R. v. S.S.M. Date:, 2013 BCPC 426

Citation: R. v. S.S.M. Date: 20130807 2013 BCPC 0426 File No: 56048-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.S.M. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.W. JARDINE Counsel for the Crown: R. Randhawa Counsel for the Defendant: O. Snowdon Place of Hearing: Chilliwack , B.C. Date of Hearing: August 7, 2013 Date of Judgment: August 7, 2013

[ 1 ] THE COURT : I have before me for sentencing for possession of a controlled substance for the purpose of trafficking S.M. S.M., on May the 8th, 2012 pled guilty to Count number 1 of Information 56048-1 that he, on the 20th day of February 2010 at or near Chilliwack in the province of British Columbia did unlawfully possess a controlled substance, to wit N-Methyl-3,4- methylenedioxyamphetamine (Ecstasy) for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act .

The charge was also amended to include beyond Ecstasy the words "and cannabis" (Marihuana) in an amount not exceeding the statutory minimum therefore not requiring a mandatory minimum form of sentence. THE CIRCUMSTANCES OF THE OFFENDER [ 2 ] S.M. for the purposes of this offence is a youthful first offender.

His adult criminal record for the purposes of character, as opposed to sentencing, involves other offences post the commission of this offence for which he entered pleas of guilt and was sentenced on October the 13th, 2011 in Chilliwack, British Columbia, involving uttering threats, breach of recognizance times two, failure to appear and breach of probation. He was given credit for time in custody, a sentence of one day and probation for one year. I will come back to his response to Community Corrections in respect of that record. [ 3 ] To put it bluntly, S.M. was abandoned as a very young child.

Effectively, his parents were dysfunctional parents. His two younger sisters have Fetal Alcohol Spectrum Disorder. They have as well, been involved in intoxicant misuse challenges and have been abused as children. S.M. has no memory of his father, his father having left the family home prior to him achieving an age where he would have long-term memory. His mother was an alcoholic. He was apprehended by Social Services and placed in foster care at the age of six, and returned to his mother's care.

By Grade 4, when he would have been nine or ten, depending upon the circumstances, he was calling Social Services requesting that he be removed because of the nature of his mother's lack of care. He has stood up for himself. He had difficulty with his first foster home placement. He was subsequently becoming a permanent ward and was subsequently placed in a stable and supportive home that he describes as being the home of his parents. He has adopted them as much as they fostered him. [ 4 ] He was not without challenges.

He moved out at the age of 16, returned about a year later after his foster mother was diagnosed with lung cancer. She has left his life and I am satisfied that he has maintained contact with his foster father and that he misses his foster mother, who passed away on the 29th of November 2012. To say that S.M., despite his positive view of his foster parents, was able to maintain stability emotionally while living at their home would be inaccurate. He had challenges. He left the foster home on at least eight occasions between 2006 and 2008.

He was told he was no longer welcome in the home at one point because of his behaviour. In July of 2010, after he was placed on bail supervision in respect of this matter, the foster parents told the bail supervisor that they would have him in their residence for a day or two at a time but they did not want him to be living there for any extended period. S.M. has therefore experienced significant challenges to his upbringing and is someone who, in the words of his counsel, had significant deficits in his ability to grow within a nurturing environment. [ 5 ] Given that, his latter improvement is to be encouraged.

The question is, is it a last hour, eleventh hour, eleventh minute scenario where he is at the last minute trying to remain out of custody when facing a sentencing such as he faces here today. Is it too little, too late? THE POSITIONS OF THE PARTIES [ 6 ] Crown counsel Mr.

Randhawa relies upon the classic statements from our Court of Appeal in respect of trafficking offences, particularly trafficking offences which are in the nature of dial-a-dope operations, or in this instance a street trafficking on-call operation where people can come to S.M. for the purposes of accessing cannabis marihuana or Ecstasy through the contact of what, as Ms. Snowdon says is the omnipresent cellular phone that we see in society today. Mr. Randhawa says that with respect to this matter, given the circumstances of this young man that there have been significant delays.

The plea was given in 2012, however, he went to a bench warrant, he was rearrested in the province of Alberta, he was returned, he was released on judicial interim release and he began chafing against his curfew and monitoring and has not been responsive to Corrections. In the result, it is the Crown's position that the fit and proper disposition involves real jail in the range of six to nine months. Crown also seeks an order under s. 109 for a prohibition of ten years and a DNA sample in accordance with s. 485. I have already signed a forfeiture order by consent of Ms. Snowdon this afternoon. [ 7 ] Ms.

Snowdon, for her client, highlighted a number of mitigating factors. Ms. Snowdon emphasized his youth, his poor upbringing, that the offence is somewhat antiquated it being three years ago, that it is his first criminal offence as an adult, that he has significant health issues having been injured in a motor-vehicle accident in 2008 and then a subsequent motor-vehicle accident in March of 2011. There is a trial set in the civil proceeding for 2015 from the first accident [ 8 ] Ms.

Snowdon also articulated very clearly that this was not a sophisticated dial-a-dope operation and that her client instructs her that he is both shamed and embarrassed by the proceedings. [ 9 ] Having regard to the nature of the crime and the circumstances of this offender, it is Ms.

Snowdon's submission that he at present does not present as a risk to the community - he does not have a significant criminal record such that he presents as a risk to the community, and that given his latent rehabilitation and his desire to be independent and his current self-rehabilitation and that he has been resident at one place for approximately four months, has been employed for one month at [name removed for publication] in Harrison Hot Springs and is in a relationship with Ms.

R., that those changes while recent, are evidence of him working hard to behave and that he has provided a means for the court to be satisfied that with sufficient controls in the community a conditional sentence order in the range of nine months would be the fit and proper sentence. [ 10 ] S.M. in his statement to the court pursuant to s. 726 has said that he believes he can do this in the community, that he is overcoming obstacles, that he is in a great relationship and that with the assistance of Ms. R. he wishes to remain out of jail. [ 11 ] All sentencing is a balancing.

That is highlighted by the cases provided by Ms. Snowdon for which I am indebted to her, and I propose to review those cases as part of the Reasons for Sentence at this stage. I am mindful of the remarks of Justice Frankel in R. v.

Charlie 2008 BCCA 44 , in particular at paragraphs 27, 33 and 34. In relation to dial-a-dope type offences he said at paragraph 27 the following: Dial-a-dope offences clearly fall on the “serious” end of the spectrum. Most recently, in R. v. Tran , 2007 BCCA 405 , 245 B.C.A.C. 171, this Court, in allowing a Crown appeal, set aside a conditional sentence of two years less one day and substituted a sentence of two- years’ incarceration. In so doing, Madam Justice Saunders stated . . . And then he quoted from Tran at paragraphs 34, 35 and 36 .

At paragraph 34 of Tran , much of what we have here is mirrored in the conduct of S.M. I agree with Ms. Snowdon that he is not involved in a dial-a-dope cocaine marketing scheme "for profit only." But he was involved in the sale of Ecstasy and cannabis marihuana for profit. S.M. does not have a history of offences of a similar nature, however, this is a circumstance wherein he is placing himself on-call to provide a market of people who are going to call him in order to access the very drugs that he was selling. He was not a main player, he is a street-level trafficker. It is not cocaine.

It is, however, a dangerous drug. [ 12 ] In Charlie it was the position of the Court of Appeal that the court would not impose a sentence against this Aboriginal offender because although he had previously been sentenced and it was the court's view that the purpose and principles of sentencing called for jail, that given the fact that he was already out they would not send him in. It is that portion of the judgment which is emphasized at paragraphs 33 and 34, which I am not going to read in entirety. [ 13 ] I considered, as well, the decision of my colleague the Honourable Judge Galati in Egorov at tab 2 of Ms.

Snowdon's materials, and I would draw to the reader's attention that portion of the judgment at paragraph 6 in which Mr. Egorov is described. He is significantly different in circumstances to S.M. He had self-rehabilitated and Judge Galati in accepting that position also adopted the language of Judge Howard at paragraph 18 of Egorov and talked about the nature of trafficking in MDMA, otherwise Ecstasy, in the range in Wilson . He became satisfied that Mr.

Egorov would not present a danger to the community by continuing to reoffend because of no record and his compliance with the conditions of his bail, and those terms and conditions led him to be of the view that s. 742 had been satisfied and that a conditional sentence was warranted. That is not the situation in which I find myself. [ 14 ] I have also considered Idris from the Alberta Court of Queen's Bench. It is a circumstance involving a discharge, and I am of the view that it is of little assistance to me.

I have considered as well, Ilicic , which is a decision of the Supreme Court of British Columbia in New Westminster, 2012 BCSC 1486 , a decision of Mr. Justice J.W. Williams. I would emphasize paragraph 18 of Justice Williams' findings, and particularly the conclusion arrived at by His Lordship that Mr. Ilicic had made a substantial rehabilitation of his life from the date of the offence. Ms. Snowdon in that instance had clearly brought Mr. Ilicic into a position where he had made himself completely rehabilitated before he attended the courtroom. [ 15 ] I have looked at Kozma .

It is from 2000 and has very little application to our facts here. It is essentially a decision talking about the applicability of R. v. Proulx and conditional sentence orders in the instance of the initial

interpretation of those provisions and Justice Lamer's reasons in Proulx . [ 16 ] I have also spent some time analyzing the Honourable Judge Howard's decision in Wilson . Wilson , of course, is very similar to the facts of the case at bar and I am drawn to her analysis. I will not quote all of the cases to which she refers, nor will I draw much upon it except to say that sentencing is really fact-specific and person-specific, but I take much from her paragraph 33 as well as the nature of sentencing for drugs such as Ecstasy, which are described in paragraphs 35 and 36. I will say this.

In Wilson , making reference to the decision in Russell from the B.C. Supreme Court, a decision of Justice Romilly, there was lengthy consideration given to the drug Ecstasy. In Russell at paragraph 35 Justice Romilly noted that Ecstasy although, "Mistakenly reputed to be harmless among users, Ecstasy has caused several deaths and serious adverse effects are common." I would adopt the whole of that paragraph which he quotes at that stage, and say that Ecstasy is a very dangerous drug. A great majority of the users are adolescents and young adults.

Often they are used at social interactions involving clubs or raves, dances, all-night dance parties as the desired acute effects include increased energy and endurance, et cetera. Given that, it is to be treated as a serious danger to the community as a whole. [ 17 ] I am mindful of the fact that the Honourable Judge Howard at paragraphs 52 and 53 arrived at the conclusion that a conditional sentence order was appropriate in the circumstances of Mr. Wilson and I would simply say that I am of the view that we are dealing with a different set of circumstances in dealing with S.M.

There is no question that I have to treat S.M. as if he has no prior criminal record, but his activities and behaviours over the time since the commission of this offence have not boded well for his ability to perform on either a conditional sentence order or any other form of probation order or Corrections supervision. [ 18 ] I am therefore of the view that the following factors are appropriate for me to consider in this case. They are: He is young, he is not particularly mature, he is not sophisticated, he is not particularly well-educated, he was abandoned, he has health issues and he has the support of Ms.

R. and her mother in the courtroom this afternoon. We have already seen the level of emotion engendered by his s. 726 statement. [ 19 ] The aggravating factors are as follows: He has very little self-discipline or insight; he has been involved in substance misuse himself; this was a crime which involved greed, it was profit for sale; he was not a user and he was selling in order to get monies to obtain items which he wanted to get. He has failed to comply with community supervision for the past three years.

He spent some five weeks in jail in September to October of 2011 and yet he did not respond well to bail supervision once released. He would attend upon Corrections and make immature, angry outbursts at the counter. He was found by more than one supervisor to reflect an impulsive nature with little insight into his problems and poor problem-solving skills. From time to time he would exemplify a no care attitude. [ 20 ] His reporting since September the 20th of 2012 has been marginal at best.

He has been noncompliant in 2013 to directions in January and February to report more often, reporting in person single occasions in each month. The offence itself involves over ten grams of cannabis and 60-plus Ecstasy pills. Although there were 127 pills found on him, not all of them I am told were Ecstasy. Ecstasy is a danger to the community. He was an on-call trafficker. This is an unexplained possession of a quantity.

He had cash on his person, he had a cell phone on his person, the value of the drugs is something in the range of $700 to $1,000 depending upon the nature of the sales, numbers being sold and the persons to whom they were being sold.

DISCUSSION [ 21 ] Based on the law and the aggravating and mitigating factors, I am of the view that this was not a sophisticated dial-a-dope operation. I would place S.M. in the position of being a street, on-call trafficker. He is not even a mid-level trafficker. Given his lack of response positively to supervision in the community and the fact that it is only until he is faced with an aspect -- that if he does not comply with a curfew or agree to a curfew, he has no hope of being placed in the community.

I draw to the attention of anyone his attitude that he did not want to see a curfew, would not present himself and was not embracing being monitored or supervised or otherwise controlled in the community. Those attitudinal responses cannot be either overemphasized or underrated. They are simply a fact. They do, however, reflect his lack of maturity. [ 22 ] On balance, given the nature of this offence and the circumstances of this offender the Crown has asked for a range of six to nine months. The defence submits that the fit and proper sentence is nine months but asks that I consider a conditional sentence order.

I am of the view that the range of sentence is less than two years. I must therefore consider s. 742 of the Criminal Code . In order to be clear in terms of my reasons, I must look to 742, in particular to 742.1 and say this.

If I am imposing a sentence of less than two years and I am satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2, the court may for the purpose of supervising the offender's behaviour in the community order that the offender serve the sentence in the community subject to the offender's compliance with the conditions imposed under s. 742.3. [ 23 ] Given his response to Community Corrections, I am not of the view that he would not reoffend.

I am of the view that he would in the short term perhaps respond positively to the terms and conditions, but given his track record over the past three years of noncompliance with court orders, I am of the view that s. 718 cannot be properly dealt with in terms of the purpose and principles of sentencing by the imposition of a conditional sentence order. [ 24 ] Where that places us is that the sentence must be in accord with s. 718. The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The degree of responsibility of the offender here is high. The gravity of the offence is not of the nature of hard drugs such as cocaine or heroin. It is, however, a drug which is demonstrating itself to be dangerous in the community. It is not a soft drug. Therefore, from the proportional perspective I am of the view that the principles in Franklin are warranted and that real jail is required.

In order to denounce the unlawful conduct, in order to as well deter others of like mind, I am of the view that the fit and proper sentence involves a short, sharp jolt of incarceration. [ 25 ] Given the whole of the circumstances, having considered the submissions of counsel and having considered your circumstances, including your latent rehabilitation, I am of the view that the fit and proper sentence is four months. I sentence you to four months in jail. [ 26 ] I am not going to place you on probation.

You have not responded well to probation. [ 27 ] THE ACCUSED: Your Honour, could I say goodbye to my girlfriend, please? [ 28 ] THE COURT: You can be in a situation, sir, where you speak to Ms. Snowdon. I have not finished. [ 29 ] THE ACCUSED: I'm sorry. [ 30 ] THE COURT: That is exactly the problem, S.M. You are presenting as someone who cares, who is passionate, who is emotional and you have the support of Ms. R. But you have very little self-control and self-discipline, and that is probably because of from whence you come. [ 31 ] I am going to order that you provide a DNA sample pursuant to s. 485.

This is a secondary offence but it is a trafficking. [ 32 ] There will be an order pursuant to s. 109 of the Criminal Code . 109 of the Criminal Code deals with possession of a number of items, and for ease of reference I will simply repeat it, Madam Registrar, and that is so that we know what we are dealing with.

Given the nature of the offence that you have been involved in you will be prohibited from having in your possession for a period of ten years a firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, explosive substance or any of those things which are listed in s. 109 as being prohibited, for a period of ten years from today. (REASONS FOR SENTENCE CONCLUDED)