R. v. D.W.J. Date:, 2012 BCPC 15

Citation: R. v. D.W.J. Date: 20120124 2012 BCPC 0015 File Nos.: 35021; 35022;35016 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.W.J. REASONS FOR JUDGMENT OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M J BRECKNELL Counsel for the Crown: A. Schrof Counsel for the Defendant: J. Duncan Place of Hearing: Prince George , B.C. Date of Hearing: October 18, 2011 and January 10, 2012 Date of Judgment: January 24, 2012 INTRODUCTION [ 1 ] D. W. J. (Mr.

J.) has pleaded guilty to five counts of breach of probation and one count of shoplifting on four separate Informations with offence dates between late August and early September 2011. [ 2 ] The Crown seeks a global sentence for all the offences of one year in custody, less credit for time served, plus a three year probation order with strict conditions. [ 3 ] Mr.

J.'s counsel seeks a sentence of between six and nine months in custody, less credit for time served, with a probation order of similar length but with terms differing from what is suggested by the Crown. [ 4 ] The Crown and Defence also disagree on what amount of credit Mr. J. should receive for presentence time spent in custody.

PERSONAL HISTORY [5] Mr. J.'s personal history was detailed in the Gladue report, R. v. Gladue (SCC), [1999] 1 S.C.R. 688, preparedpursuant to my October 18, 2011 Order. The Crown took exception to some portions of the Gladue report and pointed the Court toseveral areas of weakness in that report. I agree with the Crown that the Gladue report is less than optimal in several areas but I have noreason to disbelieve Mr. J.’s personal history set out in that report. Due to some of the frailties of the Gladue report I have relied on it inthis decision only with regard to Mr. J.'s personal history. [6] Mr.

J. was born on June 20, 1970 and is a First Nations person of Carrier ancestry. His biological parents are largely unknown tohim as he was turned over to his adoptive parents in a custom adoption at a very early age. His adoptive parents both attended residentialschool and had their own issues arising from that attendance. [7] Mr. J. was raised in an extremely chaotic and dysfunctional environment. He and his siblings were subjected to violence, physicalabuse and sexual abuse. Alcoholism was rampant in the home. [8] At a very early age he lost the sight in one eye while playing with ammunition.

By the age of seven he was encouraged toconsume alcohol by his adult relatives. By the age of 12 he was regularly consuming alcohol to excess. As a child he was regularlysexually abused by a family member for a period of two years. When Mr. J. was 14 his adoptive father was sent to prison for sexuallyassaulting his adoptive mother’s two younger sisters. [9] He was instructed by his relatives to fight and to "be tough" and uncaring of others. Mr. J. learned of those lessons well. He wasoften engaged in fighting as a young person. He was often teased at school over the loss of his eye.

His fighting resulted in schoolsuspensions and eventually expulsion. He only attained Grade 9. [10] As Mr. J. described it to me in his pre-sentence comments once he learned how to be bad and tough nobody wanted him aroundand he spent several years moving from one foster home to another. He became involved with the youth justice system at the age of 14and his criminal history has been consistent and extensive since then. [11] By his teenage years Mr. J. was regularly abusing alcohol and he has remained in its clutches throughout his life. Mr.

J. contendsthat he uses alcohol to cope with the chaos and dysfunction he found in his own family as a youth and to deal with the aftermath of theabuse he suffered as a child. [12] At various times in his life Mr. J. has lived on the streets in northern British Columbia and on Vancouver's Downtown Eastside. In addition to his alcoholism he also used various illegal drugs from time to time. [13] Mr.

J. stated that during his life he has overdosed on drugs on two occasions, been stabbed five times, been shot once and beenpoisoned once and has been close to death on many other occasions; all as a result of his alcohol abusive lifestyle. [14] At the present time he suffers from headaches and other body pains for which he has prescription medications for pain andsleeping. He has been unable to access his prescriptions during his time in custody. [15] Despite his challenges Mr. J. has maintained a spousal relationship for 11 years. The family includes himself, his spouse, her sonand his daughter.

His spouse has some chronic medical conditions which he assists her with. He and his spouse hope to be married inJune 2012. [16] His daughter has become involved in the youth justice system which greatly concerns Mr. J. He has, when not in custody,provided his daughter with support and guidance in an effort to get her to stop that activity. [17] On occasion when Mr. J. has not been in the clutches of alcohol he has been able to find employment to provide for his family. He has worked as a furniture mover and in the forest industry.

He has obtained all the necessary tickets to enable him to maintain full-time employment in the forest industry and has some employment opportunities available to him upon his release from custody. However, his instances of employment have been irregular because he returns to drinking and then commits further offences. [18] In his comments to the Court, Mr. J. stated that during his most recent incarceration he has had time to reflect on his life to thispoint and that he is committed to changing and becoming a more responsible spouse and parent.

His comments make it clear to me thathe is a thoughtful and articulate person. He has a good understanding of how dysfunctional his life is due to alcohol abuse and how it ishis responsibility to try to break free from that lifestyle. [19] He has taken some steps to obtain counselling with an Alcohol and Drug counsellor at the Native Healing Center in PrinceGeorge attending five sessions between December 2010 and March 2011. He has been in custody much of the time since then butmaintains contact with his counsellor. Defence counsel submits that Mr.

J. would like to seek more formal treatment either at a treatmentcenter or by attending the Baldy Hughes Therapeutic Community which is located near Prince George. That facility has a good successrate in treating chronic substance abusers who genuinely want to address their addictions and the underlying reasons for them. CRIMINAL HISTORY [20] Including the offences being dealt with today Mr.

J. has, since 1988 (a span of some 23 years), been convicted of approximately180 offences including 103 property related offences, 8 assaults or threats, 9 break and enters, 2 robberies, 4 alcohol related drivingoffences and 51 breaches of court direction including breaches of Bail, Probation and Conditional Sentence Orders and Failures toAppear.

[ 21 ] During that time his longest period of incarceration was approximately 13 months. His last jail sentence before being taken into custody with regard to these matters was for a number of shopliftings and breaches of Court Orders which occurred between September 2010 and March 2011, for which he received a global sentence of 6 months jail and one year probation. [ 22 ] By any objective measure Mr. J. is a prolific offender. The Crown also describes him as incorrigible, a title Defence counsel disagrees with. PRESENT OFFENCES [ 23 ] The circumstances of the offences to which Mr.

J. has pleaded guilty are straightforward and all related to his alcohol abuse. [ 24 ] On Information 35022-1-B, Mr. J. was in breach of his Probation Order on August 26 and 27, 2011, when he was out during his curfew hours and was intoxicated. His spouse contacted the police to advise them of that breach. [ 25 ] On Information 35021-1-B, Mr. J. was in breach of his Probation Order on August 29, 2011, by failing to report to his Probation Officer and, again on September 2, 2011, by being out during his curfew hours. [ 26 ] On Information 35016, Mr.

J. was in breach of his Probation Order on September 5, 2011, by being intoxicated. On that same day he also committed a shoplifting at a local liquor convenience store and was caught at the scene. The Crown has proceeded by Indictment on that Information. [ 27 ] He has been in custody since September 5, 2011. PRESENTENCE CUSTODY [ 28 ] The nature of and credit for Mr. J.'s presentence custody is an issue between the Crown and Defence counsel. In particular, the

interpretation of the provisions of sections 719 (3) and (3.1) and the evidence required to prove disputed facts as described in section 724 (3) of the Criminal Code are at issue. [ 29 ] Those sections read as follows: 719(3) Determination of sentence In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody. 719(3.1) Exception Despite subsection (3), if the circumstances justify it, the maximum is one and one half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). 724

(3) Disputed facts Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, … (

b) a party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it; ... (

d) subject to paragraph (e), the Court must be satisfied on the balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; ... [ 30 ] There are two distinct periods of time during which Mr. J. has been in custody that the Crown and Defence counsel wish the Court to consider. [ 31 ] The first is from September 5, 2011 until October 18, 2011, a period of 44 days. The second is from October 19, 2011 until

January 24, 2012, a period of 97 days. [32] In relation to this issue, numerous cases were presented by counsel including:

a) the Crown

i) R. v. Seymour 2011 BCSC 1682 ii) R. v. Sharkey 2011 BCSC 1541 iii) R. v. Mayers 2011 BCCA 365 iv) R. v. Jones 2011 ONSC 5330

v) R. v. Morris 2011 ONSC 5206 vi) R. v. B.(J.) 2011 BCPC 158 vii) R. v. Hindmarch 2010 BCSC 1257 viii) R. v. A.W.C. 2010 BCPC 197 , 2010 BCPC 0197 ix) R. v. McCrea 2008 BCCA 227

x) R. v. McCrea 2007 BCPC 258 xi) R. v. Cyr 1981 CarswellAlta 162

b) the Defence

i) R. v. Waage, unreported, August 29, 2011, File No. 58996-1, Chilliwack Registry, BCPC ii) R. v. Cahoose, unreported, March 25, 2011, File No. 90534-2, Kamloops Registry, BCSC. [33] The Court also reviewed R. v. Johnson 2011 ONCJ 77 which is discussed in several of the cases and was referred to bycounsel but not included in their case materials. [34] There were originally four grounds on which Defence counsel wished the Court to consider whether or not "the circumstancesjustify" granting credit of 1.5 to 1. These included:

a) Mr. J.'s medical condition;

b) Lack of availability of remission time;

c) Living conditions at the Prince George Regional Correctional Center (PGRCC);

d) Delay in sentencing occasioned by the preparation of a Gladue report. [ 35 ] The first ground was abandoned because Mr. J.'s medical records were not readily available. [ 36 ] The fourth ground was agreed to by the Crown. The case law clearly provides that any delay occasioned by the Court in the sentencing process is a justifiable circumstance to permit the 1.5 to 1 credit. Therefore, the time from October 19, 2011 to today, being 97 days, will result in a credit to Mr. J. of 146 days. [ 37 ] The second and third grounds were disputed by the Crown.

The case law presented demonstrates a wide range of judicial consideration and opinion on when and under what circumstances s. 719 (3.1) should be applied to increase presentence custody credit from 1 to 1 to a maximum of 1.5 to 1. [ 38 ] In submissions both the Crown and Defence counsel referred to many cases in an attempt to demonstrate the soundness of their position.

However, given that the amendments concerning presentence custody are relatively new it is important to consider the cases presented in chronological order so that it might assist in clarifying the train of collective judicial consideration. [ 39 ] In A.W.C , an August 5, 2010 decision of the British Columbia Provincial Court, a general application for 1.5 to 1 credit was rejected due to the defendant not presenting any evidence of the conditions experienced during pre-sentence custody.

The Court commented that Parliament did not require extraordinary or exceptional circumstances to qualify for application of section 719 (3.1) leaving wide discretion to the Court in that regard.

The Court did accept 1.5 to 1 credit for the time spent in custody after the guilty plea but before sentencing on the joint submission of counsel. [ 40 ] In Hindmarch , an August 24, 2010 decision of the British Columbia Supreme Court, the Court determined that there was no evidence before it to justify an increase in credit for time served so a 1 to 1 credit was applied. [ 41 ] In Johnson , a February 23, 2011 decision of the Ontario Court of Justice (the equivalent of the Provincial Court in this province), the Court gave lengthy and detailed reasons after hearing evidence and submissions that lasted for several days.

The original application brought was to have sections 719 (3) and (3.1) declared to be unconstitutional on the basis that they breached sections 7, 12 and 15 of the Charter of Rights and Freedoms . The Court dismissed that application. [ 42 ] However, the Court made other findings with regard to the words "if the circumstances justify". Prior to making its decision the Court reviewed affidavit evidence outlining Mr. Johnson's life history, his addiction issues and treatment, his education and the circumstances of pre-trial custody. [ 43 ] The Court also heard from three witnesses including:

a) A professor emeritus of criminology who provided a criminological overview;

b) The security manager of the jail where Mr. Johnson was being held who described the conditions of that facility;

c) A Correctional Service of Canada parole supervisor who described conditions in the federal penitentiaries and the federal parole structure. [ 44 ] After hearing extensive evidence and submissions the Court determined there were two main areas to be examined from the perspective of "if the circumstances justify" namely: a) "harshness of pre-trial detention" and, b) "loss of remission or parole eligibility". [ 45 ] With regard to the second point, the Court worked through a mathematical calculation of the differences in the time to be served between two identical offenders with identical sentences; one of whom was on bail until sentence and one who was detained until sentence to demonstrate that the detained person would spend more time in custody overall. [ 46 ] In addition, the Court relied on what it found to be ambiguity in the wording of sections 719 (3) and (3.1) in relation to the two areas it was considering.

The Court then concluded that in practically all cases where 1.5 to 1 credit was available a court in exercising its discretion should grant such credit. [ 47 ] Johnson has been referred to in many cases in both Ontario and British Columbia. However, it has not been universally followed. [ 48 ] In Cahoose , a March 25, 2011 decision of the British Columbia Supreme Court, the Court reviewed Johnson . In determining the appropriate amount of credit to be given the Court said at paragraph 73:

[73] In this case, I am going to give Mr. Cahoose credit of one and one half for one. I think the circumstances justify it. Mr. Cahoose pled guilty at a very early opportunity. He made no complaint about whether or not he was guilty. He recognized that he was. He expressed his remorse. He wished to deal with the matter immediately. Quite properly, his counsel requested a presentence report and requested a Gladue report, and those take time to put together. The sentence hearing itself took more time than normal, but that is not a fault of Mr. Cahoose.

He was entitled to present the best case he could on sentencing. [ 49 ] In B. (J.), an April 5, 2011 decision of the British Columbia Provincial Court, the Court reviewed and agreed with A.W.C . that evidence is necessary in applications concerning whether or not "the circumstances justify it". The Court said at paragraph 18: 18 I find that some evidence must be placed before the Court to establish that the offender has been or will be impacted by the lack of remission or eligibility for parole or of the circumstances of the remand institution where they have been held and the impact that has had upon them.

I do not see any reason to adopt any different evidentiary procedures or standards than those which apply to a sentencing hearing. [ 50 ] The Court concurred with A.W.C . that the Court has wide discretion and that no extraordinary exceptional circumstances are required to justify the application of section 719 (3.1). [ 51 ] The Court detailed the affidavit evidence presented concerning the difficulties experienced in the pre-trial centre and the threats and victimization experienced by B.(J.). [ 52 ] The Court noted that this was the first time B.(J.) had been incarcerated and as a result conditions at the remand centre would have a significant impact on him. [ 53 ] The Court also reviewed Johnson and agreed that the wording of sections 719 (3) and (3.1) was ambiguous and as such credit of 1.5 to 1 would appropriately compensate for the lack of remission and parole eligibility during remand time. [ 54 ] In Waage , an August 29, 2011 decision of the British Columbia Provincial Court, the Court referred to J ohnson and B. (J.) in determining that sections 719 (3) and (3.1) were ambiguous and that as a result of the ambiguity the statute should be applied in a manner favourable to Mr.

Waage. The Court then awarded presentence custody credit of 1.5 to 1. [ 55 ] In Morris , a September 6, 2011 decision of the Ontario Superior Court of Justice (the equivalent of the Supreme Court in this province), the Court reviewed Johnson, Hindmarch and several other decisions on the wording of "if circumstances justify" and in the end disagreed with Johnson saying at paragraph 50 : 50 As I have indicated, I am unable to accept the

interpretation advanced in Johnson and Hason . I do not agree that the potential loss of remission time is, in itself, a circumstance that justifies the granting of enhanced credit. Nor are other, universally-applicable factors that may have been used to justify granting 2:1 credit prior to the recent amendments to s. 719, as was the conclusion reached in Abubeker. [ 56 ] In Jones , a September 6, 2011 decision of the Ontario Superior Court of Justice, the Court reviewed and then rejected the analysis in Johnson .

Quigley J. noted that in an earlier decision he had adopted Johnson but then said in paragraphs 64, 65 and 69: 64 ...

However, for all of the counter revolutionary excitement that may have been generated in the popular and legal press and in the defence bar by Justice Green’s decision in Johnson , and his determination that the 1.5 to 1 credit must be applied in virtually every case, this is a position that I find a do not support following considerable reflection and having carefully regard to the language of the legislation. 65 The legislation does not permit every offender in remand custody to be awarded 1.5 to 1 credit for pre-trial custody.

The very fact that the ordinary pre-trial custody credit is established in a 1:1 ratio by ss. 719 (3) shows the carve out created by subsection (3.1) is meant to be exceptional, having regard to the facts of a particular case, and not an ordinary result based on analysis of disparities between earned remission or the time at which parole eligibility may arise depending upon whether or not offenders are subjected to pre-trial custody.

The awarding of credit for pre-trial custody beyond the 1:1 basic ratio now established in section 719 (3.1) of the Code can be in the face of the language employed by Parliament as requiring the exercise of judicial discretion, but only in special circumstances, not in the ordinary course. 69 At paragraph 46 of his reasons and Larochelle 2011 ONCJ 339 , Justice Harris acknowledges that Johnson sets out a persuasive case for why all courts should take the loss of remission into account in all cases, and therefore routinely given as credit for presentence custody on a 1.5 to 1 basis, but he correctly observes, in my view, that Justice Green's decision in Johnson does not explain how it is possible for a sentencing judge to avoid the clear contrary intent of Parliament as evidenced in the general rule now enacted in section 719 (3) that 1:1 credit is to be the general rule.… [ 57 ] The comments in Jones concerning the necessity of "special circumstances" in the exercise of judicial discretion under section 719 (3.1) appears to be at odds with A.W.C. and B. (J.). [ 58 ] In Mayers , a September 6, 2011 decision of the British Columbia Court of Appeal, the Court was not referred to any of the previous decisions cited above.

The Court determined that the accused was not entitled to 1.5 to 1 credit for presentence detention due to the nature of his custodial status but also said at paragraph 23: 23 ... The clear wording of the Act indicates Parliament's desire to change the status quo under which sentencing judges generally granted two days credit for each day in custody, and implement a different approach to sentencing. The changes made to s. 719 give effect the Parliament's intention. [ 59 ] In Sharkey , an October 21, 2011 decision of the British Columbia Supreme Court, the Court adopted the approach described in

Morris and granted credit at 1 to 1 for most of the pre-sentence custody time and 1.5 to 1 for the time sentencing was delayed for a variety of reasons including the preparation of a Gladue report. There is no indication that the Court was made aware of any of the other decisions counsel have cited to me. [ 60 ] In Seymour , a November 7, 2011 decision of the British Columbia Supreme Court, the Court referred to Johnson , B. (J.) and several other cases cited by counsel to me but not Cahoose or Waage .

With regard to the application of section 719 (3.1) concerning remission time or parole eligibility the Court said at paragraphs 28 and 29: 28 In R. v. B. (J.), the court concluded at para.18 that evidence is required regarding the impact of pre-disposition incarceration on eligibility for remission or parole. No such evidence was provided in this case. 29 Further, as I have noted, there is no consensus among the courts that have considered this issue as to whether the impact on remission or parole can, on its own, be a justification for enhanced credit. I therefore will not grant Mr.

Seymour enhanced credit on that basis. [ 61 ] The Court then went on to consider the circumstances and conditions of the presentence custody. In Seymour those conditions included solitary confinement for 23.5 hours per day due to protection concerns for Mr. Seymour.

The Court determined that that those harsh conditions were "a circumstance justifying" the exercise of discretion under section 719 (3.1) to permit 1.5 to 1 credit. [ 62 ] With regard to the issue of the credit to be awarded for a lack of remission or parole eligibility Defence counsel relied strongly on Johnson, Cahoose and Waage in support of the submission that "the circumstances justify" Mr. J. receiving credit at 1.5 to 1.

Defence counsel submitted that in Cahoose and Waage the Court awarded 1.5 to 1 due to lack of remission available and that this Court should rely on and follow those decisions for that reason. With respect, I conclude that a careful reading of those decisions does not accord with that

interpretation. [ 63 ] In neither C ahoose nor Waage does the Court exercise discretion based on a lack of remission or parole eligibility. Rather, in Cahoose at paragraph 73 the Court relies on the delays occasioned from an early guilty plea, through the preparation of a Gladue report and a lengthy sentencing hearing. In Waage, the Court relies on the ambiguity in the wording of sections 719 (3) and (3.1) and the

interpretation to be applied in favour of Mr. Waage arising from that ambiguity. [ 64 ] In Seymour , the Court declined to exercise its discretion with regard to remission or parole eligibility noting the lack of consensus among courts across Canada. In Sharkey , the Court, in applying Morris , comes to a similar conclusion in declining to exercise its discretion with regard to additional credit for presentence custody. [ 65 ] I agree with A.W.C., B.(J.) and Seymour that before the Court can even consider “if the circumstances justify” it is incumbent on the applicant to present evidence.

That was not done here. [ 66 ] Upon a review of all the cases provided I prefer the reasoning and outcomes set forth in Morris , Jones, Mayers, Sharkey and Seymour in concluding that I should not exercise my jurisdiction to provide additional credit to Mr. J. as a result of any possible loss of remission or parole eligibility. I do not conclude that "the circumstances justify" such a result. [ 67 ] That leaves the issue as to whether or not Mr. J.'s custodial situation during his presentence custody at PGRCC is a circumstance which justifies additional credit under section 719 (3.1).

There was very little in the way of submissions from either the Crown or Defence counsel with regard to that issue. [ 68 ] There was a passing reference to the United Nations Standard Minimum Rules for the Treatment of Prisoners (SMRs) by Defence counsel in light of the fact that Mr. J. has been subjected to "double bunking" often with sentenced prisoners. In his statement to the Court, Mr.

J. commented on how difficult his circumstances were at PGRCC being double bunked with other prisoners who may be on remand for serious charges like murder or may have already been sentenced on serious charges such as sexual assault. [ 69 ] The status of the SMRs in Canadian law was discussed by me in McCrea.

Although the SMRs do not have the force of law as a signatory Canada and hence the provinces should be using every effort to ensure that they are complied with as much as possible. [ 70 ] There was also mention made by both the Crown and Defence counsel that they had been in touch with the senior management at PGRCC and had been advised that "double bunking" has been in regular use at that institution for several years. [ 71 ] However, there was no clear evidence presented as to the actual nature of the "double bunking" at PGRCC or the effect that such conditions may be having on Mr. J.

It is clear from A.W.C. , B.(J.), and Johnson, that such evidence is required if the Court is to be asked to exercise its discretion under section 719 (3.1). [ 72 ] As a result, I am unable to determine that the conditions at PGRCC are such that "the circumstances justify" granting additional credit to Mr. J. for that reason. [ 73 ] Therefore, for the period of time from September 5, 2011 to October 18, 2011 being 44 days Mr. J. will receive credit on a 1 to 1 basis. [ 74 ] When that is added to the credit of 1.5 to 1 for the period of time from October 19, 2011 to today's date, Mr.

J. is entitled to a presentence custody credit of 190 days. DETERMINATION OF SENTENCE [ 75 ] Both the Crown and Defence counsel generally agree as to the range of sentences available given Mr. J.'s personal circumstances

including his First Nations status, his criminal history and the particular circumstances of the present offences. [76] The Crown submitted numerous cases in support of its position including:

i) R. v. Cootes 2011 BCCA 398 ii) R. v. Napesis 2010 BCCA 499 iii) R. v. Armstrong 2010 BCCA 451 iv) R. v. Awasis 2010 BCCA 213

v) R. v. Jimmie 2009 BCCA 215 vi) R. v. Dolfi 2009 BCCA 152 vii) R. v. Kory 2009 BCCA 146 viii) R. v. Mack 2008 BCCA 520 ix) R. v. Char 2007 BCCA 346

x) R. v. Gibbs 2007 BCCA 241 xi) R. v. Moreau 2007 BCCA 239 xii) R. v. Drake 2007 BCCA 204 xiii) R. v. Pozzebon 2004 BCCA 198 xiv) R. v. Wells 2000 SCC 10 xv) R. v. Gladue (SCC), [1999] 1 S.C.R. 688 xvi) R. v. Blair 1998 CarswellBC 1890 (B.C.C.A.) xvii) R. v. Emberg 1996 CarswellBC 1154 (B.C.C.A.) xviii) R. v. Moore 1991 CarswellBC 1128 (B.C.C.A.) xix) R. v.

Kunert 1989 CarswellBC 1140 (B.C.C.A.) [77] Defence counsel did not present any additional cases but relied on the reasoning in several cases presented by the Crown insupport of his position. [78] In addition to the cases presented by counsel the Court also has given consideration to the recent decision of R. v. Ladue 2011BCCA 101 which is cited in Cootes. [79] In arriving at a submission for a global sentence of one year in custody followed by three years of probation the Crown points outthat Mr.

J. has a criminal record far more lengthy and serious than the offenders in any of the cases provided and that given theappropriate sentencing range of up to two years in custody the Crown's position of one year in jail for the shoplifting and concurrentsentences of between three and four months for each of the probation order breaches is reasonable. [80] Relying on the cases provided the Crown maintains that denunciation, specific deterrence and protection of the public areparamount in cases such this. The Crown further submits that in light of Mr.

J.'s criminal history and these offences and despite thechallenges he has faced as an Aboriginal offender raised in a chaotic environment, a jail sentence is not only necessary but appropriate. [81] However, the Crown recognizes that after a jail sentence has been completed Mr. J. will need further assistance in attempting toresolve the underlying root of his criminal behaviour, namely alcoholism, and a lengthy period of probation to assist him in suchrehabilitation is also appropriate. [82] Defence counsel emphasized that Mr.

J.'s criminal behaviour has in large part been minor offences of a nuisance variety and thatthe sentencing range of between six and nine months followed by probation is far more appropriate in the circumstances. Defencecounsel also notes that Mr.

J.'s last sentence for a shoplifting was six months in April 2011 and that an increase to a sentence of one yearfar exceeds the step up principle and is not necessary in the circumstances of this case. [83] In reviewing the cases provided it is clear that the Supreme Court of Canada and our Court of Appeal have directed sentencingjudges to consider the unique circumstances of Aboriginal offenders as originally set forth in Gladue and the provisions of

section 718.2(

e) of the Criminal Code while at the same time ensuring that appropriate weight is given to the other sentencing principles set out insections 718 through 718.2 if the circumstances of the offender, the offender's criminal history and the offences before the Court warrantit.

[ 84 ] Some of those sentencing principles for Aboriginal offenders set out in those cases include:

a) The degree to which Gladue considerations apply depend on the individual circumstances of the offender in each case ( Cootes , Ladue );

b) There is no automatic Aboriginal discount of sentence ( Ladue );

c) Restorative justice is an important consideration in sentencing Aboriginal offenders but does not necessarily receive greater weight than other sentencing principles ( Armstrong );

d) Although Gladue mandates a different approach to sentencing Aboriginal offenders it does not direct a different result nor does it preclude the sentencing judge from giving primacy to considerations other than restorative justice if circumstances warrant ( Armstrong, Wells );

e) In circumstances where an Aboriginal offender demonstrates violent behaviour and consistent recidivism protection of the public and specific deterrence may be given primacy ( Awasis );

f) When an Aboriginal offender has a lengthy record, has shown little success in rehabilitation when given the opportunity to serve community base sentences to address underlying causes of the offending behaviour denunciation, deterrence and protection of the public becomes paramount ( Jimmie ). [ 85 ] In deciding on an appropriate sentence and the application of the purposes and principles sentencing the Court must always consider the aggravating and mitigating factors of the offender and the offences in arriving at a just result. [ 86 ] I consider the following to be aggravating factors:

a) There were multiple breaches of probation over a very short period of time that resulted in these charges ;

b) There was a further substantive offence of a nature similar to recent convictions;

c) All of the offences before the Court were committed while Mr. J. was on probation for similar offences;

d) Mr. J. had only been out of custody for a short period of time having just completed serving his previous jail sentences when these offences were committed;

e) Mr. J.'s behaviour demonstrates a continuous and unrepentant offending pattern for over three decades;

f) Mr. J. has been given numerous opportunities for community base sentences including both Probation and Conditional Sentence Orders most of which he has breached. [ 87 ] I consider the following to be mitigating factors:

a) Mr. J. has accepted responsibility for these offences early in the process;

b) Mr. J.'s spouse is supportive and acts responsibly in the face of his behaviour (she reported his breaches of probation in late August);

c) Mr. J. has articulated an understanding of his past offending behaviour and the underlying reasons for it and has indicated a wish and willingness to work on those factors to reduce his criminal behaviour;

d) Mr. J. has engaged in some counselling over the past year and has maintained contact with his counsellor while he has been incarcerated. [ 88 ] In arriving at an appropriate sentence in this case I am unable to accept the submissions of either the Crown or Defence counsel. [ 89 ] I do not think it's appropriate to provide concurrent sentences where numerous offences which have occurred at different times in different circumstances (see McCrea ). [ 90 ] Taking into account the purposes and principles of sentencing, Mr.

J.'s upbringing and background, his circumstances as an aboriginal offender, his lengthy criminal history, the nature of these offences and the fact they were committed while he was on probation for similar offences all lead me to conclude the following sentences must be imposed:

a) On Information 35021-1B, Count 1, 90 days jail, Count 2, 90 days jail concurrent to Count 1. Mr. J. has been in custody for 190 days so the sentence on both counts of this Information will be one day plus time served;

b) On Information 35022-1B, Count 1, 100 days jail consecutive to Information 35021-1B, Count 2, 100 days jail concurrent to Count 1. Mr. J. has been in custody for 190 days so the sentence on both counts of this Information will be one day plus time served;

c) On Information 35016, Count 1, 1 year consecutive to the other two Informations, Count 2, 120 days concurrent to Count 1. The sentences will be followed by two years of probation on this Information only. [ 91 ] In arriving at what should be done with regard to Mr. J.'s custody status I note that he has already had one opportunity to serve a Conditional Sentence Order in 2009 which he breached within one month and eventually was ordered to serve the remainder of the sentence in custody.

[92] I also recognize that while Mr. J.'s recent offences have not "endangered" the public the nuisance factor of such offences has beenvery large. His past behaviour seems to indicate that he has been unable to curtail his drinking and the resulting criminal behaviour. [93] However, since the last Conditional Sentence in 2009, Mr. J. has taken some steps (albeit limited) to address his alcohol abusewhich arose when he was very young, was sustained throughout his adulthood and which is the underlying component of his criminalactivities. I have carefully considered R. v.

Proulx 2000 SCC 5 , [2000] 1 S.C.R. 61 and have concluded that in thesecircumstances it would still be appropriate to give Mr. J. the opportunity to show the Court and the community that he is serious aboutmoving forward in his life by granting him a one-year Conditional Sentence Order on Information 35016 on strict terms and conditionsfollowed by a two-year Probation Order. [94] I am satisfied that such a sentence is capable of addressing the necessary denunciatory and deterrent principles and purposes of asentence, will protect the public from Mr.

J.'s further criminal behaviour and at the same time will give him the opportunity todemonstrate his dedication to his rehabilitative progress. [95] I conclude that a Conditional Sentence Order of one year can maintain strict control over Mr. J. for a longer period than a similarjail sentence. In addition, it will hang over Mr. J. like the sword of Damocles so that if he is in breach of the order he might well expectto be returned to jail to serve out the rest of his sentence.

Furthermore, I am permitted to impose a Conditional Sentence which is longerthan a similar sentence to be served in a correctional facility. [96] Mr. J. your one-year Conditional Sentence Order will have the following terms and conditions. [97] 300. You shall keep the peace and be of good behaviour. You shall appear before the Court if required to do so by the Court.

Youshall report in person to a Conditional Sentence Supervisor no later than 4 PM today January 24, 2012 at the Probation Office at #101-250 George St., Prince George, BC and you shall thereafter report as and when directed by the Supervisor and in the manner directed bythe Supervisor. You shall remain within the jurisdiction of the Court unless written permission to go outside the jurisdiction is obtainedfrom the Court or the Supervisor.

You shall notify the Court or the Supervisor in advance of any change of name, or address, andpromptly notify the Court or the Supervisor of any change of employment or occupation. [98] 302B. You shall reside at a residence approved in advance by the Supervisor, and you shall not change your residence at any timewithout first obtaining the written consent of the Supervisor. [99] 304. You are to remain within your residence (or on the lot on which your residence is located) at all times, except as follows:

a) between the hours of 9 AM and 1 PM each day, in order to attend to your personal business,

b) any time with the written consent of the Supervisor such consent is to be given only for compelling personal family or employmentreasons,

c) when travelling directly to, or returning directly from, your place of employment, or while in the course of your employment. Youshall provide the Supervisor was written proof of employment,

d) in the company of an adult approved in writing by the Supervisor,

e) in the event of a medical emergency and then only when travelling directly to, or returning directly from a hospital emergency ward. [100] 306. You shall present yourself at the door to your residence when a Please Officer or Supervisor attends there for the purpose ofdetermining your compliance with the house arrest condition of this Order. [101] 306A. You shall respond personally and immediately to the telephone when a Peace Officer or Supervisor makes a telephonecall to your residence for the purpose of determining your compliance with the house arrest condition of this Order. [102] 311.

You shall not attend at, or be within 25 meters of Shooters Cold Beer and Wine Store in Prince George, BC. [103] 316. You shall not enter any liquor store, beer and wine store, bar, pub, lounge or other business premises where the primarycommodity sold is liquor. [104] Dictated paragraph. You shall not be found in any public place if you are in possession of, consuming or under the influence ofliquor. [105] 326. You shall:

b) make reasonable efforts to seek and maintain employment approved by the Supervisor. If on any occasionthat you report to the Supervisor you are not actually employed you shall provide the Supervisor with a report describing efforts youhave made to find employment since the last report. Such reports may be verbal or written in the discretion of the Supervisor. [106] 327. You shall attend, participate in and successfully complete any assessment, counselling or program as directed by theSupervisor.

Without limiting the general nature of this condition, such assessment, counselling or program may relate to: alcohol or drugabuse; full-time attendance program for alcohol or drug abuse including attending the Baldy Hughes Therapeutic Community and youshall comply with all the rules and regulations of any such assessment, counselling or program. [107] 333.

Under the direction and supervision of the Supervisor you shall successfully complete 50 hours of community work, b)which shall be performed at a rate of no fewer than five hours per month. [108] Your Conditional Sentence Order will be followed by a two year Probation Order with the following terms and conditions. [109] 200. You shall keep the peace and be of good behaviour. You shall appear before the Court when required to do so by the Court.You shall notify the Court or your Probation Officer in advance of any change of name or address, and promtly notify the Court or the

Probation Officer of any change of employment or occupation. [ 110 ] 201A. within 24 hours of completion of your Conditional Sentence you shall report in person to the probation office located at # 101-250 George St., Prince George, BC and after that you shall report as and when directed by the Probation Officer. [ 111 ] 202B. you shall reside at a residence approved in advance by the Probation Officer, and you shall not change your residence at any time without first obtaining the written consent of the Probation Officer. [ 112 ] 203.

You shall obey a curfew by being inside of your residence (or on the lot on which your residence is located) between the hours of 9 PM and 6 AM each day except as follows:

a) with the written consent of the Probation Officer. Such consent is to be given, only for compelling personal, family or employment reasons,

b) when travelling directly to, or returning directly from your place of employment, or in the course of such employment. You shall provide the Probation Officer with written proof of employment,

c) in the event of a medical emergency and then only when traveling directly to or returning directly from a hospital emergency ward. [ 113 ] 206. You shall present yourself at the door to your residence when any Peace Officer or Probation Officer attends there for the purpose of determining your compliance with the curfew condition of this Order. [ 114 ] 206A. you shall respond personally and immediately to the telephone when a Peace Officer or Probation Officer makes a telephone call to your residence for the purpose of determining your compliance with the curfew condition of this Order. [ 115 ] 216.

You shall not enter any liquor store, beer and wine store, bar, pub, lounge or other business premises where the primary commodity sold is liquor. [ 116 ] Dictated paragraph. You shall not be found in any public place if you are in possession of, consuming or under the influence of liquor. [ 117 ] 226. You shall:

b) make reasonable efforts to seek and maintain employment approved by the Probation Officer. If on any occasion that you report to the Probation Officer you are not actually employed you shall provide the Probation Officer with a report describing efforts you have made to find employment since your last report. Such report may be verbal or written in the discretion of the Probation Officer. [ 118 ] 227. You shall attend, participate in and successfully complete any assessment, counselling or program as directed by the Probation Officer.

Without limiting the general nature of this condition such assessment, counselling or program may relate to: alcohol or drug abuse, a full-time attendance program for alcohol or drug abuse including attending the Baldy Hughes Therapeutic Community and you shall comply with all the rules and regulations of any such assessment, counselling or program. [ 119 ] Given Mr.

J.'s personal circumstances I will waive the necessity to pay the victim fine surcharge on all of the Informations. [ 120 ] I will hear counsel with regard to clarifying or adding any other terms to the Conditional Sentence Order or the Probation Order that they feel may be necessary to ensure Mr. J.'s compliance and success with regard to serving his sentence in these matters. _________________________ M. J. Brecknell Associate Chief Judge Provincial Court of BC