R. v. James Date:, 2015 BCPC 465

Citation: R. v. James Date: 20150724 2015 BCPC 465 File No: 62517-2KC Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TROY TINOY JAMES ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Crown: A. Tosso Counsel for the Accused: G. Gill, Q.C. Place of Hearing: Chilliwack , B.C. Date of Hearing: June 17, 2015 Date of Judgment: July 24, 2015 INTRODUCTION

[ 1 ] These are my reasons in the sentencing of Troy Tinoy James under File 62517-2KC. [ 2 ] Following trial, I found Mr. James guilty of Count 1, uttering a threat to Alysha Archie to cause death or bodily harm to her, contrary to s. 264.1(1) of the Criminal Code , R.S.C. 1985, c. C-46. I also found Mr. James guilty as a party of knowingly conveying a threat to Alicia Archie on June 9th, 2014. Again, this was contrary to s. 264.1(1) of the Criminal Code , but it was a more serious offence because a gun was fired through the back of a residence occupied by Ms. Archie on the Skwah Reserve.

CIRCUMSTANCES OF THE OFFENCES [ 3 ] On April 15th, 2015, I gave detailed reasons for judgment following a trial on this matter. I will not repeat those reasons here. [ 4 ] Suffice it to say that concerning Count 1, Mr. James uttered a threat to Alysha Archie on April 6th, 2014. Mr. James had accused Ms. Archie of taking his stuff and ultimately in a telephone call he threatened to "beat the shit out of her" or anyone else who got in his way. This threat was followed by Mr. James attending Ms. Archie's residence when he was not welcome there. He was rummaging through the laundry and no altercation occurred.

Nevertheless, Ms. Archie was hiding and she was fearful. [ 5 ] Concerning Count 2, I found Mr. James guilty as a party of conveying a threat to Ms. Archie on June 9th, 2014. The threat was a very serious one in that a gun was fired through the back of a residence occupied by Ms. Archie on the Skwah Reserve. It is important to bear in mind that Ms. Archie and Mr. James had separated following a volatile relationship. [ 6 ] The events began when Ms. Archie answered the front door and a blonde woman asked for Keith, Ms. Archie's current boyfriend. Ms.

Archie stated that Keith was not home and the woman then yelled, "Troy, Troy." Ms. Archie slammed the front door but saw Mr. James running towards the front of the house. Ms. Archie ran in the bathroom and hid. She heard a gunshot and glass shatter. [ 7 ] There was clear physical evidence that a gunshot had been fired through the rear patio door of the home. Ms. Archie was terrified after this incident because her baby daughter usually slept in the living room where there was impact from the bullet. [ 8 ] I was satisfied beyond a reasonable doubt that Mr.

James was at the very least a co-perpetrator of the threatening conduct. There was no direct evidence as to who fired the gunshot. CIRCUMSTANCES OF THE OFFENDER [ 9 ] I have had the advantage of reviewing a pre-sentence report prepared in November 2013 in relation to a breach of probation offence. Mr. James is of full Aboriginal descent and that report does set out sentencing considerations for Aboriginal offenders, although I do not in any way consider it a full Gladue Report . [ 10 ] Mr. James is 25 years old. His father died at a young age having succumbed to injuries sustained in a fight.

Unfortunately, his stepfather created instability in Mr. James' life and was imprisoned for drug charges. He was described as a drug lord. Mr. James had more stability with an uncle, but he felt abandoned by his mother for many years. Mr. James has two children by two different mothers and he now has a daughter with another mother. [ 11 ] Importantly, the pre-sentence report describes Mr. James as having a severe case of Attention Deficit Hyperactivity Disorder and this negatively affected his academic performance and caused him to act out. At one time, Mr.

James was prescribed Seroquel as he was fighting a lot. [ 12 ] In terms of substance abuse, the pre-sentence report indicates Mr. James first began drinking alcohol at nine years of age, but he has later engaged in treatment. An even more concerning matter was his use of crystal meth between the ages of 17 and 21. [ 13 ] Mr. James does have a criminal record of some length. Even if I look past his Youth Court convictions, he has 10 breaches between 2008 and 2011. From 2008 onwards, he has three convictions for possession of stolen property, a mischief conviction, and a theft over and a theft under.

He has a flight from peace officer conviction in 2008, break and enter in 2010, and impersonation with an intent to avoid arrest in 2011. [ 14 ] Of most concern are the violent offences in the latter part of his record. He has an assault, an assault with a weapon conviction in 2010, an assault in 2012, and an assault in 2013. [ 15 ] When examining the Aboriginal offenders sentencing considerations, the pre-sentence report notes that Mr. James had been referred to programs offered by the Sto:lo Nation in the past.

Although he was unwilling to participate with one Aboriginal justice process, he has gained benefit from Native Justice Workers at other times. [ 16 ] Defence counsel submits that at least with respect to the verbal threat in April of 2014, Mr. James was acting immaturely and there was no intent to hurt the complainant. More significantly, Mr. James has engaged in a lot of good work while in custody. Mr.

James has certificates for substance abuse counselling and employability. [ 17 ] I am just going to pause here and return certain documents to the file: some of the documents and certificates I have looked at as well as his criminal record. [ 18 ] According to the Native Court Worker, Nicole Peters, Mr. James has truly taken advantage of his time in custody. He is meeting with alcohol and drug counsellors, engaging in life skills and obtaining career counselling. His plan is now to become a millwright. [ 19 ] Mr. James is also in a new relationship and has said he is "over the relationship" with Ms. Archie.

SENTENCING POSITIONS

[20] The Crown is seeking a six-month jail sentence for Count 1 and an 18-month less one day consecutive jail sentence for the moreserious Count 2 involving a gunshot. These jail sentences would be followed by a two-year probation order. [21] Defence counsel suggests a 30-day sentence for Count 1, and possibly 60 days for Count 2 as being appropriate. Defencecounsel submits that probation ought to be no longer than one year in length.

SENTENCING PRINCIPLES [22] I take into account all the sentencing principles in ss. 718, 718.1 and 718.2 of the Criminal Code and other related sections. [23] In s. 718, I am balancing denunciation and deterrence with rehabilitation. Concerning s. 718.1, my sentence must beproportionate to the gravity of the offence and the degree of responsibility of the offender. [24]

Section 718.2 requires me to account for aggravating and mitigating factors. A specific aggravating factor here is that Mr.James has abused a former partner not once, but twice (see s. 718.2(a)(ii)). However, I balance that against s. 718.2(e), which states: "allavailable sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders." [25] I have also considered the case law provided by counsel and in particular R. v. Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R.433.

Sentencing judges ought to pay particular attention to the circumstances of Aboriginal offenders to achieve a truly fit and propersentence. [26] I also note that many of the cases call for sentences that send a strong message of denunciation where firearms are involved,even if it is a reckless discharge of a firearm. [27] When I look at Mr. James' record which includes violent offences and I take into account that these two offences involved thesame partner, denunciation and deterrence come to the foreground. I appreciate that Mr.

James has a dysfunctional background and heseems to have turned a corner while in custody but these offences, especially Count 2, are serious. A firearm was discharged in theconveying of a threat. [28] I consider Count 1 to be of moderate gravity. Mr. James did not simply utter the threatening words, he actually entered Ms.Archie's home where he was not welcome; Ms. Archie was afraid and hid. [29] I consider Count 2 to be more grave. A shot was fired while Ms. Archie was at home. Bullet fragments were found in a roomwhere a child was often sleeping. [30] The aggravating factors include not only Ms.

Archie being a former spouse, but also that she was threatened twice. Moreover,the second threat involved the discharge of a firearm. I appreciate that I found Mr. James to be a party to this offence, but he was a partyto a very serious threat. It was fortunate no one was seriously hurt or killed. [31] I am mindful of the Gladue factors and s. 718.2(e). Mr. James had a very dysfunctional upbringing and I am impressed as towhat he has accomplished while in custody. That said, I must remember that the victim here is also of Aboriginal descent and moreover,Mr.

James has a record which indicates repeated violations of the law including violent offences. [32] Although neither counsel has suggested a conditional sentence order here, I say for the record that a conditional sentence orderdoes not meet the sentencing principles in this case given the accused's record and given the seriousness of especially Count 2. [33] Taking into account all of the above factors, my sentence is as follows, and Mr. James I would ask you to please stand up. [34] Concerning Count 1, I am sentencing you two months.

This in my view is a modest step up from the sentences you have servedpreviously for assaults in 2012 and 2013. I have taken into account the fear felt by the complainant but also that no altercations occurredat the home. [35] Concerning Count 2, I am sentencing you to 16 months less five days' time served. This is jail time consecutive to Count 1. These are two entirely distinct offences. Although you were only found to be a party conveying a threat, this threat was as serious as theyget. A gunshot through a house is a grave matter.

I have borne in mind your Aboriginal heritage and good work while in custody. [36] So to repeat, Count 1 will be a two-month jail sentence, and Count 2 will be 16 months less five days, consecutive. [37] On both counts, while you are in custody you shall have no contact or communication directly or indirectly with Alysha Archie. That order is made under s. 743.21(1). [38] Now, following your jail sentences there will be a two-year probation order attached to both counts. There will be themandatory terms as follows: 1. You shall keep the peace and be of good behaviour. 2.

You shall appear before the Court when required to do so by the Court. 3. You shall notify the Court or your probation officer in advance of any change of name or address and promptly notify the Courtor the probation officer of any change of employment or occupation. 4. Within 48 hours of your release, you shall report in person to a probation officer at the office of Chilliwack CommunicationCorrections, 45960 Wellington Avenue, Chilliwack and you shall thereafter report as and when directed by your probation officer and inthe manner directed by your probation officer.

5. You shall inform your probation officer of your present residential address and telephone number and not change that address or telephone number without prior notice to your probation officer. 6. You shall have no contact or communication directly or indirectly with Alysha Archie, Mary Archie, Jovelle Archie, and Keith Cailing. 7. Further, you shall not attend at or be within a 100-metre radius of the residence, school, or workplace of Alysha Archie, Mary Archie, Jovelle Archie, and Keith Cailing as may be known to you. 8. You shall not possess any weapon as that term is defined in s. 2 of the Criminal Code .

You shall not possess any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. Again, this is all part of the two-year probation order. 9. Most importantly for your rehabilitation, you shall attend for, participate in and complete to the satisfaction of your probation officer any counselling or program as directed by your probation officer. I will just leave that open ended in terms of the counselling. [ 39 ] That concludes my probation order.

I considered the Crown's request and the victim impact concerning a no go to the two Reserves, but in my view, it is too broad to prohibit you from those Reserves for the next two years following what I consider to be fairly hefty jail sentences. I have not decided to put in those Reserve restrictions as they would impact upon your ability to see your children and be involved with the Aboriginal community. That being said, I do not believe I am increasing the risk to the various parties, the Archies and Mr.

Cailing, because you are bound by a no contact and no go order. [ 40 ] Count 1 and Count 2 will require you to provide a sampling of your DNA and that can be done in custody. There will be a DNA order for both Count 1 and Count 2, and for both Count 1 and Count 2 there will be a ten-year firearms prohibition under s. 109(1) (

d) of the Criminal Code . [ 41 ] The victim fine surcharge, do you want me to deem him – [ 42 ] MS. GILL : I'm forfeiting him. [ 43 ] THE COURT : I am going to – for both matters sir I am going to deem you to be in default of the victim fine surcharge and you will serve one day for each victim fine surcharge which is concurrent not consecutive to the sentences I have uttered. Other than that, those are my reasons unless there is something else I have missed. [ 44 ] MS. TOSSO : I take it the two month is concurrent to the 16 months? [ 45 ] THE COURT : Which? [ 46 ] MS .

GILL: The two months on Count 1 is concurrent? [ 47 ] THE COURT : No, I said they are consecutive. They are consecutive so it is a total 18-month sentence. [ 48 ] MS. GILL: I believe that completes all the points that I was concerned about. [ 49 ] THE COURT: Okay, thank you. [ 50 ] MS. GILL: Thank you. [ 51 ] MS. TOSSO: Thank you, Your Honour. (ORAL REASONS FOR SENTENCE CONCLUDED)