R. v. Price Date:, 2016 BCPC 216

Citation: R. v. Price Date: 20160628 2016 BCPC 0216 File No: 63141-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. JAMES MITCHELL PRICE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: L. Dumbrell Counsel for the Defendant: G. Paruk Place of Hearing: North Vancouver , B.C. Date of Hearing: June 28, 2016 Date of Judgment: June 28, 2016

[ 1 ] THE COURT: On May 19th, 2016, James Mitchell Price pled guilty to one count of possession of cocaine contrary to s. 4(1) of the CDSA . The events occurred on February 12th, 2016, just after midnight when the police observed him inhaling powdered cocaine off a key outside of a nightclub in the Whistler Village. The total weight of the cocaine in his possession was .1 grams. [ 2 ] Mr. Price says the cocaine he was using on the night in question came into hands during the course of a birthday celebration for another person at the bar that night.

He believed he was being discreet and was out of view of people passing by when he was ingesting it. Mr. Price was cooperative and respectful toward the officers who dealt with him. He was released at the detachment on a promise to appear. He entered an early guilty plea. Antecedents of the Offender [ 3 ] Mr. Price is 22 years of age and was 21 at the time of the offence. He has no criminal history. He is not dependent on cocaine, alcohol, or any other substances. He does not have any health or mental health challenges.

Letters of support were filed from his sister and his employer. [ 4 ] I find this offence is out of character for the accused. Aside from the youthful indiscretion and lack of judgment involved in the occasional recreational use of illicit drugs, I find he is a prosocial person and a contributing member of society. Mr. Price is from Australia and is a journeyman boilermaker. He has spent the last two years splitting his time between Canada and Australia. He works as a boilermaker in Australia and then spends the Canadian winter working and skiing. [ 5 ] He was in Banff for the 2014/2015 ski season.

He has worked full-time in a grocery store in Whistler over the 2015/2016 ski season earning $13 an hour. Mr. Price is a skilled hockey player who played for his state team in New South Wales. Mr. Price wishes to travel the world and eventually immigrate to Canada permanently. One of his sisters is also living in Whistler. Community Victim Impact [ 6 ] The Crown filed a community victim impact pursuant to s. 722.2 of the Code which consisted of letters from the mayor of the Resort Municipality of Whistler and from the Gibbons Hospitality Group which operates a number of restaurants and bars in Whistler.

The Municipality observes that [as read in]: Recreational drug use and the associated trafficking is a factor in a community of this nature.

It is considered a limited issue compared to most communities. [ 7 ] Later in the letter, the observation is made that the primary age group associated with illicit drug use is 18 to 35 years and that the illicit drug use is associated with late evening and early morning party nightlife and, "It is a limited phenomenon." [ 8 ] Overall, it is a thoughtful and insightful letter which addresses the health and safety issues which arise from the trafficking and use of illicit drugs and the related policing and other costs involved for any community.

It ends with: 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 toward this outcome. [ 9 ] The letters from the Gibbons Hospitality Group speak to the impact of drug use or abuse by their staff, by patrons, and generally in the community at large. In particular, these letters speak to the emotional, psychological, and physical impacts of abuse and addiction.

They also refer to incidents where people under the influence of drugs have acted out sometimes violently towards staff and patrons in their establishments. [ 10 ] Of course, the same observations can be made with respect to the devastating effects of alcohol abuse and the serious interpersonal violence and disruptive behaviour which too often results from mere overconsumption of that legal drug. [ 11 ] The Crown argued that illicit drug use is escalating in Whistler. This submission was based on somewhat anecdotal evidence.

I am not able to find that the number of incidents of trafficking or simple possession on a per-capita basis is any different in Whistler than in the entertainment district in Downtown Vancouver or any other large urban centre. Positions of Counsel [ 12 ] Both Crown counsel and defence counsel submit that a discharge is an appropriate disposition in this matter. The issue for the court is whether that discharge should be absolute or conditional. The conditions the Crown asks to be imposed are that Mr. Price keep the peace and be of good behaviour, report, and complete 30 hours of community service.

They suggest he should be bound by probation for a period of six to nine months in order to complete those hours. [ 13 ] Defence counsel submits an absolute discharge is appropriate and there is no principled basis for the imposition of community work service. If the court is inclined to impose a more deterrent or punitive consequence, it can do so by increasing the victim fine surcharge. [ 14 ] Today, before court, Mr.

Price produced a letter indicating he has now performed 21-and-a-half hours of community service at the Re-Use-It Centre in Whistler. [ 15 ] There are no aggravating factors other than the nature of the drug itself. The mitigating factors are the minimal amount of drugs in the offender's possession, his early guilty plea, his age, his lack of criminal history, and his otherwise prosocial lifestyle. The Law

[16] I have considered the principles of sentence set out in s. 718 to 718.2 of the Criminal Code and s. 10 of the CDSA. I have alsoconsidered the decision of R. v. Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.), and R. v. Sanchez-Pino(1973), (ON CA), 11 C.C.C. (2d) 53. In R. v. Sanchez-Pino, the Ontario Court of Appeal said: The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offenderhimself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order.

Nor is hisrehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or atleast of such character that the entry of a conviction against him may have significant repercussions. It must not be "contrary to thepublic interest" to grant some form of discharge.

One element thereby brought in will be the necessity or otherwise of a sentence whichwill be a deterrent to others who may be minded to commit a like offence -- a standard part of the criteria for sentencing. [17] I have also taken into consideration the principle that in matters where the court is dealing with a youthful adult first offender,the court must give significant, if not primary, weight to the rehabilitation of the offender.

This is especially so for non-violent offencesor offences such as this where there is no identifiable victim. [18] Crown counsel provided the court with four unreported sentencing decisions from the North Vancouver Registry all decidedover the past year by four of my colleagues. The circumstances of each offence and offender are similar. The issue in each was whetheran absolute or conditional discharge should be granted. In R. v. Hynes, North Vancouver Registry Number 61574-1, August 20th, 2015,the court found that a conditional discharge was required to meet the principle of general deterrence.

The offender was placed onprobation for eight months and required to perform 50 hours of community work service. [19] In R. v. Hill, North Vancouver Registry Number 62229-1, November 12th, 2015, the court found that an absolute discharge wasappropriate, although an exceptional disposition. [20] In R. v. Gauvreau, North Vancouver Registry Number 62500-1, February 25th, 2016, the court imposed a conditional dischargeand placed the offender on probation for four months in order to perform 20 hours of community work service. [21] In R. v.

Jackson, North Vancouver Registry Number 62812-1, March 24th, 2016, the court imposed a conditional discharge andprobation for six months with only the statutory conditions. The victim fine surcharge was increased to $250. An absolute dischargewas not seen to meet the principle of general deterrence. [22] With all due respect to my learned colleagues and to the principle of comity, I do not find the application of the principles ofsentence to have been given thorough consideration in the cases of Hynes, Gauvreau, or Jackson.

I also find the law does not supportthat the circumstances must be exceptional for the granting of an absolute discharge as opposed to a conditional discharge as was foundin Hill.

It would appear that in each of those cases, the decisions were oral and extemporaneous. [23] In my view, once the court has determined that a discharge is appropriate, the court has also determined that the need forgeneral deterrence is not a pressing one in all the circumstances or that the other factors impacting the interests of the offender and thepublic interest outweigh the need to impose a sentence which gives particular weight to general deterrence.

As such, the determinationof whether to impose a conditional or absolute discharge should be primarily dependent on the rehabilitative needs of the offender, theneed for reparation or restitution, the need to instill a sense of responsibility in the offender, or as an acknowledgement of the harm anoffender caused to a victim or community by involving the offender in particular kinds of community work relating to the offence orvictim. [24] In some circumstances, where an absolute or conditional discharge is found to be appropriate, the court may also find itappropriate to increase the victim fine surcharge as a punitive measure.

Analysis [25] I find Mr. Price's moral culpability for this offence is low. He was given the drug that evening by an acquaintance andattempted to be discreet when using it. Mr. Price has faced being arrested, taken into custody, being charged with a criminal offence,and has gone through the process of being prosecuted for that. He was put to the expense of retaining a lawyer to represent him. He hasfaced the uncertainty of whether this matter would result in a criminal record. I find these factors will serve to denounce and generallydeter other like-minded young people. [26] I find Mr.

Price is remorseful and has been specifically deterred from any future possession of illicit drugs. He has acceptedresponsibility for his offending conduct and understands the danger illicit drug use presents for him and for his peers in the community. [27] Probation should be imposed primarily for rehabilitative purpose. I find Mr. Price is not in need of any rehabilitation. I do notexpect to see Mr. Price before the courts again. [28] Community work service is used primarily for restorative or reparative ends.

It can also be used to instill a sense ofresponsibility in the offender or to acknowledge the harm done to any victim or to the community. I do not see any need to address theseprinciples of sentence in this matter. [29] One of the issues discussed at the time of the sentencing hearing is whether, as the offence is one involving moral turpitude, aconditional discharge as opposed to an absolute discharge will result in Mr.

Price being denied entry into the United States. [30] It has long been my understanding that the border authorities in the United States refuse entry to those convicted of simplepossession of illicit substances such as cocaine. My understanding arises from my experience and the submissions of many seniordefence lawyers that the United States draws a distinction in practice between a conditional discharge and an absolute discharge. Theformer is viewed as a conviction and the latter is not. [31] The Crown filed an excerpt from a United States Government website respecting ineligibilities for visas.

It provides that the

person who has been convicted of a crime of moral turpitude, such as possession of cocaine, is ineligible for an entry visa unless the maximum penalty possible for the crime does not exceed one year. The maximum jail penalty possible for the offence before the court is six months. [ 32 ] Crown counsel was not able to advise how long this provision has been in effect or whether or not it is observed in practice. If applied, this provision suggests that Mr. Price would not be denied entry even if a conviction were registered against him. As a result, the Crown submits the court should not take the potential for Mr.

Price to be denied entry into the United States into account in determining whether to grant an absolute or conditional discharge. [ 33 ] In this matter, I find that for a youthful first offender of otherwise good character, as Mr. Price is, imposing a penalty which could negatively impact his ability to travel freely on an ongoing basis into or through the United States or other countries would have significantly adverse repercussions and would be a disproportionately harsh result. It is clearly in Mr. Price's interest to be granted a discharge. It is in the public interest to allow Mr.

Price to go forward in his life unhindered by a conviction for a drug offence. [ 34 ] Mr. Price, if you will stand. [ 35 ] In all the circumstances, I find the discharge should be an absolute one and I so impose that penalty. [ 36 ] Mr. Price, I hope you took my words seriously. I do not expect to see you back before any courts in the future -- [ 37 ] THE ACCUSED: You will not. [ 38 ] THE COURT: -- and I hope you have the good sense not to continue using illicit street drugs.

I grew up in the '80s when everybody thought cocaine was just a fun recreational drug and I watched so many people's lives ruined, prominent people, wealthy people, educated people, and many lawyers, whose lives just went straight down the toilet because they became addicted to cocaine. Do you know how many people die every week -- or in a year in Canada just from taking ecstasy? [ 39 ] THE ACCUSED: No. [ 40 ] THE COURT: One a week, because it is toxic. You do not know what you are taking. It is made in someone's garage, and they do not care what happens to the people who take it.

So it is simply foolish to even engage in those kinds of substances at all. So I hope you do take that seriously and do not end up doing something you will regret. So good luck. [ 41 ] THE ACCUSED: Thank you. [ 42 ] MS. DUMBRELL: Your Honour, with respect to the victim fine surcharge, then, it is the minimum. [ 43 ] THE COURT: Oh, there is $100 -- [ 44 ] MS. DUMBRELL: Just the $100. You are not increasing that? [ 45 ] THE COURT: Yes. [ 46 ] MS. DUMBRELL: Thank you. [ 47 ] THE COURT: No, I am not going to increase it. [ 48 ] MS.

DUMBRELL: Thank you, Your Honour. [ 49 ] THE COURT: Time to pay the victim fine surcharge? [ 50 ] MR. PARUK: Sixty days. [ 51 ] THE COURT: Yes, okay, so that is the statutory -- [ 52 ] MR. PARUK: Yes. [ 53 ] THE COURT: Okay. [REASONS FOR SENTENCE CONCLUDED]