contrast to whatever other methods of trafficking in cocaine may exist, and the fact that the offence for which she is to be sentenced was, at the end of the day, not truly an isolated one, but part of a period of involvement of some months. [71] I accept that in the cases relied on by the Crown, offenders with comparably sympathetic backgrounds received sentences of actual imprisonment, either upheld or imposed by the Court of Appeal.

But close examination of the underlying circumstances of those decisions reveals possession of drugs and money in amounts that were indicative of extensive trafficking activity, admissions of longstanding participation in such activity, or subsequent offences for which the offender was also separately convicted. The sale of which Mr.

Gill, also quite a sympathetic offender, was convicted occurred within the context of the portable convenience store of drugs that he had in his vehicle [72] In contrast, the offenders whose suspended sentences were upheld in Voong , could all point to the kind of meaningful steps towards rehabilitation that Ms. Van Der Walt has taken, even where their offending or their related background were more aggravated.

In the post - Voong cases that were cited, arguably more serious involvement in the trafficking activity did not displace the effect of a finding that there were exceptional circumstances based on extensive efforts toward rehabilitation. [ 41 ] This court echoes those observations relating to the case before me today. [ 42 ] Mr. Gibson, in his very able submissions, while acknowledging these factors, makes the observation that it is often offenders in their twenties or thirties that are the subject matter of non-custodial sentences in these kinds of cases. It is submitted that Mr.

Hemmingsen is clearly a mature individual and perhaps the court ought to be less forgiving of the terrible decisions that have brought him to court today. [ 43 ] I think, generally speaking, the submission of Mr. Gibson is a fair and relevant observation. Debilitating depression, however, has no age barriers or boundaries; nor does addiction.

In my respectful view, the age of the offender loses some relevance when the conduct in issue is viewed through the particular lens of the individual before the court. [ 44 ] In conclusion, it is my view the factors at bar demonstrate the circumstances of this offence and the offender are exceptional, as signalled and addressed in R. v. Voong . Mr. Hemmingsen, over the course of the last three years, has taken meaningful steps towards rehabilitation, exhibited true and deep-seated remorse, and clearly broken from the drug community and lifestyle. It appears obvious to me Mr.

Hemmingsen has turned his life around, re-integrated with his community and is committed to continue to undo the shame and damage he caused to himself, his family and his community. In my view, deterrence and denunciation are met; and the protection of the public better served; by a non-custodial sentence. [ 45 ] Mr. Hemmingsen, would you please stand. [ 46 ] I am suspending the passing of sentence and imposing a two-year probation term. The conditions of probation must facilitate continued rehabilitation and, as well, reflect deterrence and denunciation.

Please listen carefully. [ 47 ] The terms and conditions are as follows: 1) You must keep the peace and be of good behaviour. 2) You shall appear before the court when required to do so by the court. 3) You shall report to a probation officer at 3019 4th Avenue in Port Alberni no later than 4:00 p.m. today, Wednesday, June 6, 2018, and thereafter as and when directed by the probation officer.

You shall provide your address and employment circumstances to your probation officer and not change your address or employment without the prior consent of your probation officer. 4) You shall abstain from possessing or consuming any substances listed in the Controlled Drugs and Substances Act , except as prescribed by a medical practitioner in British Columbia. 5) At the direction of your probation officer, you shall perform and complete 100 hours of community work service, such community work service to be completed on or before June 6, 2019. 6) For the first nine months of this order, you must not be outside your place of residence or the property that it is situated between the hours of 9:00 p.m. and 5:00 a.m., seven days per week, other than for medical emergencies of yourself or a member of your family, or the written permission of your probation officer, such permission to be carried on your person at all times.

You must present yourself at the doorway of your residence within five minutes to any police officer, correction officer or probation officer who attends at your residence to ensure that you are complying with this curfew. [ 48 ] In addition, I make the following orders: 1) Pursuant to s. 109(2) (

a) of the Criminal Code , you shall not possess any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance for ten years. 2) There will be a forfeiture order as sought by the Crown, the particulars of which shall be the subject of agreement between Crown and defence, and be filed with the court and form part of this order. I do not consider it is in the best interests of the administration of justice that Mr. Hemmingsen provide a DNA sample. There will be no order in that regard. 3) There will be a victim surcharge in the amount of $400, payable on or before July 30, 2018. [ 49 ] Are there any other terms, Mr. Gibson?

[ 50 ] MR. GIBSON: Yes, My Lord. Just in terms of the forfeiture order, if I could please file as Exhibit 1 a copy of the exhibit flowchart, and my friend and I are consenting that the order should read, “all items on this chart forfeited with the exception of 7, 29, 58, 59 and 64”, and I have provided that to Madame Registrar. [ 51 ] THE COURT: All right, thank you. [ 52 ] MR. GIBSON: Thank you. [ 53 ] THE COURT: So ordered. [ 54 ] THE COURT: Mr. Hemmingsen, can I just say this to you.

You live and work in a relatively small community, and consequently the sting of the shame you have brought upon your community is all the more acute. Conversely, it also provides you an opportunity in a real way to make amends to the community. [ 55 ] THE ACCUSED: I will, My Lord. [ 56 ] THE COURT: Please show this community that this sentence was the right one. [ 57 ] THE ACCUSED: It was, My Lord, thank you. [ 58 ] THE COURT: And the faith that the court has placed in you on behalf of the community of Port Alberni by the imposition of this sentence will be deserved and earned.

All right? [ 59 ] THE ACCUSED: I promise, My Lord. [ 60 ] THE COURT: All right. [ 61 ] Thank you, counsel. We will adjourn. [ 62 ] MR. GIBSON: Thank you, My Lord. “The Honourable Mr. Justice Crossin”