R. v. Jones Date:, 2015 BCPC 155

Citation: R. v. Jones Date: 20150401 2015 BCPC 0155 File Nos: 36308-1,36309-1,36508-1,36540-1 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHN ARTHUR JONES ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: G.W. Baines Counsel for the Defendant: B. Movassaghi Place of Hearing: Port Alberni , B.C. Date of Hearing: April 1, 2015 Date of Judgment: April 1, 2015

INTRODUCTION [ 1 ] THE COURT (orally): John Arthur Jones is before me. Mr. Jones faces charges on four separate informations. Crown has proceeded by way of indictment on each of the four matters. [ 2 ] Mr. Jones has entered pleas of guilty to an offence on each of the four informations. Starting with Information 36308-1, he has entered a plea of guilty that on or about January 8, 2015, that he did commit theft of merchandise, the property of Walmart Canada, of a value not in excess of $5,000. That is contrary to s. 334 (

b) of the Criminal Code . [ 3 ] On File 36508-1, he has pled guilty to an offence of committing theft of merchandise, the property of Southland Corporation, doing business as 7-Eleven Food Stores, of a value not in excess of $5,000, again contrary to the same section. [ 4 ] Then on Information 36540-1, he has entered a plea of guilty to an offence of committing theft of money, the property of Port Alberni Boston Pizza, of a value not in excess of $5,000, that being on 29 January 2015. [ 5 ] Then finally, on Information 36309-1, he has entered a plea of guilty to another theft under offence on March 13, 2015, namely that he did commit theft of a Sirius satellite radio system and a set of Irwin drill bits, the property of Port Alberni Home Hardware, contrary to s. 334 of the Criminal Code . [ 6 ] Crown has outlined the circumstances with respect to each of these offences.

There is nothing particularly remarkable about the circumstances. I accept that the circumstances are the facts and they are sufficient to support both findings of guilt and pleas of guilt with respect to each of these matters. [ 7 ] I will say that with respect to the first three offences that I have outlined, what was taken was not recovered.

In the case of the theft from Walmart, the total value of the items which were taken was believed to be in the value of $425.84 and consisted of electronic items and apparently some sporting items, including several knives. [ 8 ] The offence against the 7-Eleven store was theft of a display of lighters just inside the front door. [ 9 ] The third offence, that is, the theft from the Port Alberni Boston Pizza, was the theft of $50 from the till. [ 10 ] With respect to the theft from Home Hardware, the items that were taken and recovered had a value somewhat greater than $100, but the exact amount is not specified.

However, those items were recovered. CIRCUMSTANCES OF THE OFFENDER [ 11 ] Mr. Jones is aged 34. He is a member of a First Nations Band from the west coast of Vancouver Island. His mother is a person of aboriginal descent and, as I understand it, a member of that Band. Mr. Jones' father is not a member of a First Nation. Mr. Jones' mother apparently was struck by a taxi in a motor vehicle accident and, as a result of suffering significant injuries, was hospitalized and in rehabilitation for a period ranging close to some three years. This resulted in Mr.

Jones being raised by his own father between the age of eight to 13, and by the time he was 13, apparently he was taken into care by the Ministry of Children and Families and then placed into foster care. [ 12 ] During his time of care by his father, he was exposed to alcohol. That started at a very early age of around 11, and he was considered to be becoming an alcoholic at that age. He also was exposed to drugs in the form of mushrooms, LSD, and crystal meth at approximately the age of 10. [ 13 ] The suggestion that I have heard in submissions from defence counsel is that Mr.

Jones has had throughout his life, from approximately age 10 onwards, a significant addiction to both alcohol and drugs and this has marred his life and has contributed significantly to his criminal record. [ 14 ] I will deal with his criminal record shortly. [ 15 ] In addition, the information I have before me is that Mr. Jones has fathered four children. Three of them have been adopted out to family members. The youngest child, aged 3, lives with the child's mother. [ 16 ] Mr. Jones has a grade 11 education through an adult alternative school program. He has worked as a commercial fisher.

He also has worked in construction, and his goal is to return to and be engaged in fishing. [ 17 ] He lives off reserve in Port Alberni. He has had some cultural ties to his community, but as a result both of incarceration as well as his relocation to Port Alberni, that has resulted in a limited amount of cultural time and a limited amount of ties with his Native community. [ 18 ] The criminal conviction record of Mr. Jones is very significant and can best be described as quite disturbing for a man who is only 34 years of age. He has been a repeat offender since 1996.

There are few gaps in his record, although there are some apparent periods when he was not offending. Crown has examined the record with some particularity and has indicated to me that what it demonstrates is 70 prior convictions from between 1996 and 2014. Thirty-three of those convictions are property-related offences, including the types of offences for which he has entered pleas of guilty and are presently before me. There are numerous thefts amongst those charges.

As I have indicated, there is also a charge relating to possession of break-in instruments, theft from the mail, and uttering forged documents, as well as a conviction for fraud. [ 19 ] The record also contains 27 breaches of all types of orders, whether it be recognizance breaches or conditional sentence orders or similar types of offences.

[20] Crown indicates that since the year 2000 when Mr. Jones was convicted of a robbery offence and had a one-year custodialsentence imposed upon him, that opportunities have been extended to him to rehabilitate himself. In 2013, Mr. Jones was sentenced to a90-day conditional sentence order and was directed to take treatment by April 23, 2013. He actually bolted from the vehicle that wastaking him to the rehabilitation centre. [21] In Crown's submission, Mr.

Jones makes promises that he does not keep nor does he intends on keeping them, and hence, in theCrown's submission, no weight should be given to any suggestion by Mr. Jones that he now seeks to rehabilitate himself. POSITION OF CROWN ON SENTENCING [22] Given the fact that there are four new charges to which Mr.

Jones has entered pleas of guilty, and given the fact that Crown hasproceeded by way of indictment, Crown's sentencing position is that there should be a sentence amounting to 16 months of custodialtime, and Crown's suggestion is that there should be four months of custodial time on each of the four charges to be servedconsecutively. It is acknowledged that Mr. Jones is entitled to one month of credit for being in custody prior to today's date.

Accordingly, the resulting sentence would be effectively, in Crown's submission, 15 new months of custodial time. [23] Crown is also seeking a lengthy three-year probation order on specific conditions. CASES AUTHORITIES RELIED UPON BY CROWN [24] Crown has relied upon seven authorities as follows: 1. R. v. Moore (B.C.C.A.), (BC CA), [1991] B.C.J. No. 2733 (B.C.C.A.); 2. R. v. Emberg, (BC CA), [1996] B.C.J. No. 1104 (B.C.C.A.); 3. R. v. Blair, [1998] B.C.J. No. 2044 (B.C.C.A.); 4. R. v. Pozzebon, [2004] B.C.J. No. 673 (B.C.C.A.); 5. R. v. Drake, [2007] B.C.J. No. 741 (B.C.C.A.); 6. R. v. Gibbs, [2007] B.C.J.

No. 1017 (B.C.C.A.); and 7. R. v. Mack, [2008] B.C.J. No. 2607 (B.C.C.A.). [25] The general theme of these cases is that they involve individuals who are described as repeat offenders, or recidivists, who haveaccumulated extensive criminal records for similar offences to those that Mr. Jones faces. In these case authorities, considerableemphasis is placed in the decisions of the courts to provide public protection by imposing fairly lengthy sentences and to makerehabilitation as a sentencing goal a lesser priority. [26] I will deal in

summary with the decisions and the guidance that can be drawn from them. [27] The R. v. Moore case was an appeal on a charge of theft against a 55-year-old man with 50 similar convictions. The sentencingjudge had imposed a two-year sentence. The record of the offender in that case dated back to 1954. The sentencing judge described theoffender in that case as "an incorrigible offender in the petty theft category." The Court of Appeal referred to its own decision in R. v.Kunert, [1989] B.C.J. No. 549, in which Mr.

Justice Seaton for the court upheld a sentence of 18 months for shoplifting in the case ofsomeone who had a long record and was a persistent offender in these types of offences. [28] At page 3 of Moore, Mr. Justice Lambert for the court stated as follows: Where someone has committed more than 50 similar offences over a period of 25 or 30 years and has demonstrated that he is anincorrigible offender it is unrealistic that to think that one more sentence for one more offence will change a life pattern.

Of course, thehope always remains that there will be a change but it is unrealistic to make a prospect of rehabilitation a sentencing goal in those casesunless a particular program with demonstrated high prospects of success can be shown to be available. The protection of the public is not served by short sentences for persistent offenders who are out again and able to resume theirdemonstrated habit of preying on the public. A good deal must be left to the discretion of the sentencing judge.

What I mean by that isthat the range of sentences that could be thought to be fitting is a more extensive range for offenders who have shown themselves to beincorrigible than it is for first offenders or for offenders with a comparatively minor record. The sentencing judge is called upon todecide upon a balance between the protection of the public and the appropriateness of the sentence in relation to the offence.

It may well be that a shorter sentence in this case could not be said to have been an unfit sentence but where the offender is anincorrigible offender and where protection of the public is a dominant sentencing principle it is not necessary that the shortest sentencewhich can reasonably be imposed should be imposed. That is to deny the very existence of the need for protection of the public. [29] In R. v. Emberg, this was an appeal of a sentence for a conviction for theft under $5,000 by way of indictment. Mr.

Embergwas sentenced to 15 months of imprisonment for the theft of several cartons of cigarettes from a food store. The value of the cigaretteswas approximately $675. At the time of sentencing, Mr. Emberg was 35 years of age, unemployed, single, and had health issues. Hehad a lengthy criminal record dating back to 1979 containing a variety of offences. The court noted in particular that two and a halfpages of the record was for shoplifting. In that case, the sentencing judge had considered the protection of society as the primaryprinciple to be observed.

The Court of Appeal upheld the sentence imposed by the trial judge. [30] In R. v. Blair, the Court of Appeal was dealing with an appeal of a two-year sentence for two counts of theft. The offender inthat case was 38 years of age and had a prior record consisting of 40 convictions mostly involving property offences.

[ 31 ] The court dismissed the appeal. Chief Justice McEachern said, at paragraph 4, as follows: I think that when a person has proven himself to be a nuisance to the extent this person has by serially committing offences that the public are entitled to be protected at least for the time that he is in custody and that the learned sentencing judge committed no error in principle when he imposed a sentence that was half of the maximum, that is it could have been four years being two years on each offence but he made the convictions concurrent. At paragraph 5, Chief Justice McEachern goes on to say as follows: Mr.

Smith in his valiant effort to persuade us that this sentence was unfit argued that the sentence should be fashioned with regard to the seriousness of the offence and while that is an unanswerable principle in most cases it does not take into account stated that way, the fact that the sentence must also be fitting with respect to the offender. In this case the obvious risk was that this accused would continue to steal other people's property and every effort had been made up to the present time to dissuade him from his criminal tendency.

He largely received relatively lenient sentences [and] that did not do any good and I think the trial judge acted correctly in doing what he did. At the very least it cannot be said in my view that the sentence imposed displays any error in principle or overlooked any important factors and I cannot say that the sentence was unfit. [ 32 ] R. v. Pozzebon was a decision pronounced by Madam Justice Southin. In that case, there was an appeal from a sentence of imprisonment for one year imposed upon the appellant on two shoplifting charges. The offender in that case was a female.

She had over 40 previous convictions at the time that she was committing her offences. She was suffering from a drug addiction issue. The trial court turned down the proposal for a conditional sentence order and opined that given the record and the lengthy difficulties that the offender, Ms. Pozzebon, had with drugs, that the sentencing judge was not satisfied that he could control her behaviour in a way such that she would obey conditions in the community. The court upheld the trial sentence. [ 33 ] In R. v.

Drake , the offender in that case was appealing a sentence of one year's imprisonment following a plea of guilty to two counts of theft under $5,000. The appellant had a lengthy related criminal record. The sentencing judge had emphasized protection of the public over rehabilitation. The court found that the sentence was fit and dismissed the appeal. In doing so, it was noted that the appellant had 20 prior convictions for related offences in the past 25 years. [ 34 ] R. v.

Gibbs is a decision where the appellant had pleaded guilty to three separate charges of theft under $5,000, two of which were charged by indictment. The thefts had occurred over a three-week period, and the appellant on each occasion stole less than $70 worth of goods from a retail store in Kelowna. The trial judge sentenced the offender to a one-year term of imprisonment on the two offences charged by indictment and a six-month term on the

summary conviction. The appellant in that case had a substance abuse problem and had 60 prior convictions on his criminal record. The record went back to 1983. There were 37 convictions for theft as well as for more serious offences such as robbery and breaking and entry. It was noted that the appellant's attempts at rehabilitation had not been successful. [ 35 ] The Court of Appeal determined that the judge had properly recognized the need to impose a sentence that would serve the object of deterrence and best ensure the protection of the public. The appeal was dismissed and the sentence upheld. [ 36 ] In R. v.

Mack , in that case it was an appeal for an accused pleading guilty to a theft under $5,000 while intoxicated. The item stolen was mouthwash. The item was to be used to feed the significant alcohol addiction of the offender. The offender had a prior record of 73 offences including three recent theft convictions. The accused was sentenced to one year of imprisonment. The court dismissed the appeal and indicated that there was no available alternative to incarceration. It was noted that this offender was an aboriginal offender. The court rejected the argument on behalf of Mr.

Mack that as a member of a First Nation, that a more appropriate sentence would be in the range of some 30 days. [ 37 ] In that decision, the Court of Appeal reviewed the application of Gladue . In particular, reference is made in paragraph 10 as follows: Mr. Justice Cory and Mr. Justice Iacobucci said at paragraph 83 of Gladue that "[i]n all instances it will be necessary for the judge to take judicial notice of the systemic or background factors and the approach to sentencing which is relevant to aboriginal offenders".

The ability of a sentencing judge to take judicial notice of those factors derives from the judge's presumed familiarity with the community in which he or she works and his or her knowledge of the law. Some of those systemic or background factors would have been obvious to the sentencing judge in this case, where the appellant's long criminal record and the predicate offence of shoplifting mouthwash revealed his long association with minor crimes and alcoholism.

The sentencing judge, from his or her familiarity with the community, may also be presumed to be aware of some of the alternatives to incarceration that are available to an aboriginal offender. At paragraph 13, the court noted as follows: It was also noted in Gladue that

section 718.2(

e) should not be taken as requiring an automatic reduction of a sentence simply because the offender is aboriginal (para. 88) and that the principles of restorative justice do not have to be given more weight in every case than the weight given to other goals such as deterrence, denunciation and separation (para. 78). Paragraph 14: In this case, the sentencing judge gave primary weight to the sentencing principle of separating the offender from society in order to protect the public, but she did not ignore the principle of rehabilitation. In view of her finding that Mr.

Mack was an incorrigible offender, and the length and nature of his criminal record, I am not persuaded that the sentencing judge erred in this regard. POSITION OF THE OFFENDER [ 38 ] Defence counsel has submitted that an appropriate sentence in this matter for this offender would be in the range of some six to nine months total. It is proposed that with respect to the first two offences, being the thefts on January 8 and January 12, 2015, that he

be sentenced to two months' custodial time concurrently with each other less credit for the time served; with respect to the offences on 29 January 2015 and March 13, 2015, that Mr. Jones be sentenced to three months on each offence to be served consecutive to each other and consecutively with the two two-month sentences that are being served concurrently. [ 39 ] Defence says that this range of sentence will permit the offender to take steps to apply to get into the Guthrie House program at Nanaimo Correctional Centre.

That program requires a sentence of no less than six months in order to have enough time in order to gain full benefit of the program. [ 40 ] Emphasis is placed on the fact that the offender in this case, Mr. Jones, has had a significant drug and alcohol issue which has caused him significant problems with the legal system.

Emphasis is also placed on the fact that he is a Native offender and hence the principles of Gladue should apply and must take into account his Native heritage and the problems that he has faced systemically. [ 41 ] The general response by defence to the Crown's suggested sentence is that it is not proportionate to the type of offences that have been committed, and the offender is not a dangerous individual and that rehabilitation must be given a sufficiently high priority in terms of dealing with Mr. Jones' offending behaviour.

CASE AUTHORITIES RELIED UPON BY THE OFFENDER [ 42 ] The defence relies upon two particular cases as follows: 1. R. v. Whitemanleft , [2000] A.J. No. 559 (Alt. Prov. Ct.) ; and 2. R. v. Poitras , [2006] B.C.J. No. 2870 (B.C.C.A.) . [ 43 ] R. v. Whitemanleft is a decision where an accused who was a Native person had stolen prescription forms and shoplifted $300 worth of merchandise from the Sears store and shoplifted merchandise of a value between $20 to $30 from a Sports Mart. This matter proceeded in front of the court by way of a joint submission.

The learned Provincial Court judge was of the view that the joint submission failed to address the issue of protection of the public adequately. He was of the view that the joint submission of three months was inadequate and indicated that a more appropriate sentence, in his view, would have been in the range of some six months. However, he did take into account that in sentencing Mr.

Whitemanleft, that he could not use the accused's record to punish him for his past crimes but simply use them as an indicator of whether he will commit future crimes and as an indication of the magnitude of the possible risk to the public and the need for segregation to minimize that risk: (see paragraph 10). In the end, the Provincial Court did accept the joint submission. [ 44 ] In R. v. Poitras , the court was dealing with an appeal from a sentence. The appellant had pleaded guilty to a theft under $5,000 after stealing a shirt from a store.

The offender, who was a female, submitted that her sentence of nine months' imprisonment and a three-year period of probation was excessive and disproportionate. The offender in that case had a lengthy criminal record for similar type of offences. At the date of sentencing, she was 29 years of age, and her criminal record included some 36 offences dating from 1996 and most of them having been thefts under $5,000. [ 45 ] The decision of the Court of Appeal was that they substituted a 90-day sentence.

They noted particularly that the offender was an aboriginal offender and that the sentencing judge had failed to adequately consider s. 718.2 (

e) of the Criminal Code . [ 46 ] In the decision, Madam Justice Newbury, speaking for the court at paragraph 1, noted that the submission on behalf of the appellant raises "the 'intractable' problem of the inability of our corrections system to provide meaningful treatment and rehabilitation of persons, especially aboriginal persons, who are addicted to drugs and unable to break the cycle of drug addiction, criminal activity and imprisonment." [ 47 ] At paragraph 12, Madam Justice Newbury says as follows: While I agree with the Crown and sentencing judge that the protection of the public is very important, I am also of the view that the offence here did not justify a nine-month sentence, even given Ms.

Poitras's record. The "revolving door" phenomenon points up the need for treatment alternatives rather than punishment or warehousing of addicted offenders.

It seems to me that the only real possibility for rehabilitation which we can provide, and which ultimately would afford the best chance for protection of the public, lay in the drug and alcohol treatment ordered by the court below during the three-year probation period and that this treatment should be taken as soon as possible, rather than at the end of a nine-month imprisonment term. [ 48 ] The court maintained the three-year probation order as part of the sentence while reducing the custodial time to 90 days.

PURPOSES, OBJECTIVES, AND PRINCIPLES OF SENTENCING [ 49 ] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence and the specific circumstances of the offender: see R. v. Shoker , 2006 SCC 44 at paragraph 14 , and R. v. Angelillo , 2006 SCC 55 at paragraph 22 . As the sentencing judge, I must direct myself to consider all the principles of sentencing contained in the Criminal Code but also be mindful that depending on the nature of the offence committed, certain principles will receive more emphasis than others: see R. v.

McCormick , 2006 ABCA 410 at paragraph 9 to 12 . [ 50 ] The fundamental purpose and objectives of sentencing are set out in s. 718 of the Criminal Code . The other statutory principles of sentencing are set out in ss. 718.1 and 718.2 .

Section 718 states: PURPOSE AND PRINCIPLES OF SENTENCING Purpose

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance 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. [51]

Section 718.1 provides that any sentence imposed must be "proportionate to the gravity of the offence and the degree ofresponsibility of the offender." [52]

Section 718.2(

a) states that "a sentence should be increased or reduced to account for any relevant aggravating or mitigatingcircumstances relating to the offence or the offender." [53]

Section 718.2(

b) requires that "a sentence should be similar to sentences imposed on similar offenders for similar offencescommitted in similar circumstances." [54] As noted by Romilly J. in R. v. Ralph, [2014] B.C.J. No. 485, this provision requires an analysis of what is commonly referredto as the range of sentence for a specific offence (see paragraph 26). However, because of the proportionality principle and theindividualized sentences, the parity principle does not preclude disparity where warranted by the circumstances. There is no such thingas a uniform sentence for a particular crime: see R. v. L.M., 2008 SCC 31 , [2008] 2 S.C.R. 163. [55]

Section 718.2(

c) requires that "where consecutive sentences are imposed, the combined sentence should not be unduly long orharsh." [56]

Section 718.2(

d) directs that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate inthe circumstances." [57]

Section 718.2(

e) provides that "all available sanctions other than imprisonment that are reasonable in the circumstances shouldbe considered for all offenders, with particular attention to the circumstances of aboriginal offenders." AGGRAVATING FACTORS [58] As I am required to do, I must consider the aggravating factors in this case. The first aggravating factor is the sheer number ofoffences of a similar nature that have been committed by Mr.

Jones since 1996. [59] The second aggravating factor is that these offences, four in number, took place in a period of time of just under three monthsand three of them having occurred during the month of January 2015. [60] The third aggravating factor which I have taken into consideration is that the most recent thefts which were committed by thisparticular offender were on January 23, 2014.

MITIGATING FACTORS [61] The mitigating factors in this case I accept as follows: first, a very early guilty plea on these offences; secondly, that theoffender has taken responsibility for his offences; and third, that this offender now seeks to rehabilitate himself by applying andhopefully getting into the Guthrie House program. [62] As a circumstance, I must also take into account his aboriginal heritage as directed by R. v. Gladue, a decision of the SupremeCourt of Canada, (SCC), [1999] 1 S.C.R. 688, and as recently restated in R. v. Ipeelee, 2012 SCC 13 , [2012] 1S.C.R. 433.

In doing so, I have regard for the consideration of R. v. Gladue as expressed in the Court of Appeal decision referred to mein R. v. Mack and the provisions that I previously referred to and quoted from. ANALYSIS [63] The key question that I must decide is balancing the protection of society, but also, I have to be mindful of the proportionality ofthe sentences being suggested by Crown.

I must also take into account the provisions of s. 718.2(c): where consecutive sentences areimposed, whether or not the combined sentence would be unduly long or harsh. [64] Based on the authorities that have been provided to me by Crown, I am of the view that protection of society from continuingcriminal behaviour on the part of Mr. Jones is a key consideration. [65] With respect to the position of defence that R. v. Poitras is an indication that the Gladue considerations are important, I do notin any way disagree. However, I do accept Crown's comments with respect to the Poitras decision namely that Ms.

Poitras had muchshorter period of time for offending and had accumulated approximately half the number of offences in about half the amount of amountthat Mr. Jones has and that Poitras must be read in light of the length of the criminal record that Ms. Poitras had accumulated at thatparticular time.

[ 66 ] Clearly, the court was alive to the notion of an incorrigible offender in Poitras by making reference to R. v. Moore and the comments of Mr. Justice Lambert to which I have previously referred. [ 67 ] In my view, the sentence that Mr. Jones receives must allow for sufficient time for him to be segregated from society for their protection but also must be of a sufficiently long length in order that he can make application and hopefully get into the Guthrie House program. I am familiar with the Guthrie House program. It is a difficult program to get into.

It has also got a very good success rate in changing the lives of offenders and allowing them to receive treatment and counselling and to be able to return to society as productive members of the community. DISPOSITION [ 68 ] In my view, the appropriate sentence in this matter is beyond the range of what is being suggested by defence counsel but slightly less than what is being proposed by Crown.

In my view, the appropriate sentence with respect to the first two offences on Information 36308-1 and on 36508 should be three months each to be served consecutively with a credit of one month to be deducted from the offence first in time, being that of January 8, 2015, on 36308-1. [ 69 ] With respect to the two remaining offences, I am of the view that a proper sentence would be four months on each count, again to be served consecutively with each other and consecutively with the sentences on the previous two matters. [ 70 ] I also am of the view that a lengthy probation order as suggested by Crown is not only desirable but necessary.

There is a concern in my mind that Mr. Jones treats conditions imposed by the court more in the nature of suggestions rather than things he must do. That is troubling.

However, if he is sincere in his desire to gain the benefit of the Guthrie House program and to rehabilitate himself, imposition of probation conditions as being recommended by Crown will be useful to him and will permit him to continue his rehabilitation, which hopefully he will be able to undertake through the Guthrie House program; he will then be able to transition more effectively into additional programs that will be arranged for him upon his release and under the supervision of his probation officer. [ 71 ] The terms and conditions I will outline in the following fashion. [ 72 ] THE CLERK: Sorry, I missed how long the probation order was for. [ 73 ] THE COURT: Three years. [ 74 ] THE CLERK: Three years? [ 75 ] MR.

MOVASSAGHI: And Your Honour, does that attach to each file? [ 76 ] THE COURT: I'm sorry? [ 77 ] MR. MOVASSAGHI: Will that attach to each file? [ 78 ] THE COURT: Yes. [ 79 ] The conditions will be as follows. [ 80 ] Number 200, the mandatory conditions: 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 promptly notify the court or the probation officer of any change of employment or occupation. [ 81 ] Within 72 hours of completion of your jail sentence, you shall report in person to the probation office at Port Alberni, British Columbia, at the address to be provided to you, and after that you shall report as directed. [ 82 ] 205. When first reporting to the probation officer, you shall inform him or her of your residential address and telephone number. [ 83 ] 206.

You shall not change your address or telephone number without first notifying your probation officer and obtaining the consent of the probation officer in writing. [ 84 ] 208. You shall obey all rules and regulations of your residence. [ 85 ] 209. You shall remain in the Province of British Columbia unless you have received the written consent of the probation officer to go elsewhere. [ 86 ] 226.

You shall not attend at the premises of any of the following businesses in Port Alberni, British Columbia: Walmart Canada, Southland Corporation doing business as 7-Eleven Food Stores, Port Alberni Boston Pizza, and Port Alberni Home Hardware. [ 87 ] 227. You shall not possess or consume any alcohol or any controlled substance as defined in s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. [ 88 ] 232. You shall not possess any pipes, syringes, or other drug paraphernalia. [ 89 ] 236. You shall not possess any weapon as defined in s. 2 of the Criminal Code . [ 90 ] 251.

You shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by the probation officer, which may include (

a) alcohol or drug abuse, (

b) a full-time attendance program for alcohol or drug abuse, (

c) forensic assessment, counselling, or treatment through the Forensic Psychiatric Centre, Victoria, British Columbia, or any other facility

designated by your probation officer, (

d) life skills, and you shall comply with all rules and regulations of any such assessment, counselling, or program. [ 91 ] During the first six months of your probation order, you will be under a curfew. [ 92 ] MR. MOVASSAGHI: Your Honour, can I make a submission with respect to the curfew? [ 93 ] THE COURT: I'm sorry? [ 94 ] MR. MOVASSAGHI: Can I make a submission with respect to the curfew? [ 95 ] THE COURT: Certainly. (SUBMISSIONS) [ 96 ] THE COURT: I am going to impose the curfew as I said.

I am actually going to make it for the first four months rather than the first six months, so the first four months will be bound by a curfew that he must be inside his residence between the hours of 9 p.m. and 6 a.m. 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; or (

b) when travelling directly to or returning directly from your place of employment or while in the course of your employment. You shall provide the probation officer with written details of your employment, including hours of work, if requested to do so, and the name of your employer and contact information of your employer if requested to do so; or (

c) when travelling directly to or returning directly from an educational institution at which you are enrolled or while in courses or classes or extracurricular activities approved of in advance by the probation officer. [ 97 ] There will be a curfew check provision. You shall present yourself at the door of your residence when any peace officer or probation officer attends there for the purposes of determining your compliance with the curfew condition of this order. [ 98 ] Any other conditions that I have overlooked or any other potential problems I have created by way of those conditions. [ 99 ] MR.

BAINES: No, Your Honour. Thank you. [ 100 ] THE COURT: Mr. Movassaghi? [ 101 ] MR. MOVASSAGHI: No, Your Honour. Will Your Honour take submissions with respect to the victim surcharge? [ 102 ] THE COURT: Yes. (SUBMISSIONS) [ 103 ] THE COURT: I am going to impose it. I will give him the two months. Anything further? [ 104 ] MR. MOVASSAGHI: That's all. Thank you, Your Honour. [ 105 ] THE COURT: All right. Mr.

Jones, please take full advantage of everything that they offer you while you are doing your custodial time, and please take advantage of all of the services that are provided to you by your probation officer once you are released. [ 106 ] THE ACCUSED: I will do so. [ 107 ] THE COURT: Thank you. [ 108 ] THE ACCUSED: You're welcome. [ 109 ] MR. BAINES: Thank you, Your Honour. (REASONS CONCLUDED)