R. v. Harvey Date:, 2016 BCPC 247

Citation: R. v. Harvey Date: 20160708 2016 BCPC 0247 File No: 63136-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. JACOB FRANCIS HARVEY ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE B. DYER Counsel for the Crown: L.H. Dumbrell Counsel for the Defendant: J.G. Diamond Place of Hearing: North Vancouver , B.C. Date of Hearing: July 8, 2016 Date of Judgment: July 8, 2016

[ 1 ] THE COURT: The accused, Jacob Harvey, is charged on January 25th, 2016, at or near Whistler, with possession of cocaine which is one of the scheduled drugs under the Controlled Drugs and Substances Act , an offence by virtue of s. 4(1) of that legislation. [ 2 ] It is important to emphasize that the sentence that I am providing in this case deals with a hard drug, cocaine, as against a different type of drug that is seen by many judges to be less serious, namely, marihuana. [ 3 ] The circumstances of this matter are reasonably straight forward. I understand Mr.

Harvey, age 28, being a citizen of Australia, came to Canada in early January 2016 and, within approximately two weeks of his arrival here in Whistler, met up with two friends there, also Australians, whom he knew in Australia. He, seemingly, spent some time with them at a nightclub or like establishment and, according to Mr. Diamond, his defence counsel, later in the evening, after he had no doubt a fair amount to drink, was persuaded by one these friends to leave the premises where they were drinking and take up station in a nearby stairwell and try cocaine which, according to Mr.

Diamond, was possessed by one of the two friends, the idea, I suppose, being that the three young men would use this substance together. [ 4 ] When he was seen by the police, who make a habit of patrolling the areas around the clubs in substantial part for purposes of dealing with exactly this type of conduct that has resulted in this charge for the accused, he was found holding a one-gram bag of cocaine and a cellphone, and I believe, as well, currency that was rolled up into a straw-like device. Mr.

Diamond indicated in his submissions to the court during the sentencing hearing that his client had not actually ingested any of the cocaine and made it clear that, pursuant to his instructions, the cocaine had not been acquired in the first instance by his client. [ 5 ] Nonetheless, when the police arrived on the scene the accused was holding the drug in question and the scene was such that it certainly must have looked to the police as if he was about to partake of the drug. There is no suggestion made by Mr. Diamond that he was not about to partake of the drug, but he does state that he had not consumed it.

In the result, he was arrested and taken into custody for the first time ever in his life and released, as I understand it, within 24 hours of his arrest. [ 6 ] Part and parcel of his arrest was the police, apparently, holding on to his passport for possibly as long as three to four weeks. I was told by Mr. Diamond that it is his understanding of the manner in which travellers to Canada on work visas obtain employment is that they need to first obtain a social insurance number and need their passport for that purpose and, therefore, during the time while the police held Mr.

Harvey's passport for three to four weeks, he was not able to obtain gainful employment. [ 7 ] Thereafter, his passport was returned to him and, apparently, before he could seek out gainful employment, he somehow hurt his wrist and has not been able to work at all during his stay here in British Columbia, apparently, contrary to his initial plan.

He is here with a girlfriend, also said to be an Australian citizen, who has been supportive of him and has been present throughout this sentencing hearing which commenced yesterday in my court and has proceeded for the better part of this morning. [ 8 ] It is my understanding that the accused intends to return to his country of origin, Australia, for a brother's wedding in or about September 2016 and intends to remain in Australia thereafter.

I have not been advised that he has any intention of working at gainful employment here in Canada in the interim, but even if he were desirous of doing that, that factor would not be in any way a material factor in the reasons I am now delivering for the sentence that I will shortly pronounce. [ 9 ] I have not been given any hard evidence that the accused intends, in the next period of time, to travel into the United States of America for any purpose including work. I have been told simply that he enjoys travelling.

I am mindful of the fact that, at age 28, between January and September of this year, he will have had close to eight months of travel. I am told that when he returns to Australia, that he has some desire not to follow his trade which is that of an electrician, but rather to potentially seek a position as a firefighter. [ 10 ] I should note that among the letters of reference that I have carefully reviewed that have been filed by Mr. Diamond on behalf of his client, there is at least one from a former employer, Scott Miller. It is an email message dated June 8th, 2016, and it is intended to be a reference letter.

It speaks in glowing terms of Mr. Harvey and his work as an electrician. It says in part: I have known Jake for over 10 years. We met as work colleagues and moved on to be very good friends. During this time, I have seen Jake grow from a young electrical apprentice with great work ethic to a qualified electrician entrusted not only being given responsibility to be in charge of workers, but also having responsibility and accountable for running entire electrical installations and projects. It goes on to say that: Jake definitely earned respect of all who work with him...

Our company was very sad to see him move on and would have him back in a heartbeat. [ 11 ] The name of the entity at which Scott Miller works is unclear but the sense of this email is that he would be in a position to offer Mr. Harvey employment in his trade as an electrician in Australia on his return with knowledge of the fact that he has been charged with possession of cocaine here in Canada and is facing the matter in court both yesterday and today. [ 12 ] It has not been made entirely clear to me why it is that when Mr.

Harvey has a trade where he has worked with some success for quite a number of years, he is now apparently contemplating changing his vocation and becoming a firefighter. Nonetheless, that is what Mr. Diamond tells me one of his client's career goals may be on return to Australia. There has been concern expressed by Mr. Diamond that if I were to give a conditional discharge to his client, that that might be an impediment to his working as a firefighter. I understood Mr. Diamond to admit that whether or not an absolute or conditional discharge would be given to Mr.

Harvey by the court, that both would have to be disclosed on any Australian application for employment as a firefighter. [ 13 ] I have nothing, frankly, beyond speculation as to the effect of one or other disposition that I am invited to make either by

defence or Crown in this case and its effect on Mr. Harvey's employability in Australia as a firefighter. The only evidence that I think Ireally have that is not speculative is that the matter that he faces will not be an impediment to his working at the trade that he apprenticedat for some four years and worked at for the majority of his working lifetime after high school before travelling to Canada. [14] The principles of sentencing that I need to consider in this matter, I think, are fourfold.

They are, firstly, denunciation; secondlyand thirdly, deterrence, both general and specific; and fourthly, rehabilitation. In my view, the two most important principles ofsentencing in a case of this nature are denunciation and general deterrence. [15] There can be no question in this case that Mr. Harvey has been specifically deterred from doing what he did at Whistler inJanuary 2016 ever again. I accept that he learned a lesson from this matter and it is not something that will be repeated in future in anycountry wherein he may reside including his homeland of Australia.

Crown made it plain in her closing submission that she, too,accepted that specific deterrence, therefore, was not a particularly compelling principle in terms of my sentencing him. Therefore, thetwo important principles, in my view, need to be considered. [16] Denunciation is referred to in one case that I am familiar with, namely, R. v.

M.(C.A.) (1996), (SCC), 105C.C.C. (3d) 327, a judgment of Chief Justice Lamer of the Supreme Court of Canada wherein he says at paragraph 81 as follows onpoint, and I quote: The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender'sconduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct shouldbe punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. . . . Our criminal lawis also a system of values.

A sentence which expresses denunciation is simply the means by which these values are communicated. Inshort, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a mannerwhich positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code. [17] With respect to deterrence, there is a passage in a decision of Mr. Justice Mackay in the Ontario Court of Appeal in an earlierdecision, R. v.

Willaert (1953) (ON CA), 105 C.C.C. 172, where the concept is described as follows: The governing principle of deterrence is, within reason and common sense, that the emotion of fear should be brought into play so thatthe offender may be made afraid to offend again and also so that others who may have contemplated offending will be restrained by thesame controlling emotion.

Society must be reasonably assured that the punishment meted out to one will not actually encourage others,and when some form of crime has become widespread the element of deterrence must look more to the restraining of others than to theactual offender before the Court. [18] More recently in R. v. Johnson (1996), (BC CA), 112 C.C.C. (3d) 225, Ryan J.A. of our British ColumbiaCourt of Appeal had this say at page 236 of the court's reasons on point: The principle of deterrence as a goal of sentencing is embedded in our law.

The Supreme Court of Canada has said so in C.A.M., theamendments to the Criminal Code specifically refer to it as a sentencing objective (see s. 718(b)). We must assume that deterrentsentences have some effect. It is futile to ask whether a particular sentence will deter others. That question can never be answered. Deterrence operates in a general way. Those that would break the law must know, and law-abiding citizens must be assured, that law-breakers will receive sentences which reflect the seriousness of their crimes.

This will deter some potential offenders, it will not deterothers. [19] In the case at bar, the Crown's position with respect to sentencing, and only after carefully considering the many positivereferences provided by Mr. Diamond on behalf of his client, is that a conditional discharge would be a fit and just sentence for a durationof some six months with a probation order requiring the accused to keep the peace and be of good behaviour and no reportingrequirement. [20] Mr. Diamond on behalf of his client argues that an absolute discharge would be a fit and just sentence rather than a conditionaldischarge.

He suggests that at the American border for example, a conditional discharge is considered to be a more serious sanction thanan absolute discharge. That may be all well and good, but as I have said above, there is no evidence before me that, beyond having alove of travel, this accused has any intention of entering the United States of America in the near or even longer-term future. I am toldthat he wishes to return to his brother's wedding and live in Australia. [21] The seminal case dealing with discharges is the decision of R. v.

Fallofield, (1973) (BC CA), 13 C.C.C. (2d)450, which is often referred to by trial judges because it helpfully sets out, in a series of eight numbered paragraphs, the sorts ofprinciples that the court should consider in determining whether or not to grant a discharge as against some other form of sentence.

Conditional and absolute discharges are provided for in s. 730 of the Criminal Code of Canada and, really, require two main ingredientsif one is to be given and that is that it must be in the best interests of an accused and not contrary to the public interest. [22] The Fallofield decision, a judgment of our British Columbia Court of Appeal, refers to these conditions as the first and secondcondition, and the first being that it must be in the best interests of an accused. I am quite satisfied that to grant a discharge in this matterwould be in the best interests of the accused.

There is hardly ever a case that comes before the court, where one counsel seeks adischarge, that it is not in the best interests of the accused person because, of course, the accused does not end up with a formal criminalrecord in such event. [23] The second part of the test is often the one that is more difficult for the court to apply, namely, whether or not the grant of adischarge would be contrary to the public interest.

In the Fallofield decision point number 6 is as follows: In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does not precludethe judicious use of the discharge provisions. [24] The cases that deal with discharges do state, just as counsel have argued, that consideration is to be given by the court in

determining whether or not to grant a discharge to the effect of a conviction on the rights of an accused person, including his right toemigrate or immigrate, as the case may be, and indeed its effect on the accused's employment and future employment.

I have done thebest I can, based on the facts that I have been given and attempting not to speculate which would not be proper on my part, to deal withthose latter issues. [25] There seems to be a certain tension in this North Vancouver Provincial Court with respect to whether or not judges ought to begranting conditional or absolute discharges in possession of cocaine cases.

During the process of this somewhat lengthy sentencinghearing, I have now been provided with four separate decisions, two of which support the proposition that an absolute discharge is not afit and just sentence. [26] The first decision is one of my own in R. v. Hynes, later followed by my brother Judge Rodgers in a case called R. v. Jackson. Both these cases involved an accused individual in Whistler found to be in possession of cocaine and charged with simple possession.

InHynes, I was of the view that it would not be a fit and just sentence to grant an absolute discharge and, while it is never good form, Isuppose, for a judge to refer to his own earlier decisions, perhaps to save some time, I will refer to what I said in paragraph 7 in Hynes: When the court considers what sentence is fit and just, there are three principles that, in my view, apply in this case. One is denunciationwhereby the sentence that is given by the court really shows on behalf of society its abhorrence for the conduct in question.

There isnothing good that can be said about using an illicit drug and particularly cocaine which is one of the worst. It is against the law. Everybody knows that. When you buy cocaine from someone who is trafficking in cocaine, you are helping them stay in business andbeing able to sell not only to you, but to others. You are part of the problem. [27] During the course of the submissions by counsel this morning, this point came up again and Mr.

Diamond argued that, in hisview, perhaps the best way to deter the cocaine trade, was for the police to make efforts to apprehend and go after those who import itand traffic in drugs more so than persons who consume drugs. I attempted to point out to Mr. Diamond that, in my view, any illicit drugtrade can be seen in its simplest terms as a form of commerce, the market place being consumers and people who are prepared to use thecocaine, notwithstanding they know or are taken to know that it is illegal to do so. The customers are the "demand side" of theequation.

The traffickers and importers are the "supply side" of the equation. The commerce would not exist and cannot exist withoutcustomers. [28] It is ludicrous, in my view, to suggest that deterrence of customers is not a very important part of the efforts on the part of theauthorities, primarily police forces, in controlling the drug commerce in our province and in the Resort Municipality of Whistler. Ifpeople were not prepared to buy cocaine or deterred from doing so, cocaine simply could not be sold, period. [29] The other two cases that I am asked to consider are judgments of colleague judges.

In no particular order, there is the Hilldecision, a judgment of my brother Judge Merrick, November 12, 2015, wherein an individual was found to be in possession of cocaineand Judge Merrick was persuaded under all the facts of the case that an absolute discharge would be appropriate. [30] His view, as I understand it, of the important principle of general deterrence is set out in

part in paragraph 18 of his reasonswhere he says as follows: Ultimately, at the end of the day, people who choose to use drugs, as they do in and around Whistler, as they do in other communities inthe early morning hours, it is wrong and the message to be sent to people is this. If you choose to break the law in those circumstances,you may very well get a criminal record.

If your situation falls in the exceptional situation of where it may be in the offender's bestinterests and not contrary to the public interest to be discharged, that may occur, but in my view, the message also needs to be sent to thecommunity, if you make that mistake and you are specifically deterred and you will not likely commit an offence again and you havetaken the steps that Mr. Hill has done in terms of performing a significant amount of community service work . . . I note Mr. Hill performed 42 hours of community work service before he ever faced Judge Merrick at a sentencing hearing.

JudgeMerrick continued: . . . Telling people who are important in your life, such as employers and family, what you have done, facing the disappointment of aparent which ought not to be minimized, in my view, that is how we will have a just, peaceful, and safe society and that is how offenceswill not occur again. [31] That seemed to be my brother judge's view on the matter of general deterrence as far as the Hill decision is concerned, and ofcourse, Mr. Diamond invites me to follow the Hill case.

Judge Merrick did consider my decision in Hynes and determined on the factsof his case that he would not follow it. [32] Lastly, I am invited by Mr. Diamond to follow the case of R. v. Santos, a decision of my sister Judge Challenger, reported at2014 BCPC 266 , 2014 BCPC 0266.

This decision, in my view, can be distinguished from the case that I am dealing with ontwo very, very important points: (1) the substance being dealt with in Santos was marihuana and (2) while the charge was arguably moreserious in the sense that the accused had been charged with trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act,the evidence in the case was that he had really grown 414 plants to deal with his own medical conditions and, to a very limited extent,was providing, on a not-for-profit basis, some of his crop to others who no doubt had medical conditions, as well. [33] Part and parcel of the facts in Santos that make it a very unique case is that Mr.

Santos was found by the court to have had a 50-percent chance that he would develop a life-threatening genetic disease which he expected to have an onset (having regard to his ownfamily history) within the next 10 years with a decline that could be very rapid.

My sister judge found as a fact that he believed that hisuse of marihuana might be prophylactic and might delay the onset of this terrible genetic condition. [34] She also noted that he had arthritis and experienced stiff muscles, back pain, and insomnia and the sense of her decision wasthat he was likely raising marihuana and using it to deal with those conditions, as well. She did find as a fact that in his trafficking of themarihuana to others on not a very significant basis, that it was, on a not-for-profit basis.

[ 35 ] A third factor, as pointed out by Crown counsel is that Santos does not appear to address, to the extent that Crown invites me to address, the community concerns that exist where drugs are either possessed or trafficked within a particular community. [ 36 ] I have some evidence before me with respect to the problem of the use of hard drugs in Whistler. I give this evidence very minimal weight in the decision that I have come to in this case.

This morning I was presented with two letters by Crown counsel, one written by Mayor Nancy Wilhelm-Morden initially to the Chief Federal Prosecutor in the Public Prosecution Service of Canada dated November 20th, 2015, wherein she says in part: The use of hard drugs is most prevalent in Whistler's 18 to 35-year-old population and is primarily associated with the late evening and early morning party nightlife. While it is a limited phenomenon [she says] it does have emotional, physical, and financial impacts to those involved including the users, their friends, families, and others.

They interact with social and medical agencies and the police in communities. [ 37 ] She concludes the letter as follows: It is through robust policing efforts and community support work that Whistler is fortunate enough in most cases to thwart hard drug activity from the community. This is, however, at significant costs for policing, community social services, and community supports and impacts. We trust that effective deterrence by the court in sentencing offenders for these crimes will help to lessen these crimes in our area, as well.

It is extremely important that residents and visitors to our community feel safe and secure and that all agencies work together towards this outcome. [ 38 ] Secondly, I have been given a letter done by the vice president of human resources for the Whistler Blackcomb Corporation said to be a very significant employer of young people in Whistler, and he simply makes an observation that it is an alarming factor, at least in late 2015, from what he can see, that the presence of hard drugs is becoming common place at Whistler.

In so far as this author made any recommendation as to what I should do in terms of sentencing the accused before me and insofar as Mayor Nancy Wilhelm- Morden may have appeared to do so in her correspondence, I place no weight whatsoever on those representations. [ 39 ] Crown counsel this morning did give me some interesting facts with respect to the seriousness, if you will, of the use and possession of cocaine in the Resort Municipality of Whistler based on a review of files that were initially handled locally by Lakes White & Company and after January 1, 2016 by herself as the agent to prosecute these sorts of cases.

She determined that in the year 2012, there were three charges for possession of cocaine in Whistler. The next year, 2013, there were six. In the year 2014, there were nine, whereas in the year 2015, there were some 56 charges. On her review of files in North Vancouver, West Vancouver, Squamish, and Sechelt, she found another 21 charges for 77 charges in total in the year 2015. That is approximately a little over two-thirds of the charges that were laid in the year 2015 related solely to the Resort Municipality of Whistler as compared to all these other municipalities on the North Shore.

In this year to the month of June, there are some 42 charges outstanding. [ 40 ] I give these facts some weight and I do accept that it may be a factor to know and understand the extent to which police enforcement efforts may have been stepped up more recently, for example, in the years 2015 and 2016 as compared to earlier years. The proposition that if the police are more diligent in seeking out people who might possess and use cocaine and have more patrols, with more officers involved in that exercise, that indeed more charges for possession of cocaine might result appeals to my common sense.

That said, I am alive, as well, to the further logical proposition that, if that could be said, it is likely because of a concern that this drug is being more readily used in the community. So I am not prepared to find simply because policing efforts are not well understood that these simple statistics given to me by Crown counsel are without value. [ 41 ] I do want to mention that I have considered, in coming to the sentence that I will shortly pronounce in this case, both the aggravating and mitigating factors. An important aggravating factor is that this was a hard drug.

It was cocaine, a very problematic drug in our society. [ 42 ] To some extent, it is an aggravating factor that the accused, really, a visitor in Canada on a work visa, felt that it was appropriate to take up the invitation to use this shortly after his arrival in Canada by approximately two weeks. I give no weight whatsoever to the excuse we often hear that at the time the accused was inebriated and made a bad judgment call.

In my view, it is not appropriate to blame the alcohol: "That the alcohol made me do what I did." That is not taking proper responsibility. [ 43 ] The main mitigating factor I find is that the accused has pled guilty to this matter, I think, at a reasonably early date and has spared the public the expense of a trial.

The other mitigating factors are the letters of reference that have been provided to me, as well as the fact that this accused has completed some 48 hours of community service work before coming into my courtroom as occurred, I believe, in the Hill case. [ 44 ] I want to state that these letters of reference are all very positive. The accused is a lucky man indeed to have a brother and a sister who would write on his behalf as positively as they have done. As well, he has a number of friends who have had entirely positive things to say about him.

I have already alluded to an email from Scott Miller, a former employer, and by the sound of it, a potential employer in future. [ 45 ] The letters directed to the Crown from Mr. Harvey, I think, are heartfelt and I accept them at face value and they certainly do support the above proposition that specific deterrence is not an issue here.

Interestingly, he has written a letter dated June 23rd, 2016 to the officers of the Whistler RCMP and I could not help but fail to note one portion therein where he says one short comment an officer made was: All it took to see the drug use on a street level is not where the story begins and ends. I did not see it immediately in the situation, but upon further thought, I see now that there is much more going on in the drug trade that everyday individuals not necessarily see or even think about.

The drug trade on a trafficking level is costing innocent lives, both the law enforcement fighting at ground level in South and Central America and border crossing towns and innocent bystanders, random members of the public in the wrong place at the wrong time.

[ 46 ] This is the sort of bigger picture conduct that the accused now apparently understands and he has thought about all of what he did and what resulted from what he did on the evening in question in terms of the supply side of the marketing of cocaine. He, as I have said, is on the demand side or was on the demand side. [ 47 ] In my view, having regard to all the factors that I have considered in this case, a fit and just sentence would be a conditional discharge. I am not prepared to grant an absolute discharge in this matter.

I do not find, notwithstanding the fact that the accused has already done some 48 hours of community service work and is supported very positively by these letters of reference and is clearly remorseful for what he has done (and I accept that he is) that to grant an absolute discharge sends a proper message to others who might do what he did in future. [ 48 ] If general deterrence is to mean anything at all with respect to the use of cocaine in our society, judges, I think, and of course depending on the facts of every case, need to speak up and speak plainly that this sort of conduct is not acceptable and will not be countenanced.

A conditional discharge is the second-least strenuous and forceful sentence that any judge in the court can pronounce and I accept that Ms.

Dumbrell is only seeking a conditional discharge based on the evidence that was placed before her by defence counsel. [ 49 ] If, at the end of the day, in pronouncing a conditional discharge in this matter, there will be some impediment on the part of this accused travelling into or through the United States of America for a limited period of time before which he can seek a pardon, if he is minded to do that at all, then to be blunt, that is part of the price that he must pay for doing what he did, and if that is likewise part of the message that goes out to others who would do what he did as part of the concept of general deterrence, so be it. [ 50 ] To be clear, then, the conditional discharge will be followed with a period of probation for six months as sought by the Crown, and there will be a single term in the order that he will keep the peace and be of good behaviour.

He will not be required to report. [ 51 ] Is there a victim fine surcharge that needs to be dealt with in this? [ 52 ] MS. DUMBRELL: Yes, Your Honour, there is. It is $100. [ 53 ] THE COURT: Does he need some time to pay that? [ 54 ] MR. DIAMOND: Two weeks, please, Your Honour. [ 55 ] THE COURT: All right. I will give him to the end of the month. That is three weeks. I will give him until the 29th day of July, 2016, at four o'clock p.m. to pay that. Yes? [ 56 ] MS. DUMBRELL: No, I was just going to say thank you, Your Honour. [ 57 ] MR.

DIAMOND: Yes. [ 58 ] THE COURT: I do wish to commend both counsel for the very, very careful presentation that they made in this matter. The decision was not an easy one to come to and I thank you both for your efforts. [REASONS FOR SENTENCE CONCLUDED]