R. v. Legault Date:, 2013 BCPC 155

Citation: R. v. Legault Date: 20130529 2013 BCPC 0155 File Nos: 87879-3C; and 83405-7BC Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER JOSEPH ALBERT LEGAULT ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE BULLER BENNETT Counsel for the Crown: M. Fox & P. Ng Counsel for the Accused: M. Bozic Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: May 16, 17, 2013

Date of Sentence: May 29, 2013 [ 1 ] THE COURT : Mr. Legault is before me today for sentencing for two residential break and enter offences, and one breach of probation. I will read the charges into the record. He initially pleaded not guilty, but partway through the trial pleaded guilty as follows: [ 2 ] On Information 87879-3C: Count 1: That on or about the 23rd day of October, 2011, at or near Burnaby, in the Province of British Columbia, he did break and enter a place, a dwelling house, situate at 7088 18th Avenue, and commit an indictable offence therein, theft, contrary to s. 348(1) (

b) of the Criminal Code . Count 2: That on or about the 19th day of November, 2011, at or near Coquitlam, in the Province of British Columbia, he did break and enter a place, a dwelling house, situate at 2980 Atlantic Avenue, and commit an indictable offence therein, theft, contrary to s. 348(1) (

b) of the Criminal Code . [ 3 ] He also pleaded guilty to Count 2 on Information 83405-7BC: Count 2: That on or about the 26th day of November, 2011, at or near Maple Ridge, in the Province of British Columbia, while bound by a probation order made by The Honourable Judge St. Pierre on the 22nd day of April, 2010, did without reasonable excuse fail to comply with such order by failing to abide by a curfew, contrary to s. 733.1(1) of the Criminal Code . [ 4 ] Starting first with the break and enter offences, the circumstances are as follows. [ 5 ] For both break and enters, Mr. Legault followed the same routine.

He went to the front of the apartment building with a cell phone to his ear. He then followed a resident through the front door and into the building. From there, he had access to the whole building. He was able to find suites that were not occupied and he forced the suite door open and entered. Then he stole a variety of items. This is what he did in Burnaby on October 23rd, 2011. On November 19th, 2011, he did the same thing in a building in Coquitlam. [ 6 ] I will read into the record the victim impact statements filed by homeowners for both offences. The first is Mr. Seto.

He was in the residence in Burnaby although not at the time of the offence. He writes: Financial impact: All my stolen items together (laptop computer, digital camera, keyboard, passport, cash, precious metal, et cetera) worth over $3,000 is now gone to nowhere. Need to save income to purchase/reapply replacement items. Paid $300.00 for emergency technician to fix up the deadbolt and door for temporary use. Need to arrange and spend another $600.00 again in the near future for replacing the whole door and deadbolt.

Emotional impact: Heartbroken, as all the family images and videos stored on the memory card is now gone forever, along with the laptop. Being nervous all day. Worry about someone is going to break into my apartment suite again anytime. Fail to sleep due to worriness of the apartment safety. Changed temper and started being rude to apartment visitors and thinking all visitors might have an intention of wrongdoing in the apartment. Had nightmare more often and frequently wake up during the night to check door lock.

Impact on job performance and personal life: Hesitated to go home and worried about to see the front door being broken by someone again. Worried when home is unattended for more than a day. Upset that life quality degraded due to all these problems mentioned above created by this crime/incident. Physical impact: Continual problems falling into sleep affecting nerves and muscles in the back of neck and shoulder. [ 7 ] Turning now to the victim impact statement of Mohammed Mozari. He was the owner/occupier of the apartment in the Coquitlam matter.

He writes: Honourable Judge: The crime committed against my wife (Sarah Ghasemi) and I has deeply hurt us both emotionally and financially. Since the crime occurred our life has totally changed. Mr. Legault broke into our apartment on Saturday afternoon while my wife might be alone at home and could get hurt. My wife has been unable to stay at home alone since then. She has been afraid from what happened and constantly being worried about a day when someone may break into the apartment again and hurt her while she is alone. She used to stay at home with no fear but now she feels totally frightened and anxious.

She couldn't eat or sleep well. Although my wife has been under medication after the crime, she is still so hypersensitive that even a faint sound make her nerves. Besides, I have been concerned about her safety and security and not being able to focus on my job at all. Our friends have mentioned to us that our demeanour has changed at work and during social activities. We have been really nervous and stressed lately. Even if we try to be more in our friends' group we haven't been able to forget what has happened to us even for a second. It seems nothing can calm us down.

Each time we start to dream about nice things our mind jump at the stressful days we had after the crime immediately and we can't control it. Whatever he stole from us was not only financially valuable we have had to undergo considerable emotional agony forever because all

our wedding pictures, videos and all other personal information were in the laptops that he has stolen and we don't have any backups. Although we are trying to cope with losses, we suffer from loss of our memories. He also stole our wedding rings and jewelleries which were part of our emotionally valuable possessions. Besides, the action of Mr. Legault has greatly affected our life financially. The crime's deep financial impact leaves us under unexpected debt. Indeed, we have a $20,000 debt in our line of credit and we were planning to repay it by selling some of our jewelleries. Unfortunately however despite Mr.

Legault's arrest we have been unable to recover any of our valuable goods (please find attached the list of stolen items which we haven't got back). Based on police records most of them have already been disposed at a pawn shops in Mission and other places in B.C. Moreover as we do not have insurance we could not cover the loss which is worth over $25,000. On top of that we had to buy new laptops and replaced the broken door and frame and pay for painting.

Also, I had to miss some days at work to fix the door, show up to work late and to leave work early to take care of my wife and help her to get through her bad feelings faster. There are some other comments that I will not read into the record. [ 8 ] Turning now to the breach of probation. [ 9 ] As part of the investigation into the Coquitlam break and enter, a police officer went looking for Mr. Legault at his last known residence. Mr. Legault was not there and had not been there for some time apparently. [ 10 ] Turning now to the offender. [ 11 ] Mr. Legault is 46 years old. He was born and raised in Montreal.

He has two sisters. Mr. Legault's father passed away when Mr. Legault was about four years old. His mother passed away in December 2011. His mother was an alcoholic. As a result of losing her husband, Mr. Legault's mother drank even more and she was unable to care for her young children. So, Mr. Legault and his sisters became what we call wards, and they spent time in an orphanage. [ 12 ] After returning home from the orphanage, Mr. Legault was a difficult child and teenager. He spent some time during his teens in what was called a reformatory.

At age 15, however, he was able to start living independently. [ 13 ] Mr. Legault did not finish high school. He did work at a variety of minimum wage jobs. However, when Mr. Legault was in his late teens and early twenties, he dated a young woman who was attending university. From about 1988 to 1994, Mr. Legault attended both Concordia and McGill universities. He is now 16 credits short of a degree in engineering. [ 14 ] During this same time, Mr. Legault worked for McGill University Administration in a computer lab. This was in the Education Department.

He helped students and others who had software and hardware problems. [ 15 ] In 1993, Mr. Legault suffered from a herniated disc. He had surgery and unfortunately an infection followed that surgery. He had to be hospitalized for four months. In total, he had four surgeries and I gather he still has two metal rods in his back. It took one year to recover from the surgeries and the infection. It was during this time that Mr. Legault was introduced to opiates to control his pain. [ 16 ] In 1996, Mr. Legault went to Hong Kong initially for a vacation. However, through his former boss at McGill University, Mr.

Legault was able to obtain employment at the University of Hong Kong as a web master and a computer lab coordinator. He enjoyed this work while he was in Hong Kong. [ 17 ] In 1999, Hong Kong reverted back to China and Mr. Legault returned to Canada. He came as far as Vancouver. Initially, Mr. Legault thought that the job opportunities would be better here than back in Montreal. Unfortunately, that was not the case. Mr. Legault ended up homeless.

He refused homeless shelters and help that was otherwise available to him, and he ended up in the throes of addiction both to heroin and alcohol. [ 18 ] As a result of addiction and poverty, he slept where he could. He committed his first break and enter in 1999. Much to his credit, Mr. Legault did go through residential treatment for his addictions at Inner Visions and was able to stay clean for about three years. Mr. Legault was so well regarded at Inner Visions that he worked in their resource centre for a while. [ 19 ] Unfortunately, Mr.

Legault relapsed when he learned that his mother was diagnosed with cancer. However, Mr. Legault has been on methadone since December of 2012. This was his choice. [ 20 ] I have in evidence a letter from Mr. Legault's sister, Kimberley Legault. It is dated February 20th, 2013 and she writes: I am writing this letter at the request of my brother Chris because I think it's appropriate. I would like to begin by communicating how disheartened I was to learn of Christopher's predicament and how sorry I am for those harmed by his stupidity including himself.

Also, if there is anything that we can do to alleviate any harm there is an urgent willingness both on our and on Christopher's part to do so. The reason I wanted to write this letter was not only to fill in some of the blanks about Chris, but also to tell the Court how supportive we are of him and to provide an idea of what that support looks like. Christopher has been engulfed in a sea of difficulties over the last ten years (and to some extent most of his life), primarily caused by his addiction to heroin and other opiates.

His move to British Columbia from Hong Kong in 1999 was done in the hope that he would have ore employment opportunities and continued financial and career success that would otherwise be unavailable to him in Montreal. As I have learned through endless discussions with Christopher and his now ex-girlfriend, through a combination of depression/loneliness/abandonment and an expatriate attitude towards his new life (he loved his life in Hong Kong), addiction took control of his decision making process and indeed his life.

Most recently, in 2011, our family in Montreal was awaiting Christopher's release from prison. The plan was for him to return here and with immediate emotional support he has been lacking over the last few years to rebuild his life. Then suddenly our mother was diagnosed with cancer. It was decided at the time it was best not to introduce Chris into the living situation and that he should remain in B.C. until our mother's overall health and situation improved. Christopher and our mother were close. When it was discovered that in all likelihood my mother was going to die, Christopher did not take it well at all.

Outwardly, Christopher became stoic and non-communicative but in reality as addiction took off again and he employed the destructive tactic of isolating and detaching from everyone and everything. At the end of the day, and I know Christopher will be the first one to say all of this does little to offset the hardships he has caused. I can tell you with one hundred percent certainty that Christopher also understands that no amount of sorryness on his

part can fix that harm. However, I do believe that in addition to his previous desire to change his life, coupled with a proven ability to be adaptable and overcome adversity, I can hear a new-found conviction in him that will serve him well in the future. For my part, I am willing to support Christopher in whatever way necessary to achieve his plans and goal to rebuild and become autonomous, successful, and contributing member of society.

He has spoken to me about his eventual release and his desire to attend a drug treatment centre to facilitate a gradual assimilation into a normal world, one free of despair, drugs, crime, law enforcement and the courts. When he is ready to graduate towards this -- hopefully sooner than later -- I have set aside funds, clothing, a computer and a phone as well as the time to help him. It is also my intention to come to B.C. when he is released to at the very least help him in his immediate transition as well for a visit. [ 21 ] In Mr.

Legault's statement to the Court in submissions on sentencing, it was very clear to me that Mr. Legault is intelligent and articulate. He is very sorry for what he has done; he knows that he has hurt people. He does not make any excuses for what he has done. To his credit, he has developed his own release plan and he has decided if for no other reason to have residential treatment, than he is simply too old for this criminal lifestyle. [ 22 ] Mr. Legault has a lengthy criminal record. He has 33 prior convictions for residential break and enters. He has three prior convictions for theft under.

He has convictions for possession of stolen property, impaired driving, and fraud. The most recent conviction was on April 22nd, 2010. He was sentenced for five residential break and enters and one count of possession of stolen property. I note that the offence dates were in the autumn of 2009. He was given a sentence of two years less one day. He was credited ten months' time served. The jail sentence was to be followed by three years' probation and as in the letter from Mr. Legault's sister, the plan was initially that he go back to Montreal to enjoy his family's support.

However, there were also plans in that probation order that he received counselling and treatment here in British Columbia. [ 23 ] Mr. Legault has been detained in custody since December 8th, 2011 on all the charges before me. He was detained on both the primary and secondary grounds. He has served a total of 537 days or one year and 171 days. I just note for the record that 2012 was a leap year so I have counted that as 366 days. [ 24 ] While in custody Mr.

Legault has completed a variety of programming including the Substance Abuse Management programming, he has attended NA and AA faithfully, he has a person who would be willing to sponsor him in the AA program, and he has taken individual counselling with one of the Chaplains at North Fraser Pre-trial Centre. He also has completed courses in dispute resolution. He has created his own release plan that includes residential treatment and continuing with a methadone program. [ 25 ] For sentence, Crown submitted that a penitentiary sentence in the range of five to seven years, less time served, is appropriate.

According to Crown counsel, the primary considerations are protection of the public, denunciation and general deterrence. At this point in time, rehabilitation and specific deterrence are not important considerations on sentencing. [ 26 ] Defence counsel submitted that I should consider time served as acting as a deterrent, both to Mr. Legault, and a general deterrent. Then, defence counsel asks me to impose a jail sentence of two years to be served by way of a conditional sentence order as Mr.

Legault has finally come to grips with his addiction issues and as a result rehabilitation is still a strong factor in sentencing. [ 27 ] Turning now to the mitigating circumstances. [ 28 ] I point out for the record that there were guilty pleas to the break and enters -- actually at the beginning of the trial and at the conclusion of a voir dire . The breach plea was without a trial. [ 29 ] Mr. Legault has done very well while on remand. He has taken the programming that I have already set out. He has voluntarily entered into the methadone program. He has a plan for his rehabilitation.

He enjoys the ongoing support of his sister. I note that he is getting older and it is not uncommon for people as they hit the age of 50 to decide it is time for a change. Mr. Legault is most remorseful for what he did do and he makes no excuses. [ 30 ] I should also point out also that neither break and enter was what we would call a home invasion and there was no violence other than damage done to the door frames and locks on both suite doors. [ 31 ] There are of course aggravating circumstances. As Crown counsel pointed out, these are break and enter numbers 34 and 35. Mr.

Legault's criminal record goes back to 1999. He was on probation for break and enter offences when he committed the offences before me. [ 32 ] These were break and enters into private homes with real victims and there were thefts of items that had great sentimental and monetary value. Each offence required some thought and planning. Of course, it is well-established law that break and enter offences are very serious. We go back to the old adage of a man's home is his castle. The maximum sentence is life in a penitentiary.

That reflects the seriousness with which Parliament sees these offences. [ 33 ] Turning now to the case law.

[34] Crown referred to R. v. Alexander, [1998] B.C.J. No. 1814 a decision of our Court of Appeal. A five year consecutive sentencewas upheld for a residential break and enter. Mr. Alexander had a significant criminal record with 14 previous property offences. Mr.Alexander at the time was 30 years old. He had a difficult upbringing and had been living on the streets. He was a heroin addict. Hewas on parole at the time of committing the break and enters before the Court.

The five year sentence was upheld on appeal, but I willjust read into the record what the Court said at para. 9: [9] The sentencing judge considered the circumstances of the offence, the accused's record, background, street lifestyle, heroinaddiction, attitude when arrested in the victim's apartment, and false testimony at trial, as well as the authorities provided by Crown anddefence counsel. They indicated a range of three to seven years with similar offences by similar offenders.

And then the Court went on. [35] I take this decision of the Court of Appeal as adopting the three to seven year range. [36] Crown also referred to R. v. Derozan, [2012] B.C.J. No. 1740, a decision of my colleague, Judge Hicks. This matter was asentencing for 12 counts of residential break and enters committed over a one year timeframe. Pleas were entered on the first day oftrial. On two of the occasions of break and enter, there was an occupant actually in the home at the time so these two incidents werecharacterized as s. 348.1 offences, in other words, home invasions. [37] Mr. Derozan was 37 years old.

He was a heroin addict and alcoholic. He had 23 prior convictions. Mr. Derozan was mostremorseful for what he did. While in custody he did complete the Substance Abuse Management program. Crown sought a penitentiarysentence of eight years and defence sought a sentence of five. Ultimately, there was a sentence of seven years, two months, but I willrefer to para. 47: [47] In this regard, I note the following passage from the reasons of Madam Justice Ryan in the British Columbia Court of Appeal ina case called R. v.

Kory in 2009 where she stated the following at paragraphs 7 and 8: [7] In a case such as this, where the respondent has a lengthy record for which he has received consistently low sentences for thesame type of offence, the step-up principle is not of great assistance. It has not worked. [8] Mr. Kory's record shows that he has not been deterred or rehabilitated by the sentences he has received and remains a threat to hiscommunity. This was a serious offence, committed by a persistent criminal.

The principle of the protection of the public through adenunciatory sentence ought to have taken precedence in this case. (R. v. Kory, 2009 BCCA 146 , 2009 BCCA 146). [38] At para. 48, Judge Hicks goes on: [48] Here, ongoing rehabilitation must take a secondary place in the analysis which I must make, and where protection of the publicthrough separation of Mr. Dorozan is paramount. The past history at this point provides no confidence that Mr. Dorozan's specificdeterrence has been achieved. Specific deterrence continues to be an important sentencing objective.

The sentence to be imposed mustalso make a strong statement of general deterrence and amount to a statement of denunciation of this conduct in strong terms. [39] At para. 49, Judge Hicks continues: [49] The cases I have referred to include sentences for break and enter of residence in the four-to-ten-year range.

In some cases, thereis a significant past history of similar conduct and may involve more than one count, tending towards the upper end of that range. [40] So I take from that case, first of all, a range in similar circumstances of four to ten years, and also that rehabilitation must take asecondary place because protection of the public through separation of the offender is paramount. [41] Defence counsel referred to R. v. Singh, [2012] B.C.J. No. 1181, a decision of our Supreme Court. This was sentencing aftertrial. Mr.

Singh was found guilty of three counts of break and enter, one count of attempt break and enter, and one count of possession ofbreak-in instruments. Mr. Singh was a 50-year-old man with a very recent criminal record that started only after his wife passed away. The Court found that rehabilitation was still an important principle of sentencing as was specific deterrence, given the timing of theoffences in particular. There was credit given of time served of nine months. The remainder of the sentence to be served was two years,three months. [42] Defence counsel also referred to R. v.

Charlie, 2008 BCCA 44 , [2008] B.C.J. No. 149, a decision of our Court ofAppeal. Mr. Charlie pleaded guilty to possession for the purpose of trafficking in cocaine. This was a dial-a-dope operation. Mr.Charlie was serving a conditional sentence for drug-related charges at the time of committing the offence. Mr. Charlie was given an 18-month conditional sentence order. [43] At the time of committing the offence, Mr. Charlie was 25 years old. He was an Aboriginal offender with what was describedas a sad upbringing. Nonetheless, Mr. Charlie had completed Grade 12 and was gainfully employed.

He had a family to support. Whileserving his sentence in the community, Mr. Charlie had made many positive changes and the trial court found it was counter-productiveto his and society's interests to interfere with his successful efforts at rehabilitation to send him to jail. The appeal by the Crown of the18-month conditional sentence order was dismissed. [44] I note for the record that Mr.

Legault has some Aboriginal heritage but he has specifically waived his right to be sentenced as anAboriginal offender. [45] Turning now to the principles of sentencing. [46] Those principles are set out in ss. 718 and 718.1 of the Criminal Code.

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce 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 and to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 47 ] In the matter before me, specifically the sentencing of Mr. Legault, I give considerable weight to the very serious aggravating circumstances present. I have already enumerated those aggravating circumstances.

While there are some persuasive mitigating circumstances, in my view they are outweighed by the serious aggravating circumstances. [ 48 ] Given all of the circumstances before me, I consider protection of the public, denunciation, and general deterrence to be important principles of sentencing when considering the appropriate sentence for Mr. Legault. [ 49 ] In this particular case, however, protection of the public and rehabilitation are inextricably linked. An effective way to ensure the safety and sanctity of people's homes is to have Mr.

Legault successfully address his addiction and the factors that led to that addiction through continuing programming while in custody. [ 50 ] After considering the law, the offences, and Mr. Legault's personal circumstances, in my view the fit sentence is five years in a penitentiary on each count to be served concurrently with each other. [ 51 ] Turning now to credit for time served. [ 52 ] Defence counsel submitted that Mr. Legault ought to receive enhanced credit, in other words, 1.5 days credit for each day served.

Of course, defence counsel is relying on s. 719(3) and (3.1) of the code for that submission. 719.

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). [ 53 ] I just should state that the Court records do not specifically show that Mr.

Legault was detained under either ss. 515(9.1) or 524(4) or (8), rather the record shows that he was detained under the primary and secondary grounds so I must of course continue with the analysis. [ 54 ] The evidence for enhanced credit is as follows. [ 55 ] Mr. Legault was unable to attend his mother's funeral in Montreal as temporary absence passes were not available and are not available for remand prisoners. On April 20th, 2012, Mr. Legault wrote to the Warden at North Fraser: Please consider this letter a request for a temporary absence/escorted temporary absence. My mother has died.

I love my mother a great deal. I am close to my surviving family who have recently delayed the memorial/funeral for as long as they could. It has now been decided that it will happen May 13, 2012 in Montreal, Quebec. I will be able to provide exact details such as funeral home and church, et cetera as soon as you need them. [ 56 ] The response back was April 24th, 2012 from Ardith Watson, the Deputy Warden at North Fraser Pre-Trial Centre. Deputy Warden Watson wrote: I received your special request Form 339822 from Warden Anderson for review and response.

You submitted a special request and a letter requesting a temporary absence or escorted temporary absence to attend your mother's funeral in Montreal, Quebec. A review of your CORNET file was completed which included your current holding documents and your client log for consideration of your request. As per adult custody policy, you are not eligible for a temporary absence for compassionate grounds as you must be a sentenced offender. Given you are a remand inmate your request was then reviewed for an escorted temporary absence.

Due to the fact you will have outstanding charges before the court for non-compliance of a court order, the seriousness of your charges, and the location you are requesting to travel outside of Province, I find you would not be a suitable candidate for an escorted temporary absence. At this time I am not approving your request to attend your mother's funeral in Montreal, Quebec. [ 57 ] I gather there was some intervening correspondence and Deputy Warden Watson writes back on May 3rd, 2012:

I received your letter on the above subject on April 30, 2012 in which you are requesting an escorted temporary absence to attend your mother's funeral. You have offered to share the expense for yourself and a Correctional Officer to Montreal, Quebec. While your offer is very generous, it still does not offset the primary concerns I have of taking you out of the Province. Due to the location (out of Province) Corrections is unable to complete a proper community or risk assessment of the area you are requesting to attend for your mother's funeral.

Therefore, I cannot recommend you be granted a temporary absence to attend the service for your mother in Montreal. [ 58 ] While it is indeed unfortunate that Mr. Legault was not able to travel to Quebec for his mother's funeral, I note that the policy for unescorted temporary absence applies to all prisoners in the same circumstances. Escorted absences, I gather, apply to all prisoners who would like permission to travel outside of the Province. Also, I do note that Mr. Legault was remanded in custody on serious charges and also on the breach of a court order.

I note that the policy, however, is the same for all prisoners in the same circumstances. [ 59 ] The next area of evidence for enhanced credit is as follows. [ 60 ] In August of 2012, Mr. Legault and others were interviewed by the RCMP about an incident at North Fraser Pre-trial Centre. Unfortunately, some other inmates mistakenly viewed Mr. Legault as what is commonly called a "rat". [ 61 ] I also have evidence that since April 23rd, 2012, Mr. Legault has been in long term separate confinement.

The documentation filed from North Fraser states in the separate confinement notification: As discussed this date with Classification the reason for your continued separation confinement is based on your concerns of safety related to your peer issues. You may speak to Classification at any time to discuss or change your CAR placement.

The decision however is that you will be placed under separate confinement CAR-18 for up to a 15-day period. [ 62 ] The next review date was May 8th, 2013. [ 63 ] The legal authority or grounds for the separate confinement was that the person in charge may order that an inmate may be confined separately from other inmates if the person in charge believes on reasonable grounds that the inmate is jeopardizing the management, operation, or security of the Correctional Centre or is likely to jeopardize the management, operation, or security of the Correctional Centre and would be at risk of serious harm or is likely to be at risk of serious if not confined separately. [ 64 ] Defence counsel referred to the decision of R. v.

A.D.T. , [2013] B.C.J. No. 553 a decision of Justice Crawford with respect to enhanced credit. This has to do with sentencing and really the reasons for sentence are unrelated, but Justice Crawford does address the requirements for enhanced credit under s. 719(3.1) of the Criminal Code and I will just read briefly at para. 50: [50] The Manitoba Court of Appeal in R. v. Stonefish , 2012 MBCA 116 reviewed the legislation at some length.

Indeed, the judgment is a year after the appeal and in sum they came to a position on the case law they reviewed that if the inmate is the cause of the restrictive conditions then he does not obtain enhanced credit and I contrasted that to R. v. Seymour , 2011 BCSC 1682 where if a person is placed in segregation for his protection he may get enhanced credit. [ 65 ] The Court went on to consider Mr.

A.D.T.'s loss of privileges and concluded that he lost his privileges due to his own misconduct and did not allow the enhanced credit. [ 66 ] I note from the separation confinement notification that the separation seems to have been at Mr. Legault's own request for peer and other issues. I also note that he could speak at any time to Classification to discuss or change this placement. There seems to have been some review on May 8th and I do not know what happened on that date. Given that although Mr.

Legault may have been concerned about his own safety, this placement or classification was open to review at any time, and especially on May 8th, 2013. So, it certainly was open to Mr. Legault to request a change. [ 67 ] Also, I note that given the passage of time between August 2012 and April 2013 as pointed out by Crown counsel, I fail to see the connection between the police interview and separate confinement and as I have already stated I was not informed of the outcome of the review that was scheduled for May 8th, 2013. [ 68 ] Turning now to the third basis for enhanced credit. [ 69 ] Mr.

Legault was working on a maintenance crew at North Fraser Pre-trial Centre. This was a coveted position as the prisoners had the most unsupervised mobility of any prisoners inside the institution. Of course, this creates the greatest opportunity for moving contraband. This was submitted by Crown counsel. On May 16th, 2011, Mr. Legault and others on this maintenance crew were suspected of illegal drug use. As a result, Mr. Legault lost his position on that crew and was sent to another unit. This other unit entailed a modified lockup. [ 70 ] Mr. Legault, in fact, did not use illegal drugs.

He did test positive for methadone but he had a lawful prescription for that methadone. Mr. Legault pursued this drug test and transfer with the administration at North Fraser Pre-trial. Unfortunately, it took about two years for the institution to upgrade his prisoner log to the effect that he did not in fact use illegal drugs. [ 71 ] As Crown counsel submitted, jobs at North Fraser Pre-trial Centre are a privilege and not an automatic right of a prisoner. [ 72 ] In my view, Mr.

Legault pursued the proper remedy that was open to him and that was to challenge the administrative decisions that were made. [ 73 ] In my view, these circumstances individually and collectively do not justify enhanced credit for time served. [ 74 ] Therefore, the sentence is five years less time served and time credited of one year, 171 days, leaving three years and 194 days to be served concurrently on both of the break and enter charges or offences. Therefore, given the length of sentence, I cannot consider a conditional sentence order.

[ 75 ] There will be DNA samples on both offences. [ 76 ] Turning now to the breach. [ 77 ] The purpose of the probation order was to implement the rehabilitation aspect of the sentence that Judge St. Pierre imposed. The plan was to have counselling here and then Mr. Legault would go to Montreal to be with his family who supported his rehabilitation. By not obeying the curfew, of course, nothing happened on that probation order.

In my view, it was a serious breach of a court order. [ 78 ] In order to properly address both individual and general deterrence, in my view it is appropriate to order a 30-day jail sentence to be served consecutively to the penitentiary sentences I have already ordered. [ 79 ] On both Informations, Madam Registrar, I waive any surcharges. [ 80 ] MR. NG: Thank you, Your Honour. Any outstanding counts against Mr. Legault on the breach Information, that is, Information 83405-7BC should be stayed. That specifically refers to I believes Counts 1 and 3. [ 81 ] THE COURT: Okay.

Thank you. (ORAL REASONS FOR SENTENCE CONCLUDED)