R. v. Nicholas, 2019 BCPC 288

Citation: R. v. Nicholas 2019 BCPC 288 Date: 20191126 File Nos: 24984-1-K, 25284-1 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MELISSA SUE NICHOLAS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: L. Feinberg Counsel for the Defendant: L. Locke, Q.C. Place of Hearing: Smithers , B.C. Date of Hearing: November 22, 2019 Date of Judgment: November 26, 2019 INTRODUCTION

[ 1 ] Melissa Sue Nicholas is before the court today after entering guilty pleas to two charges of assault. Under Information 24984- 1-K, Ms. Nicholas is charged with assaulting W.H.H. on October 17, 2017. Under Information 25284-1, she is charged with assaulting Laura Alex on February 17, 2019. [ 2 ] The Crown seeks a sentence of 100 days jail, 12 months’ probation and various ancillary orders. Taking into account her entitlement to enhanced credit for time spent in presentence custody, Ms. Nicholas would have 92 days left to serve on a jail sentence.

The defence seeks a four month conditional sentence order and does not oppose the probation and ancillary orders. ISSUE [ 3 ] The salient issue to be determined at this sentencing hearing is whether Ms. Nicholas should be sentenced to real jail or to serve a conditional sentence in the community. HISTORY OF THE PROCEEDING [ 4 ] On May 14, 2019, Ms. Nicholas entered guilty pleas on two counts of assault on Informations 24984-1-K and 25284-1. At that time, Judge Jackson ordered a Presentence Report from Community Corrections with a Gladue component. The matter came before me for sentencing on November 22, 2019.

I heard submissions of counsel, received information from two of Ms. Nicholas’s support persons, Darlene Helkenberg and Amy Stokes, and Ms. Nicholas herself. I also received into evidence the following exhibits: Exhibit 1: Presentence Report of Probation Officer Heather Canuel dated June 26, 2019; and Exhibit 2: Justin Conviction List of Melissa Sue Nicholas, dated September 26, 2019. [ 5 ] At the conclusion of the sentencing hearing I reserved my decision. These are my reasons for sentence. CIRCUMSTANCES OF OFFENCES Information 24984-1-K [ 6 ] Information 24984-1-K charges Ms.

Nicholas with assaulting W.H.H., who was the former intimate partner of Robert Aaron Nicholas, who in turn, is Melissa Nicholas’s brother. Robert Aaron Nicholas was also a co-accused on this matter. [ 7 ] In the afternoon of October 18, 2017, W.H.H. was at the home of Fred Patrick Sr. at [omitted for publication] Avenue, Smithers, BC. W.H.H. was drinking with Fred Patrick Jr. She fell asleep and woke up to Melissa Nicholas punching her in the face. W.H.H. says when she tried to resist, Robert Nicholas held her down. Ms. Nicholas says this was untrue, she didn’t need her brother’s help in fighting W.H.H.

W.H.H. says Ms. Nicholas punched her four or five times in the face, which Ms. Nicholas does not deny. The assault stopped when Fred Patrick Jr. walked into the room. W.H.H. was able to flee and call her sister to take her to the hospital. W.H.H. was treated at the emergency ward of the BV District Hospital. She suffered bruising and pain. [ 8 ] The following day W.H.H. gave a statement to the police. She believed the assault was motivated by an upcoming court date on October 30, 2017, where she was scheduled to testify against Robert Nicholas for domestic assault.

The Crown confirmed there was a trial scheduled on October 30, 2017, which W.H.H. did not attend. The trial had to be adjourned as a result. Although Mr. Nicholas eventually pled guilty to the offence to be tried on October 30, 2017, the Crown submits this is an aggravating factor in the commission of the offence. [ 9 ] Information 24984-1-K was sworn on March 9, 2018. Ms. Nicholas was arrested and released on a Promise to Appear and an Undertaking to a Peace Officer on March 16, 2018. [ 10 ] Ms. Locke says that Ms. Nicholas has expressed remorse to her about the offences.

In her report, however, PO Canuel states that Ms. Nicholas did not express any remorse for her actions or empathy toward W.H.H. Information 25284-1 [ 11 ] On February 17, 2019, the RCMP were dispatched to the Broadway Shelter in Smithers, BC. When they arrived then found Laura Alex sitting in the shelter lobby. She had blood on her face and a two inch cut on her forehead. She reported she had been sitting at the Legacy Stage at Bovill Square in Smithers, BC. She had been drinking. Melissa Nicholas, who was upset about Laura Alex’s relationship with Fred Patrick Sr., came up to Ms. Alex. Ms. Nicholas punched Ms.

Alex in the face with her fist. An ambulance attended to Ms. Alex and transported her to the hospital. She required multiple stitches to the wounds on her face. This assault was witnessed by Logan Zilkowsky , who provided a statement to the police. Ms. Alex said that a few days later, on February 23, 2019, Ms. Nicholas threatened to beat her up again. At that point Ms. Nicolas was arrested and released on February 24, 2019, on a Promise to Appear and an Undertaking to a Peace Officer. [ 12 ] Although Ms. Alex had expressed friendship and compassion for Ms. Nicholas, Ms.

Nicholas justified the assault to PO Canuel on the basis that Ms. Alex had been talking behind her back. At first, Ms. Nicholas let it go and then assaulted Ms. Alex. PO Canuel states that Ms. Nicholas did not express any remorse for her actions or empathy toward Ms. Alex. [ 13 ] PO Canuel writes, “Ms. Nicholas has a very entrenched attitude toward the concept of street justice.” Amy Stokes, the outreach worker for the Northern Society for Domestic Peace was present at the sentencing hearing and addressed the court. Ms. Stokes said that in her work with Ms.

Nicholas, while the presence of street justice is evident, there are also extensive networks of safety and support. PRESENTENCE REPORT [ 14 ] Ms. Nicholas entered guilty pleas on Count 1 of Information 24984-1-K and on Count 1 on Information 25284-1 on May 14, 2019. The Court ordered a presentence report with a Gladue component (the “PSR”) which Probation Officer Heather Canuel filed with

the Court on June 26, 2019. This PSR provides particulars of Ms. Nicholas personal history and present circumstances. CIRCUMSTANCES OF THE OFFENDER [15] Ms. Nicholas is 41 years old and was born in Smithers, BC. Her father was a violent alcoholic who regularly beat up hermother. Ms. Nicholas, however, says that she was not physically or sexually abused. She admits that rather than been a victim ofviolence, she was generally the bully. [16] Ms. Nicholas has, at best, a Grade 8 education. She did obtain a number of vocational tickets, but those have all expired.

Shehas sporadic employment as a chambermaid and has worked seasonally at PRT Summit Nursery. [17] Melissa Nicholas has five children ranging from 19 to 12 years old. She had her first child when she was 21. None of thechildren reside with Ms. Nicholas. Because of their substance abuse, the Ministry of Children and Family Development removed thechildren from their parents’ care years ago. The three youngest children, B.N., who is 11 years old and in Grade 6, K.N., who is 13 andE.N., now 16, reside with Melissa’s mother, Margaret Nicholas, and have done so for the last two-and one-half years.

They appear to bethriving. One of Melissa Nicholas’s children reside with Cecilia Nicholas, Melissa Nicholas’s grandmother. The eldest child, K.N. is 19years old and lives independently. [18] Melissa Nicholas is an alcoholic, but also abuses other drugs, such as cocaine, methamphetamines and marijuana. Her alcoholaddiction is so entrenched that for the past five years she has lived on the street and couch surfed. PO Canuel states, that Ms. Nicholas isa “chronic alcoholic who can often be seen stumbling around town while intoxicated.” Ms.

Nicholas survives on $235 per month shereceives from social assistance. [19] Ms. Nicholas told the report writer that “she would like to get off the streets, sober up, and get her own place, but says shecannot do that while living in Smithers. She wants nothing to do with Goodacre Place in Smithers and wants to live anywhere butSmithers or Moricetown. Apparently Ms. Nicholas’s application to reside in Goodacre Place was denied. Goodacre Place is a long termliving arrangement where the participants experience a low barrier minimum supervision.

PO Canuel spoke with C.C., the facilitymanager, who says Goodacre Place cannot accommodate Ms. Nicholas because of her history of violence with many of the program’sparticipants. [20] Mr. Nicholas attributes her failure to abstain from drugs and alcohol for any significant length of time to the company she keepsin Smithers. VICTIM IMPACT STATEMENT [21] PO Canuel interviewed Laura Alex for the PSR. Ms. Alex said that during the assault she lost consciousness. Her facial woundsrequired 11 stiches. Ms. Alex has expressed compassion for Ms. Nicholas and only requests Ms.

Nicholas not be around her when Ms.Nicholas has been drinking. She also is scared of Ms. Nicholas when Ms. Nicholas is using methamphetamines. [22] W.H.H. was afraid of Ms. Nicholas and upset by the assault. Yet, W.H.H. is empathetic toward Ms. Nicholas. She said shewanted to see Ms. Nicholas get the help she needs. Nevertheless, W.H.H. is still traumatized by the assault. POSITION OF THE CROWN [23] The Crown proposes a global jail sentence for both assaults of 100 days jail, allocated as 45 days jail for the assault of W.H.H.charged under Information 24984-1-K and 55 days jail for the assault of Ms.

Alex charged under Information 25284-1. Ms. Nicholas wasin pre-sentence custody for five actual days on Information 24984-1-K. She is entitled to enhanced credit at the rate of 1.5 to 1, whichmeans Ms. Nicholas has presentence credit of eight days on Information 24984-1-K, charging her with the assault against W.H.H. As aresult, Ms. Nicholas would have 37 days left to serve on a 45 day jail sentence. The Crown further seeks 12 month’s probation followingthe jail sentence, a discretionary ancillary DNA order, a five year firearms prohibition, and a non-communication order with respect toW.H.H. while Ms.

Nicholas is in custody. [24] The Crown submits the proposed jail sentence is very lenient given there were two assaults, one with a domestic componentand potential interference with a justice system participant. In arriving at the proposed sentence, the Crown has taken into considerationMs. Nicholas’s indigenous heritage and the Supreme Court of Canada’s direction in R. v. Gladue, (SCC) and R. v.Ipeelee, 2012 SCC 13. [25] When Ms. Nicholas entered her guilty pleas to the assaults on May 14, 2019, Ms.

Feinberg indicated to defence counsel theCrown would consider a Conditional Sentence Order if the defence could set up residential treatment for Ms. Nicholas, given her historyof substance abuse. If no residential treatment was set up, the Crown would seek a period of incarceration. [26] Ms. Nicholas was not able to set up residential treatment by the first sentencing date. The sentencing was scheduled for August28, 2019, but that was adjourned by the defence to allow Ms. Nicholas more time to arrange residential treatment. The sentencing wasrescheduled to October 28, 2019, by which time Ms.

Nicholas had still not set up treatment. At that point, Ms. Feinberg told Ms.Nicholas’s counsel the Crown would be seeking a jail sentence as she indicated previously. Upon hearing that information, Ms. Nicholasleft the courtroom and the Court ordered an unendorsed warrant for her arrest. Eventually the RCMP picked Ms. Nicholas up in BurnsLake and released her on bail with the Crown’s consent. [27] The Crown submits that given Ms. Nicholas’s criminal record, which is substantial, and her deeply entrenched substance abuse,anything less than a highly structured residential treatment plan would not succeed.

It is not in the public interest nor Ms. Nicholas’s bestinterest for her to serve a CSO in the community. CRIMINAL RECORD

[28] Ms. Nicholas has a criminal record beginning in 1994. She has four convictions for assault simpliciter, one for aggravatedassault, and one for assaulting a peace officer. She has 21 convictions for breaches of court orders: one for breaching a CSO, 12convictions for breaching bail, and eight for breaching probation. She has a conviction for obstruction of justice and one s. 810 peacebond. Although there are some gaps in her criminal offending, it has been pretty consistent over the years.

Her last conviction was inNovember 2017 for assault and breach of recognizance, for which she was sentenced to 22 days in jail. [29] Ms. Nicholas performance while on community supervision has been poor as indicated by the number of breaches of courtorders. [30] Ms. Nicholas has taken responsibility for her actions, however, as PO Canuel notes, Ms. Nicholas has not demonstrated muchremorse. She justified her actions as disseminating a little street justice and shows no insight into its impact on the victims.

POSITION OF THE CROWN AND DEFENCE ON SENTENCING [31] As indicated above, although the Crown and defence are not far apart on the appropriate sentence in terms of the duration ofjail, probation and ancillary orders, they do not agree whether jail should be real jail or jail in the community. LEGISLATIVE FRAMEWORK [32] Ms. Nicholas is charged summarily with two counts of assault. [33] The maximum jail sentence for a

summary conviction offence not otherwise legislated is set out in s. 787(1) of the CriminalCode: General penalty 787

(1) Unless otherwise provided by law, everyone who is convicted of an offence punishable on

summary conviction is liable to afine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both. PURPOSE AND PRINCIPLES OF SENTENCING [34]

Section 718 of the Criminal Code, sets out the fundamental purpose of sentencing, which is to contribute, along with crimeprevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society, by imposing just sanctions, to haveone or more of the following objectives: (

a) denunciation; (

b) deterrence; (

c) protection of the public; (

d) rehabilitation of the offender;(

e) reparation to victims; and (

f) promotion of a sense of responsibility in the offender. [35]

Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to thegravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. Itincludes two components: (

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

b) the harm or likely harm to society and its values: R. v.Lacasse, 2015 SCC 64 , at para. 130. [36] Other important sentencing considerations are set out in s. 718.2, which states a sentence should be increased or reduced toaccount for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [37]

Section 718.2(

b) codifies the parity principle which holds sentence should be similar to sentences imposed on similar offendersfor similar offences in similar circumstances. In Ipeelee, at para. 79, the Supreme Court held the “parity principle . . . means that anydisparity between sanctions for different offenders needs to be justified.” [38]

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. It may offend thetotality principle if it is substantially above the normal level of a sentence for the most serious of the individual offences involved, or itseffect 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. [39] Sections 718.2(

d) and 718.2(

e) codify the restraint principle which holds an offender should not be deprived of liberty if lessrestrictive principles 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. RANGE OF SENTENCE [40] The Crown submits the appropriate sentences for the offences which Ms. Nicholas has entered guilty pleas are as follows: a. With respect to Count 1, on Information 24984-1-K (assault against W.H.H.), 45 days jail, less 8 days time-served; b.

With respect to Count 1, Information 25284-1 (assault against Laura Alex) 55 days jail, to be served consecutively to the jailsentence imposed on Information 24984-1-K; c. One year probation on both Counts; d. On both Counts, pursuant to s. 487.05(1) of the Code, an order requiring Ms. Nicholas provide a number of samples of bodilysubstances that are reasonably required for the purposes of forensic DNA analysis; and e. On both Counts, pursuant to s. 110 of the Code, an order prohibiting Ms. Nicholas from possessing any of the weapons set outin that subsection for a period of 5 years.

AGGRAVATING AND MITIGATING FACTORS AND COLLATERAL CONSEQUENCES [41] As the sentencing judge, I must consider the gravity of the offences of which Ms. Nicholas was convicted, her degree ofresponsibility in their commission, having regard to her unique individual circumstances. This individualization in sentencing requiresme to consider all aggravating and mitigating circumstances, and the collateral consequences. An aggravating factor, either statutorily orjudicially mandated, will induce a court to impose a longer sentence than otherwise may be imposed.

A mitigating factor will reduce thesentence that might otherwise be imposed. The absence of an aggravating factor does not equate to a mitigating factor or vice versa. TheCrown bears the burden of proving disputed aggravating factors beyond a reasonable doubt; the defence bears the burden of provingdisputed mitigating factors on a balance of probabilities: R. v. Dreger, 2014 BCCA 54, para. 45. MITIGATING FACTORS Sentencing Indigenous Offenders [42] Gladue and Ipeelee, are the governing cases with respect to how s. 718.2(

e) should be applied, and establish the framework forsentencing Indigenous offenders. The judge has a statutory duty imposed by s. 718.2(

e) to consider the unique systemic and backgroundfactors which may have played a

part in bringing the particular offender before the Court and the types of sentencing procedures andsanctions that may be appropriate because of the offender’s particular Indigenous heritage. The offender is not required to establish acausal link between background factors and the commission of the offence before being entitled to have those factors considered by thesentencing judge. Judges may take judicial notice of the broad systemic and background factors affecting Indigenous people generallyand case-specific information from the offender in the presentence reports.

Generally, an offender’s Indigenous heritage is considered aspecial and mitigating factor for sentencing purposes: see Sheck v. Canada (Minister of Justice), 2019 BCCA 364 . [43] Ms. Nicholas is an Indigenous offender. Her mother has ties to the Takla Nation and her father to the Wet-suwet’en Nation. It islikely Ms. Nicholas’s father, Jordan Bazil attended residential school. It seems that Ms. Nicholas has lost or perhaps not developed aconnection with her traditional culture or cultures. In any event the principles relating to sentencing Indigenous offenders as set out in s.718.2 apply. [44] The PSR reveal Ms.

Nicholas as suffering from the systemic factors which the Courts acknowledge have contributed to theoverrepresentation of Indigenous people in prison. Those Gladue factors specific to Ms.

Nicholas include: a. being disconnected from her Indigenous community and culture; b. her father’s likely experience in residential schools; c. domestic abuse in her home when she was very young; d. death of a close family member (sister); e. involvement in the criminal justice system since she was 27 years old; f. impoverished economic and social conditions; g. low educational achievement; h. underemployment and barely substistence living; i. family dislocation and fragmentation; j. intergenerational alcohol abuse; k. her own chronic drug or alcohol abuse; l. removal of her own children by child protection authorites; and m. being both the victim and instigator of domestic violence. [45] Ms.

Nicholas says she was neither abused growing up nor did she experience racism. Nevertheless, Ms. Nicholas currentlysuffers serious social disadvantage arising from her chronic alcohol and drug abuse. I am satisfied that those Gladue factors identifiedabove, both systemic within society and specific to Ms. Nicholas, likely played a role in her criminal behaviour. In my view the Gladuefactors attributable to Ms. Nicholas ought to be taken into account to arrive at an appropriate sentence.

Mental health issues [46] The BC Court of Appeal has recognized that mental health issues can diminish an offender’s culpability where they havecontributed directly or indirectly to the commission of the offence. This is simply the application of the proportionality principle andextends to different categories of mental health issues. Ms. Nicholas is not on any medication nor does she experience any suicidalideation. Ms. Nicholas has not been diagnosed with any mental illness, however does suffer depression when detoxing frommethamphetamines. Addiction issues [47] Ms.

Nicolas began consuming alcohol at a young age. She says her drinking became “hard core” by the time she was 18. Shehas been consuming alcohol or drugs daily now for the past six years. She has little success with her four or five attempts at sobriety.

[48] In R. v. Leslie, 2016 BCCA 213 , para. 34, citing R. v. Pop, 2013 BCCA 160 , the BC Court of Appealconfirmed an offender’s degree of intoxication during the commission of an offence may diminish his or her moral blameworthiness tosome extent. The circumstances of the offences before me, as read in by the Crown, do not indicate Ms. Nicholas’s level of intoxicationat the time of their commission. However, Ms. Nicholas asserts her entire involvement in the criminal justice system is linked to hersubstance misuse. [49] The PSR and Ms. Nicholas’ defence team underscore Ms.

Nicholas’ need to overcome her substance abuse. PO Canuel suggeststhat Ms. Nicholas may not have the tools or skills necessary to assist her in maintaining sobriety. PO Canuel also recognizes acontributing factor to Ms. Nicholas’ offending is her penchant for violence to resolve conflict. Her history of violence has rendered herhomeless. [50] In this case, I cannot find Ms. Nicholas’ degree of intoxication during the commission of the offence as mitigating. Specifically,I have no evidence upon which I can conclude that: a. Ms.

Nicholas’ intoxication in the commission of any of the offences before the court was to the level of an alcohol-induceddelirium: R. v. Espinosa Ribadeneira, 2019 NSCA 7 , at para. 79 citing R. v. Hicks, (BC CA) where theoffender stabbed two victims to death while in a in a cocaine-induced psychotic state; b. Ms. Nicholas was acting out of character as the result of severe intoxication: Espinosa Ribadeneira, at para. 79. PO Canuelindicates in the PSR that Ms. Nicholas’s violent behaviour, both sober and intoxicated, has narrowed her options when it comes tosecuring a residence in Smithers; c. Ms.

Nicholas has successfully addressed her alcohol abuse which led to the criminal conduct, or made any concerted attempt todo so: Espinosa Ribadeneira, at para. 79. [51] What is truly mitigating is Ms. Nicholas’ early guilty pleas to the offences: Lacasse. AGGRAVATING FACTORS [52] In this case I find aggravating: a. the degree of harm Ms. Nicholas caused to the victims with her assaults; and b. Ms. Nicholas’ prior criminal record for violent offences. [53] I find neither aggravating nor mitigating, but relevant the fact Ms. Nicholas has expressed no sincere remorse for the offenceagainst W.H.H. and Ms.

Alex. (See: Dreger wherein the BC Court of Appeal held that lack of remorse is not aggravating). CONDITIONAL SENTENCE [54] A conditional sentence is a sentence of imprisonment served in the community under strict conditions. Its purpose is to giveeffect to the principle of restraint in the use of incarceration as a sanction and increase the restorative justice objectives of rehabilitation,reparations to the victim and community, and promotion of a sense of responsibility in the offender and acknowledgment of the harmdone to the victim and the community probation order: R. v. Proulx, 2000 SCC 5 , para. 9. [55]

Section 742.1 sets out five prerequisites for the imposition of a conditional sentence: a. the offender must be convicted of an offence that is not specifically excluded; b. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; c. the court must impose a sentence of imprisonment that is less than two years; d. the safety of the community would not be endangered by the offender serving the sentence in the community; and e.

The conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to718.2. [56] Neither party has an onus of establishing the offender should or should not receive a conditional sentence. Instead, the judgemust take into consideration all of the evidence in order to determine whether it is an appropriate sanction. [57] The sentencing judge must give serious consideration to the imposition of a conditional sentence where the statutory pre-conditions have been met: Proulx; R. v. Lynch, 2015 BCCA 140.

Except for offences specifically excluded, there is no presumption infavour of or against the imposition of a conditional sentence. A conditional sentence, however, must be a real alternative to a jail sentenceand not merely a substitute for community-based sanctions such as fines and probation. [58] In Proulx, the Supreme Court setout a two-stage process for deciding whether to impose a conditional sentence. In the firststage, a judge sentencing an offender for a Criminal Code offence must consider: (

a) whether a suspended sentence or a fine isinappropriate; (

b) the range of sentence is less than two years; and (

c) whether the offence is not excluded by s. 742.1. If thesepreconditions are satisfied, then the judge is required to consider a conditional sentence: R. v. Wells, 2000 SCC 10, para. 27. [59] After a preliminary assessment, I find the stage one factors are satisfied and will now consider whether Ms. Nicholas ought toserve her sentence in the community. At this second stage, I must consider (

a) the safety of the community; and (

b) the fundamentalpurpose and principles of sentencing set out in ss.718 and 718.2.

Does the safety of the community preclude a conditional sentence? [ 60 ] The safety of the community requires me to weigh the risk Ms. Nicholas will reoffend and the gravity of the consequences of reoffending. Ms. Nicholas punched W.H.H. and Ms. Alex repeatedly. This action resulted in the victims having to seek medical treatment. Ms. Alex had to get multiple stitches to her face for the wounds Ms. Nicholas inflicted. W.H.H. is still traumatized.This will be Ms. Nicholas’ fifth and sixth conviction for a violent offence since 2005. [ 61 ] Ms.

Nicholas also has a record for offences against the administration of justice. She has 21 convictions for breaches of court orders; she also has a conviction for resisting or obstructing a peace officer. Although a record for breaching previous court orders may weigh against the imposition of a conditional sentence, it is not an absolute bar. [ 62 ] The Supreme Court of Canada in Proulx , provided the court with guidance on assessing the risk to the community when considering a conditional sentence: [127] . . . The requirement in s. 742.1(

b) that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence, and not the primary consideration in determining whether a conditional sentence is appropriate. In making this determination, the judge should consider the risk posed by the specific offender, not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law.

Two factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re- offence. A consideration of the risk posed by the offender should include the risk of any criminal activity, and not be limited solely to the risk of physical or psychological harm to individuals. [ 63 ] Chief Justice Lamer, in Proulx , states at paras. 72 and 73 [citations omitted]: [72] The risk of re-offence should also be assessed in light of the conditions attached to the sentence.

Where an offender might pose some risk of endangering the safety of the community, it is possible that this risk be reduced to a minimal one by the imposition of appropriate conditions to the sentence . . . Indeed, this is contemplated by s. 742.3(2)(f), which allows the court to include as optional conditions “such other reasonable conditions as the court considers desirable . . . for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences”.

For example, a judge may wish to impose a conditional sentence with a treatment order on an offender with a drug addiction, notwithstanding the fact that the offender has a lengthy criminal record linked to this addiction, provided the judge is confident that there is a good chance of rehabilitation and that the level of supervision will be sufficient to ensure that the offender complies with the sentence. [73] This last point concerning the level of supervision in the community must be underscored.

As the Alberta Court of Appeal stressed in Brady , supra , at para. 135: A conditional sentence drafted in the abstract without knowledge of what actual supervision and institutions and programs are available and suitable for this offender is often worse than tokenism: it is a sham. Hence, the judge must know or be made aware of the supervision available in the community by the supervision officer or by counsel.

If the level of supervision available in the community is not sufficient to ensure safety of the community, the judge should impose a sentence of incarceration. [ 64 ] Counsel says that on November 22, 2019, Ms. Nicholas’s supporters have contacted, Wilp Si’Satxw Community Healing Centre, which I understand to be located in Kitwanga, or Gitwangak, BC, which is a six week program beginning on January 19, 2020. The program facilitators have indicated they would place Ms. Nicholas second on a wait list, should she apply. In other words, at the time of sentencing, Ms. Nicholas had not yet applied.

Amy Stokes, an outreach worker for the Northern Society for Domestic Peace, has agreed to assist Ms. Nicholas with completing the application for admittance in the Wilp Si’Satxw program. [ 65 ] Margaret Nicholas attended her daughter’s sentencing hearing on November 22, 2019. She indicated her grandchildren want their mother back. They want her to go to treatment. Melissa Nicholas has been living with Margaret Nicholas for the past week.

Nevertheless Margaret Nicholas cannot offer her more permanent housing because MCFD might object. [ 66 ] The defence proposes that until such time as she is admitted to the Wilp Si’Satxw program, Ms. Nicholas will reside with Darlene Helkenberg. Ms. Helkenberg works at the Double D-Lux ranch six kilometres west of Moricetown, a.k.a. Witset. Ms. Helkenberg has helped Ms. Nicholas in the past and they have known each other for many years. Ms. Helkenberg is willing to have Ms. Nicholas live with her at the ranch and work with the horses, llamas, and other animals. Ms.

Helkenberg has a large residence and does not allow drugs or alcohol on the premises. She welcomes the fact that there would be regular police check-ups. [ 67 ] Ms. Helkenberg was present at the sentencing hearing. She said for the past ten years, she has worked with an organization that provides animal assisted therapy. She has worked with persons on probation and serving community hours. She has been alcohol free for 30 years. Ms. Nicholas is welcome to reside to Ms. Helkenberg indefinitely. Ms. Helkenberg’s ranch, however, is not a government approved treatment centre. [ 68 ] The Crown has concerns with Ms.

Nicholas’s proposal. The Crown indicated to defence counsel that if there was a serious effort by Ms. Nicholas to set up treatment, a CSO might be appropriate. But no effort was made until the morning of this sentencing hearing. In other words, in it does not appear that Ms. Nicholas has taken any significant steps towards rehabiltation. Do the fundamental purpose and principles of sentencing militate against jail in the community? [ 69 ] The assault offences are serious offences giving prominence to the principles of denunciation and deterrence.

Similarly, general deterrence and denunciation are paramount principles in the imposition of sentences for breaches of court orders. Given Ms. Nicholas’s personal circumstances, her rehabilitation is also important.

ANALYSIS [ 70 ] Taking into consideration Ms. Nicholas’s personal circumstances, including her Indigenous heritage, the circumstances and gravity of the offence, I am satisfied the Crown’s proposed sentence of jail, probation and ancillary orders is appropriate. Issue: Where should Ms. Nicholas serve her jail sentence? [ 71 ] The real point of contention between the Crown and defence is whether Ms. Nicholas ought to serve the jail sentence behind bars or in the community. Ms. Locke indicates there is a treatment facility which Ms.

Nicholas has a good chance of accessing on January 19, 2020, to assist her in her rehabilitative journey. [ 72 ] In support of her position Ms. Nicholas ought to serve her jail sentences in the community, defence counsel points to the stigma to her children of having a mother in jail. Ms. Locke further submits Ms. Nicholas’s opportunity to obtain rehabilitative services in jail is limited. DISPOSITION [ 73 ] I am not confident that Ms. Nicholas will comply with the strict terms of a conditional sentence order and I am not prepared to impose one. Accordingly, I find that Ms.

Nicholas ought to serve her jail sentences in the community. [ 74 ] In my view a fit sentence for Ms. Nicholas is that proposed by the Crown. SENTENCING ORDERS [ 75 ] Melissa Sue Nicholas, a. with respect Information 24984-1-K, Count 1, charging you on October 17, 2017, at or near Smithers, BC with assaulting W.H.H., contrary to

Section 266 of the Criminal Code , I sentence you to 45 days jail, less time served. You have five days in presentence custody which is eight days with enhanced credit. This means you will have 37 days jail left to serve on this matter; and b. with respect Information 25284-1, charging you on February 17, 2019, at or near Smithers, BC with assaulting Laura Alex, contrary to

Section 266 of the Criminal Code , I sentence you to 55 days jail to be served consecutively to the jail sentence I imposed on Information 24984-1-K. [ 76 ] Upon your release from custody you will be subject to 12 months’ probation on both Informations on the terms and condition the Crown proposes and the defence does not oppose. [ 77 ] Assault is a secondary designated offence.

After considering the factors set out in s 487.05(1)(3), I am satisfied that it is in the best interest of the administration of justice to make an order in Form 5.04 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank.

The samples will be taken from you while you are in jail and you must submit to the taking of the samples. [ 78 ] Pursuant to s. 110 of the Criminal Code , you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosive substance for five years. [ 79 ] Pursuant to 743.21(1) you must have no contact or communication directly or indirectly with W.H.H. while you are in custody. ___________________________ Judge J.T. Doulis Provincial Court of British Columbia