R. v. Harvey, 2021 BCPC 176

Citation: R. v. Harvey 2021 BCPC 176 Date: 20210622 File No: 42662-1; 42662-3-AC; 43130-1; 43261-1; 43333-1; 43336-1; 43337-1 Registry: Duncan & File No: 87469-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER GRAHAM HARVEY ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE MacCARTHY Counsel for the Crown: L. Thomson (by videoconference) Counsel for the Defendant: C. Harvey (by videoconference) Counsel appearing as Amicus Curiae: C.M. Hunt (by videoconference) Place of Hearing: Duncan , B.C. Date of Hearing: June 22, 2021 Date of Judgment: June 22, 2021 Introduction

[ 1 ] THE COURT: Christopher Graham Harvey is before this court having entered a series of guilty pleas on eight separate informations. Unless otherwise specified, Crown has proceeded summarily on the charges. The task of this court is to determine a fit sentence for Mr. Harvey. [ 2 ] This is a matter which has been somewhat protracted since Mr. Harvey first appeared before this court on December 17, 2020. At that time, it was clear that Mr. Harvey had made certain decisions that have led this to be both a protracted sentencing process as well as raising some unusual and unique circumstances.

Unusual and Unique Circumstances [ 3 ] Mr. Harvey has persisted in acting on his own behalf. He has declined the assistance of legal counsel throughout this sentencing process, notwithstanding several inquiries made of Mr. Harvey by this court, as to whether or not he wished to consult legal counsel and the court’s recommendations to him that he do so. [ 4 ] That lack of legal representation in itself required the court to go through the process of ensuring that the pleas that were being entered by Mr.

Harvey with respect to the various offences were done completely in accordance with the provisions of s. 606(1.1) of the Criminal Code . It provides as follows:

(1.1) A court may accept a plea of guilty only if it is satisfied that (

a) the accused is making the plea voluntarily; (

b) the accused understands (

i) that the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor; and (

c) the facts support the charge. [ 5 ] The procedures utilized in obtaining or in taking pleas from Mr. Harvey (hereinafter sometimes referred to as the "Offender") were as follows: The provisions of section 606 (1.1) were explained to the Offender on several occasions throughout the arraignment and sentencing process. The charge was read to Mr. Harvey by the court. He acknowledged he understood the charge. The Crown then read out the circumstances that they were relying upon. Crown set out the initial sentencing position. Mr.

Harvey was invited to enter a plea with respect to the matters in accordance with s. 606(1.1) . [ 6 ] One of the other unusual aspects of this case is that once most of the pleas had been entered, Mr. Harvey was asked by the court whether or not he was prepared to participate in both a presentence report, as well as a forensic assessment. He originally agreed to do that; however, the matter was back before this court in front of the Honourable Associate Chief Judge Wishart on February 16, 2021. At that point, Judge Wishart was informed by Mr.

Harvey that he no longer wished to participate in having a presentence report prepared, nor was he interested in undergoing a forensic assessment. [ 7 ] Notwithstanding that position, on several occasions subsequent to that when Mr. Harvey appeared before me as the sentencing judge, I again canvassed with him both the desirability and the assistance that a presentence report and a forensic assessment may provide to the court in determining a fit sentence. Again, on all occasions, Mr.

Harvey declined to participate in that process. [ 8 ] Crown was seeking a lengthy total custodial sentence with respect to these matters. That gave the court concern. Accordingly, the issue of having an amicus curiae appointed came before the court. On April 7, 2020, I made an order for the Attorney General to make arrangements to engage an amicus curiae to assist the court with respect to the sentencing hearing of the Offender on the charges before the court. The terms of that order provided as follows: 2. The amicus curiae is to be retained to: (

a) assist the court in determining a fit sentence for Christopher Harvey; (

b) make oral or written submissions on points of law, fact, or evidence relevant to the assessment of a fit and just sentence, giving consideration to the factual circumstances of Mr. Harvey's matters and to any personal circumstances which the amicus curiae may become privy to. [ 9 ] Further provisions of paragraph 3 indicated that the amicus curiae must not: (

a) have a solicitor-client relationship with the accused or take instructions from the accused; (

b) provide legal advice to the accused; and/or (

c) take any instructions from the accused. [ 10 ] As a result of the making of that order, Ms. Cara Hunt was appointed amicus curiae . She had the opportunity of reviewing all materials, including transcripts of the proceedings that had been ordered by the court. , [ 11 ] I have received thoughtful submissions from Ms. Hunt in her role as amicus curiae during the sentencing portion of this hearing, which was concluded today.

[ 12 ] In the absence of information by way of a presentence report or any other reports, concerns were raised by Ms. Hunt as amicus curiae when she noted that essentially as far as Mr. Harvey's antecedents are concerned, he is what may be characterized as a "blank slate". Little is known of Mr. Harvey, other than his criminal record. Accordingly, at the suggestion of amicus curiae , I posed a number of questions to Mr. Harvey. Mr. Harvey engaged to the extent that he did provide information to several of the questions posed by the court. Some of the questions had been recommended by the amicus curiae .

Based on that solicited information, we certainly had a better picture of Mr. Harvey than was previously available through or from any other sources. [ 13 ] Throughout this matter, Mr. Harvey has certainly been polite. He has been respectful. He has engaged to a certain extent, but I cannot say that I can describe him as cooperative when it has come to the issues of having a presentence report prepared or undergoing a forensic assessment. The Charges [ 14 ] The following are the charges to which Mr.

Harvey has entered voluntary pleas of guilty. [ 15 ] On Information 87469-1, sworn March 11, 2020, the Offender has entered a guilty plea that: . . . on or about the 10th day of March, 2020, at or near [omitted for publication], in the Province of British Columbia, [he] did assault Cst. Butler, a peace officer engaged in the execution of that officer's duty; [that being] contrary to Section 270(1) of the Criminal Code . [ 16 ] The maximum sentence for that offence when the Crown proceeds summarily is two years less a day.

Also a maximum fine of $5,000 is a sentencing option. [ 17 ] On Information 43130-1, sworn May 28, 2020, it contains two counts to which the Offender has entered separate guilty pleas. On Count 1, he has pled guilty that: . . . on or about the 19th day of March, 2020, at or near [omitted for publication], in the Province of British Columbia, [he did commit the] theft of merchandise, the property of Wal-Mart Canada Inc., doing business as Wal-Mart, of a value not in excess of five thousand dollars ($5,000.00), contrary to

Section 334 (

b) of the Criminal Code . [ 18 ] On Count 2, there is a further property offence, occurring at the same time and place, whereby Mr. Harvey: . . . did have in his possession property, video games, the property of Wal-Mart Canada Inc., doing business as Wal-Mart, of a value not in excess of five thousand dollars ($5,000.00) knowing that the said property was obtained by the commission in Canada of an offence punishable by indictment, contrary to

Section 355 (

b) of the Criminal Code . [ 19 ] The maximum sentence for each of these offences when Crown proceeds summarily is two years less a day. Also a maximum fine of $5,000 is a sentencing option. [ 20 ] On Information 42662-1 sworn August 27, 2020, Mr. Harvey has entered four guilty pleas on that four-count information. All of these relate to offences under s. 334 (

b) of the Criminal Code , being the theft of merchandise not in excess of $5,000, which all occurred at or near [omitted for publication], British Columbia. Again, the maximum sentence on

summary conviction for an offence under s. 334 (

b) is two years less a day and a maximum fine of $5,000 is a sentencing option. [ 21 ] On Count 1 of that Information, he has pled guilty that on or about the 15 th of June, 2020, he committed that theft of the property of Loblaw Companies Ltd., doing business as The Real Canadian Superstore. On Count 2, the guilty plea is for the offence that on the 22nd of June, 2020, he committed the theft of an SPCA donation bin from [omitted for publication] store, again of a value not in excess of $5,000.

On Count 3, he has pled guilty that on or about the 22nd of June, 2020, he committed the theft of merchandise, the property of [omitted for publication], of a value not in excess of $5,000. Then on Count 4, he has entered his guilty plea that on or about the 23rd of June, 2020, he committed the theft of merchandise, the property of [omitted for publication], again of a value not in excess of $5,000. [ 22 ] On Information 43261-1 sworn August 27, 2020, there is a further guilty plea to the sole count that the Offender committed theft of merchandise contrary to s. 334 (

b) of the Criminal Code . In this case it was on August 17, 2020, again at or near [omitted for publication], British Columbia. It was once again the property of Loblaw Companies Ltd. doing business as The Real Canadian Superstore. [ 23 ] On Information 42662-3-AC, that is a four-count information which was sworn on December 7, 2020. It alleges a number of breaches or failures to appear. The offences occurred at or near [omitted for publication] in the Province of British Columbia. The maximum sentence upon

summary conviction is two years less a day for each of these offences. Guilty pleas have been entered on all four counts. [ 24 ] On Count 1, is the allegation that the Offender, on or about the 22nd of September, 2020, being at large on an undertaking that has been confirmed by a justice, did fail to attend court, contrary to s. 145(4) (

b) of the Criminal Code . [ 25 ] On Count 2, again the allegation is that on or bout the 27th day of October, 2020, at or near [omitted for publication], British Columbia, while bound on a release order, the Offender did fail to attend court in accordance with that release order, being an offence contrary to s. 145(2)(a). Count 3, is an allegation that on or about the 10th of November, 2020, again the Offender, while at large on a release order, did fail to attend court in accordance with the release order and contrary to s. 145(2) (

a) of the Criminal Code . [ 26 ] The fourth count to which Mr. Harvey has entered a guilty plea is an allegation that from the 6th of November, 2020, to the 4th of December, 2020, inclusive, being at large on a release order, did fail to comply with a condition of that release order by failing to report as directed, being an offence contrary to s. 145(5) (

a) of the Criminal Code . [ 27 ] Information 43333-1, sworn December 3, 2020, is a two-count information again alleging offences at or near [omitted for

publication], in the Province of British Columbia, to which Mr. Harvey has entered guilty pleas on both counts. On Count 1, theallegation is that he, on or about the 10th of August, 2020, did commit the theft of merchandise, the property of [omitted for publication]store of a value not in excess of $5,000, again being an offence contrary to s. 334(

b) of the Criminal Code. On Count 2, the guilty plea isto the allegation that on the 10th of August, 2020, that the Offender did commit the assault of E.B., being an offence contrary to s. 266 ofthe Criminal Code. The maximum sentence upon

summary conviction on each offence is two years less a day and a maximum fine of$5,000 is a sentencing option. [28] On Information 43336-1, sworn December 7, 2020, Crown proceeded by way of indictment on two counts. An election wasmade to have the matter tried in the Provincial Court of British Columbia. Mr. Harvey entered two guilty pleas. It is noteworthy thatCrown has only proceeded to sentencing on Count 2, and submits that the principles in R. v. Kienapple [ (SCC), 1975] 1S.C.R. 729 apply to Count 1, which precludes multiple convictions for the same delict. [29] On Count 1, the allegation to which Mr.

Harvey did enter a guilty plea was on the 4th of November, 2020, at or near [omitted forpublication], British Columbia, he did break and enter a dwelling house at [omitted for publication], with intent to commit an indictableoffence therein, contrary to s. 348(1)(

a) of the Criminal Code. A guilty plea was also entered on Count 2 being an allegation that at thesame time and place, that the Offender did break and enter a dwelling house at the same address and committed an indictable offencetherein, theft, contrary to s. 348(1)(

b) of the Criminal Code. [30] On the final information, which is 43337-1, sworn December 7, 2020, the Offender has entered a guilty plea that on or about the6th of December, 2020, at or near [omitted for publication], in the Province of British Columbia, he did commit the assault of M.G.,being an offence contrary to s. 266 of the Criminal Code. Again the maximum sentence for that assault upon

summary conviction isnoted above. [31] The Offender has been in custody since December 6, 2020, to present date. According to the agreed calculation, the total amountof actual presentence custody served equals 199 days and accordingly and with the usual Summers credit at one to 1.5, he has availablecredit of 299 days (see R. v. Summers, 2014 SCC 26).

Purposes and Principles of Sentencing [32] I will now turn to the purposes, objectives, and principles of sentencing and the applicable analytical considerations to determinea fit sentence for this particular offender. [33] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence andthe specific circumstances of the offender (see R. v. Shoker, 2006 SCC 44, at paragraph 14, and R. v.

Angelillo, 2006 SCC 55, atparagraph 22). [34] As the sentencing judge, I must direct myself to consider all the principles of sentencing contained in the Code, but also bemindful, depending on the nature of the offence committed, that certain principles will receive more emphasis than others (see R. v.McCormick, 2006 ABCA 410, at paragraphs 9 to 12). Applicable Sentencing Provisions of the Criminal Code [35] The purposes and the principles of sentencing are found in ss. 718 to 718.2 of the Code.

These sections codify and plainly statethe intention and rationale for imposing particular sentences, as well as the common law principles of sentencing (see R. v. Nasogaluak,2010 SCC 6 at paragraph 39). Fundamental Purpose [36]

Section 718 of the Code outlines the fundamental purpose of sentencing as: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. Proportionality Principle [37]

Section 718.1 sets out and codifies a fundamental principle of sentencing. It directs that a sentence must be proportionate to thegravity of the offence and the degree of the offender's responsibility. [38] The gravity of the offence refers to what the offender did wrong. It includes two components:

a) the harm or likely harm to the victim; and

b) the harm or likely harm to society and its values. (See R. v. Lacasse, 2015 SCC 64 , at para. 130.) [39] The Supreme Court of Canada has held that proportionality as articulated in s. 718.1 is a fundamental principle of sentencing – "'the sine qua non of a just sanction'. It is grounded in elemental notions of justice and fairness, and is indispensable to the publicconfidence in the justice system." (See R. v. Safarzadeh-Markhali, 2016 SCC 14 , para. 70.) Other Sentencing Principles [40]

Section 718.2, under the heading of "Other Sentencing Principles," states, in part, that: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion,sex, age, mental or physical disability, sexual orientation or gender orientation or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, . . . shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. Parity Principle [41]

Section 718.2(

b) codifies the parity principle, which holds sentences should be similar to sentences imposed on similar offendersfor similar offences in similar circumstances. In R. v. Ipeelee, 2012 SCC 13, the Supreme Court held the "parity principle . . . means thatany disparity between sanctions for different offenders needs to be justified." In Canada, the appellate courts diverge on the applicationof parity in such things as sexual offences (see: for example, R. v. Williams, 2019 BCCA 295). Totality Principle [42]

Section 718.2(

c) codifies the totality principle, which holds that where sentences are imposed consecutively, the combinedsentence should not be unduly long or harsh: a sentence should not exceed the overall culpability of the offender (see R. v. G.F., 2018BCCA 339). It may offend the totality principle if it is substantially above the normal level of a sentence for the most serious of theindividual offences involved, or its effect is crushing and not in keeping with the offender's record and prospects: R. v. M.(C.A.), (SCC), 1996 1 S.C.R. 500. Restraint Principle [43] Sections 718.2(

d) and 718.2(

e) codify the restraint principle, which holds an offender should not be deprived of liberty if lessrestrictive sanctions may be appropriate, and all available sanctions other than imprisonment that are reasonable in the circumstancesshould be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)). Circumstances Surrounding the Offences [44] Crown presented a number of circumstances surrounding these offences.

I do not intend to deal with the circumstances in depth.However, I will make mention of some of the cogent aspects of the offences, starting with Information 87469-1, which is the charge ofcommitting assault of Constable Butler, a peace officer engaged in the execution of his duty. In that set of circumstances, the officer inquestion was called by civilians to deal with an individual who was sleeping in the entrance way to the garage parkade of a multi-unitresidential complex. [45] The Offender had been previously asked to leave. Constable Butler attended, awoke Mr.

Harvey, and told him he had to depart,as he was no longer welcome to be there. What then occurred, is that the police officer, acting under the provisions of the Trespass Act,attempted to obtain the name and identification of Mr. Harvey. The Offender pulled away and then in the course of trying to prevent his

arrest, he scratched the Constable Butler in the face, thus resulting in some hospitalization for Constable Butler. According to the photographic evidence, the scratch injuries were fairly significant; it appears that Constable Butler did recover from those injuries. [ 46 ] On Information 43130-1, there are the two counts relating to the theft of merchandise from Walmart and also possession of stolen property from Walmart. The total amount that was taken in the form of videos appears to be somewhere in the range of about $160.

The items were recovered at the scene. [ 47 ] Information 42662-1, contains the four counts relating to various thefts. Count 1 being theft from Loblaws Companies Ltd. doing business as Real Canadian Superstore. A loss prevention officer attempted to confront Mr. Harvey while he was committing the theft of candy. Apparently the Offender was well known by the loss prevention officer. The Offender exited the store without paying and then the police received a description of Mr. Harvey, who apparently was well known to them; he was eventually arrested on that charge.

So far as I can determine, the goods were not recovered. [ 48 ] Count 2 was the theft of an SPCA donation bin from [omitted for publication]; that was an event whereby Mr. Harvey stole the charitable donation bin from those business premises. He was confronted by an owner or employee of the business, and was given the opportunity to return the donation bin but refused to do so and then fled the scene. [ 49 ] The third count was theft of property from [omitted for publication], which as I take it, is a women's fashion retailer in [omitted for publication]. Mr.

Harvey stole a $40 shoulder bag and left the store without paying. On the fourth count the committed offence was theft of property of [omitted for publication], being approximately $10 of merchandise when he stole drink beverages from that particular merchant. [ 50 ] Information 43261, contains a charge of a further theft from Real Canadian Superstore. In that case the items taken by the Offender were cosmetics; again this is a situation of where the Offender fled the store from the loss prevention officer and was eventually arrested by the police.

The value of the cosmetics is not stated, but appears to be relatively low in value and certainly under the $5,000 limit. [ 51 ] On Information 42662-3-AC, that is the four-count information. These are various breaches of conditions and being situations where Mr. Harvey was released and then either failed to report or failed to attend court on multiple occasions as specified in the information. [ 52 ] Then Information 43333-1, contains one of the more egregious of the offences facing the Offender. This is an assault of E.B. and a theft from the [omitted for publication] store. The theft occurred with Mr.

Harvey trying to hide a bottle of liquor in the crotch of his pants. He was confronted by E.B., an employee at the store; in the course of that occurring, he and E.B. became engaged in a verbal exchange, at which point Mr. Harvey spat at E.B., thereby committing the assault. [ 53 ] On Information 43336-1, is the allegation of a break and enter at the [omitted for publication] location. In this case, the residential unit appears to have been unoccupied but under a renovation when the owner, J.L., walked in on Mr. Harvey, who was in the residential premises without permission. J.L. confronted Mr.

Harvey as to what he was doing there. Mr. Harvey had a drill in his hand, which apparently he was in the process of stealing, but he dropped the drill and fled from the premises. At that point, J.L. alerted neighbours about this intruder and was later able to provide a description of Mr. Harvey to the police, having previously seen Mr. Harvey during another event that took place at a commercial premises. [ 54 ] Information 43337-1, contains the allegation of an assault of M.G. Again, this is an egregious assault, in the sense that Mr.

Harvey, when confronted at a local dollar store and was told to leave, committed the assault by spitting in the face of M.G. [ 55 ] Those essentially are the circumstances in

summary form that have been presented by Crown as the basis for each of these charges. As previously noted, Mr. Harvey heard the full circumstances being relied upon by Crown and he accepted the circumstances prior to his arraignment when he entered his voluntary pleas of guilty with respect to each of these matters. The Offender's Criminal Record [ 56 ] The Offender has accumulated a very unenviable criminal record dating back to September 2014. That record has a number of offences up to and including the 22nd of January, 2020.

His first offence on his criminal record back in September 2014 was a theft under $5,000 for which he received a 12 month suspended sentence. The offence that brought Mr. Harvey before the court in Victoria on January 22, 2020, was again a theft under $5,000 for which he was sentenced to 24 days of jail. [ 57 ] When one examines Mr. Harvey's record, it is noteworthy that he has accumulated some 25 convictions for thefts under $5,000. He has nine convictions for either breaches or failures to appear. He has three common assault convictions.

He has one assault of a police officer, and one of wilful obstruction of a police officer conviction. He has a break and enter with intent to commit an indictable offence which is dated but significant, going back to 2015, for which he received a six-month jail sentence and one year of probation; more recently he has two trespass-at-night offences for which he was sentenced on the 14th of January, 2020, to 60 days, concurrent on each, before credit and with 1 year of probation..

Circumstances of the Offender [ 58 ] As previously noted, prior to today's conclusion of his sentencing, little if anything was known about the antecedents of Mr. Harvey. As a result of direct submissions to the court by the Offender, in response to various questions posed by the court to Mr. Harvey, we have learned that Mr. Harvey is a relatively young man. He is now approximately 38 years of age. He indicates that he identifies as non-binary in terms of gender identification.

He indicates that for a good portion of his adult life he has been treated intermittently for mental health issues. [ 59 ] He has not finished high school. He does not have gainful employment and relies on social assistance, although I understand he has not been identified as a person with disabilities. He lacks stable housing. From time to time he resides with family members. At other

times, he resides in shelters in numerous communities, including [omitted for publication]. [ 60 ] On occasion, when he is able to reside with family members, my sense, from his answers, is that he does not have a close relationship with his parents, one who lives in [omitted for publication], the other in [omitted for publication]. He does have family in [omitted for publication], but again he appears only to see those individuals on an intermittent basis. [ 61 ] He admits that he has used drugs and his drug of choice appears to be crystal meth.

However, he says his drug of greater use is nicotine from smoking cigarettes. He has used heroin in the past, but indicates to the court that he does not has a significant substance abuse or misuse issue. [ 62 ] Apparently, he is not in any relationship at present time. He seems to have few friends. He describes himself as preferring to be alone. This would certainly be consistent with his approach to his incarceration. He has been in segregation for what appears to be a short period of time, but tends to stick to himself and remain in his cells at other times.

He does not appear to be engaged in any programming at [omitted for publication]. He does not appear to be involved in any work or other projects while on remand at that particular centre. [ 63 ] He indicates that he is aware of the significant implications of the offences and the impact they have had on the community. He expresses what I take to be genuine remorse. He says he feels bad about committing the offences and to being involved in criminal behaviour. He feels terrible about the people who he has victimized.

He indicates a willingness to work with a probation officer and in doing so, it is his goal, in his words, "to stay away from problems". He indicates that he wishes to avoid the stealing of items and he wants to avoid what he describes as his "bad attitude".

He says he has become more aware of this attitude and he wants to avoid returning to jail, which he describes as "really bad". [ 64 ] He does not have a release plan, and when I prompted him to provide some sort of information about his goals, he says at this stage his goal is to “perhaps” find a shelter, possibly in [omitted for publication], where he feels he could continue to work on his recovery. [ 65 ] Mr.

Harvey also says that he is uncomfortable sharing any information about either his medical issues or mental health issues, and when I again offered him the opportunity to obtain a presentence report, he declined that particular opportunity. [ 66 ] However, I did canvass with him whether or not he would be prepared to abide by the probation terms that are being proposed by Crown and he did indicate that the provisions specifically relating to counselling and/or psychiatric treatment and assessment were matters in which he was prepared to participate. [ 67 ] Again I can say that although he was not cooperative in terms of engaging in the process of having a presentence report or forensic assessment completed, he was, in my view, forthcoming and provided useful information to the court but I am going to suggest on a somewhat guarded basis.

Crown's Sentencing Position [ 68 ] Crown has set out in significant detail an overview of Crown's position on sentencing. This is found at Tab 5 of Exhibit 1. In that

summary, Crown deals with each of the various offences and indicates the sentences that Crown is seeking. For the most part, the Crown’s sentencing position for each charge was provided before the guilty pleas were entered. However, Crown has modified its position such that the sentence durations that are now being sought with respect to some of the specific offences have been modified by way of a reduction in some instances. Crown also seeks a DNA order under s. 487.051(2) for the indictable offence under section 348(1) (

b) on Information 43336-1 and a five year discretionary firearms prohibition under

section 110 because of the Offender’s circumstances and history of breaking and entry and reacting with violence when confronted by authority figures and other individuals (collectively the “Ancillary Orders”). [ 69 ] I will now deal with the specific sentences sought by Crown. On Information 87469-1, being the assault of the police officer, Crown seeks a 60-day sentence that would run consecutive to all the other sentences. [ 70 ] On Information 43130-1, which involves the theft of merchandise and the possession of stolen property from Walmart, Crown seeks a 14-day sentence on each of the two counts.

Those would be concurrent with each other and consecutive with the other sentences. [ 71 ] Information 42662-1, is the four-count information involving thefts from Real Canadian Superstore, theft of the SPCA donation bin from [omitted for publication], the theft from [omitted for publication], and the theft from the [omitted for publication], Crown is seeking a 60-day sentence on the first count, being the theft from Real Canadian Superstore, occurring June 15 th , 2020.

On the June 22, 2020 offences, being the theft from [omitted for publication] and from [omitted for publication], Crown seeks 60 days, being concurrent with each other and consecutive with the other sentences. On the June 23 rd , 2020 theft from [omitted for publication], Crown is seeking a 60-day sentence to be consecutive with the other sentences. [ 72 ] Information 43333-1, involves the theft from the [omitted for publication] and the assault. With respect to the theft, Crown is seeking a 60-day sentence. With respect to the assault by way of spitting on E.B., Crown is seeking 60 days.

Those two sentences would be concurrent with each other but consecutive with the other sentences. [ 73 ] With respect to Information 42662-3-AC, these are the breaches. On the first two breaches of September 22 and October 27, 2020, Crown seeks 15 days consecutive on each, then on the November 10, 2020, breach, being at large, 30 days consecutive, and on the November 6 to December 4, being at large, again another 30 days.

Once more all of these on a consecutive basis. [ 74 ] On Information 43261, being the further theft from the Real Canadian Superstore, Crown is seeking a 60-day consecutive sentence. [ 75 ] Then with respect to the offences relating to the break and enter found on Information 43336-1, Crown says a judicial stay of proceedings should be entered with respect to Count 1, being the break and enter with intent, but on the Count 2, which is the offence

under s. 348(1) (b), break and enter and committing an offence, Crown says a 365-day sentence to be served consecutively with all the other offences is appropriate and is required. [ 76 ] Then with the final matter on Information 43337-1, being the second assault charge, Crown suggests that the appropriate sentence is again a 60-day consecutive sentence. [ 77 ] In

summary, the total of those sentences proposed by Crown tabulates at 920 days or three months and 10 days. Crown notes that with respect to previous sentences for this Offender, that on April 24, 2015, there was a six-month global disposition rendered against him. On November 29, 2016, there was a nine-month global disposition.

Therefore, Crown suggests that a 920-day sentence is an unduly harsh sentence (see: s. 718.2(c)), and that a reduction from 920 days to 540 days, being 18 months, would be appropriate and would address the principles of sentencing and recognize the gravity of the offences before this court. [ 78 ] Accordingly, once the pretrial credit is applied, being 199 actual days or 290 days with enhanced credit, that would result in a remaining custodial sentence to be served by the Offender of 246 days, being some eight months. Then of course Crowns seeks the Ancillary Orders.

The DNA order must be imposed unless the Offender satisfies the court that the impact on his privacy and security would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice. As noted above the firearms prohibition is discretionary under s. 110. [ 79 ] Submissions by the Crown indicate that the primary purpose of the sentence must be denunciation and deterrence. Crown points out that a number of the offences that have been committed by the Offender over the years have been dealt with by way of global dispositions.

The Offender seems to have a pattern of spates of offending behaviour which then seem to all be collected and dealt with at the same time, resulting in the various sentences to which I have made reference, including the lengthy global sentences that he has received in the past. [ 80 ] The Crown points to certain aggravating factors. In particular, Crown points to the victim impact statement that has been provided by E.B.

In it she notes that she was fearful for herself and for her staff, that the Offender would return to the dollar store, although it is clear that previously he had been told that he was unwelcome and, in the words of E.B., "banned permanently". The disregard for that banishment made the staff particularly nervous. After the assault, the concern was that he would come back and re- confront both E.B. and the other staff members. She and the others found this extremely stressful; from her own perspective, she was very fearful of Mr.

Harvey. [ 81 ] We do not have victim impact statements from any of the other individuals. J.L., the owner of the residential unit, who encountered Mr. Harvey while he was inside the unit without anyone's permission indicated in his police report that he certainly was surprised by the event. Crown says that immediately following that confrontation, the owner went so far as to immediately make sure that other members of the community around him and his neighbours were aware of the intrusion. Thus I take it that I am to understand that J.L. was very uncomfortable with having unexpectedly encountered Mr.

Harvey in the residential unit. Submissions of the Amicus Curiae [ 82 ] The approach taken by amicus curiae is based on some of the Offender’s circumstances which before today's hearing were unknown. In particular, I am asked to consider what appears to have been a fairly challenging life for Mr. Harvey: his long time reliance on social assistance; his financial insecurity; his housing insecurity; his identification as a non-binary individual; his apparent reliance on illicit substances. Ms. Hunt notes that but for the one victim impact statement, we do not have a great deal to show the impact of Mr.

Harvey's behaviour on the community. However, I do not understand the amicus curiae to be saying that either of the two assaults should be disregarded nor the impact on E.B. and her coworkers should be minimized in any fashion. [ 83 ] However, I am asked to draw the inference that because J.L. was prepared to confront the Offender, that this in some way diminishes the negative impact upon J.L. for the offence that was committed against him. [ 84 ] It is also pointed out that in the prior break and enter offence which Mr.

Harvey committed back in April of 2015, that it was a much more egregious offence, but at which time he only received a six-month sentence. That offence involved an elderly homeowner who was at home at the time or certainly not far away from the locale, who had her laptop stolen by the Offender. Therefore the submission from the amicus curiae is that a sentence of one year for the break and enter that is being proposed by Crown at this sentencing may be beyond what would be reasonable in the whole of the circumstances for this particular offence.

As I understand it, the view and recommendation of the amicus curiae is that something more akin to what the previous sentence was, being a six-month sentence, would be more appropriate. [ 85 ] In

summary, what is being recommended to the court by amicus curiae is to reduce a number of the sentences that are being proposed, both in terms of the number of days and also some of which are proposed by Crown to run consecutive be converted into being served on a concurrent basis. [ 86 ] Essentially, on the assault peace officer, amicus curiae suggests a 30-day sentence on a consecutive basis would be more appropriate. On the thefts from and possession of stolen property of Walmart, the 30-day sentences should be served on a concurrent basis.

On the four counts of thefts from the various locations between June 15, 2020, and June 23, 2020, set out on Information 42662-1, rather than 60 days, amicus curiae is suggesting 45 days, all concurrent on each of those counts. [ 87 ] On Information 42662-3-AC, being the reporting breach and the three failures to attend court in the fall of 2020, rather than 30 days on both count 3 and 4, it is being suggested that appropriate sentence would be 15 days all on a concurrent basis. [ 88 ] As I understand it, amicus curiae takes no issue with the other sentences or Ancillary Orders proposed by Crown, other than to say a two year probation order rather than a one year probation order may be setting the Offender up to “fail”.

At the end of the day, amicus suggests that using the same type of approach as Crown for totality, but that there should be a global sentence of some 12 months, that being 365 days, with credit of some 299 days available, leaving 66 days of new time for Mr. Harvey to serve.

Submissions by the Offender [89] Mr. Harvey, as has been his approach throughout the sentencing hearing, seems to suggest that either sentence proposal would befair. He says that his goal is to stay out of trouble. He does not suggests that he has been treated unfairly or harshly when identifying as anon-binary individual, while on remand in [omitted for publication].

He suggests that a custodial sentence and even a lengthy custodialsentence, as suggested by Crown, may help him stay out of trouble and give him the time while he is in custody to continue to work onhimself and to be a better person. [90] He did concede that a two-year probation order was appropriate and in his words, "sounds fair". He felt he was able to abide bythe terms of that probation order, and he felt that it would give him an opportunity to avail himself of the counselling and alcohol anddrug treatment programs that may be offered to him through probation.

Analysis Consideration of case authorities in determining a fit sentence [91] A limited number of authorities have been put before the court by Crown. They are as follows: 1. R. v. Powis, 2007 BCCA 108, a decision of the British Columbia Court of Appeal; 2. R. v. Arsenault, 1999 BCCA 578; being a decision of the British Columbia Court of Appeal; 3. R. v. Schuil, 2021 BCPC 103; being a decision of the British Columbia Provincial Court; 4. R. v. Lemmen, 2020 BCPC 67; being a decision of the British Columbia Provincial Court; 5. R. v. Li, 2009 BCCA 85, a decision of our British Columbia Court of Appeal; 6. R. v.

Johnson, 2012 ONCA 339, a decision of the Ontario Court of Appeal. [92] None of these decisions are placed before this court on the basis that they deal with offenders in similar circumstances or on thebasis they represent similar circumstances for the committed offences. The decision in Powis is referred to by Crown in connection withits analysis of the range of sentences for break and enter offences. At paragraph 29 of Powis, reference is made to the decision of R. v.Bernier (2003), 2003 BCCA 134 , 177 C.C.C. (3d) 137, being a decision of Madam Justice Southin.

She identified theappropriate sentencing range for residential breaking and entering as nine months to five years. The Court of Appeal in Powis overturnedthe 18 month conditional sentence order imposed by the sentencing judge and substituted a three year custodial sentence for Mr. Powis ,who had a significant criminal record, and was being sentenced for his series of 6 residential and one commercial breaks ins. [93] The Arsenault decision is referred to this court again for the guidance it provides in dealing with residential break and enteroffences.

At paragraph 7, the court notes as follows: [7] It sometimes seems to be lost sight of that a break and enter of residential property is a very serious offence from the point of view ofthe victims of that offence. It can in some circumstances have a shattering effect upon people but, short of those extreme cases, it is asignificant invasion of their privacy and of their sense of having a refuge that is immune from intrusion. . . . [94] The Schuil decision, a decision of Judge D.

Patterson of our Provincial Court, deals with sentencing, following a trial, on a set ofcircumstances involving both a break and enter and a sexual assault. A number of case authorities are reviewed by Judge Pattersonbetween paragraphs 47 and 61. Again, there is a significant emphasis on the damaging effects of a break and enter. The cases show avery wide range of sentences; some are certainly outside, that is lower, than the range set by Madam Justice Southin in her decision,others are of a more significant nature in terms of duration.

At the end of the day in the Schuil decision, there was a one-year sentenceimposed and it is noteworthy that Mr. Schuil's record was significantly less than the Offender in this case. [95] The Lemmens case has been cited to this court, in part because it sets out in some detail the applicable purposes and principles ofsentencing. It is also a decision that I rendered back on April 3, 2020, involving a number of serious offences relating to firearms anddangerous operation of a motor vehicle.

It is simply placed before this court as a reminder of the purposes and principles of sentencingthat the court must take into account. [96] The Li decision is a 2009 decision of our Court of Appeal. It establishes the tests and the approach when dealing with sentencingon multiple offences. At paragraph 28, Madam Justice Daphne Smith notes as follows: [28] Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences. The first stage is to determine theappropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent.

Ifconsecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totalityprinciple. If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjustedin order to arrive at an appropriate global sentence. See R. v. P.P.H., 2003 BCCA 591. [97] The decision in R. v. Johnson, from the Ontario Court of Appeal, deals with the application of concurrent and consecutivesentences, and also canvasses the totality principle at paragraphs 15 through 20.

Mitigating Factors [98] Based upon Crown and the amicus curiae's submissions, and also based on direct submissions by the Offender and my ownreview of all of the circumstances, I find the following to be mitigating factors: 1) the early guilty plea of the Offender with respect to these offences;

2) what I take to be a genuine expression of remorse by the Offender for his offending behaviour; and 3) his insight as to the victimization of certain individuals, whom in particular I take to be both the individuals whom he assaulted and the owner of the residential unit he broke into; 4) the fact that the personal circumstances of the Offender indicate that he has had to deal with what appears to be untreated mental health issues, and the fact that he also struggles with substance abuse issues; 5) the fact that many of these committed offences, did not appear to be well planned or planned at all; they lack any degree of sophistication; they seem to be impulsive in nature.

It should have been obvious to the Offender that he would most likely be identified and caught because of his numerous past interactions with the police, loss prevention officers and store clerks. Aggravating factors 1. I find that the Offender's criminal record is aggravating. He is properly described as a prolific offender when it comes to property offences; 2.

I find that the assaults by way of spitting at the two victims to be particularly aggravating and offensive, especially when these offences appear to have occurred in the midst of the COVID pandemic and when there was a heightened public awareness and concern about the possibility of transmission of the virus between persons and certainly we were all being warned to maintain proper social distancing; 3. I find the theft of the donation bin intended for the SPCA, a worthwhile and important charitable community organization, to be aggravating; 4.

I find it aggravating that a number of the property crime victims are small enterprises who can ill afford the significant expense that is associated with shoplifting and theft especially during the COVID pandemic; 5. I find the repeat offences perpetrated against Real Canadian Superstore, although not a small operation by any stretch of the imagination, to be aggravating because they have been victimized repeatedly by Mr. Harvey; 6. I also find it aggravating that the Offender has committed these offences when he was either bound by a probation order or also by a release order.

Conclusions and Sentencing [ 99 ] I agree with Crown's submissions with respect to the suggested sentences to be imposed, and also with respect to their proposal, as to whether the sentences should be consecutive or concurrent. In doing so, I am taking into account the significant record for similar property offences that marks Mr. Harvey's criminal history. I am also taking into account the fact that some of these offences occurred in clumps. However, I think the Crown's position does adequately address whether or not the sentences should be consecutive or concurrent.

I also agree that the Ancillary Orders are appropriate and necessary. [ 100 ] With respect to the break and enter, I do acknowledge that although it is at the low end of the spectrum in terms of a break and enter, Mr. Harvey is a repeat offender and has already had a six-month sentence some years ago which should have been an adequate deterrent to him, but it has failed to deter him.

Accordingly, I accept that submission and the case authorities support, which support the conclusion that a year's sentence is appropriate in these circumstances. [ 101 ] I do differ with both the position of Crown and the submissions of the amicus curiae with respect to the totality principle. In this situation, the suggestion by the amicus that there should be a 12-month total sentence for all the offences and with the result that, given the appropriate credit, Mr. Harvey would only have approximately two months to serve, in my view does not reflect a fit sentence.

However, I am of the view that notwithstanding the discount that has already been factored in to Crown's submissions, whereby the sentence would be an aggregate global sentence of 18 months with credit, leaving a remaining sentence of some eight months, it still does not meet the requirements of the totality principle. [ 102 ] In my view, an appropriate sentence in this matter would be a global sentence, taking into account all of the various factors, of some 16 months, which I equate to 480 days. Giving Mr.

Harvey credit for 299 days, that would result in the remaining time to serve of 181 days, being approximately a six-month of new time to be served. [ 103 ] So I accept the allocation of Crown with respect to each of the offences, but on the basis of the totality principle, I would make this reduction. [ 104 ] Accordingly, Mr. Harvey, if you could look at me, sir, so I can see you. The total sentence on a global basis that I am imposing upon you, having regard to the totality principle, is going to be 16 months or 480 days.

I am giving you credit for 299 days, leaving you with 181 days or approximately six months of new time to be served in jail. [ 105 ] I have looked at the terms and conditions for the probation order that is sought by Crown. Amicus curiae has made a thoughtful submission and expresses concern that a 24-month probation order may be setting Mr. Harvey up for failure, given his past record of being unable or unwilling to abide by conditions. I am of the view, and this seems to be supported by Mr. Harvey, that he is prepared to engage and consent to being involved with his probation officer.

He feels that he can abide by that period of time and that type of engagement. When I take into account what I view as being a number of necessary resources that Mr. Harvey should be accessing, my conclusion is that certainly a probation order in excess of one year is required. I am going to make the probation order in this case a total of 20, that is two-zero, months, for Mr. Harvey. [ 106 ] I want you to listen carefully, Mr. Harvey, because I am going to go through these conditions for you. These are the conditions of

your probation order, which will be for 20 months. [ 107 ] You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation. [ 108 ] Mr.

Harvey, you heard those conditions so far? [ 109 ] THE ACCUSED: Yeah, thank you, Your Honour, thank you. [ 110 ] THE COURT: 2002: You must have no contact or communication, directly or indirectly, with J.L. , M.G., and E.B. [ 111 ] You must not go to any place where J.L. , M.G., or E.B. lives, works, attends school or worships or happens to be. If you see them, you must leave their presence immediately without any words or gestures. [ 112 ] You heard that, did you, Mr. Harvey? [ 113 ] THE ACCUSED: Yeah, I did, Your Honour, thank you. [ 114 ] THE COURT: Yes.

Next provision, the no-go provision. [ 115 ] You must not go to: i. the Walmart Supercentre located at [omitted for publication], British Columbia; ii. the Real Canadian Superstore located at [omitted for publication], British Columbia; iii. [omitted for publication] located at [omitted for publication], B.C.; iv. [omitted for publication] located at [omitted for publication], British Columbia; v. the [omitted for publication] located at [omitted for publication], British Columbia; vi. the [omitted for publication] located at [omitted for publication], British Columbia; vii. [omitted for publication], British Columbia; viii. the [omitted for publication] located at [omitted for publication], British Columbia. [ 116 ] You heard all of that, did you, Mr.

Harvey? [ 117 ] THE ACCUSED: I did. [ 118 ] THE COURT: Yes, thank you. [ 119 ] You must report in person to your probation officer at [omitted for publication], British Columbia, within two business days after your release from custody, unless you have obtained, before your release, written permission from your probation officer to report -- [ 120 ] THE CLERK: Your Honour, I'd like to clarify the address, I believe it is [omitted for publication]. [ 121 ] CNSL L. THOMSON: Yes, Your Honour, that's correct, this is the old address that was -- [ 122 ] THE COURT: Oh, I am sorry.

Thank you, Madam Clerk, so the probation office and the address, it is [omitted for publication] [ 123 ] THE CLERK: [omitted for publication]. [ 124 ] THE COURT: Yes. [ 125 ] THE CLERK: [omitted for publication] [ 126 ] THE COURT: Yes, thank you, that is the new address -- within two business days after your release from custody, unless you have obtained, before your release, written permission from your probation officer to report elsewhere or within a different timeframe. After that, you must report as directed by your probation officer. You heard that, did you, Mr.

Harvey? [ 127 ] THE ACCUSED: Thank you. [ 128 ] THE COURT: Yes. [ 129 ] THE ACCUSED: Thank you. [ 130 ] THE COURT: Your reporting ends when you have satisfied your probation officer that you have: (

a) completed all your counselling and treatment, or that it is not required; and your officer has told you that you are no longer required to report. You heard that, did you, Mr. Harvey? [ 131 ] THE ACCUSED: Yeah.

[ 132 ] THE COURT: When first reporting to your probation officer, you must provide them with the address where you live and your phone number. You must not change your address or phone number without notifying your probation officer in writing in advance of any change. [ 133 ] I am going to make a change to that condition to accommodate Mr.

Harvey if he is living in a shelter: and if you are residing in a shelter without permanent accommodation and you are no longer able to reside at that shelter, you must notify your probation officer on the next business day of any change of your shelter location. [ 134 ] Also, I am going to go back and I am going to delete where it says "without notifying your probation officer", I am going to delete the words "in writing". Is Crown content with that? [ 135 ] CNSL L.

THOMSON: I'm sorry about that, just -- that was in the same condition? [ 136 ] THE COURT: Yes, I am going to take out the "in writing". [ 137 ] CNSL L. THOMSON: That's satisfactory, Your Honour. [ 138 ] THE COURT: All right, thank you, and then the counselling, listen carefully to this, Mr. Harvey, please. You must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your probation officer. You heard that, sir, did you? Mr.

Harvey? [ 139 ] THE ACCUSED: Yeah. [ 140 ] THE COURT: All right. [ 141 ] THE ACCUSED: Thank you. [ 142 ] THE COURT: You must not possess, directly or indirectly, any weapon as defined by the Criminal Code , including:

a) firearms and ammunition;

b) cross-bows, prohibited or restricted weapons or devices, or explosive substances;

c) anything used, designed to be used or intended for use in causing death or injury to any person, or to threaten or intimidate any person;

d) any imitation firearms or weapons, including any compressed air guns or BB/pellet guns; or

e) any related authorizations, licences, or registration certificates, and you must not apply for any of these. [ 143 ] I take it, Mr. Harvey, you are not a gun owner, is that correct? [ 144 ] THE ACCUSED: It is -- that is correct, Your Honour, thank you. [ 145 ] THE COURT: Thank you. You must not possess any tools or instruments capable of use for criminal activity, including: pry bars, screwdrivers, bump keys, bolt cutters, pliers, blow torches, grinders, night-vision goggles, slim jims, lockpicks. The exceptions are as follows: with the prior written permission of your probation officer.

You must carry the permission, which may be in electronic format, when you possess any of these items outside your residence. You heard that, did you, Mr. Harvey? [ 146 ] THE ACCUSED: Yeah, thank you. [ 147 ] THE COURT: So Mr.

Harvey, this is really important because you told me earlier on that you were going to agree to follow these conditions, all right, so I am going to read each of them and get you to confirm that you are also still agreeing to do this [ 148 ] Having consented in court, you must attend, participate in, and complete any intake, assessment, program, treatment, or a full-time live-in treatment program as directed by your probation officer. This may include programming or treatment for:

f) alcohol or drug addiction;

g) psychiatric and psychological health. [ 149 ] You heard that condition, Mr. Harvey? Are you still agreeable to following that? [ 150 ] THE ACCUSED: Yes, thank you. [ 151 ] THE COURT: All right, then the next one, Having consented in court, you must attend for a psychiatric intake, assessment, or treatment program through Forensic Psychiatric Services as directed by your probation officer. You heard that Mr.

Harvey, and you are still agreeing to that, are you? [ 152 ] THE ACCUSED: Yes, I am. [ 153 ] THE COURT: Okay, and then If you are expelled or remove yourself from any program you are directed to attend, you must tell your probation officer immediately. If the probation officer's office is closed, you must contact your officer immediately when the office opens on the next business day. You heard that condition, sir, are you still -- are you agreeable to that? That being if you get kicked out of a program that you are directed to go to, that you must tell your probation officer right away?

[ 154 ] THE ACCUSED: Yeah, that should be okay, thank you, I should be able to do that. [ 155 ] THE COURT: All right, and then I am going to add, the following condition: Having consented in court, if asked by your probation officer, you must provide proof of your attendance and completion of any assessment, counselling, or treatment program. You heard that? That means that if you go to a program, that you are directed to go to, and you say, "Oh, I finished it," and that would allow you not to have to continue to report, then you have to provide proof that you have completed it. Do you agree to that, Mr.

Harvey? [ 156 ] THE ACCUSED: Mm-hmm, mm-hmm. [ 157 ] THE COURT: Is that -- [ 158 ] THE ACCUSED: Yes, yes. [ 159 ] THE COURT: Okay. All right. Those will be the conditions. Now, Mr. Harvey, I have read those conditions.

You understand all of those conditions? [ 160 ] THE ACCUSED: [Indiscernible] yes, I believe so, yes, thank you, Your Honour. [ 161 ] THE COURT: Okay, and you are going to follow all -- you are agreeing, you are telling me, "I am going to follow those conditions." Is that what you are telling me? [ 162 ] THE ACCUSED: Yes, I am. [ 163 ] THE COURT: Okay, that is a yes, is it? [ 164 ] THE ACCUSED: Yes, yes, Your Honour, yes. [ 165 ] THE COURT: Thank you, and you understand that if you fail to abide by those conditions, you could be charged with a breach, you could be arrested, and you could be held in custody until such time as you deal with those charges.

Do you understand that? That is called being breached. You have had breaches in the past, so you understand that is the sanction if you do not follow those conditions. Do you understand that? [ 166 ] THE ACCUSED: Yeah, that's fine, yes, yes. [ 167 ] THE COURT: Okay, and Mr. Harvey, I wish you good success in getting through your probation order and using all those resources. The best contact you can have when you get out is going to be your probation officer. I am going to be continuing to sit in [omitted for publication].

I sort of expect we may see you in [omitted for publication], but I do not want to see you back in front of the court, okay? I want you to be doing your level best to be getting back on the path you told me you want to follow, that is to stay out of trouble and to get well. Do you understand that? [ 168 ] THE ACCUSED: Yeah. [ 169 ] THE COURT: Thank you. [ 170 ] THE ACCUSED: Yes, yes, thank you. [ 171 ] THE COURT: Thank you. All right, with respect to the victim fine surcharges, given Mr. Harvey's financial circumstances, it is my intention to waive all the applicable victim fine surcharges.

Any issue with that, Mr. Thomson? [ 172 ] CNSL L. THOMSON: Crown takes no position, Your Honour. [ 173 ] THE COURT: Okay, and with respect to the Count 1 on the information relating to the break and enter, the [omitted for publication] address, Count 1, that is break and enter the dwelling at that location, you are inviting the court to direct a judicial stay based on the principles in R. v. Kienapple , is that correct? [ 174 ] CNSL L. THOMSON: That is correct, Your Honour. [ 175 ] THE COURT: Okay.

Are there any other matters that we need to deal with, with respect to this matter, as far as Crown is concerned, other than making the requested Ancillary Orders at this time? [ 176 ] CNSL L. THOMSON: No, not as far as Crown is concerned. [ 177 ] THE COURT: All right. Ms. Hunt, thank you for your input into this. Is there anything I should need to deal with? [ 178 ] CNSL C. HUNT: I don't think so, thank you very much. [ 179 ] THE COURT: All right. Mr.

Harvey, any last words you want to say to me? [ 180 ] THE ACCUSED: No, I don't think so, Your Honour. [ 181 ] THE COURT: Okay. [ 182 ] THE ACCUSED: Thank you. [ 183 ] THE CLERK: Can I just confirm that the signature can be waived on the documents?

[ 184 ] THE COURT: I am sorry? [ 185 ] THE CLERK: Can I just confirm that the signature can be waived -- [ 186 ] THE COURT: Yes, I was just about ready to say that. [ 187 ] THE CLERK: Thank you, Your Honour. [ 188 ] THE COURT: Based on what Mr. Harvey has said to me in court, I am prepared to waive his signature with respect to the signing any of the documents relating to his probation order or any other documents relating to his sentence. [ 189 ] All right, anything further? I believe that -- [ 190 ] CNSL L. THOMSON: No, Your Honour. [ 191 ] THE COURT: I believe that concludes all matters. Again, Mr. Harvey, very good luck to you. (JUDGMENT CONCLUDED)