R. v. Pearce Date:, 2013 BCPC 215

Citation: R. v. Pearce Date: 20130709 2013 BCPC 0215 File No: 76638-2-C Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT CLYDE BENNETT PEARCE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Crown Counsel: R. Parsons Defence Counsel: J. Wright Place of Hearing: Nanaimo, B.C. Date of Judgment: July 9, 2013 [ 1 ] THE COURT (orally): Robert Clyde Bennett Pearce is before me on a 10-count information on File 76638-2-C. Mr. Pearce

has entered guilty pleas to the following counts: Count 1, which is an allegation that he: . . . on or about the 1st day of April 2013, without lawful excuse did have in his possession an instrument, suitable for the purpose of breaking into a place or motor vehicle under circumstances that give rise to a reasonable inference that the instrument has been used, or is or was intended to be used for such purpose, contrary to Section 351(1) of the Criminal Code. Count 2 alleges that at the same date, that he: . . . did assault Cst.

Kortas, a peace officer engaged in the execution of his duty, contrary to Section 270(1) of the Criminal Code . Count 4 alleges that on the same date, that he: . . . did commit mischief in relation to property, the value of which does not exceed five thousand dollars ($5,000.00), by wilfully damaging a motor vehicle, the property of Teresa – -- I believe it is Lovric; is that correct? I believe it is spelled L-o-v-r-i-c -- -- contrary to Section 430(4) of the Criminal Code .

Count 5, an allegation on the same date that he: . . . did commit theft of a car key, the property of Pamela Harriman, of a value not in excess of five thousand dollars ($5,000.00), contrary to

Section 334 (

b) of the Criminal Code. Count 6, that he: . . . while bound by a probation order made by The Honourable Judge Gouge, dated the 27th day of February, 2013, did without reasonable excuse fail to comply with condition #6: Not to be outside your residence unless in the company of a person approved of in writing by your Probation Officer, contrary to

Section 733.1(1) of the Criminal Code. Then on Count 9, he pleaded guilty to an allegation while bound by the same probation order made by the Honourable Judge Gouge: . . . did without reasonable excuse fail to comply with condition #9: You must not consume, possess or use any alcohol whatsoever or any other intoxicating substance, contrary to

Section 733.1(1) of the Criminal Code. [ 2 ] Crown has outlined the circumstances with respect to each of the counts that I have mentioned. Those circumstances are not disputed by defence.

Accordingly, I find those circumstances to be the facts, and they are sufficient to support both a plea of guilty with respect to the enumerated counts as well as a finding of guilt with respect to each of those counts. [ 3 ] I note for the record that with the remaining counts, 3, 7, 8, and 10, that stays of proceedings have been directed by Crown. [ 4 ] The Crown has outlined its sentencing position with respect to this matter. It is conceded that Mr. Pearce has been in custody for a period of something in the range of about three months' time.

What Crown is seeking with respect to this matter, although I have not heard as to a breakdown of it and I will deal with that as required, that these offences should result in global sentence of six months less the dead time , that is pre-disposition incarceration, of approximately 180 days. [ 5 ] Mr. Pearce has an extensive criminal record dating back to 2007. A number of those are property-related offences. There are a number of breaches of probation orders. He has an assault conviction, and there are break and enter with intent to commit offences, as was his most recent offence.

I note that the most recent conviction had an offence date of the 12th of September 2012. It was disposed of on the 27th of February 2013, and at that time, Mr. Pearce was placed on a 30-month probation order. [ 6 ] This gentleman is, according to Mr. Wright's submissions, 25 years of age. He was raised in a very highly conflicted family. [Redacted for publication.] He has been assessed as having posttraumatic stress syndrome and foetal alcohol syndrome. He is challenged intellectually, having a lower IQ , according to Mr. Wright, in the range of around 60.

He apparently was involved in a serious motor vehicle accident at some point in his life, and accordingly, he is now under the care of the Public Guardian and Trustee for the Province of British Columbia. [ 7 ] Mr. Wright has indicated to me that this particular status has caused significant difficulties. As I understand it, there has been an inability on the part of the Public Guardian and Trustee's office and the Legal Services Society of British Columbia to resolve the source for a retainer to provide legal representation for Mr. Pearce.

[8] That particular dispute was ongoing. It was not until Mr. Wright's intervention in the situation that he was able to get resolutionbetween the two organizations dealing with this matter. As I understand it, ultimately Legal Services, to whom the Public Guardian andTrustee was looking to provide legal services for Mr. Pearce, declined to provide that coverage. That was partly because there is aportion of money available within funds being held by the Public Guardian and Trustee which are being administered by them on behalfof Mr. Pearce.

I understand those funds arise out of his motor vehicle accident. [9] Since he has been incarcerated, Mr. Pearce , as I understand it, due partly to his intellectual capacity and other related problems,has been in the special handling unit at the Vancouver Island Regional Correctional Institution. It is Mr. Wright's submission that Ishould be giving due consideration to enhanced credit for the pre-disposition time or the so-called "dead time" that has been accumulatedby Mr. Pearce awaiting disposition of these matters. [10] It is Mr.

Wright's submission that had the retainer matter proceeded in a more timely fashion, then this matter could have beendealt with and should have been dealt with more expeditiously and Mr. Pearce would not have had the continued time in a remandfacility in a special handling unit. What Mr. Wright is seeking is a 1.5 credit for the time served. [11] Crown opposes the enhanced credit, as I would expect. In that regard, the operative provisions are contained under s. 719 of theCriminal Code. In particular, Parliament has made changes to the legislation, in particular with respect to subsection (3.1).

Subsection(3) reads as follows:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent incustody 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 dayspent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unlessthe reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custodyunder subsection 524(4) or (8).

(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.

(3.3) The court shall cause to be stated in the record and on the warrant of committal the offence, the amount of time spent in custody,the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and thesentence imposed.

(3.4) Failure to comply with subsection (3.2) or (3.3) does not affect the validity of the sentence imposed by the court. [12] I have been referred to the recent decision of our Court of Appeal in R. v. Bradbury, 2013 CarswellBC 1754, 2013 BCCA 280. At paragraph 4 of the reasons for judgment, Justice Daphne Smith on behalf of the court states under paragraph 4: [4] Section 719(3.1) expressly excludes the granting of enhanced credit for pre-sentence detention in two circumstances: (

i) aprevious conviction where the record so indicates (s. 519(9.1)); and (ii) where the accused is detained for a contravention or imminentcontravention of his or her interim release, or there are reasonable grounds to believe that the accused has committed an indictableoffence while on interim release (ss. 524(4) and (8)). [13] The learned justice then goes on at paragraph 43 dealing with the import of the amendments. She writes as follows: [43] With respect, I am unable to agree with the

interpretation of ss. 719(3) and 719 (3.1) adopted in these appellate decisions. Whenss. (3) and (3.1), which I agree are unambiguous, are read together harmoniously and not in isolation, it seems clear to me that Parliamentintended to replace the previous 2:1 practice with a new statutory general rule of up to 1:1 credit for the loss of remission or paroleeligibility, and/or the lack of programs in remand custody. In this respect I agree with the comments of Harvison Young J. in Morris (setout at para. 19 above) and would adopt her reasoning.

While ss. (3.1) does not include an express directive as to what circumstancesmight justify enhanced credit, when it is read together with subsection (3), it seems evident that these circumstances could not include"universally-applicable factors that may have been used to justify granting 2:1 credit prior to the recent amendments": Morris at para. 50. [14] At paragraph 44, she writes: [44] Subsection (3.1), then, must in my view be interpreted in a manner that would honour Parliament's intention to create a newgeneral rule of up to 1:1 credit for most offenders in pre-sentence custody.

In my opinion to interpret the exception in ss. (3.1) in themanner suggested by Mr. Bradbury would effectively negate the general rule in ss. (3) and thereby defeat the scheme and the object ofthe Act. As recently observed by Moldaver J., albeit in concurring reasons in R. v. A.D.H., 2013 SCC 28 , 2013 SCC 28 at para.83, "when one steps back from the mechanistic and often result-driven application of the seemingly endless and at times contradictorytools of statutory

interpretation, common sense may, and generally will, prove to be the best guide to statutory

interpretation."

[ 15 ] At paragraph 48 of the decision, Madam Justice Smith states as follows: [48] I also agree with the other appellate decisions that the exception in ss. (3.1) does not require "exceptional" circumstances and that circumstances that will justify enhanced credit must be personal to the individual offender. In my opinion, however, circumstances that would justify enhanced credit must have a qualitative characteristic; that is, a characteristic that is individual to the offender but also distinct from those characteristics that are universal to, or almost universally held, by other similarly situated offenders.

Examples of commonly held circumstances might include the lack of programs, the conditions of the remand institution, and the loss of remission or parole eligibility. Individual qualitative circumstances might include the imposition of segregated or protective custody through no fault of the accused, the harsh effect of remand conditions because of a particular health issue by an accused, or a delay in the proceedings that is not attributable to the accused.

Stated otherwise, circumstances to justify enhanced credit must be ones that are outside of the common experience of most offenders in remand custody. [ 16 ] In my view, Mr. Pearce falls within what is contemplated by the language of the learned justice in paragraph 48 of Bradbury . Here there are both individual and distinct circumstances relating to Mr. Pearce. I think perhaps one of the most challenging for him has been the fact that an agency of the Province of British Columbia in the form of the Public Guardian and Trustee has the responsibility to be dealing with matters relating to this gentleman.

I am going to suggest that when they have the ability to deal with those matters and are seeking to have that responsibility passed on to the Legal Services Society, the result is they are essentially not dealing with the matter in a necessarily effective manner for Mr. Pearce. That is something that is not common to most offenders. [ 17 ] I am persuaded, based on Bradbury and based on the circumstances in this matter, that an enhanced credit should be made available to Mr. Pearce, and I will make that credit on the basis of 1 1/2 days. I am told by Mr.

Wright his calculation is that that results in a credit of 150 days based on the approximate time that Mr. Pearce has been in custody and in the special handling unit. I will grant him the enhanced credit, and I will impose the sentence sought by Crown of being 180 days less the time of pre-trial custody or pre- disposition custody of 150 days. That leaves a remaining time of 50 days for Mr. Pearce. [ 18 ] Now, with respect to allocation -- [ 19 ] MR. WRIGHT: Thirty days, Your Honour. [ 20 ] THE COURT: I am sorry. Thirty days.

I apologize. [ 21 ] With respect to the sentence allocation of the offences, was there something that Crown was suggesting as to how -- [ 22 ] MR. PARSONS: I would just merely suggest that it be six months' concurrent. It was all one event. This is not going to be a case where Mr. Pearce is going to get a breach of probation charge and somebody's going to say it's worth more than six. [ 23 ] THE COURT: All right. I do agree. Mr. Wright -- [ 24 ] MR. WRIGHT: I have no issue. [ 25 ] THE COURT: -- I will make it that the sentence will apply on a concurrent basis to each of the charges. [ 26 ] MR.

PARSONS: Yes, thank you. [ 27 ] THE COURT: All right. I will waive the victim surcharge in connection with this matter. [ 28 ] Anything further with respect to this matter? [ 29 ] MR. PARSONS: No, Your Honour. (REASONS CONCLUDED.)