R. v. E.R.E.P. Date:, 2016 BCPC 50

Citation: R. v. E.R.E.P. Date: 20160205 2016 BCPC 0050 File Nos: 42013-3-A, 42013- 42013-4-KC, 42600-1, 42604-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. E.R.E.P. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. DOULIS Counsel for the Crown: T. Bauman Counsel for the Defendant: M. Reed Place of Hearing: Prince George , B.C.

Date of Judgment: February 5, 2016 Information 42013-4-KC: Background Facts [ 1 ] On Information 42013-4-KC E.R.E.P. pled guilty to Counts 1 and 2 admitting to criminally harassing J.A. and attempting to obstruct justice. [ 2 ] E.R.E.P. has a longstanding relationship with J.A. She is the mother of his seven children, the oldest of whom is 19. E.R.E.P. and J.A. have a complex and troubled relationship. E.R.E.P. has three past convictions for offences involving J.A.

Between June the 3rd, 2015 and October 14th, 2015, E.R.E.P. was on bail conditions prohibiting him from contacting J.A. [ 3 ] J.A. says that from January the 12th, 2015 to June the 5th, 2015, while in custody, E.R.E.P. called her multiple times. She estimates he called her from jail in excess of 60 times. E.R.E.P. used a telephone calling card belonging to another inmate to avoid being tracked. [ 4 ] J.A. says that upon getting out of jail E.R.E.P. called her every single day from a private number.

With these phone calls E.R.E.P. actively tried to get her to drop the charges against him. [ 5 ] J.A. says that on June the 10th, 2015 E.R.E.P. called her sister, O.A. E.R.E.P. learned J.A. was at O.A.'s house and came over. J.A. took a video of E.R.E.P. while he was at her sister's house. The police seized the video in which E.R.E.P. was readily identifiable. [ 6 ] J.A. says E.R.E.P. made her walk away with him from O.A.'s house. He then continuously tried to get her to get back together with him and drop all charges. [ 7 ] J.A. says that on June the 12th, 2015, E.R.E.P. showed up at her home in Prince George.

He was high. He locked himself in her bedroom. He continuously tried to get her to get back together with him and to drop the charges. At some point he fell asleep and did not leave until the next morning. [ 8 ] S.A. (J.A. and E.R.E.P.'s daughter) was present during this incident and provided the police with an audio recorded statement. She confirms that E.R.E.P. came to J.A.'s residence on June 12th, 2015. She describes him as acting strangely. S.A. said E.R.E.P. went into her mother's bedroom and did not come out. [ 9 ] J.A. says that she is scared of E.R.E.P. and does not know what he will do.

He continuously makes oblique or veiled threats which cause her to be scared. She did not invite E.R.E.P. over or want him to call. [ 10 ] J.A. says she received letters from E.R.E.P., which the Crown has in its file.

In those letters E.R.E.P. professes his love for J.A. and says the kinds of things to which J.A. referred to in her statement to the police. [ 11 ] J.A. indicates that when E.R.E.P. went back into custody he continuously tried to communicate with her and convince her to drop the charges. [ 12 ] E.R.E.P. was in custody until June the 4th, 2015; from June 25th to July 3rd 2015; and from October the 14th, 2015 to date. [ 13 ] J.A. complained to the Crown that even when E.R.E.P. was taken back into custody on October 14th, 2015 he still continued to contact or attempt to contact her. [ 14 ] J.A. has ongoing fear of E.R.E.P., who has caused her a lot of stress and anxiety. [ 15 ] Although J.A. has not provided a written victim impact statement, she did advise Crown that she continues to fear E.R.E.P. and wants no further contact with him.

She made that request within the week of the sentencing hearing that commenced on January the 22nd, 2015. [ 16 ] E.R.E.P. says today that he has been receiving communications from J.A. and that she says she wants contact. Information 42604-1: Background Facts [ 17 ] E.R.E.P. pled guilty to Count 3 on Information 42604-1, admitting that on October the 7th, 2015 he stole the personal property of David Duran. [ 18 ] On October the 7th, 2015 at 2:20 p.m. the proprietor of the Econo Lodge at 910 Victoria Street, Prince George, complained to the RCMP that someone had broken into a client's tour bus.

The RCMP investigated the complaint and met with David Duran. [ 19 ] Mr. Duran said someone went into his tour bus and stole a black Sony a7S camera valued at $5,000, a white 7 millimetre Canon lens valued at $3,000, a black Nikon camera valued at $530, a tripod in a black case, and an Xbox. [ 20 ] The right rear window of the tour bus was open and its screen torn. [ 21 ] The RCMP took fingerprints at the scene. One of those fingerprints belonged to E.R.E.P. and identified him as one of the persons responsible. [ 22 ] Mr. Duran did not have serial numbers for the stolen items and they were never recovered.

The total value of the lost items was approximately $9,000.

Information 42600-1: Background Facts [ 23 ] E.R.E.P. pled guilty to Count 1 on Information 42600-1, admitting to assaulting Constable Sharpe, a peace officer, on October 14th, 2015. [ 24 ] On October 14th, 2015 Constable Sharpe was on patrol in Prince George near the Greyhound Bus Depot. He saw a male he thought was in distress or intoxicated. He stopped and made inquiries. He identified the male as E.R.E.P., a person well-known to the Prince George RCMP.

Constable Sharpe was aware that E.R.E.P. was arrestable for breaching his curfew. [ 25 ] In particular, on October 5th, 2015, E.R.E.P. failed to comply with the curfew conditions on a recognizance from a previous domestic violence file. Constable Sharpe was aware of this violation and told E.R.E.P. he was under arrest. E.R.E.P. turned and fled, with Constable Sharpe in pursuit. [ 26 ] Constable Sharpe caught up to E.R.E.P. and attempted to arrest him. E.R.E.P. turned and started throwing punches at Constable Sharpe.

Constable Sharpe and E.R.E.P. engaged in a fight. [ 27 ] Other RCMP members converged on the scene. Civilian witnesses who witnessed the altercation came to Constable Sharpe's aid. They assisted the police in arresting E.R.E.P. Ultimately, the police brought E.R.E.P. under control. They arrested him, advised him of his Charter rights and transported him to the cells. E.R.E.P. has been in custody ever since. [ 28 ] Constable Sharpe had to go to the hospital to obtain medical treatment for the injuries he sustained during his altercation with E.R.E.P.

Although his injuries were not lasting, they needed treatment. [ 29 ] E.R.E.P.'s violent reaction to Constable Sharpe's attempts to arrest him created a dangerous and unsettling situation. It required the assistance of others to bring him under control. [ 30 ] In addition to his physical injuries, Constable Sharpe also lost his watch, which was broken in the fight. Information 42013-3-A: Background Facts [ 31 ] E.R.E.P. pled guilty to a single count on Information 42013-3-A, admitting to breaching his curfew pursuant to s. 145(3) of the Criminal Code . [ 32 ] This curfew breach occurred on August the 16th, 2015.

The police went to E.R.E.P.'s residence at a time when he was required to be in that residence. E.R.E.P. was not home. CRIMINAL RECORD [ 33 ] E.R.E.P. has a lengthy criminal record consisting of 74 convictions.

This record includes nine convictions for violent offences including two convictions for assaulting a peace officer, two convictions for obstructing justice, 21 convictions for breaching a court order, six convictions for resisting arrest, 31 property convictions including multiple convictions for theft, various driving offences including a refusal to provide a breath sample, dangerous driving, flight from a peace officer, and a drug conviction. THE DEFENCE SUBMISSIONS [ 34 ] E.R.E.P. is 37 years old. His mother is Carrier from Moricetown. His father is Cree from Hobbema.

E.R.E.P. is a member of the Wetaskiwin Cree First Nations in Alberta. He says his parents went to residential school. His mother went to Lejac Residential School. [ 35 ] As a child, E.R.E.P. was exposed to drugs, alcohol, and extreme violence. He had a fair bit of involvement with the judicial system and the Ministry of Child, Family, and Community Services from a young age. He had no father figure and was raised predominantly by his grandmother. [ 36 ] E.R.E.P. says he has been doing a lot of soul-searching of late. He has initiated drug and alcohol counselling to the Prince George Native Friendship Centre.

His counsellor came to see him in the PGRCC once per week. He has now had four sessions with his counsellor and that would be as of January the 22nd, 2016. [ 37 ] E.R.E.P. says his goal is to attend a residential treatment centre. He realizes that if he is to improve his life he needs to deal with his grief and loss and the sexual abuse he experienced as a child. He says that although he has gone to recovery he has never had a chance to talk about his past and the hurt and abuse he suffered when growing up. [ 38 ] To this end, E.R.E.P. has positioned himself for acceptance in a treatment centre upon his release.

He is taking substance abuse counselling and medical testing. He acknowledges that in order to have a successful life he needs to admit that he is not okay, he needs guidance. He has been in jail for quite a while now and recognizes that it is not a life to live. [ 39 ] E.R.E.P. has been with J.A. for 27 years. Together they have seven children between the ages of two and 19. They own a five- bedroom house in Prince George. E.R.E.P. met J.A. when she was 10 years old and they have been living together since they were 12.

He says he loves J.A., they share a long history, they have had good times and bad times; the bad times involve drugs. [ 40 ] E.R.E.P. is of the view that all J.A. wants is for him to get help to deal with his grief and loss and the stuff he went through. He knows this from letters J.A. has sent to the Crown. [ 41 ] E.R.E.P. laments that he has not had contact with his children for some time. The only person who could bring his children to visit him while he was in custody was J.A., against whom he had a no-contact order. He says that if he wanted to phone the children, J.A. would answer the phone.

This made him unable to contact even those with whom he is allowed to contact. E.R.E.P. does not say

that he tried to speak with those children in his repeated calls to J.A. [ 42 ] With respect to these proceedings, E.R.E.P. says he understands that Crown Counsel's job is to hold him accountable for his past wrongs, while his lawyer is there to defend him. [ 43 ] E.R.E.P. says the only thing he can do for himself is to stay away from court and get help. While in custody he took all the programs available to him.

These programs focused on drug and alcohol abuse, cognitive skills and learning, family violence, Native family violence, high intensity violence Core Programs which I understand to be problem-solving and lifestyle management skills. [ 44 ] E.R.E.P. earned a number of trade certifications over the years. He has all his mining tickets, drilling tickets, silviculture tickets, and a certificate enabling him to transport dangerous goods. [ 45 ] Although he was not working at the time of his arrest, E.R.E.P. is very employable. He has been called a couple of times by mines with offers of employment.

Unfortunately he was not able to pursue these opportunities because he was in jail. [ 46 ] E.R.E.P. has been told he has work in silviculture in Fort Ware upon his release. Mr. Reed submits that E.R.E.P. is a person who can find employment in this economy. His criminal record may hinder him somewhat, but there is work for someone with E.R.E.P.'s experience and training. It is unclear how E.R.E.P. intends to attend a residential treatment centre at the same time he's working in a place at Fort Ware. [ 47 ] E.R.E.P. apologized for the items that went missing from Mr. Duran's touring van. He recognized Mr.

Duran worked hard to earn those items. He indicates he was there with others in the theft, but he took the responsibility. He apologized for himself and the others. [ 48 ] E.R.E.P. also apologized for contacting J.A. He said it was very hard not to contact her; she is his soulmate. [ 49 ] E.R.E.P. also apologizes for the breached curfew. He said he was an hour late for his curfew when the cops showed up. [ 50 ] E.R.E.P. also apologized to Constable Sharpe. Rehabilitation [ 51 ] Mr. Reed says that around the time of his arrest, E.R.E.P. had his "drinking and drugging" under control.

It was his intention to continue to lead a clean and sober lifestyle. E.R.E.P. seeks to reach and maintain this objective through counselling. [ 52 ] Today E.R.E.P. has provided a letter from the Prince George Native Friendship Centre from his counsellor. The counsellor, Carla Dingwall [phonetic], has indicated that she and E.R.E.P. were working on an application for him to attend a residential treatment at North Wind Healing Centre in Dawson Creek.

In addition, he planned to continue his drug and alcohol counselling sessions at the Prince George Native Friendship Centre as well as working on the trauma he experienced in his life. [ 53 ] Ms. Dingwall says that E.R.E.P. is determined to find employment and also to access education to enhance his employability, and he is hoping that on his release he can access supported recovery through the St. Patrick's House or Ketso Yoh. [ 54 ] E.R.E.P. also provided a

schedule indicating dates of intake for the substance abuse program and a second stage recovery with trauma-focused treatment centre. THE CROWN'S POSITION ON SENTENCING [ 55 ] On Information 42013-4-C the Crown proceeded by indictment. The Crown seeks a six-month jail sentence on each of Counts 1 and 2 to be served concurrently with each other and consecutively with respect to Informations 42604-1, 42600-1, and 42013-3-A. [ 56 ] The Crown submits that a six-month jail sentence is at the low end of the scale.

The sentences take into consideration the totality principle as E.R.E.P. is being sentenced today on a number of matters. They also take into consideration the complexities of E.R.E.P.'s relationship with J.A. and the challenges involved in taking the matter to trial. [ 57 ] On Information 42604-1 the Crown proceeded by indictment, and this is the Information by which E.R.E.P. was charged with the theft over $5,000.

The Crown is seeking an eight-month jail sentence, to be served consecutively to Informations 42013-4-KC, 42600-1, and 42013-3-A. [ 58 ] On Information 42600-1 the Crown proceeded by indictment as well. This is the Information charging E.R.E.P. with the assault of a peace officer. The Crown seeks an eight-month jail sentence, to be served consecutively to Informations 42013-4-KC, 42604-1, and 42013-3-A. [ 59 ] On Information 42013-3-A the Crown proceeded summarily, and it is by this Information that E.R.E.P. had been charged with his breach of a recognizance.

The Crown seeks a 21-day jail sentence, to be served consecutively to the other Informations, 42013-4- KC, 42604-1, and 42600-1. [ 60 ] The Crown also seeks a probation order, a three-year term probation order, on the Informations 42013-4-KC, 42604-1, and 42600-1, the Information by which it proceeded by indictment. [ 61 ] In addition to the mandatory statutory terms a probation order may include curfew and conditions with respect to reporting, residing, and counselling, as well as prohibitions with respect to contacting victims possessing or using alcohol, drugs, weapons, or knives. Ancillary Orders

[ 62 ] For the conviction of criminal harassment on Information 42013-4-KC, the Crown seeks a mandatory lifetime firearms prohibition pursuant to s. 109 of the Criminal Code . [ 63 ] The Crown seeks a discretionary DNA order on Informations 42013-4-KC, 42604-1, and 42600-1. DEFENCE POSITION ON SENTENCING [ 64 ] Mr. Reed says that E.R.E.P. is not opposed to the length of the jail sentence which the Crown seeks. He submits that all jail sentences on all Informations ought to be concurrent.

Instead of the 22-month 21-day jail sentence sought by Crown, E.R.E.P. should serve eight months in total. [ 65 ] E.R.E.P. acknowledges the offences to which he has pled guilty are serious offences. Still, Mr. Reed submits, an eight-month jail sentence is a significant sentence. In the future, if E.R.E.P. is back before the court charged with similar offences, he will face a significant step up. [ 66 ] Mr. Reed submits that with respect to the offences for which E.R.E.P. is sentenced today, eight months is a fair, significant, and punitive sentence.

He argues that E.R.E.P. can be managed in the community, even with the number of breaches on his record. He has taken steps to help himself stay on the straight and narrow. Moreover, E.R.E.P. is getting on in years, he should be in the community working, supporting his family, paying his taxes, and giving consideration to his later years in life. E.R.E.P. does not want to spend any more time in jail.

Although he has only himself to blame, he wants an opportunity to move on and address the issues he needs to address. [ 67 ] E.R.E.P. also agrees that a term of probation is appropriate, but argues it should be 16 months rather than three years. [ 68 ] Mr. Reed acknowledges E.R.E.P.'s criminal record. He submits that E.R.E.P.'s past criminal offences were fuelled by alcohol misuse and relationship issues.

These underlying issues were caused by his troubled upbringing and can be addressed through counselling. [ 69 ] With respect to counselling as a condition of probation, E.R.E.P. has been progressive in taking steps to address counselling on his own, short of probation telling him where to go and what sort of counselling to take. E.R.E.P. is aware that there are 12-step programs in Prince George. Mr. Reed submits that sometimes these programs are beneficial to someone who has experienced trauma as a child. However, these programs are anonymous, making enforcement problematic.

Still, when people choose their own treatment, he says, they get better results. [ 70 ] E.R.E.P. has already arranged for counselling through the local Native Friendship Centre and the John Howard Society. Following his release, E.R.E.P. can contact those programs and they will set up counselling for him. [ 71 ] With respect to probation conditions limiting contact with family members, E.R.E.P. takes no issue with the Crown requesting a no-contact order with respect to J.A. Still, E.R.E.P. does want to contact their children. [ 72 ] Now, this was a submission of Mr. Reed on January the 22nd, 2016.

I do not know if those have changed yet today. [ 73 ] MR. REED: His position today, Your Honour, is yes he does want contact with -- with her. [ 74 ] MR. REED: He's not agreeable to no contact. [ 75 ] MR.

REED: He would like to have contact. [ 76 ] THE COURT: All right. [ 77 ] So, E.R.E.P. today has determined that he is not agreeable to the no-contact order which the Crown seeks, and that he would like to have contact with J.A. [ 78 ] I should add that also, by way of a letter that E.R.E.P. has provided the court today, he is or is in the process of seeking to attend a residential treatment program at the North Wind Healing Centre in Dawson Creek. RESTITUTION [ 79 ] The Crown submits that if the Court considers it appropriate to make restitution to Mr.

Duran, then it should be a stand-alone restitution order in the amount of $9,000. The Crown is not actively seeking such an order, as they thought the probability of E.R.E.P. complying with it was remote. [ 80 ] The points of agreement or no contest between the Crown and defence are as follows. The Crown and defence substantially agree on the following:

a) the facts of the offences presented by the Crown;

b) the appropriate jail sentence for Count 1, criminal harassment, on Information 42013-4-KC, is six months;

c) the appropriate jail sentence for Count 2, obstruction of justice, on Information 42013-4-KC, is six months;

d) the jail sentence for Count 1 and 2 on Information 42013-4-KC, that is the criminal harassment and obstruction of justice, ought to be served concurrently;

e) the appropriate sentence for Count 3 on Information 42604-1, theft over $5000, is eight months;

f) the appropriate sentence for Count 1 on Information 42600-1, assaulting a peace officer, is eight months;

g) the appropriate sentence for Count 1 on Information 42013-3-A, breach of recognizance, is 21 days;

h) a period of probation is appropriate following E.R.E.P.'s release from custody;

i) the probation order ought to contain some form of counselling condition;

j) the court will make an order prohibiting E.R.E.P. from owning or possessing weapons, ammunition under s. 109 of the Criminal Code ; and

k) the court ought to make a discretionary DNA order under s. 487.05(1) of the Criminal Code . POINTS OF DISAGREEMENT [ 81 ] The Crown and defence substantially disagree on the following issues:

a) whether the jail sentences on Informations 42013-4-KC, 42604-1, 42600-1, and 42013-3-A ought to be served concurrently or consecutively.

b) the length of the term of probation;

c) the probation order ought to contain a condition prohibiting E.R.E.P. from contacting J.A.; and

d) whether E.R.E.P. ought to take the form of counselling he chooses or as directed by the probation officer. PRINCIPLES OF SENTENCING [ 82 ]

Section 718 of the Criminal Code sets out the fundamental purposes of sentencing: The fundamental purpose of sentencing is to contribute, along with the crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 83 ]

Section 718.1 of the Criminal Code codifies the proportionality principle, which requires a sentence to be proportionate to the gravity of the offence, and the degree of responsibility of the offender. [ 84 ]

Section 718.2 (

b) of the Criminal Code codifies the parity principle, which requires: (

b) the sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances; [ 85 ]

Section 718.2 (

c) of the Criminal Code codifies the totality principle, which requires a judge to insure that when imposing consecutive sentences: … the combined sentence should not be unduly long or harsh; [ 86 ]

Section 718.2 (

d) of the Criminal Code codifies the restraint principle, which holds: an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and [ 87 ]

Section 718.2 (

e) of the Criminal Code codifies another restraint principle, which holds that: all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 88 ] In R. v. Gladue and R. v. Ipeelee , two Supreme Court of Canada decisions, have interpreted s. 718.2 (

e) as it applies to sentencing Aboriginal offenders. The sentencing judge is statutorily obligated to consider the unique systemic and background factors which may have played a

part in bringing E.R.E.P. before the court, as well as the type of sentencing procedures and sanctions that may be appropriate, because of his Aboriginal heritage.

Section 718.2(C), Concurrent versus Consecutive Sentences [ 89 ] The salient issue in the sentencing hearing is whether the sentences the court intends to impose on the five offences to which E.R.E.P. has entered a guilty plea should be served concurrently or consecutively. I am required to fix an appropriate aggregate sentence that reflects the specific circumstances of the offences of which E.R.E.P. has been convicted, as well as his unique circumstances.

[ 90 ] In R. v. Li , a 2009 B.C. Court of Appeal decision, the B.C.

Court of Appeal held, at paragraph 42, the test for whether sentences should be concurrent or consecutive: … is "whether the acts constituting the offence were part of a linked series of acts within a single endeavour". [ 91 ] In Li the appellate court also said, at paragraph 24, the issue of concurrent versus consecutive sentences: … involves a factual assessment of the degree to which the circumstances of the offences are interconnected or separate. [ 92 ] E.R.E.P.'s conduct with respect to Count 1 and 2 on Information 42013-4-KC charging him with criminal harassment and obstructing justice may be viewed as a single endeavour with different aspects of that endeavour giving rise to criminal harassment and/or obstruction of justice.

Still, it is questionable whether those two offences are sufficiently connected to say they are really the same incident. [ 93 ] E.R.E.P. repeatedly contacted J.A. for two reasons: to get her to get back together with him, and to get her to drop the charges against him. [ 94 ] Underpinning the criminal harassment charge is J.A. is feeling harassed by E.R.E.P.'s repeated and unwanted interactions and communications, and a reasonable fear for her safety. [ 95 ] Underpinning the obstruction of justice charge is E.R.E.P.'s attempt to dissuade J.A. by “threats, bribes, or other means corrupt means of giving evidence” contrary to

section of 139 of the Criminal Code . [ 96 ] The Crown concedes that any jail sentence imposed for criminal harassment ought to be served concurrently with one for obstruction of justice.

The Crown's concession in this regard is based not on the single endeavour principle, but rather on the totality principle. [ 97 ] In my view, the criminal harassment and obstruction of justice are not sufficiently connected to a single incident to justify a concurrent sentence on that basis alone. [ 98 ] The acts constituting the offences in Information 42013-4-K, 42604-1, 42600-1, and 42013-3-A are manifestly separate and distinct.

They occurred on different dates, involve different victims and are very different acts of criminal conduct. [ 99 ] One significant point of similarity is that all offences occurred while E.R.E.P. was on bail and bound by this court to keep the peace and be of good behaviour. In my view, these offences do not warrant a concurrent sentence on the basis of similarity. I would add that the sentences for breaches of court orders would normally be consecutive, even when part of a single criminal transaction.

My finding that none of the offences subject of this sentencing hearing was part of a linked series of acts within a single endeavour does not end the inquiry. The Totality Principle [ 100 ] As a sentencing judge, I must consider the appropriateness of consecutive sentences in light of sections 718.1 and 718.2 of the Criminal Code . These provisions codify the totality principle which requires me to consider E.R.E.P.'s overall culpability in fixing a global sentence. [ 101 ] As explained in Li , this is a two-step process, and I quote from paragraph 28 of that decision.

Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences. The first stage is to determine the appropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent. If consecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totality principle. If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjusted in order to [give] an appropriate global sentence.

Step 1, Appropriate Sentence [ 102 ] As set out in Li , the first step in determining a sentence where there are multiple convictions is to determine the appropriate offence for each individual offence. [ 103 ] Neither the Crown nor the defence counsel provided case authorities on the range of sentence. I assume this is because they agree the appropriate length of sentence for each offence is that proposed by the Crown.

They are both seasoned counsel and I am fully confident their assessment in this regard is accurate. [ 104 ] I have therefore determined the appropriate sentence for each offence by taking into consideration the oral submissions of the Crown and the defence, in the context of the goals, principles, and objectives of sentencing set out in s. 718 to 718.2 of the Criminal Code . [ 105 ] I have considered some case authorities as well, to which I will refer later.

I have considered E.R.E.P.'s personal circumstances, his Aboriginal ancestry, his criminal record, the five further offences subject of the sentencing hearing and his bail status at the time of their commission, his guilty pleas and apologies. [ 106 ] I have paid particular attention to the Gladue factors and I am satisfied that those factors, both systemic within society and specific to E.R.E.P., may have played a role in his criminal behaviour. [ 107 ] I have considered that E.R.E.P. is taking steps, albeit baby steps, towards rehabilitation.

Information 42013-4-KC, Counts 1 and 2 [ 108 ] When the Crown proceeds by indictment, as it has done in this case, a conviction for criminal harassment at s. 264 of the Criminal Code attracts a maximum jail sentence of 10 years. The offence for obstructing justice, s. 139(2) , attracts a maximum jail sentence of two years. [ 109 ] I have reviewed a number of sentencing decisions on criminal harassment and obstruction of justice, including R. v. Olson , Prince George Registry 3099-KC-3, 3099-A-2, 30258-K2, which was affirmed at the Court of Appeal on R. v. Olson , at 2011 BCCA 8 ; R. v.

Cooper , 2009 BCCA 208 ; R v. Taylor , 2012 BCSC 2209 ; and R. v. Taylor , 2014 BCCA 304 . [ 110 ] I agree with the Crown that a six-month jail sentence for the offence of criminal harassment of the former spouse and obstruction of justice is at the very low end of the range. This is particularly so given E.R.E.P.'s lengthy criminal record which includes three prior convictions for offences involving J.A. A six-month jail sentence on each of Counts 1 and 2 on Information 42013-4-K served concurrently is fit upon the application of the totality principle with respect to that Information.

Information 42604-1, Count 3 [ 111 ] The offence of theft over $5,000, s. 334 (

a) of the Criminal Code where the Crown proceeds by indictment, attracts a maximum jail sentence of 10 years. I agree with the Crown and defence that an appropriate jail sentence for that offence of theft over $5,000 in these circumstances is eight months. In reaching that conclusion I am assisted by the B.C. Court of Appeal decision in R. v. McLaren , 2015 BCCA 478 . Information 42600-1, Count 1 [ 112 ] The offence of assaulting a peace officer, s. 270(1) (

a) of the Criminal Code where the Crown proceeds by indictment, attracts a maximum jail sentence of five years. I agree with the Crown and defence, an appropriate jail sentence for the offence of assaulting a peace officer is eight months. Information 42013-A-3, Count 1 [ 113 ] The offence of breach of recognizance, s. 145(3) of the Criminal Code where the Crown proceeds summarily, attracts a maximum jail sentence of six months. I agree with the Crown and defence that an appropriate jail sentence for the offence of breach of recognizance with respect to E.R.E.P.'s curfew is 21 days.

Step 2, Aggregate Sentence [ 114 ] I am of the view that an aggregate sentence of 22 months and 21 days for the five offences of which E.R.E.P. has entered a guilty plea is not unduly harsh or disproportionate. The six-months' concurrent jail sentence on Counts 1 and 2 of Information 42013-4-KC represents a significant downward adjustment in order to arrive at an appropriate global sentence. No further adjustments are required to insure the cumulative sentence does not exceed E.R.E.P.'s overall culpability.

Presentence Custody [ 115 ] E.R.E.P. has been in custody on another matter until June the 4th, 2015 at which time he was released. He was taken into custody on June 25th, 2015 on Information 42013, the criminal harassment and obstruction of justice, and released on a recognizance on July the 3rd, 2015. E.R.E.P. was out of custody from July the 3rd, 2015 until October the 14th, 2015 at which time he was again arrested and detained on Information 42600-1, assaulting a peace officer. E.R.E.P. has been in custody from October 14th, 2015 until today, February the 5th, 2016.

Not counting today, E.R.E.P., by my calculation, has been in custody with respect to the matters before the court for a total of 123 days. [ 116 ] The Crown and defence agree E.R.E.P. should receive enhanced credit for time served based on R. v. Summers , 2014 SCC 26 . Credit for his time in pretrial custody will be calculated on a 1.5:1 basis for a total of 184.5 days; that is 123 days x 1.5. [ 117 ] A sentence of 22 months and 21 days commencing on February the 5th, 2016 is a total of 690 days by my calculation.

Factoring in E.R.E.P.'s remand credit of 184.5 days, E.R.E.P. has to serve an additional 505.5 days, or 16 months 19 days in jail. [ 118 ] With respect to probation, the Crown seeks a three-year term of probation following E.R.E.P.'s release from jail. Defence argues for a 16-month probation term. [ 119 ] In considering the appropriate period of probation I have to consider the purposes of probation, which are to rehabilitate the offender and to protect the public while the offender is in the community. That is pursuant to s. 732.1(3) (

h) of the Criminal Code , R v. Poole , [2000] S.C.C.A., and R. v. Shoker , 2006 SCC. [ 120 ] I find a lengthy period of probation is necessary for E.R.E.P.'s rehabilitation and to protect the public, including J.A. [ 121 ] E.R.E.P. recognizes that it is time for a change if he is going to have a successful life. Given his entrenched criminal lifestyle, E.R.E.P.'s rehabilitation will require significant structure, constraint, and support. Community corrections will provide a framework to monitor and strengthen E.R.E.P.'s rehabilitation and his goal of recovery and renewal.

Moreover, a lengthy period of probation can afford the public at large, and J.A. in particular, with a measure of protection from E.R.E.P.'s chronic offending. I will make the three- year probation order requested by the Crown. [ 122 ] As to the conditions of probation, I am guided by s. 732.1(2) and (3) of the Criminal Code . Subject to certain conditions s. 732.1(3) empowers the court to impose such other reasonable conditions as the court considers desirable for facilitating the offender's successful reintegration into the community.

[ 123 ] In Shoker , Justice Charron, speaking for the majority, stated at paragraph 13: Reasonable conditions will generally be linked to the particular offence but need not be. What is required is a nexus between the offender, the protection of the community and his reintegration into the community. Restitution Order [ 124 ] E.R.E.P. says he has multiple trade certifications and he is eminently employable. I do not know, however, whether E.R.E.P. has in fact been employed for any considerable length of time. I also have to consider that E.R.E.P. will be in jail for some time.

When he is released from jail, E.R.E.P. wants to attend a residential treatment centre. Also, he has a large family to support. [ 125 ] In R. v. Dunn , 2010 BCCA, the appellate court commented that there is no useful purpose served by a restitution order where the likelihood of compliance is remote. I am of the view that remote accurately describes the likelihood of E.R.E.P.'s compliance with any restitution order and I decline to make one.

Ancillary Orders [ 126 ] A conviction for the offence of criminal harassment, as set out in Count 1 of Information 42013-4-K, attracts a mandatory firearms prohibition pursuant to s. 109 of the Criminal Code . As E.R.E.P. already has a prior mandatory firearms prohibition, this one will be for life. [ 127 ] The offences of criminal harassment, s. 264 of the Criminal Code ; obstruction justice, s. 139(2) of the Criminal Code ; assaulting a peace officer, s. 270(1) (

a) of the Criminal Code ; theft over 5,000, s. 334; are secondary designated offences within the meaning of s. 487.04 of the Criminal Code . [ 128 ] This means I have the discretion to order the taking of DNA samples from E.R.E.P. Mr. Reed did not argue this was not appropriate.

E.R.E.P. has not established that the impact of this order, including the impact on his privacy or liberty, would be grossly disproportionate to the public interest in protecting society, which is served by these kinds of orders. [ 129 ] I find E.R.E.P.'s existing criminal record and the seriousness of these new offences justify that E.R.E.P. will be subject to a DNA order pursuant to 487.05(1) of the Criminal Code in Form 5.04. SENTENCING ORDER [ 130 ] Now, before I pass sentence, do Counsel have any comments as to the accuracy of the facts or submissions that I have cited? [ 131 ] MR.

BAUMAN: Not from the Crown's perspective, no. [ 132 ] THE COURT: Okay. So, E.R.E.P., I will have you stand up, please. [ 133 ] You have entered guilty pleas to the charge of Information 42013-4-KC. You have pled guilty to Count 1, criminal harassment and Count 2, attempt to obstruct justice contrary to s. 139(2) of the Criminal Code . You have entered a guilty plea, to Count 3, on Information 42604-1, that is theft over $5,000, contrary to s. 334 (

a) of the Criminal Code . You have entered a guilty plea to Count 1 on Information 42600-1 for assaulting a peace officer, and you have entered a guilty plea to Count 1 on Information 42013-3-A, which is a breach of recognizance. [ 134 ] I accept your guilty pleas and I find you guilty of those offences. [ 135 ] I sentence you to six months in jail on each of Count 1, criminal harassment, and Count 2 on Information 42013-4-C.

These two six-month jail sentences will be served concurrently with each other and consecutively with respect to all other jail sentences I impose today. [ 136 ] On Count 3, of Information 42604-1, this is a theft over $5,000, I am sentencing you to eight months in jail to be served consecutively with respect to all other jail terms imposed today. [ 137 ] On Count 1 of Information 42600, assault of a peace officer, I sentence you to eight months in jail to be served consecutively with respect to all other jail terms imposed today. [ 138 ] On Information 42013-3-A, breach of probation, I sentence you to 21 days in jail to be served consecutively with respect to all other jail terms imposed today. [ 139 ] Upon your release you will be on a three-year term of probation. [ 140 ] THE COURT: The presentence credit will be firstly applied to Information 42013-4-C, so those concurrent six-month sentence will be time served with the remaining balance of the presentence credit to be applied to Information 42604-1, which is the theft over $5,000. [ 141 ] THE COURT: With respect to the probation, the three-year probation order that will be enforced upon your release on Informations 42013-4-KC, 42604-1, and 42600-1, these will be the conditions:

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

b) Within 72 hours of completing your jail sentence you shall report in person to the probation office located at 101 - 250 George

Street, Prince George, B.C., and after that you shall report as and when directed by the probation officer.

c) When first reporting to the probation officer, you shall inform him or her of your present residential address and phone number, and you shall not change your address or phone number at any time without first providing written notice to your probation officer.

d) You shall have no contact or communication, directly or indirectly, with J.A. except by further order.

e) You shall not attend at any place which you know to be the residence, school, or workplace of J.A., except with further order of this court.

f) You shall not possess or consume any alcohol, intoxicants or illegal drugs, except as prescribed for you for your use by a physician.

g) You shall not enter any liquor store, or beer and wine store, and you shall not enter any bar, pub, lounge or other licenced premises from which minors are excluded by law.

h) You shall not possess any weapons as defined in s. 2 of the Criminal Code .

i) You shall not possess a knife outside your residence except for the immediate preparation or eating of food, or for the purposes directly and indirectly related to your employment.

j) You shall attend, participate in and successfully complete any assessment, counselling, treatment program, or other program as directed by your probation officer. Without limiting the general nature of this condition, such assessment, counselling and program may include anger management, alcohol or drug abuse, spousal abuse prevention, such full-time attendance program as may be directed by your probation officer, and you shall comply with all rules and regulations of such assessment in counselling or program. [ 142 ] With respect to ancillary orders for the offence of criminal harassment, which is Count 1 on Information 42013-4-KC:

k) you are prohibited from possessing any firearms, crossbows, restricted weapon, prohibited weapon, prohibited device, ammunition, prohibited ammunition, explosive substances for life. [ 143 ] With respect to all counts for which guilty pleas were entered on Informations 42013-4-KC, 42604-1, and 42600-1, I make an order pursuant to s. 487.051(3) (

b) of the Criminal Code , in Form 5.04 authorizing the taking of a number of samples of bodily fluids by any peace officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration from you by April 30th, 2016. [ 144 ] There will be a victim fine surcharge, and I order it be paid forthwith, and in default one day jail, which can be served concurrently with your existing sentence. (REASONS FOR SENTENCE CONCLUDED)