R. v. Simmons, 2018 BCPC 62

Citation: R. v. Simmons 2018 BCPC 62 Date: 20180119 File No: 44496-C-2 Registry: Princeton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ODELLE MONIQUE SIMMONS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. DANELIUK Counsel for the Crown: J.M. O'Quinn Counsel for the Defendant: T.A. Duerr Place of Hearing: Penticton , B.C. Date of Hearing: October 10, 2017 Date of Sentence: January 19, 2018

I. INTRODUCTION [ 1 ] On October 10, 2017, Mrs. Simmons appeared before the Court in Penticton and entered a guilty plea to one count of forgery, pursuant to s. 367 (

a) of the Criminal Code, R.S.C. 1985, c. C-46. Sentencing submissions were received from counsel on that date, and the matter was ultimately adjourned to January 19, 2018 in Princeton for the decision on the appropriate sentence in this matter. These are the reasons for sentence. [ 2 ] Mrs. Simmons acknowledged that she committed the offence of forgery by executing an approximation of her husband’s signature on his unsigned will in the days immediately following his death, in the presence of two witnesses.

The will was subsequently provided to a lawyer who relied upon it as a legitimate document. [ 3 ] Crown counsel recommended that the Court impose a sentence of 90 days’ incarceration to be followed by 18 months’ probation. Defence counsel urged upon the Court the imposition of a 3 month conditional sentence order, followed by 9 months’ probation. A conditional sentence is a jail sentence, but is served in the community by imposing significant meaningful restrictions on the offender’s liberty.

If the offender breaches a term of the conditional sentence, a judge can order the offender to serve a portion or all of the remaining sentence, in custody. [ 4 ] Pursuant to

section 742.1 a conditional sentence can only be imposed if:

a) there is no minimum term of imprisonment set for the offence;

b) the offence is not an offence prosecuted by way of indictment for which the maximum term of imprisonment is 14 years or life;

c) the proposed sentence is less than two years (this refers to new time and pre-sentence custody added together);

d) the court is satisfied that serving the sentence in the community would not endanger the safety of the community; and

e) the court is satisfied that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. [ 5 ] As the Crown proceeded by indictment in this matter, pursuant to s. 367 (a), the maximum penalty for this offence is 10 years’ incarceration, and there is no mandatory minimum sentence. Accordingly, the Court is not precluded from imposing a conditional sentence, should it be deemed a just and appropriate disposition. II.

CIRCUMSTANCES OF THE OFFENCE [ 6 ] The following outline of the facts in this case are taken from the Agreed Statement of Facts, marked as exhibit 2 in these proceedings, and the further submissions of counsel. [ 7 ] In approximately 2006, Odelle Simmons (nee Littlejohn) met and commenced a common-law relationship with Murray Simmons. The couple were married on August 26, 2008. Prior to their marriage, on June 3, 2007, a will was drafted for Murray Simmons, which the Court has been told was the mirror image of a will drafted on behalf of Odelle Simmons.

It was accepted by Crown counsel that the couple had planned to have both wills properly executed after they were married, however, both being in good health, they neglected to do so. Over time, the wills were essentially forgotten. [ 8 ] On July 29, 2012, Mr. Simmons died unexpectedly, after suffering a heart attack while on a hike with a friend, scouting hunting locations. In the days following the death of Mr. Simmons, his wife, his sister Kathy Cranston, and Mrs. Simmons’ mother were together going through his belongings when a copy of the unsigned will was found in his filing cabinet. Mrs.

Simmons made a decision to forge her deceased husband’s signature on the will, and she attended at the home of Ms. Cranston one or two days later for that purpose. Present and serving as witnesses to the false signature were Mrs. Simmons’ mother, and Mr. Simmons’ sister, Ms. Cranston. It has been acknowledged by Crown counsel that this was a relatively unsophisticated act in which Mrs. Simmons placed an approximation of Mr. Simmons’ signature on the will, without any practice such as might otherwise have been expected if one was making conscious efforts to avoid detection. [ 9 ] The will executed by Mrs.

Simmons gave her the authority to dispense of Mr. Simmons’ estate as she saw fit. The stated motivation for her actions, as accepted by Crown counsel, was to assist in expediting the handling of Mr. Simmons’ estate. At some point the forged document was provided to a lawyer by Mrs. Simmons, who then acted on the will as though it was a legitimate document. [ 10 ] At the time of Mr. Simmons’ death, he had two adult children; a son and a daughter. It is evident from these court proceedings that the relationship between Mrs.

Simmons and her husband’s children became highly acrimonious shortly after their father’s death, and unfortunately, appears to have remained in that state, at least until the date of the sentencing hearing. The Court has been advised that Mr. Simmons’ children retained counsel, and over the ensuing two years protracted legal proceedings occurred in relation to the administration of Mr. Simmons’ estate. Sometime in the late winter or early spring of 2015, approximately 2 ½ years after Mr. Simmons’ death, counsel for Mrs.

Simmons (not counsel in this matter) gave his children a copy of the will which lead to questions about its authenticity, after they noted discrepancies between the signature on the document and what they knew to be that of their father. It was in this manner that Mrs. Simmons’ offence first came to light. [ 11 ] Mrs. Simmons was contacted by the RCMP in April of 2015 about this matter and voluntarily attended for an interview, during which she confessed to committing the offence. Ms. Cranston was also interviewed by the RCMP and provided a statement about what had occurred, witnessing the signature of Mrs.

Simmons as though it were that of her brother, the deceased. [ 12 ] It has been submitted on behalf of Mrs. Simmons that at the time of forging her deceased husband’s signature, she was suffering

from the shock of Mr. Simmons’ unexpected death, and that the offence was committed in the context of someone exercising very poor judgment while dealing with grief over her loss. To further compound her emotional distress, the Court was advised that Mrs. Simmons’ mother died a short time later under what has been described by counsel as tragic circumstances, and accordingly, Mrs. Simmons was dealing with profound loss during this time in her life. [ 13 ] It is agreed upon between counsel that Mrs.

Simmons did not derive any real financial benefit from her actions, as the items in the estate covered by the will were modest and the estate carried considerable debt. The most significant assets of the estate - a home held in joint tenancy, a life insurance policy, and a pension - were all matters outside of the scope of the will itself. If Mrs. Simmons had not undertaken the forgery of her deceased husband’s will, he would have been considered in law to have died intestate.

It is further agreed upon by counsel that as a result of operation of provincial legislation governing distribution of estates of those who die intestate, she would have been in the same position as that resulting from reliance on the forged will, had she elected not to do so. III. VICTIM IMPACT [ 14 ] Deanna Deleurme and Clayton Simmons - adult children of Mr. Simmons - both prepared victim impact statements which were filed by agreement and read into the record by the Victims during the sentencing hearing.

However, concern was expressed by counsel that both statements contained irrelevant, prejudicial, and /or unreliable content, which should not be considered by the Court.

Subsequent to the sentencing hearing, edited copies of these victim impact statements were filed by consent, and marked as an exhibit in these proceedings. [ 15 ] In considering the impact of this offence on the Victims, it is not readily apparent the extent to which the issues they are dealing with have resulted from the grief they have suffered due to the sudden death of their father, as distinct from the effects experienced as a result of the actions of Mrs. Simmons. However, what can be stated is that at a minimum, both children suffered significant emotional distress as a result of the actions of Mrs.

Simmons. The relationship that was in existence between Ms. Deleurme and Mrs. Simmons prior to July 29, 2012 has been irrevocably broken, as has Ms. Deleurme’s sense of trust in family members. She has experienced great loss and stated that she is left struggling with depression and difficulties with sleep. Mr. Simmons’ son also remarked on his difficulties coming to terms with what has occurred, and expressed the lasting negative effects of this matter which he was continuing to experience at the time of the sentencing hearing. IV. CIRCUMSTANCES OF THE OFFENDER [ 16 ] Mrs. Simmons is 48 years old.

She is the mother of 3 daughters, two of whom are young adults and one who is currently 13 years old. Apparently the relationship that Mrs. Simmons had with the father of her youngest child was extremely abusive, and neither she nor her daughter has had any communication with that individual since the end of her relationship with him. Accordingly, she is solely responsible for this child, a fact emphasized by her counsel’s characterization of her full-time job as that of the care of this child. [ 17 ] Mrs.

Simmons has a prior criminal record, consisting of one conviction for theft under $ 5,000, pursuant to s. 334 (

b) of the Criminal Code . The conviction arose from an offence committed in 2002 and entered in 2004. The offence is one of dishonesty, involving theft from an employer. For this matter, she received a 4 month conditional sentence, probation for one year and an order for restitution in the amount of approximately $4,200.00. [ 18 ] According to the many letters filed on behalf of Mrs. Simmons, she enjoys the support of her extended family, comprised of her parents, two adult children and their father, and several aunts and uncles.

As well, she has a new partner who has been present throughout court proceedings, demonstrating his support for her. These individuals speak of someone who they know to be an exceptional mother, sincere and compassionate, with a strong sense of family. They are steadfast in their support of Mrs. Simmons, in the face of this conviction. [ 19 ] As well, multiple reference letters were provided by a broad cross-section of members of the community of Princeton who have known Mrs. Simmons since prior to the commission of this offence.

In these letters, adjectives such as “compassionate”, “reliable”, “generous”, “supportive”, “dedicated”, and “hardworking” have been used to describe her character. Mrs. Simmons has also been described as a valued and highly engaged member of the Living Water Foursquare Church by the Pastor and members of the congregation. Of some importance, it should be noted that it is evident from the content of all of the letters that these people were aware of her guilty plea, and the purpose for which the letters were being created.

However, it must also be noted that the Court is concerned about the extent to which some of these individuals may have been unaware of her prior criminal conviction, in light of the number of people who refer to Mrs. Simmons in their letters as an honest individual of prior good character. V. AGGRAVATING AND MITIGATING FACTORS Aggravating Factors: 1) Criminal Record [ 20 ] As noted immediately above, Mrs. Simmons has a prior conviction for an offence of dishonesty. The conviction is for a theft committed against a former employer in 2002 and entered in 2004. At that time Mrs.

Simmons received the benefit of a conditional sentence of 4 months, to be followed by one year of probation together with a restitution order in the amount of approximately $4,200.00. [ 21 ] To the extent that the prior conviction relates to an offence of dishonesty, it is directly relevant to the case at bar. However, Crown counsel conceded that the conviction is very dated and that there has been a significant passage of time between the commission of the initial offence and the offence before the Court today, and accordingly, this considerable gap in her criminal record is acknowledged by the Court.

As well, in mitigation for the conviction as recorded, the Court was advised that Mrs. Simmons was involved in a highly abusive relationship at the time that the 2002 offence was committed. 2) Recruitment of Others

[22] As a result of the commission of this offence, both the mother of Mrs. Simmons and Ms. Cranston, the sister of the deceased,were implicated in the criminal conduct at issue, as they both were complicit in bearing false witness to the purported signature of Mr.Simmons, which was actually that of Mrs. Simmons. Shortly after locating the unsigned will, all three convened at the home of Ms.Cranston for the purpose of falsely executing the document. Although, as noted previously, the Court was advised that Mrs.

Simmons’mother was deceased shortly after the events that give rise to these matters, the Court was also told that Ms. Cranston gave a statement tothe RCMP in relation to this matter and therefore concludes that she necessarily became involved with the authorities as a result of thisinvestigation, whether as a subject of the investigation herself or as a witness. 3) Prolonged perpetration [23] The Court is mindful of the fact that the elements of the offence in question were satisfied at the time that the false signature byMrs.

Simmons had been recorded on the will and the witnesses had attested to this signature. However, it is also the case that once thishad occurred, Mrs. Simmons provided the will to a lawyer, and allowed the document to be dealt with as though a lawful, genuinedocument over a considerable period of time. The false nature of the signature, purported to have been that of Mr. Simmons, did notcome to light until questioned by his children upon viewing it more than 2 years later.

Although counsel have been vague with the datesof this occurring, the Court concludes that it was approximately 32 months after the date of the death of Mr. Simmons that police werealerted to this issue and contacted Mrs. Simmons, in April of 2015. 4) Element of breach of trust [24] A high value is placed upon the nature of the relationship between a lawyer and their client in our society. The sanctity of thesolicitor - client relationship is a cornerstone of our legal system.

The privilege which attaches to communications conducted in thecourse of that relationship enjoys the most stringent protection of any professional relationship, exceeding that of priest and penitent andeven that of doctor and patient. The virtually inviolable nature of the solicitor - client relationship is meant in part to facilitate full, frankexchange of information between counsel and their client. This, in turn, is achieved through trust between counsel and the client, andthat trust is dependent, amongst other things, upon honesty.

In allowing counsel to act upon the will as though it was a lawful instrumentbetween 2012 and the spring of 2015, Mrs. Simmons betrayed the trust placed in her by counsel, something important to fostering asuccessful relationship between a lawyer and client. [25] It should be noted that the Court is not considering this factor to be a statutorily mandated aggravating factor, pursuant to s.718.2(a)(iii).

However, a consideration of the context in which the offence occurred, and was to some extent ongoing over a course oftime in excess of two years is appropriately considered by the Court in determining a just and appropriate sentence. Mitigating Factors 1) Guilty Plea [26] The guilty plea offered by Mrs. Simmons stands as a recognition by her of her wrong-doing, and acceptance of responsibility forher actions.

Although the offence was alleged to have occurred between July 29 and August 22, 2012, it is accepted that this is not a so- called “11th hour” guilty plea, entered only when the prospect of conviction looms large. The Crown has strenuously emphasized insubmissions that there is real value to the guilty plea in the circumstances of this case which cannot be understated, and that the guiltyplea is entitled to considerable weight as the prosecution faced substantial difficulty in meeting its burden of proof for the offencescharged.

In particular, Crown cited considerable evidentiary hurdles related to the admissibility of statements, and the issue of deceasedwitnesses. These comments were echoed by counsel on behalf of Mrs. Simmons. [27] Moreover, the Court accepts the submission of counsel for Mrs. Simmons that the guilty plea was entered at the earliestopportunity, and that the expressed intention of Mrs. Simmons has remained consistent in this regard.

Although the guilty plea was notentered until October 2017, it is recognized that the information alleging the offence in question was only sworn in May 2017, and it isaccepted that the date of plea in this case of was occasioned by the time requirements necessary for review of voluminous disclosure andnegotiations between counsel. 2) Remorse [28] Apart from the guilty plea entered in this case, Mrs. Simmons has expressly articulated her remorse when addressing the Courtat the sentencing hearing in this matter.

Notably, she recognized the hurt which her actions have brought to others, which shows insighton her part as to her wrongdoing and the harm caused, and she offered an apology to those affected by her actions. [29] Many of the letters of support offered on behalf of Mrs. Simmons make specific mention of the fact that she had confessed hercrime to the authors of those letters, and expressed her remorse to these people as well. [30] Also, Mrs.

Simmons was cooperative with authorities when she was first contacted about the offence, and it has been acceptedthat she voluntarily attended at an interview with RCMP and provided a confession to her criminal conduct. 3) Prospects for Rehabilitation [31] Mrs. Simmons forged her husband’s signature in 2012, more than 62 months prior to entering the guilty plea to the offencebefore the Court. Since the commission of the offence, the Court has no information to suggest that Mrs. Simmons has not beenotherwise conducting herself as a productive and contributing member of society. [32] Mrs.

Simmons has strong support from her immediate family. Her parents, 2 adult daughters, and multiple aunts and uncleshave all offered letters to the Court confirming this fact. She also bears sole responsibility for the care of her 13 year old daughter, whichhas been characterized by her counsel as “her full-time job”. The ability to draw on the strength and support of family bodes well forMrs. Simmons’ prospects for full rehabilitation. However, the Court is mindful of the comments of Mr. Justice Doherty in the case of R.v. Spencer, (OCA) at para. 47, as follows:

The fact that Ms. Spencer has three children and plays a very positive and essential role in their lives cannot diminish the seriousness ofher crime or detract from the need to impose a sentence that adequately denounces her conduct and hopefully deters others fromcommitting the same crime. Nor does it reduce her personal culpability. It must, however, be acknowledged that in the long-term, thesafety and security of the community is best served by preserving the family unit the furthest extent possible.

In my view, in thesecircumstances, those concerns demonstrate the wisdom of the restraint principle in determining the length of a prison term and the needto tailor that term to preserve the family as much as possible. [33] As previously mentioned, marked as an exhibit in these proceedings are a number of letters of support for Mrs. Simmons,authored in large part by members of the community in which the offence occurred. It is obvious from the content of the letters that theauthors were aware of the criminal conduct committed by Mrs. Simmons, and yet they remained steadfast in their support.

She has beendescribed as “generous”, “reliable”, “compassionate”, “hard-working”, “kind”, “caring”, “sincere” and an “exceptional” and “dedicated”mother, amongst other things. [34] The support of her family and community will undoubtedly be of great assistance to Mrs. Simmons and serve as inspiration forcontinuing on the path she has been traveling for the past several years which includes leading a pro-social, and crime-free lifestyle. 4) Mental Illness [35] The defence has submitted that the offence in question was committed in circumstances in which Mrs.

Simmons was sufferingextreme emotional distress akin to a mental illness, due to the sudden death of her husband. This assertion has not been challenged byCrown counsel. [36] As authority for the further proposition that mental illness can serve as a mitigating factor which may result in imposition of anon-custodial disposition for an offence of dishonesty, the case of R. v. Fayemi 2009 BCPC 123 , 2009 BCPC 0123 has beenprovided to the Court.

Within Fayemi, (supra) Judge Howard cites a variety of cases in which offenders suffering from mental illness atthe time of commission of their offences received non-custodial dispositions. [37] This Court accepts the proposition that mental illness which is demonstrated to be linked to the commission of an offence maybe viewed as a mitigating factor, particularly where an offender has made efforts at receiving the appropriate treatment prior tosentencing. [38] However, an important aspect of those cases, not present in the case at bar, bears noting.

In Fayemi (supra) and the myriad ofcases cited within that decision, the offenders were suffering from a diagnosed mental illness which, by the time of sentencing, had beenameliorated due to medication and other appropriate medical and psychological or psychiatric treatment and intervention. That is not thesituation in the case at bar. [39] Part of the rationale for consideration being afforded to mentally ill offenders must lay in the recognition that the offender’smoral blameworthiness is reduced due to the medical condition from which the offender suffered at the time of commission of theoffence.

In many cases, where it can be said that but for the existence of mental illness the offence would not have occurred, aconsideration of the principle of rehabilitation moves to the forefront, with a corresponding reduction in the weight to be placed ondeterrence and denunciation. [40] While there is no question that Mrs. Simmons must have experienced significant emotional distress as a result of the death ofher husband, the Court is unable to equate it to a mental illness. In this regard it is worth recalling that more than 2 years after the deathof Mr. Simmons, Mrs.

Simmons was still allowing others to operate on the basis that the will was a valid legal document and it was notuntil Mr. Simmons’ children reported the discrepancy in his purported signature that the forgery came to light. [41] Nevertheless, the Court certainly does recognize and take into consideration the very unfortunate personal circumstances whichbefell Mrs. Simmons both immediately prior to and following the commission of the offence, and the impact that her state of emotionaldistress would have had on her ability to exercise good judgment. VI.

PRINCIPLES AND OBJECTIVES OF SENTENCING [42] The fundamental purpose of sentencing is to protect society and contribute to respect for the law and maintenance of a just,peaceful and safe society, as outlined in s. 718 of the Criminal Code. [43] According to the Supreme Court of Canda in R. v.

Nasogaluak, 2010 SCC 6, this is accomplished by imposing “just sanctions”that reflect one or more of the traditional sentencing objectives of denunciation, deterrence, separation of offenders from society wherenecessary to ensure protection of the public, rehabilitation, reparation, and promoting a sense of responsibility in offenders, all of whichis contained within s. 718(a)-(f), of the Criminal Code. [44] However, it must also be noted that whatever weight a judge may assign to these sentencing objectives in any particular case,the resulting sentence must respect the fundamental principle of sentencing contained within s. 718.1, which is that of proportionality.

The principle of proportionality requires that sentences must be proportionate to both the gravity of the offence and the degree ofresponsibility (moral blameworthiness) of the offender. [45] Moral blameworthiness is assessed by considering all of the circumstances surrounding the offence, which includes the mentalstate or condition of the offender, and imparts a focus on the notion of fault - R. v. Stone, (SCC), [1999] 2 S.C.R. 290,para. 234. VII.

SENTENCING RANGE [46] Unfortunately, counsel were not able to provide the Court with authorities that would demonstrate the range for cases with factssimilar to those in this matter, where the subject of the forgery was a testamentary instrument.

[47] The following cases were provided to the Court by Crown counsel: R. v. Shankar, 2012 BCPC 5 R. v. Chand, 2011 BCPC 256 R. v. Kassam, 2017 ONSC 74 R. v. Roberts, (NLPC) [48] The following cases were provided to the Court by Defence counsel: R. v. Shankar, 2012 BCPC 5 R. v. Dennis, 2013 BCCA 153 R. v. Fayemi, 2009 BCPC 123 , 2009 BCPC 0123 R. v. Nelson, 2015 BCSC 444 R. v. Whitten, 2012 ONSC 4151 [49] I have considered each of the cases provided to the Court, and will not review all of them here.

The circumstances of many ofthe cases presented, as well as the multiplicity of cases cited within, related to the offences of uttering forged documents and/or fraud. [50] What is evident upon a review of the jurisprudence is that the primary considerations in sentencing offenders for offences ofdishonesty are denunciation and deterrence, both general and specific. [51] Of particular assistance to the Court was the case of R. v.

Shankar, 2012 BCPC 5, a decision of Judge Giardini replied upon byboth counsel, in which the offender was convicted of attempting to induce ICBC to rely upon a forged document falsely setting out hisincome, in order to settle a legitimate claim arising from a motor vehicle accident. Mr. Shankar was 51 years old, married with 2children, employed, and of previous good character, without a prior criminal history. He received a 10 month conditional sentenceorder.

However, it should be noted that the most strongly mitigating factor to the credit of Mrs Simmons, that of the guilty plea, was notpresent in Shankar, who was an offender convicted after trial. [52] As well, the case of R. v. Kassam, 2017 ONSC 74, bears reviewing. In that case the offender was convicted following a jurytrial of two counts of fraud and uttering a forged document, the latter offence committed when he negotiated a cheque with a forgedsignature drawn on his employer’s trust account in the amount of $6,000.00. Mr.

Kassam received a global sentence of three years’incarceration, which included one year concurrent for the forged document. However, he had a lengthy related criminal record foroffences of dishonesty, there were several victims that suffered actual deprivation due to his conduct, which was referred to by the trialjudge as relatively sophisticated and long-term in nature. As counsel for Mrs. Simmons in this case fairly noted, Mr.

Kassam couldproperly be considered to have been a scourge on the legal community in Ontario. [53] In addressing the range of appropriate sentence for this matter, what appears clear from the authorities provided is that the rangeof sentence for offences of dishonesty, including in particular uttering forged documents and fraud, is broad, commencing at the low endin exceptional circumstances with discharges up to and including significant periods of incarceration for large scale frauds. [54] As noted by Boswell J. in Kassam (supra) at para 31: “It is important to recognize that sentencing is an individualized exercise.

There is no “one size fits all” sentence. Trial judges haveconsiderable discretion in fashioning sentences. As former Chief Justice Lamer stated in R. v. M (CA) “sentencing is an inherentlyindividualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be afruitless exercise of academic abstraction”. What is vitally important, in each case, is to assess the gravity of the offence and the moralblameworthiness of the offender.” VIII.

CONCLUSION [55] It is evident from the comments of his children and the attention and interest that this matter has attracted that Mr. Simmonswas a highly valued member of this community, much loved by his family and friends, and that the events surrounding his unexpecteddeath continue to cause distress for many individuals.

However, it should be noted that the role of this Court is to sentence Mrs.Simmons for the offence to which she has entered a guilty plea - that of forging her deceased husband’s signature after his death on a willthat he had drafted some years earlier. [56] The will in question has been accepted by Crown counsel as a document that mirrored that of the will of Mrs. Simmons, andtherefore by implication has been accepted as a document that expressed the wishes of Mr. Simmons at the time of his death. It is ironicthat in attempting to improve the situation and expedite the administration of the estate, Mrs.

Simmons is actually far worse off as aresult of her conduct than she would have been had she taken no action and accepted that Mr. Simmons died intestate, as she gainednothing from her deceit, and in fact would have been in a comparable position with respect to his estate had she not committed theoffence. [57] In recognition of the circumstances of the offence, the personal antecedents of Mrs. Simmons, the applicable aggravating andmitigating factors, the relevant principles of sentencing, the case law provided by counsel, and Mrs.

Simmons’ prior criminal history, theappropriate disposition in this case is a period of incarceration of 6 months. The Court is satisfied that the serving of this sentence in thecommunity would not endanger the community, and furthermore would be consistent with the fundamental purpose and principles ofsentencing.

[ 58 ] Accordingly, there will be a 6 month conditional sentence imposed against Mrs. Simmons. The terms of the conditional sentence are as follows: Condition 1: Keep the peace and be of good behaviour. Condition 2: Appear before the Court when required to do so by the Court. Condition 3: You must report in person to the conditional sentence supervisor at 105 Martin Street, Penticton, BC by 3:00 PM on Monday January 22, 2018, and after that, you must report as directed by the conditional sentence supervisor in the manner and at such dates and times as directed.

Condition 4: Remain within the Province of British Columbia, unless written permission to go outside of the province is obtained from the Court or the Supervisor. Condition 5: You must notify the court or your conditional sentence supervisor 3 days in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation. Condition 6: When first reporting to the conditional sentence supervisor, you must inform him or her of your residential address and phone number.

You must not change your residence or phone number without written permission from your conditional sentence supervisor. Condition 7: Fort the first 3 months of this order, you must remain in your residence, 24 hours a day, 7 days a week. You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends at your residence or calls to check your compliance with the house arrest condition of this order.

You may be away from your residence during the house arrest hours with the written permission of your conditional sentence supervisor. Such permission is to be given only for compelling reasons. You must carry the written permission when you are outside your residence during the house arrest hours. You may also be away from your residence during the house arrest hours:

a) In the event of a medical emergency for yourself or your daughter that resides with you, and then only while at a health care facility, or when travelling directly to, or returning directly from the facility. If requested, you must provide your conditional sentence supervisor with written confirmation that you went to the facility, signed by a representative of the health care facility to which you went.

b) the house arrest portion of this disposition shall commence immediately upon your arrival home at your residence following the court proceedings today, January 19, 2018. Condition 8: For the last 3 months of this order you shall obey a curfew by being inside of your residence between the hours of 7:00 p.m. and 7:00 a.m. 7 days per week. You must present yourself immediately at the door to your residence or calls to check your compliance with the curfew condition of this order. You may be away from your residence during the curfew hours with the written permission of your conditional sentence supervisor.

Such permission is to be given only for compelling reasons. You must carry the written permission when you are outside your residence during the house arrest hours. You may also be away from your residence during the house arrest hours:

a) In the event of a medical emergency for yourself or your daughter that resides with you, and then only while at a health care facility, or when travelling directly to, or returning directly from the facility. If requested, you must provide your conditional sentence supervisor with written confirmation that you went to the facility, signed by a representative of the health care facility to which you went.

Condition 9: When you first report to your conditional sentence supervisor, you must tell the supervisor the names of all permanent and temporary occupants of your residence and immediately advise him or her of any change to the occupants at your residence. Condition 10: You must carry a copy of this order and any written permission from your conditional sentence supervisor with you at all times when you are outside your residence.

If a peace officer stops you for any reason, you must immediately provide the peace officer with a copy of this order and written permission without being requested to do so or also upon the request of a peace officer. Condition 11: You must not possess or consume, alcohol, drugs or any other intoxicating substance except in accordance with a medical prescription.

Condition 12: You must attend, participate in and successfully complete any intake, assessment, counselling or program that may be directed by the conditional sentence supervisor. [ 59 ] The prosecution has also sought a period of 18 months’ probation in this case, however, the only condition sought beyond those that are mandatory is a requirement that Mrs.

Simmons inform all prospective employers of this conviction, for the duration of the probation order. [ 60 ] Probation orders when coupled with a period of incarceration, albeit community based as has been ordered here, are intended to be primarily rehabilitative in nature and assist the offender in being successful with the rehabilitative process, rather than be strictly punitive. It is not evident to the Court that there are any conditions that should be imposed on Mrs.

Simmons which would serve a rehabilitative purpose, given the lengthy passage of time since commission of the offence during which no further offences have occurred, as well as the lack of identification of any issues which should be addressed by a condition requiring Mrs. Simmons to participate in assessment, treatment, or counselling, on a lengthy and ongoing basis. Accordingly, the Court declines to impose a period of probation in the circumstances. [ 61 ] Crown has also sought an order that Mrs. Simmons provide a sample of her DNA for inclusion in the national databank, pursuant to s. 487.051(3).

This offence is a secondary designated offence and accordingly, the Court has discretion to decline to impose the order where it would not be in the best interests of the administration of justice to do so. Having considered Mrs. Simmons prior

limited and dated criminal history, the nature of the offence, the circumstances surrounding its commission, and the impact that such an order would have upon Mrs. Simmons’ privacy and security of her person, it is determined that it would not be in the best interests of the administration of justice to make the order sought by Crown counsel, and accordingly, declines to do so. [ 62 ] Finally, there will be assessed a victims of crime surcharge in the amount of $200, with the statutorily mandated time for payment to apply. _______________________ The Honourable M. Daneliuk Provincial Court Judge