R. v. Der, 2023 BCPC 183

Citation: R. v. Der 2023 BCPC 183 Date: 20230721 File Nos: 82743-2-C, 87682-2-C, 87682-3- A,87682-4-A, 89215-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. ROGER IAN GREGORY DER BAN ON PUBLICATION – s. 539(1) CCC REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. SILVERMAN Counsel for the Crown: V. Sissons Counsel for the Accused: M. Winkel Place of Hearing: Nanaimo , B.C. Dates of Hearing: June 21 and June 29, 2023 Date of Sentence: July 21, 2023 INTRODUCTION

[ 1 ] Roger Der has pled guilty to the following offences:

a) Information 87682-2-C: possession for the purposes of trafficking cocaine; possession for the purposes of trafficking fentanyl; possession for the purposes of trafficking fentanyl/carfentanil; and possession of a prohibited weapon, a conductive energy weapon or taser.

b) Information 89215-1: possession for the purposes of trafficking cocaine; possession of methamphetamine for the purposes of trafficking; failing to stop for police; possession of a prohibited firearm, a sawed-off shotgun; and possession of a prohibited weapon, a switchblade knife.

c) Information 82743-2-C: possession for the purposes of trafficking fentanyl; possession for the purposes of trafficking cocaine; possession for the purposes of trafficking methamphetamine; possession for the purposes of trafficking carfentanil; and possession of an imitation firearm.

d) Information 87682-3-A: breach of a release order by having ID documents in another persons name in his possession.

e) Information 87682-4-A: three counts of breach of the terms of a release order by having a knife in possession; having in his possession identification in another person’s name; and failing to reside at recovery facility. [ 2 ] The dates of the various offences will be discussed in more detail below, but I understand that all guilty pleas were entered on July 22, 2022. Since that time a pre-sentence report as well as a Gladue report have been prepared. It is now my task to impose a fit sentence.

CIRCUMSTANCES OF THE OFFENCES [ 3 ] On August 11, 2020, after receiving a civilian tip concerning suspected drug dealing in downtown Nanaimo, the RCMP began conducting surveillance of the area. From a distance they observed Mr. Der engage in hand to hand transactions indicative of street level drug transactions. Accordingly, they arrested him, and in the course of searching him and his backpack, located 9.85 grams of cocaine, 26.96 grams of fentanyl (which tested at 49% pure), 6.4 grams of fentanyl/carfentanil mix, and a working conductive energy weapon, otherwise known as a taser. I understand Mr.

Der was released on conditions shortly after his arrest. [ 4 ] Mr. Der next came to the attention of the RCMP on March 6, 2021. On that date, police officers watched an individual interact with the male driver of a vehicle that had stopped in a parking lot. The officers queried the plate and determined that the vehicle was registered to a female named Jennifer Dietrich. After the vehicle left the lot, the officers decided to stop it to check the driver, who it turned out was Mr. Der. He told the officers he believed he had an outstanding warrant, which it turned out was true. As a result, he was arrested.

Following a search of the vehicle, officers located 3.7 grams of fentanyl, 14 grams of cocaine, 3.5 grams of methamphetamine, 245 amphetamine pills, 5.26 grams of carfentanil and 2 imitation handguns. Police also located bank cards in Mr. Der’s possession which were in another person’s name. Consequently he was charged with breach of a term of the previous release order. I understand Mr. Der was released from custody on terms on this matter as well. [ 5 ] The release order Mr. Der was bound by required him to reside at a recovery house called New Roads.

On June 6, 2021 he was found to have left the property without permission. He was at large until he came to the attention of police on June 15, 2021. On that date around 1:20 a.m., an RCMP member observed a vehicle driving erratically. He tried to stop the vehicle, but it sped off. The officer was able to see that it was being operated by a male and that there was a female passenger. Eventually, the officer located the vehicle at the end of a dead-end road and found the driver, Mr. Der and the passenger hiding in some nearby bushes. At that time, Mr. Der was observed to be trying to conceal various items.

Following his arrest and subsequent search, he was found to be in possession of 130.42 grams of cocaine, 32.27 grams of methamphetamine, a sawed-off, pump action shotgun, brass knuckles, a switchblade, as well as ID in another person’s name. His last release order forbade him from possessing the knife and ID, which therefore gives rise to the other charges in Information 87682-4-A. [ 6 ] Mr. Der has remained in custody since that date which together with the other periods of pre-trial detention, amounts to 840 days awaiting sentencing.

Counsel are in agreement that he should be credited at 1.5 days for each day prior to sentencing. I therefore fix that period at 1,260 days. Mr. Der’s Circumstances [ 7 ] For this sentencing hearing, PSR and Gladue Reports were prepared. Regrettably, I have found the PSR unhelpful and in fact misleading. Describing, for example, Mr. Der’s criminal record as “vast” is simply untrue. I therefore put little stock in the conclusions the author reaches and the recommendations that flow from them. Instead, I place great reliance on the contents of the Gladue Report as well as the submissions of counsel. [ 8 ] Mr.

Der is now 42 years old. He identifies as Metis, belonging to a Cree community on his mother’s side from Blaine Lake, Saskatchewan. Mr. Der believes it is the Mistawasis First Nation. Mr. Der’s grandfather, now deceased, was a residential school survivor, and seemed to dissuade his children, including Mr. Der’s mother from identifying and connecting with their Indigenous community. However, throughout his time in school and especially since being incarcerated on the index offences, Mr. Der has been significantly involved in many cultural activities.

His plans in the near term upon release involve continued participation in work and education that is Indigenous-focussed. [ 9 ] Mr. Der had a challenging early life. His mother and biological father separated when he was quite young, which resulted in a move with his mother from Saskatoon to Surrey. Mr. Der was sent back to live with his father in the fifth grade due to disciplinary issues, but wound up experiencing severe physical abuse at his father’s hands until he was removed by protective services. He has not had much contact with his father since that time. [ 10 ] Mr.

Der’s mother got remarried to Tristan Lane, a person Mr. Der regards as his father. Mr. Lane, however, struggled with drug

and alcohol abuse, and was unknowingly involved in Mr. Der first using illicit substances. Mr. Lane and Mr. Der’s mother, Debbie,separated after 10 years of marriage. Mr. Der has a good relationship with both. [11] Mr. Der also has a significant number of half and step siblings. He was particularly close with his step-sister, Cadina Lane.Sadly, she died of a brain aneurism while Mr. Der was on bail with conditions that he reside at a treatment facility. When Mr. Der foundout about her death he left the facility without permission.

This breach of bail resulted in his latest arrest on June 15, 2021, and he hasremained in custody since that time. [12] Mr. Der has had long-standing drug abuse issues that date back to when he was a teenager. He believes he used drugs to copewith loneliness and being sexually abused by his maternal grandfather; a detail of his past he has shared with few people. Despite this hehas been able to advance in education beyond high-school and hold well-paying jobs for significant periods.

Until he first came intoconflict with the justice system in 2018, he had been an exceptionally hard-working person and enjoyed travelling extensively throughoutthe world. When a project he had been working on in Squamish ended in 2016 he appears to have suffered burnout. Eventually, hereturned to the Nanaimo area where his family resides, but struggled with substance misuse, and many of the associated challenges suchas housing since then. [13] Much to his credit, since going into custody on these matters Mr. Der has taken every course and program that has been offeredto him at the pre-trial centre.

This includes Respectful Relationships, Substance Use Management, Living Without Violence andEssential Skills. He also quit using drugs altogether. Most importantly, Mr. Der has been instrumental in VIRCC’s Totem Pole Project.The project is led by Master Carver, Tom LaFortune, who has offered to take Mr. Der, upon release, as an apprentice at his shop inVictoria. Mr. LaFortune has described Mr. Der as undergoing a transformation, a person who has gone from being “one of the guys onthe side to being someone who has helped be his right-hand man with the other inmates.” [14] Mr.

Der was married for about 10 years, but separated from his wife sometime ago. He has a girlfriend and daughter and hopeseventually to move to eastern Canada. In the short-term, Mr. Der wants to pursue the apprenticeship with Mr. LaFortune and removehimself from the criminal scene in Nanaimo. He is prepared to pursue counselling, including residential treatment, and will abide by anyother court-ordered conditions. [15] Finally, Mr. Der has a relatively short criminal record which commences in July, 2018 and extends for about one year. It containsa small number of property, simple possession and breach convictions.

From the outset of these entries, Mr. Der appears to have beensentenced to time in jail, but in no instance was it for more than several months. This most recent period of pre-trial custody, to be sure,has been the longest time he has spent in custody during his three years of criminal offending. General Legal Framework [16] The applicable sentencing principles are set out in

Part XXIII, Sections 718, 718.1 and 718.2 of the Criminal Code. Sentencesare meant to contribute to respect for the law and the overall maintenance of a just, peaceful and safe society.

To this end, sentencing isto impose just sanctions that have one or more of the objectives of: denunciation; deterrence of the offender specifically and of otherpossible offenders generally; separating offenders from society where necessary; assisting in rehabilitation of offenders; providingreparations for harm; and promoting a sense of responsibility in offenders and acknowledgement of the harm done by their actions. [17] Sentences should be proportionate to the gravity of the offence and the moral blameworthiness of the offender.

Each sentencingdecision must be tailored to the particular circumstances of the offence and the offender, keeping in mind that sentences should besimilar to those imposed for like offences in like circumstances. If less restrictive sanctions are appropriate, an offender should not bedeprived of liberty. [18]

Section 10 of the Controlled Drugs and Substances Act traces the language in the applicable Code provisions, but adds as apurpose of sentencing, the encouragement of rehabilitation and treatment in appropriate circumstances balanced against the harm done tovictims and the community. [19] Of particular importance in this sentencing hearing is the principle of restraint especially in its application for an Indigenousoffender. In R. v. Billing, 2017 BCSC 1107, Justice DeWitt-Van Oosten writes: [46]

Section 718.2(

e) of the Code provides that when imposing sentence, all available sanctions, other than imprisonment, that arereasonable in the circumstances and consistent with the harm done to victims or to the community, should be considered, with particularattention to the circumstances of Aboriginal offenders. [47] In R. v. Ipeelee; Ladue, 2012 SCC 13, the Supreme Court re-affirmed that s. 718.2(

e) is a "remedial provision designed toameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges tohave recourse to a restorative approach to sentencing": at para. 59, citing R. v. Gladue, (SCC), [1999] 1 S.C.R. 688. [48] In sentencing an Aboriginal offender, the Court must consider: (

a) the unique systemic or background factors which may haveplayed a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctionswhich may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection:Ipeelee, at para. 59. [49] When considering "unique systemic or background factors", the Court must take judicial notice of: [60] … such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate intolower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course highlevels of incarceration for Aboriginal peoples: Ipeelee, at para. 60. [50] The Court must also consider any "individualized information" about the accused person as an Aboriginal offender: Ipeelee, atpara. 60.

[51] Paying close attention to both systemic and individualized factors allows the Court to better achieve a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender. "Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited option for positive development … the reality is that their constrained circumstances may diminish their moral culpability": Ipeelee , at para. 73 . [52] It is not necessary that the offender establish a "causal link" between these background factors and the index offence before the remedial impact of s. 718.2(

e) is brought to bear: Ipeelee , at para. 81 . This is true even for "serious or violence offences": Ipeelee , at para. 84 . "Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence": Ipeelee , at para. 83 . [53] Sentencing judges have a positive duty to apply s. 718.2(

e) in all cases: Ipeelee , at para. 85 . A failure to do so constitutes an error that justifies appellate intervention: Ipeelee , at para. 87 . Crown Counsel’s Position and Sentencing Authorities [ 20 ] Crown seeks a total sentence for all matters of 8 years less time awaiting sentencing. The break-down for each information is as follows: 4 years on Information 87628-2-C; 1 year consecutive on Information 89215-1; 4 years consecutive on Information 82743-2-C; and 1 day for each of the breach Informations concurrent.

Applying the totality principle to the 9 year sentence that would result, Crown submits the sentence should be reduced by 1 year. [ 21 ] Crown counsel concedes that Mr. Der was a street level drug dealer, as distinct from one who could be described as mid-level or higher. Nonetheless, Crown submits that Mr. Der’s offending is especially aggravating considering that he possessed for trafficking among other drugs fentanyl and carfentanil. In addition, he possessed weapons including imitation and real firearms. Lastly, Crown counsel points to the repeated incidents of offending by Mr.

Der despite his being subject to release conditions. Crown counsel acknowledges the presence of Gladue factors; however, Crown argues that the court in sentencing Mr. Der must place significant emphasis on deterrence and denunciation, and less importance on rehabilitation. [ 22 ] In support of its position, Crown relies on the following authorities: R. v. Smith, 2017 BCCA 112 , R. v. Mann, 2018 BCCA 265 ; R. v. Tomczyk , 2019 BCSC 1313 ; R. v. Virus (unreported BCPC January 26, 2022); R. v. Lee , 2018 BCCA 428 ; R. v. Parranto , 2021 SCC 46 ; and R. v. Wilkinson , 2021 BCSC 896 .

In addition to the authorities, Crown counsel has tendered the 2023 BC Coroner’s Report which graphically demonstrates the death toll from toxic drug use particularly in the area in which Mr. Der’s offending occurred. [ 23 ] I have carefully considered these authorities and accept that there is significant moral culpability involved in the trafficking of fentanyl and other synthetic opiates. As such, the primary principles in sentencing such offenders are denunciation and deterrence.

Sentences for such offenders should generally start at 18 months and may exceed 36 months where offenders have substantial records involving the sale of fentanyl and depending on how high up the offender is on the chain of sale or distribution. The Defence’s Position and Authorities [ 24 ] Defence counsel urges the court to consider a sentence of time served, which as of today would amount to the equivalent of nearly 3.5 years.

In addition, defence counsel suggests that her client could be managed in the community upon his release by way of a 2 year probation order. [ 25 ] Counsel submits that while the court must give effect to denunciation and deterrence, the sentence she proposes particularly takes into account the Gladue factors present as well as the mitigating factors, especially Mr. Der’s guilty pleas. When considering these factors then, counsel argues that Mr. Der’s rehabilitation comes more sharply into focus.

Given his efforts while in custody, and his strong prospects going forward, the principle of restraint militates in favor of the sentence proposed. [ 26 ] In addition, counsel asks the court to consider the following: the amounts of drugs seized in each investigation, while not indicative of subsistence drug dealing are nonetheless not large, and in any event less than in a number of those cases relied upon by Crown; Mr. Der suffered more acutely in custody as a result of the COVID-19 pandemic; and Mr. Der’s Charter rights were likely breached in some of the investigations.

These additional factors, counsel argues, should result in the court tempering the sentence it might otherwise impose. [ 27 ] In support of its position defence counsel relies on the following authorities: R. v. Thomsen (unreported BCPC March 8, 2023); R. v. Smallboy , 2018 BCPC 383 ; R. v. Kehoe , 2023 BCCA 2 ; R. v. Nasogaluak , 2010 SCC 6 ; R. v. Toth , 2017 BCSC 501 ; R. v. Campbell , 2021 BCSC 853 ; R. v. Lypowich , 2022 BCSC 718 ; and R. v. Mitchell , 2022 BCSC 2321 . [ 28 ] In addition to the authorities, counsel for Mr.

Der has provided a book of supporting material which includes certificates verifying completion of a number of programs, news articles which include interviews with Mr. Der regarding the Totem Pole Project at VIRCC, as well as letters of support. [ 29 ] Again, I have carefully considered these authorities and glean from them that fundamentally sentencing is a highly individualized process, and that especially in the case of Indigenous offenders, courts must consider those unique factors in its assessment of moral culpability in order to give meaningful effect to s. 718.2(

e) of the Code . I am also aware that so long as sentences are grounded in the purposes and principles of sentencing as set out in the Code , even departures from acknowledged ranges will withstand appellate review. Analysis [ 30 ] There is little doubt that Mr. Der’s offences involving the possession of synthetic opiates for the purposes of trafficking are aggravated. Considering the well-known devastating effects of opioid trafficking, Mr. Der’s moral culpability is significant. That is especially so given the fact that his offending persisted despite arrests and releases on bail.

I have also not overlooked the fact that on each occasion that Mr. Der was arrested with illicit substances, he was also found in possession of a weapon, including a firearm, albeit without ammunition, as well as imitation firearms.

[ 31 ] However, I find that I cannot treat Mr. Der’s offending as being so aggravated as to justify a sentence, as the Crown has argued, that would fall at the upper end and perhaps exceed the range discussed particularly in R. v. Smith . I say this because Mr. Der, as acknowledged by Crown, possessed controlled substances in quantities consistent with street level drug dealing, not higher.

In all but one of the authorities which I will discuss below, the circumstances of the offence either involved significantly greater quantities of controlled substances, or there were other factors present such as large sums of money seized, indicative of involvement at a higher level of the drug trade, than is the case with Mr. Der. As well, in both R. v. Lee and R. v. Mann the offenders were found in possession of the type firearms and ammunition that have become a common feature in what has often been called the Lower Mainland Gang Conflict.

In my view those cases clearly involve circumstances more aggravated than is present in the matter before me. [ 32 ] Regarding the sentence in R. v. Tomczyk , I believe since it was decided there is a growing public awareness that harm reduction initiatives are a more effective method of dealing with the toxic drug crisis; as opposed to a purely prohibition-driven approach. Harm reduction involves such things as reducing barriers to illicit drug use; recognizing the role that trauma plays in addiction; and understanding the acute need, therefore, for mental health care for addicts.

Bearing this in mind, I believe it is fair to ask whether deterrence as a sentencing principle for this type of offending must always be the overwhelming focus in every case. Arguably, the courts’ conventional approach of always imposing lengthy periods of incarceration for this type of offending, as an extension of the prohibition-centric approach to illicit drug use, is not achieving its purpose.

Surely now, there is room to consider that restraint and rehabilitation can play a greater role than in the recent past especially for offenders with antecedents that include drug addiction and inter-generational trauma. [ 33 ] I find in the matter before me, even before I were to take into account the Gladue factors, as well as the other mitigating circumstances, particularly the guilty pleas and the absence of related drug-trafficking record, that the offences do not justify sentences at the higher end of the range sought by Crown. The quantities of drugs involved, and Mr.

Der’s involvement as a drug-using street-level drug dealer do not elevate his moral culpability to a level that would warrant the sentences sought. [ 34 ] What does factor significantly in my consideration of this matter is that Mr. Der is an Indigenous offender. In R. v. Smallboy , my brother Judge Doherty referenced through a number of decisions the depressing fact that despite the concerns raised by the Supreme Court of Canada nearly a quarter century ago, Canadian sentencing courts continue to disproportionately incarcerate Indigenous offenders.

Representing what I believe to be an example of the evolving approach that courts must consider in cases involving Indigenous offenders is my brother Judge Harris’ decision in R. v. Rhodes, 2023 BCPC 19 . While the circumstances in that case are less aggravated than those present in Mr. Der’s matter, it is still arguable that Judge Harris’ sentence would not have withstood appellate scrutiny even as little as one or two years ago. [ 35 ] Here I find the Gladue factors in Mr. Der’s case are significant. It is clear he has a strong Indigenous identity.

He and his family have suffered greatly as a result of the colonial practices of the Canadian government. To view his moral culpability through the same lens as that applied in the authorities relied on by Crown would, I find, amount to an error in principle. Accordingly, I conclude Mr. Der’s moral culpability in the matters before me is attenuated as a result of the Gladue factors present. [ 36 ] In addition, I find much mitigation in Mr. Der’s guilty pleas.

While I am not prepared, as urged by defence counsel, to reduce an otherwise fit sentence due to Charter breaches, I do acknowledge that by pleading guilty Mr. Der gave up his right to raise reasonable Charter arguments and thereby saved resources. In my view, he and all offenders who plead guilty in such circumstances must be given significant credit for their pleas. If courts declined to do so, offenders would have little disincentive to proceed to trial in all cases. Were this to happen, courts in Canada would soon be incapable of serving the public. Accordingly, I do find Mr.

Der’s guilty pleas substantially mitigating. [ 37 ] Guilty pleas also signify an offender’s acceptance of responsibility of the harm done, thus making the need for specific deterrence less pressing. In the matter before me, Mr. Der addressed me directly, explaining how his rehabilitative work while in custody has given him a better understanding of the harm he caused through his offending. I am satisfied that he is remorseful which is mitigating, and as such, there is far less need for this sentence to focus on specific deterrence. [ 38 ] I also take into account the significant amount of time Mr.

Der has spent in custody awaiting sentencing, much of it during extraordinary restrictions caused by the COVID pandemic. Indeed I accept, as counsel outlined, that Mr. Der’s depravation of liberty while awaiting sentencing was more acute than was the case for offenders prior to COVID. I am not in any way faulting correctional authorities in how they carried out their work during the pandemic; nor, do I find that Mr. Der was singled out. I do find, however, that the circumstances of this offender’s pre-sentence custody were harsh. As a result, I intend to temper the sentence I would otherwise impose.

Additionally, because of the lengthy period this offender has spent awaiting sentencing, I conclude there is significant need now for the sentences I impose to emphasize rehabilitation. [ 39 ] Reflecting then on the substantial period of pre-sentencing time Mr. Der has already served, and bearing in mind the significant Gladue factors present, as well as what I find to be his excellent prospects for rehabilitation, I intend to craft a sentence that properly reflects the gravity of the offences before me, but which can now take on a restorative approach.

Initially, I considered I could achieve a fit sentence by imposing sentences of time served in relation two of the informations and a conditional sentence on the remaining one. I accept that such a sentence would be considered a blended sentence and would therefore be illegal since it exceeds two years less a day. The irony of such a view is that a conditional sentence would arguably be available to Mr.

Der on the third information if he chose to deal with sentencing on that matter separately. [ 40 ] Be that as it may, I find that a fit sentence for this offender for these offences is one of time served with three years of probation to follow. This sentence, after careful consideration, strikes the correct balance between denunciation, deterrence, restraint and the objective of rehabilitation. This sentence particularly takes into account the Gladue factors present in Mr. Der’s antecedents, yet does not diminish the gravity of his offending conduct.

I am strongly of the view that a fit sentence for this Indigenous offender is one that now sees him subject to community supervision. [ 41 ] For purposes then of this time served sentence, the actual amount of time is 840 days, which I enhance to 1,260 days or 42 months.

[ 42 ] Accordingly, on Information 87682-2 C, the sentence is one day, time served, which will be reflected as follows: Counts 2, 3 and 4: 16 months, all concurrent; Count 5: 30 days concurrent. [ 43 ] On Information 82743-2-C, the sentence is one day, time served which will be reflected as follows: Counts 1, 2, 3 and 4: 18 months, all concurrent; Count 5: 6 months concurrent. [ 44 ] On Information 89215-1, the sentence is also one day, time served. The sentences in this Information will be reflected as 6 months on Counts 1, 2 and 5; and 1 month on Counts 3 and 7.

All sentences are concurrent one to the other. [ 45 ] On Information 87682-3-A, the sentence is one day time served and will be reflected as 1 month. [ 46 ] On Information 87682-4-A, the sentence is also time served 1 month for each count. Each sentence on each count is concurrent one to the other. [ 47 ] This sentence will be followed by probation of three years with the following conditions:

a) You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or the officer of any change in employment or occupation.

b) You must report in person to a probation officer at 836 Courtney Street, Victoria, BC no later than 3 p.m. on Monday, July 24, 2023 and after that, you must report as directed by your officer.

c) Your reporting ends when you have satisfied your probation officer that you have: completed all your counselling and treatment, or that it is not required, and your officer has told you that you are no longer required to report.

d) When first reporting to a probation officer, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one. You must not change them without prior written permission from your probation officer.

e) For the first year of this probation order, you must not go to the City of Nanaimo except with the written permission of your probation officer. Such permission may be granted for the purposes of seeing family members.

f) You must not possess or consume alcohol, drugs, or any other intoxicating substance, except with a medical prescription.

g) You must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your probation officer. This may include counselling or programming for: (

a) alcohol or substance use; (

b) mental health; (

c) trauma recovery.

h) Having consented in court, you must attend, participate in, and complete any intake, assessment, program, treatment, or a full- time live-in treatment program as directed by your probation officer. This may include programming or treatment for alcohol or substance use.

i) If you are expelled or if you remove yourself from the treatment program, you must immediately report this in person to your probation officer. If their office is closed, you must return immediately on the next business day during regular business hours.

j) You must complete 40 hours of community work under the direction of your probation officer. Your community work service must be completed within the first year of this probation order.

k) You must not possess directly or indirectly any weapon as defined by the Criminal Code , including: (

a) firearms and ammunition; (

b) crossbows, prohibited or restricted weapons or devices, or explosive substances; (

c) anything used, designed to be used, or intended for use in causing death or injury to any person, or to threaten or intimidate any person; (

d) any imitation firearms or weapons, including any compressed airguns or BB/pellet guns; or (

e) any related authorizations, licences, and registration certificates and you must not apply for any of these.

l) You must not possess any knives or axes or any other sharp-bladed instrument used, designed to be used, or intended to be used to cut things.

The exceptions are: you may possess knives or any other sharp-bladed instrument for your work as a ceremonial carver; you can possess a knife when preparing and eating food; you can possess these items inside the place where you live and regularly sleep; for the purposes of lawful employment, while at or going directly to and from your place of lawful employment; if asked, you must provide your probation officer with the details of your location and hours of employment; with the prior written permission of your probation officer; if you are given permission, you must carry it with you in paper or electronic format at all times when you possess any of the items outside the place where you are living; if a peace officer finds you in possession of these items and requests to see the permission, you must show it to the officer; at all times when you are permitted to carry knives or bladed instruments outside your place of residence, you are prohibited from concealing them in your clothing.

m) You must not possess any identification documents, including credit cards, debit cards, cheques, negotiable instruments, driver's licences, birth certificates, social insurance cards, mail, invoices, or bills, other than ones in your name. The exceptions are: (

a) the items are lawfully issued in the names of your immediate family members; (

b) you possess the items for purposes directly related to your employment.

n) You must not occupy the driver's seat of any motor vehicle. If you are properly licenced, the exceptions are: (

a) while at work or going directly to or from work; if asked, you must provide your probation officer with the details of your employment, including the hours and location; (

b) when going directly to or returning directly from a healthcare facility because of a medical emergency; you have consented in court that you will provide your probation officer with proof of your attendance at the facility if requested; (

c) with the prior written permission of your probation officer; if you are given permission, you must carry it with you in paper or electronic format at all

times when you are occupying the driver's seat of a motor vehicle; and (

d) if a peace officer finds you in the driver's seat of any motor vehicle, and requests to see the permission, you must show it to the officer. [ 48 ] I also make the following orders on Informations 82743-2-C, 87682-2-C and 89215-1:

a) Pursuant to s. 109 of the Code , you are prohibited from possessing firearms for life, and all items referenced within that section.

b) Pursuant to s. 487. 051(3) of the Code , you must provide a sample of your DNA for entry into the national DNA databank. You must attend at the Victoria police station in Victoria, BC on or before August 11, 2023 and submit to the taking of the samples.

c) With respect to the forfeiture orders, I will order forfeiture and will sign off on the orders once I receive them from counsel, ensuring that items on Information 89215-1, Exhibit 3 (a Samsung Note 10 phone) and Information 82743-2-C, Exhibit 51 (a blue Samsung phone of Dietrich) are excluded. [ 49 ] I waive all victim fine surcharges in the circumstances. _______________________________ The Honourable Judge D. Silverman Provincial Court of British Columbia