R. v. Roberts, 2019 BCPC 104

Citation: R. v. Roberts 2019 BCPC 104 Date: 20190524 File No: 40701-2-C Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHANE WILLIE BOB ROBERTS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: T. Morgan Counsel for the Defendant: S. Runyon Place of Hearing: Campbell River , B.C. Date of Hearing: February 22, 2019 Date of Judgment: May 24, 2019 Introduction:

[ 1 ] As a result of events in the late evening on July 30, 2016, in Campbell River, B.C., Mr. Roberts pleaded guilty to the following charges: • Count Six: Failure to stop a motor vehicle as soon as was reasonable in order to evade a peace officer contrary to s. 249.1(1) of the Criminal Code ; • Count Seven: Operating a motor vehicle in a manner that was dangerous to the public contrary to s. 249 (1) (

a) of the Criminal Code ; • Count Eight: Having care and control of a motor vehicle while his ability to operate it was impaired by alcohol or a drug contrary to s. 253 (1) (

a) of the Criminal Code ; • Count Nine: Being the driver of a motor vehicle on a highway and failing to come to a safe stop when signalled or requested by a peace officer and a peace officer pursued him in order to require him to stop, contrary to s. 100 (1) of the Motor Vehicle Act . [ 2 ] Following a trial that took place over the course of a year, I also found Mr. Roberts guilty of the following charges: • Count Three: Assault of Constable David Dormuth with intent to resist arrest, contrary to section 270(1) (

b) of the Criminal Code . • Count Four: Assault of Constable Kurtis England with intent to resist arrest, contrary to section 270(1) (

b) of the Criminal Code . [ 3 ] I acquitted Mr. Roberts on Count Five - the charge that he assaulted Constable Ian Gammie with intent to resist arrest. [ 4 ] Mr. Roberts argued that the several police officers involved in his arrest used excessive force and that, as a consequence, his rights under

section 7 of the Canadian Charter of Rights and Freedoms were infringed. After careful consideration, I did not agree with his assertion and dismissed his application for relief which was predicated on the alleged breach. [ 5 ] Mr. Roberts is now before the Court to be sentenced for these various offences. I must impose a just, fit and appropriate sentence keeping in mind the principles and objectives of sentencing as they are codified in the Criminal Code and the common law.

This is never an easy exercise because it requires a judge to consider the individual circumstances of the person who has been convicted of an offence, the circumstances of the offence and balancing seemingly competing objectives. [ 6 ] This case has attracted considerable attention and I am aware that the events of that evening resulted in consequences to Mr. Roberts. He continues to suffer significantly as a result of complications from a bite inflicted by Police Service Dog Gator. [ 7 ] I will first summarize the sentence that Crown and Mr.

Roberts ask me to impose, followed by the circumstances of the offences and Mr. Roberts’ personal circumstances. I will then discuss the applicable law following which I will set out my conclusion as to an appropriate sentence. The Crown Position: [ 8 ] Crown emphasizes the need to send a message that will deter others from engaging in similar conduct and to express denunciation for Mr. Roberts’ actions that night.

He says that the sentence for Counts three and four should be consecutive to the other counts and Count seven and nine should also be consecutive to one another. [ 9 ] Crown proceeded summarily (as opposed to by indictment) which means that convictions for those offences attract a lesser degree of punishment. There is no minimum jail sentence for Counts three and four (assault police officer) but a maximum of six months.

Similarly, there is no minimum jail sentence for Counts six (fail to stop for peace officer) and seven (dangerous driving) but the maximum is six months. [ 10 ] However, after considering the totality principle, meaning that consecutive sentences may result in an overly harsh sentence, he suggests that a fit and appropriate sentence on all counts globally is a range between six months to two years in jail.

He did not provide a particularized breakdown for each count although suggested that Counts three and four might attract a jail sentence of thirty to sixty days. [ 11 ] He asserts that the custodial sentence should be followed by a period of probation for one year, which may include a counselling provision. [ 12 ] In addition, on Counts seven and eight (dangerous driving and operating a vehicle while impaired) he submits that Mr.

Roberts should receive the maximum driving prohibition of three years. [ 13 ] I heard no submissions regarding the Count nine offence under the Motor Vehicle Act (failure to stop for peace officer). Pursuant to s. 100 (2) of the Motor Vehicle Act there is a mandatory minimum fine of $300 and as is the case here, if the individual is also convicted of an offence pursuant to s. 249 of the Criminal Code a mandatory two year driving prohibition. [ 14 ] Lastly, Crown counsel seeks an order that Mr. Roberts provide a sample of his DNA for registration in the DNA national databank.

This is a discretionary order to be made if I determine that it is necessary for the better administration of justice to do so. The Defence Position: [ 15 ] Mr. Roberts asserts that the fit and appropriate sentence for Count three and Count four is two days in custody, which would place him in a time served position.

[ 16 ] He says that on the remaining counts a suspended sentence is appropriate. He asks that the mandatory minimum fine of $1,000 on Count eight be imposed. He suggests that a driving prohibition of between two to three years is appropriate. Circumstances of the Offences : [ 17 ] At approximately 11:00 pm on Saturday, July 30, 2016 in Campbell River Constable Ushock observed a vehicle being driven by Mr. Roberts and noted that the insurance decal on the rear licence plate was covered by a thick layer of dust.

Constable Ushock was subsequently promoted and is now Corporal Ushock but I will refer to him as Constable Ushock in these reasons. Constable Ushock decided to conduct a traffic stop, activated the lights on his police cruiser and pulled Mr. Roberts over. [ 18 ] Constable Ushock walked to the passenger side of the vehicle and spoke with the passenger. He leaned in through the window and saw two open cans of Budweiser in the centre console of the car and smelled the odour of alcohol. He believed the driver was impaired by alcohol and asked for Mr.

Roberts’ drivers licence and registration. [ 19 ] Constable Ushock was leaning down and into the window on the passenger side and asked Mr. Roberts to turn off the ignition in his vehicle. Mr. Roberts replied that he couldn’t do that and drove away rapidly. Fortunately, Constable Ushock was able to quickly pull his head back from the inside of the car and step back and thus avoided being injured from being struck by the B pillar of the car. [ 20 ] Constable Ushock followed in his police cruiser with lights and sirens. Over the next ten or twelve minutes Mr. Roberts continued to flee and refused to stop his car.

When Constable Ushock tried to box in Mr. Roberts’ vehicle, the resulting collision disabled the police vehicle. Other officers on duty that night joined in the pursuit. Finally after a spike belt was successfully deployed and Mr. Roberts’ car was struck a number of times by the police vehicles, he was finally forced to come to a stop when his car was boxed in by two police vehicles. [ 21 ] The passenger was removed from the car without incident but Mr. Roberts was forcibly removed from the car. I accepted the officers’ testimony that Mr.

Roberts was combative and that force was required to gain control of him and place him under arrest. [ 22 ] I accepted the evidence that the longer an officer’s attempt to gain control and make an arrest continues, the greater the likelihood of injury to the person being arrested or to the arresting officer or officers. [ 23 ] As is obvious from the

summary of the circumstances, Mr. Roberts’ arrest was very difficult. The police were required to use force and Mr. Roberts sustained a number of injuries including a fractured nose, multiple bruises and abrasions. The most significant injury was a bite by police service dog Gator to Mr. Roberts’ right thigh. Mr. Roberts was taken to hospital from the scene of the arrest and was assessed, treated and then released a number of hours later. Mr. Roberts’ Personal Circumstances: [ 24 ] Mr. Roberts was 41 years of age at the time of these offences and is now 44 years of age. He is a member of the Wei Wai Kum nation.

At the time these events occurred, Mr. Roberts had just obtained a new job which involved driving for a living. [ 25 ] As a result of the assessment process while he was at the emergency department the night of this incident, physicians determined that Mr. Roberts has diabetes. Mr. Roberts had previously been unaware that he had this condition. [ 26 ] In the days and months that followed his injury, Mr. Roberts went on to suffer severe complications as a result of the dog bite. The wound became infected and he required multiple surgeries and drains to treat the infection, and remove necrotic tissue.

He required plastic surgery. Most unfortunately, Mr. Roberts has not been able to achieve anywhere close to a recovery from this injury. The injury has impacted his ability to be mobile and he is not able to work. Overall, he spent more than six months in the hospital undergoing surgeries and treatment. He continues to require treatment. I accept that his leg injury has had a substantial detrimental impact on the quality of all aspects of his life. [ 27 ] This case attracted considerable media attention. As a result, Mr. Roberts also experienced a substantial loss of anonymity.

I accept that this was extremely difficult for Mr. Roberts living, as he does, in a small community. [ 28 ] Mr. Roberts does not have a prior criminal record and he is a first offender in that regard. Mr. Roberts does have a lengthy history of motor vehicle infractions dating back to 1992. Those offences include driving without a driver's license, excessive speed, failing to wear a seatbelt, driving without insurance, and thirteen day roadside prohibition. In February, 2015 he was charged and subsequently convicted of excessive speeding and failure to produce a driver's license or insurance.

On January 3, 2016 Mr. Roberts was convicted of the offence of driving without insurance. In fairness to Mr. Roberts there is an eleven year gap in his driving record between June 1998 and December 2009. Aggravating Factors: [ 29 ] Crown counsel points to the following factors that are, in his view, aggravating. Constable Ushock was placed in danger when Mr. Roberts drove away while Constable Ushock's upper body was leaning in through the passenger window. He also points to Mr. Roberts’ previous driving record.

He also highlights that this police chase was dangerous to both the public as well as the police and occurred over a wide area in downtown Campbell River on a Saturday night when people and other traffic would be present. [ 30 ] Counsel for Mr. Roberts points to the length of this chase as an aggravating factor. Mitigating Factors: [ 31 ] In terms of mitigating factors, Mr. Roberts’ counsel points to the lack of a previous criminal record and the fact that Mr. Roberts was cooperative with the police following this incident. She also highlights that Mr.

Roberts has experienced significant health consequences flowing from the dog bite injury resulting in an inability to maintain employment because he no longer has the physical

capacity to work. In addition, Mr. Roberts pleaded guilty at the outset of trial to the four counts relating to the driving offences and this she says is an expression of his remorse. [ 32 ] I agree that the mitigating and aggravating factors as summarized by counsel are accurate and appropriate in the circumstances of this case. The fact that he fled from police to evade arrest and drove in the manner that he did that night are captured by and reflected in a sentence for the convictions that form the basis of Counts six, seven, eight and nine.

In my view, to increase a sentence based on the elements of those various offences would unfairly operate to increase the sentence he should receive in the first place for those offences. In other words, it would be double counting.

The Legal Framework: [ 33 ] I am mindful that the primary purpose of sentencing is to contribute to a just, peaceful and safe society by imposing just sanctions that will serve one or more of the following objectives: denunciation; specific and general deterrence; removal of an offender from the community where necessary; rehabilitation of an offender; reparation to victims and the community; promotion of responsibility on the part of the offender and acknowledgment of the harm to victims and the community. [ 34 ] In relation to Counts three and four, that is the assault of Constable Dormuth and Constable England I must give primary consideration to the objectives of denunciation and deterrence: s. 718.02 Criminal Code . [ 35 ] A sentence must be proportional to the seriousness of the offence and not be excessive or unduly harsh: s. 718.1 and 718.2 (

a) and (c). [ 36 ] An individual should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances: s. 718.2 (d). [ 37 ] All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders: s. 718.2 (g). [ 38 ] I am also mindful of the direction given to sentencing judges by the Supreme Court of Canada in R v.

Gladue , (supra.) at para 80 and 81: As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community?

Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances? The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances. There is no single test that a judge can apply in order to determine the sentence.

The sentencing judge is required to take into account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including the unique circumstances of the offender as an aboriginal person. Sentencing must proceed with sensitivity to and understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large. [Emphasis Added] [ 39 ] Crown counsel very fairly conceded that the objective of general deterrence does not sit nicely with the individualized process that I am required to take in any sentencing.

Both counsel are agreed that there is no need to deter Mr. Roberts from engaging in this kind of conduct in future. This sentencing principle or objective is referred to as specific deterrence. [ 40 ] A related sentencing objective is general deterrence. This requires that the court, in imposing a sentence, consider the need to deter others who, in order to avoid investigation or arrest, may be tempted to flee from the police in a vehicle and fail to stop. This principle is based on the view that Mr. Roberts’ punishment will be noticed and will serve to deter others even though it is clear that Mr.

Roberts is very likely deterred himself. [ 41 ] In this case, Crown counsel is asking that I impose a sentence that would require Mr. Roberts to serve a jail sentence for a minimum of six months. In his submissions, he indicated that although he was sympathetic and takes no pleasure in seeking a custodial sentence, Mr. Roberts made a conscious albeit poor choice on the night in question to flee from a police officer. He is sympathetic to Mr.

Roberts particularly given the media attention this case received but asserts that a message needs to be sent that when someone is pulled over the police and fails to remain as directed, there will likely be a jail sentence. Thus, he emphasises denunciation – expressing the community’s concern for this behaviour, and general deterrence – preventing other people who may be tempted to flee from the police from doing so. [ 42 ] Crown counsel provided me with several case authorities.

Sentencing is highly individualized and sentences imposed in previous cases are often distinguishable from the case before a sentencing judge. Each person who has been convicted of an offence and the particular circumstances of each case are unique. [ 43 ] R. v. McNulty , 2017 BCCA 270 was the only decision from British Columbia.

In that case a sentence of twenty-one months custody was imposed by the sentencing judge plus ancillary orders including a five year driving prohibition upon the 38 year old offender for dangerous driving, driving while suspended, flight from police, failure to stop, possession of stolen property (the vehicle she was driving) and breach of probation. The police were led on a dangerous high speed pursuit through Surrey, North Delta, New Westminster, Burnaby and Vancouver over a time span of two hours. The high speed pursuit appears to have started at approximately

4:20 pm a time that would be extremely busy with a high volume of traffic. She had a prior record of ten convictions over a span ofapproximately eighteen months prior to the offences for which she was sentenced. [44] There were more aggravating factors present in the McNulty case including that Ms. McNulty had a prior criminal record, wason probation at the time of the offences, had intentionally driven into police vehicles and was driving at high rates of speed at a very busytime of the day in those communities. The sentencing judge also found that Ms.

McNulty had no rehabilitative plan that she intended tofollow once released from custody. Thus, the court was evidently concerned with meeting the objective of specific deterrence. [45] The pursuit of Mr. Roberts occurred around 11:00 pm in the evening. Although people and traffic were present, fortunately itwas not as busy as during a rush hour such as 4:20 pm when a considerable number of people would be expected to be leaving work ortravelling on the roads. [46] Although Ms.

McNulty was indigenous, her counsel did not provide a Gladue report or any submissions to the sentencing judgeto allow an assessment of the extent to which the offending conduct was related to the intergenerational effects that have impactedindigenous people. [47] The Court of Appeal upheld the sentence with the exception of reducing the driving prohibition to the maximum of three years. [48] In R. v. Prymak, 2005 ABCA 377 , [2005] A.J. No. 1477 the Alberta Court Appeal set aside a sentence of ninety daysfor dangerous driving and flight from police offences.

That case involved a police chase over forty-three minutes during which Mr.Prymak reached speeds of up to 155 km/hr including driving at speeds of 135 km/h in a 50 km zone. The Alberta Court of Appealsubstituted a sentence of six months consecutive on each conviction for a total of twelve months. The judgment was given by Picard J.A.relying on another decision from their court in R. v. Roberts 2005 ABCA 11 , [2005] A.J. No. 15 and which involved far moreaggravated circumstances that the case before me.

The sentence in Prymak was reduced to nine months based on the totality principle.The two year driving prohibition and two year probation order by the sentencing judge were left undisturbed. [49] There were times during the pursuit that Mr. Roberts drove at higher speeds, but there were no evidence about the actual speedof his vehicle. I noted from observing the police dash cam videos Mr. Roberts’ car was being driving at speeds that I would characterizeas variable. The speeds reached by the defendant in Prymak were much greater and thus a considerable aggravating factor that is notpresent here. [50] Mr.

Prymak had a prior record consistent of two driving while impaired convictions and five convictions for exceeding speedlimits. He fled from police because he had been drinking. There were no injuries. [51] My review of the case authorities provided by Crown counsel indicate that jail sentences will be imposed in circumstancesinvolving the presence of the following particularly aggravating factors: • Intentionally driving directly at police officers who are either on foot or in a police vehicle (R. v. McNulty, [2017] B.C.J.No. 2552, R. v. Savoie, [2011] O.J. No. 2331, R. v. Roberts, [ 2005 ABCA 11 , 2005] A.J.

No. 15, R. v. Nasogaluak, 2007ABCA 339); • Driving at very high rates of speed (Prymak, infra – 155 kph; Savoie, infra. – 90 to 100 kph; Roberts, infra – up to 110 kph; • Continuing to flee from police over extended and lengthy periods of time (McNulty – two hours; Prymak – forty-threeminutes). [52] None of those factors are present in this case. [53] It is often useful to return to the fundamental principles that courts are required to consider and follow when imposing a fit andappropriate sentence. In her submissions, counsel for Mr.

Roberts referred the Court to the following excerpts from the well-known text“Ruby on Sentencing”: The principal purpose of the criminal law generally, and sentencing specifically, is the protection of society….Para. 1.2 … retribution is the primary ground for sentencing and is based on the hidden presumption that society is bound together by itscollective ability to denounce and repudiate certain conduct. Thus, society is strengthened and thereby protected when, through themedium of criminal law, members of the community join together to punish a wrongdoer.

What distinguishes a criminal from a civilsanction is this notion of community condemnation. Para. 1.6 It is important to distinguish punishment based on retribution from punishment based on revenge. Para. 1.7 [54] A sentence must be based on many factors and a sentencing judge must not be swayed by public opinion or emotional reactionto a particular offence. A fit and just sentence is principled, based on law and reflects the unique circumstances of the person before thecourt and the events for which he or she is being sentenced.

It is not an easy task. [55] As was eloquently stated by The Honourable Judge Gorman in The Impact of the Supreme Court on Sentencing in Canada(2016), 72 S.C.L.R. (2d) 319-364: The Supreme Court has spoken at great length concerning the role of the sentencing judge and the approach a sentencing judge shouldadopt in imposing sentence. In M. (C.A.), the Supreme Court indicated, for instance, that Parliament intended to vest trial judges with awide ambit of authority to impose a sentence which is “just and appropriate”.

In addition, in M. (C.A.), the Supreme Court state that: “[i]nthe final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine ajust and appropriate sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender. Finally,in M. (C.A.), the Court indicated, at paragraph 91, that the “determination of a just and appropriate sentence is a delicate art which

attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances ofthe offence while at all times taking into account the needs and current conditions of and in the community.” Similarly, seventeen years later in Ipeelee, the Court held that despite “the constraints imposed by the principle of proportionality, trialjudges enjoy a broad discretion in the sentencing process. The determination of a fit sentence is, subject to any specific statutory rulesthat have survived Charter scrutiny, a highly individualized process.

Sentencing judges must have sufficient manoeuverability to tailorsentences to the circumstances of the particular offence and the particular offender.” Additionally, the Court had held that the “purposeof sentencing is to promote a just, peaceful and safe society through the imposition of just sanctions that, among other things, detercriminality and rehabilitate offenders, all in accordance with the fundamental principle of proportionality”. The Supreme Court has alsoindicated that sentencing judges must “balance uniformity in sentencing with their duty to consider the circumstances of the particularcase” (R. v.

Stone, (SCC), [1999] S.C.J. No. 27 at para. 244. [56] The theory behind the objective of general deterrence is to send a message to those who may be inclined to engage in similarcriminal activity. However, it is to be remembered that Parliament has mandated that a sentencing judge consider all appropriatesanctions other than jail and must not impose a sentence that would be unduly harsh: s. 718.2 (c)(

e) Criminal Code. [57] Counsel for Mr. Roberts describes this case as exceptional. She asserts that the objectives of denunciation and deterrence havebeen achieved in this case. Pointing to the media attention the decision received and the mention of Mr. Roberts’ name, she says that thenotoriety and attention this has garnered goes beyond any sentence that this Court can impose. [58] She further asserts that to place Mr. Roberts in jail would be punitive, superfluous and would not adhere to the fundamentaltenets of sentencing. She distinguishes the cases relied upon by Crown based upon their own unique facts.

Furthermore, she asserts thatMcNulty is the only case from British Columbia and is not factually similar to the case before me. Discussion and Analysis [59] Mr. Roberts has suffered the consequences of the events that night including physical incapacitation, decreased quality of lifeand a considerable loss of anonymity. As a result of complications arising from the dog bite, he spent more than six months in hospital inthe intervening time between the events that night and the present. His life has been permanently altered and he is not able to maintainemployment. He has difficulty with his mobility.

He has undergone stressful litigation. [60] In this case, I must determine a sentence that is fit and appropriate after weighing and balancing all the various principles andobjectives that underpin our sentencing regime. The sentence I impose must be a just one. [61] I did not hear submissions regarding what are often referred to as “Gladue” factors and the role that being an Indigenous manmay have played in the commission of the offences before me.

Nonetheless, I accept that as a member of the Wei Wai Kum nation andan Indigenous man he has been affected by prior governmental policies and the residential school system. Indeed, I accept that there arelikely very few Indigenous people who have not been affected by these policies. [62] I have considered all the objectives of sentencing in reaching my decision. I am satisfied that Mr. Roberts has been deterredfrom engaging in similar actions ever again.

I accept that the loss of anonymity in a small community, the injuries he sustained duringthe course of his arrest, and which were compounded by complications arising from the dog bite, plus the detrimental impact his injuryhas had upon his quality of life satisfy the objectives of denunciation and will also deter others from fleeing from a police officer. [63] Mr. Roberts has suffered physically and likely emotionally as a result of what occurred that evening. Crown counsel says fairlythat Mr. Roberts is a good man who made a very poor decision that night.

Crown counsel has spoken with a number of the policeofficers involved that evening and they bear him no ill will. [64] Is it necessary to sentence Mr. Roberts to jail in order to satisfy the need of the community to voice its denunciation of hisactions and to deter others? [65] By law, I am required to consider all sanctions that may be appropriate other than incarceration. Notwithstanding that theoffences are serious, I have concluded that sentencing Mr.

Roberts now to additional time in jail particularly given his lack of a priorcriminal record and his poor physical condition would be unduly harsh. [66] The sentence I am imposing reflects the seriousness of the offences and adequately takes into account all the aggravating andmitigating factors. I wish to emphasize that the sentence reflects the particular facts of this case and Mr. Roberts’ personal circumstances.

Conclusion: [67] The sentence I impose is as follows: [68] On each of Counts three and four (assault Constables Dormuth and England) there will be a concurrent global sentence of twodays in custody which leaves Mr. Roberts in a time served position. [69] On Count six (failure to stop for peace officer contrary to s. 249.1 (1) of the Criminal Code) and Count seven (dangerousdriving) I am suspending the passing of sentence. Mr. Roberts will be placed on a period of probation for two years. The sentence onboth counts is concurrent.

On Count seven, there will also be a driving prohibition for the maximum period of three years pursuant to s.259 of the Criminal Code. [70] On Count eight (impaired operation of a vehicle), the sentence I impose is the fine of $1,000.00. There will also be a drivingprohibition for a period of two years under s. 259 of the Criminal Code and which is concurrent to the driving prohibition on Countseven.

[ 71 ] On Count nine (fail to stop – MVA s. 100 (1)) there will be a mandatory fine of $300.00 and the mandatory two year driving prohibition. This is concurrent to the driving prohibition on Count seven and Count eight. [ 72 ] Counts three and four are secondary DNA offences and thus the imposition of an order that Mr. Roberts provide a sample of his DNA for registration in the national DNA data base is discretionary. In all the circumstances including the lack of a prior criminal record and in consideration of my conclusion that Mr.

Roberts will not engage in this type of conduct again, it is not necessary for the administration of justice to make the order and I decline to do so. [ 73 ] Mr. Roberts will be placed on probation for two years with conditions to keep the peace and be of good behaviour, to report to a probation officer and to attend any counselling or programming that may be recommended by his probation officer. With regard to the latter condition, my recommendation is that any counselling should be culturally appropriate and meaningful to him.

Probation will attach to Counts three, four, six and seven. [ 74 ] Subject to further submissions, Mr. Roberts will have eighteen months to pay both fines. BY THE COURT: ______________________________ The Honourable Judge B. Flewelling Provincial Court of British Columbia