R. v. Parenteau Date:, 2016 BCPC 88

Citation: R. v. Parenteau Date: 20160414 2016 BCPC 0088 File No: 40441 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. THUNDER MUSKWA PARENTEAU REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.J. BRECKNELL Appearing for the Crown: A. Murray Counsel for the Defendant: C. Carlton Place of Hearing: Prince George , B.C. Date of Hearing: January 20, 2016 Date of Judgment: April 14, 2016

INTRODUCTION [ 1 ] Thunder Muskwa Parenteau, the Defendant, pleaded guilty to Count 1, as amended, on Information No. 40441 to trafficking in cocaine between August 29 and September 5, 2014 in Prince George, British Columbia, contrary to Section 5 (1) of the Controlled Drugs and Substances Act (the CDSA ). [ 2 ] The Crown seeks a six-month jail term, a DNA order and a firearms prohibition pursuant to

Section 109 of the Criminal Code . The Crown acknowledges that the Defendant should receive credit for time served which it submits is two days. [ 3 ] Defence counsel submits that the Defendant should serve approximately three months in jail followed by a Probation Order to include counselling and drug treatment at a full-time attendance program.

Defence counsel takes no issue with the ancillary orders sought by the Crown. [ 4 ] However, Defence counsel disagrees with the Crown’s position on credit for time served submitting that the Defendant should get credit at 1.5 to 1 for 69 days custody he served on a separate matter, Information No. 41535 – C2. That Information was stayed by the Crown on May 19, 2015. Such a calculation would give the Defendant credit for 105 days which would result in a time served sentence if the Court accepted Defence Counsel’s submissions.

OFFENCE CIRCUMSTANCES [ 5 ] Between August 29 and September 5, 2014 the Defendant, who was one of several targeted low to middle level drug dealers, conducted three cocaine sales with an undercover member of the Royal Canadian Mounted Police (RCMP). The three transactions resulted in the sale of 1.33 grams of cocaine for a total value of $170. The Defendant was subsequently arrested and released on bail. [ 6 ] By March 12, 2015 the Defendant found himself in custody on Information No. 41535 alleging escape from lawful custody, resisting or obstructing peace officers, and several breaches of probation.

He was detained after a bail hearing. That Information was fixed for trial on May 26, 2015 but the Crown entered a Stay of Proceedings on May 19, 2015. The Defendant was released on May 19, 2015. DEFENDANT’S ‘S CIRCUMSTANCES [ 7 ] The Defendant’s personal circumstances were set out in the Presentence Report and Defence counsel’s submissions. [ 8 ] He is a 25-year-old indigenous person and is a member of the Nak’azdli Band from Fort St. James, B.C. He spent most of his childhood in Vancouver being primarily raised by his father and has lived for the last seven years in Prince George with his father.

He has two adult sisters one of whom has a child of her own. He has numerous relatives living in the Prince George area. [ 9 ] Although the Defendant’s mother was suffering from drug addiction throughout his formative years she has now overcome her addiction and been sober for the past five years. She tries to provide a good role model and emotional support for the Defendant and his siblings. [ 10 ] The Defendant has been involved in a sporadic spousal relationship for the past six years and has a four-year-old daughter from that relationship.

He is at present prohibited by Court order from having contact with his partner. His partner recognizes the Defendant’s difficulties with his drug addictions and has tried to assist him in overcoming them. [ 11 ] The Defendant only achieved Grade seven as a youth and has been diagnosed with a learning disability. He has made attempts to upgrade his education during his periods of time in custody. [ 12 ] The Defendant has never held any legal employment and has no work experience.

He has supported himself through the receipt of social assistance. [ 13 ] He has suffered from a number of physical and mental difficulties. In his teen years he was hit by a motor vehicle while riding his bike and subsequent to that he was struck in the head with a sledgehammer which required surgery. He has expressed feelings of depression since early childhood. Although he is a member of the Brain Injury Group in Prince George he is never attended at that agency for assistance or support.

The Defendant indicated that he has never seen a doctor with regard to any brain injury or mental health concerns but in late 2015 he was prescribed an antidepressant. [ 14 ] Despite being raised in an environment where substance abuse was part of the lifestyle the Defendant did not try drugs until his 19 th birthday when he started with crack cocaine. Since then, with the exception of two brief periods in 2011 and 2014, he has been a regular user of crack cocaine or heroin on a daily basis to the point where his addictions cost him over $200 a day.

He acknowledges that he does not know what life would be like without drugs or alcohol. [ 15 ] The Defendant attended a treatment program in 2011 but left one day prior to graduation and returned to drug use soon thereafter. He has not attended any further drug or alcohol counselling. [ 16 ] The Defendant’s father has expressed grave concern that the Defendant needs intensive counselling and treatment in order to overcome his addictions.

This view is shared by the Defendant’s mother who believes he needs to be forced to attend treatment otherwise he “will overdose on drugs and die or someone is going to kill him over drug debts.” The Defendant’s partner believes he needs to be told to attend treatment because he does not have the willpower to stop on his own [ 17 ] The Defendant has 15 previous criminal convictions dating back to 2012. Three of those convictions are for violence, one is firearms related, one concerns his involvement with the police and the remaining 10 are for breaches of court orders. The Defendant was

on two separate Probation Orders at the time he committed the offences before the Court. SUBSEQUENT CHARGES [ 18 ] After his arrest on Information No. 41535 the Defendant sought his release from custody on March 12, 2015. During the bail hearing the Provincial Crown indicated that it was not a reverse onus situation and sought the Defendant’s detention on both the primary and secondary grounds.

The Crown was in error on that point because the Defendant was in fact on bail with regard to the drug trafficking charges that are now before the Court. [ 19 ] The Crown’s primary submissions were that the Defendant’s criminal history, particularly his breaches of court orders, indicated that there could be no bail conditions imposed that would reduce his risk to reoffend to an acceptable level.

The Crown made no mention of wishing to revoke the Defendant’s bail on the drug trafficking charges. [ 20 ] Defence counsel founded his submissions on the potential breaches of the Defendant’s Charter rights at the time of his arrest and the weaknesses in the Crown’s case. Defence counsel did note that the Defendant was facing trial on the drug trafficking charges. [ 21 ] In finding that the Crown had shown cause why the Defendant should be detained on Information No. 41535 the Court, in its reasons, made absolutely no reference to the drug trafficking charges as being a reason for his detention.

What the Court did refer to several times was the Defendant’s criminal history, particularly as it pertains to his numerous breaches of court orders, in concluding that it would not be appropriate to release him. THE LAW Criminal Code [ 22 ] The following provisions of the Criminal Code have application in this case: a) 719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody. b)

(3.1) Despite subs. (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subs. 515(9.1) or the person was detained in custody under subs. 524(4) or (8). c) 726.1 In determining the sentence, a court shall consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender. Controlled Drugs and Substances Act [ 23 ] The following sections of the CDSA have application in this case: a) 5

(1) No person shall traffic in a substance included in

Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

(3) Every person who contravenes subsection (1) or (2) (

a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in

Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life b) 10

(1) Without restricting the generality of The Criminal Code , the fundamental purpose of any sentence for an offence under this

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. Case Law [ 24 ] The Crown presented the following cases with regard to an appropriate sentence:

a) R. v. Cineros 2014 BCCA 154 ,

b) R. v. Oates 2014 BCCA 259 , and

c) R. v. Voong 2015 BCCA 285 . [ 25 ] The following cases were presented on the topic of credit for time served: By the Crown

a) R. v. Rupichand 2006 BCCA 11 ,

b) R. v. Wilson 2008 ONCA 510 ,

c) R. v. Jackson 2010 BCCA 330 ,

d) R. v. Miller 2013 BCSC 2408 , and

By the Defence

e) R. v. Tsai (ON CA), [2005] O.J. No. 2574 (ONCA),

f) R. v. K.G. 2012 ONSC 3523, and

g) R. v. Filli 2015 ONSC 3652. SUBMISSIONS Sentence Crown [26] The Crown’s submissions on sentence can be summarized as follows:

a) the primary principles of sentencing for street-level drug dealing are denunciation and specific and general deterrence. Absent anyexceptional circumstances as described in Voong the cases indicate a period in jail is a just and appropriate sentence,

b) aggravating factors include that the Defendant has 14 previous criminal convictions and was on two probation orders at the time thisoffence was committed,

c) mitigating factors include that the Defendant has no previous drug convictions and he has entered a guilty plea,

d) the Presentence Report did not present a very positive picture for the Defendant. Defence [27] Defence Counsel’s submissions on sentence can be summarized as follows

a) the Defendant’s actions were not as sophisticated as a dial-a-dope operation but rather were those of a person seriously addicted todrugs for many years trying to maintain their habit by the sale of some product to others,

b) the Defendant has accepted responsibility for his actions and pleaded guilty,

c) the Defendant’s aboriginal status and his chaotic upbringing should lead to the Court to apply the sentencing principles set out in R.v. Gladue and R. v. Ipeelee, and,

d) the Defendant has attempted treatment in the past but did not successfully complete it. He both needs and wants to attend bothcounselling and a full-time attendance treatment program to address his addiction issues. Time Served Credit Defence [28] Defence Counsel’s submissions on the nature of credit for the time the Defendant served on another charge include:

a) based on the circumstances of the Defendant’s arrest and subsequent release on the Provincial charges when they were stayed thecase law, particularly Filli, Tsai and K.G. stand for the proposition that the Defendant should be entitled to apply the time he was incustody to the charges presently before the Court,

b) there are no reasons to disentitle the Defendant from credit of 1.5 to 1 for the time he was in custody on the Provincial charges. Crown [29] The Crown’s submissions on the nature of credit for the time the Defendant served on another charge include:

a) the Defendant was detained on the Provincial charges so section 719(3) of the Code applies and prevents him receiving any credit onthese charges,

b) the Crown in these matters was unaware of the Provincial charges and as such made no application to revoke the Defendant’s bail.The lack of such application brings into play the law as described in Jackson, Wilson and Miller. DISCUSSION Sentence [30] From the facts alleged and the submissions of counsel there does not appear to be any exceptional circumstances in this case.

Absent such exceptional circumstances the Court of Appeal has made it quite clear to sentencing judges that the primary sentencingprinciples of denunciation and deterrence require a jail sentence. [31] Even with the application of the sentencing principles described in Gladue and Ipeelee and taking into account the Defendant’supbringing and his lengthy struggle with substance abuse a jail sentence is still necessary given his lengthy criminal history. However,given the value of the drugs sold and the Defendant’s entrenched addiction at the time, a sentence as long as the Crown is seeking wouldbe excessive.

[ 32 ] In addition to the principles of denunciation and deterrence a moderate jail sentence will also have a rehabilitative component because it will provide a period of abstinence for the Defendant thereby enhancing his possible success at a full-time attendance program upon release.

Time Served Credit [ 33 ] Based on a review of the submissions and reasons for judgment pertaining to the Defendant’s detention on the Provincial charges in March 2015 it is clear that there is no link between them and the drug trafficking charges presently before the Court to conclude that the time the Defendant spent in custody on the Provincial charges were “in relation to the offence for which a person has been convicted”. [ 34 ] As the Ontario Court of Appeal said in paragraph 42 through 45 of Wilson : … If there is no connection between the pre-sentence custody time that an accused is accumulated in the charges upon which an accused is being sentenced, and there is no principled reason to allow any credit for that time.

To do otherwise “would distort the sentencing regime” [ 35 ] Given the lack of any relation between these charges and the Provincial charges it would not be appropriate to grant credit in this case for the time the Defendant spent in pre-trial detention on the subsequently stayed Provincial charges. SENTENCE Ancillary Orders [ 36 ] As part of the sentence, the Crown has sought various ancillary orders. [ 37 ] Count 1 is a secondary designated DNA offence.

Pursuant to s. 487.051(1) of the Criminal Code , I make an order in Form 5.03 authorizing the taking of a number of samples of bodily substances by any Peace Officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank from Thunder Muskwa Parenteau by May 6, 2016. [ 38 ] Count 1 also attracts a mandatory firearms prohibition pursuant to s. 109 of the Code. Thunder Muskwa Parenteau you are prohibited from possessing:

a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years, and

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for the rest of your life. Sentence [ 39 ] The appropriate sentence in this case is 122 days in jail less credit for time served which is fixed at two days. The Defendant shall serve a further 120 days in custody in a provincial jail. [ 40 ] The jail sentence will be followed by a Probation Order for 18 months with the following terms and conditions:

a) You shall keep the peace and be of good behavior.

b) You shall appear before the court when required to do so by the court.

c) You shall notify the court or the Probation Officer in advance of any change of name, or address, and promptly notify the court or the Probation Officer of any change of employment or occupation.

d) Within 48 hours after completing your jail sentence you shall report in person to a Probation Officer at theProbation Office located at #101-250 George Street, Prince George, B.C., and after that you shall report as and when directed by the Probation Officer.

e) After your first reporting to the Probation Officer further reporting may include reporting by telephone, at the discretion of the Probation Officer .

f) When first reporting to the Probation Officer, you shall inform him/her of your present residential address and phone number, and you shall not change your address or phone number at any time without first obtaining the written consent of the Probation Officer.

g) You shall not possess or consume any alcohol or any controlled substance within the meaning of

section 2 of the Controlled Drugs and Substances Act, except as prescribed for you by a physician.

h) You shall not enter any liquor store, beer and wine store, bar, pub, lounge or other business premises from which minors are excluded by the terms of their license.

i) You shall attend, participate in and successfully complete any assessment, counselling or program as directed by the Probation Officer. Without limiting the general nature of this condition, such assessment, counseling or program may include and relate to alcohol and drug abuse and a full time attendance program for alcohol or drug abuse you shall comply with all the rules and regulations of any such assessment, counselling or program.

j) Under the direction and supervision of the Probation Officer you shall successfully complete 50 hours of community work, which shall be performed at a rate of no fewer than 5 hours per month.

_________________________ M. J. Brecknell Regional Administrative Judge Northern Region Provincial Court of BC