R. v. I.T.W. Date:, 2012 BCPC 305

Citation: R. v. I.T.W. Date: 20120604 2012 BCPC 0305 File No: 85568-C2 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. I.T.W . REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: Wendy van Tongeren Harvey Counsel for the Defendant: Birgit Eder Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: February 22, June 22, September 7, October 7, 2011, January 24-26, 2012

Date of Judgment: June 4, 2012 [ 1 ] ITW is being sentenced for four counts of robbery he committed between October 23 rd , 2010 and November 5 th , 2010. These charges are all contained in Information No. 85568-C2. [ 2 ] On the first day of ITW’s trial, March 21, 2011 (scheduled for 18 days) he pled guilty to Counts 1, 4, 5 and 7 on the Information. A Sentencing Hearing was commenced at that time.

I ordered a Pre-Sentence report/Psychological Report and the defence gave notice that they would be seeking enhanced pre-trial credit for the time he had been in custody on a detention order. [ 3 ] After several days of evidence with respect to the pre-trial custody of ITW, the Crown conceded that he had established that Section 719(3.1) of the Criminal Code was applicable (that is credit for pre-trial custody could be given on a 1.5:1 basis). [ 4 ] The issues remaining on this Sentencing Hearing:

a) What is the appropriate length of the jail sentence to be imposed (counsel are agreed that a Conditional Sentence is not available pursuant to the operation of

Section 742.1 and

Section 752 of the Criminal Code );

b) Whether, due to the alleged onerous conditions of his pre-trial custody, ITW is entitled to a reduction of the otherwise appropriate head sentence that would be imposed prior to calculating any credit pursuant to Section 719(3.1) . [ 5 ] It should be noted from the outset that ITW spent 332 days in pre-trial custody between November 10, 2010 and his release, after a bail review, on October 7, 2011. Since that time he has remained on bail pending today’s decision regarding his sentencing. Facts [ 6 ] Pursuant to

Section 724 of the Criminal Code an Agreed Statement of Facts was filed for the purposes of the Sentencing Hearing. These facts can be summarized as follows. [ 7 ] There were five victims of these robberies and their ages ranged from 14-17 years old. Features common to all of them were that ITW:

a) did not disguise his appearance;

b) wore some of the same clothes in the various robberies;

c) would approach the victims and show a weapon which appeared to be either a knife, or bear spray or both;

d) assaulted all of the victims to a limited extent (no one was seriously injured);

e) took cell phones from all the victims except one;

f) fled from the scenes. [ 8 ] These were incredibly unsophisticated robberies in that ITW was easily identifiable (he made no attempt to disguise himself). He was identified by the victims through his Facebook profile pictures. He was arrested without incident on November 10, 2010. He probably would have been arrested sooner, however some of the victims failed to report the robberies to the police. A search of his vehicle uncovered three knives and bear spray as well as a prescription for methadone.

ITW admitted to investigators that he was a heroin addict. [ 9 ] At the time of his arrest ITW was 19 years old, 6 foot 6 inches tall and weighed 200 pounds. He was homeless and living out of his car. He was also on probation for youth court offences at the time. Crown Position [ 10 ] The Crown submits that a sentence of 22 months is within the range and appropriate in this case given the evidence that was called, the circumstances of the offender and the facts of the offences. [ 11 ] Again, as indicated above, the Crown concedes that credit for the pre-trial custody can be given on a 1.5:1 basis.

The Crown submits that pre-trial credit beyond the maximum available in Section 719(3.1) is not available. They further submit that it would not be appropriate to consider a reduction of the head sentence due to any difficult pre-trial conditions that may have been suffered by ITW. Defence Position [ 12 ] The defence maintains that the appropriate head sentence for the four robberies is 18-22.5 months.

On the face of it the Crown and Defence are not far apart in their suggested length of the head sentence. [ 13 ] However, the Defence takes the position that onerous pre-trial conditions entitle ITW to a reduction of his head sentence by a factor of approximately .25 of the otherwise appropriate sentence. They submit that this reduction should be calculated prior to the operation of Section 719(3.1) . [ 14 ] For example, if the original head sentence were 22 months and 14 days (674 days). From it, 168.5 days would be deducted due

to onerous pre-trial conditions, resulting in a total sentence of 505.5 days. It is submitted that this is the length of the term ITW hasalready served (337 days), multiplied by a factor of 1.5. Analysis Application of

Section 719 [15] Relying heavily on the decision of Justice Green of the Ontario Court of Justice in R. v. Johnson 2011 ONCJ 77 ,[2011] O.J. 822 (Ont. C.J.), the defence argues that Section 719(3.1) can be applied in this case for the sole reason that there is noopportunity to earn remission and parole eligibility is delayed. [16] After the court in Johnson dismissed the accused’s argument that the amendments to

Section 719 were unconstitutional thecentral issue came down to the meaning of the words contained in Section 719(3.1), "if the circumstances justify it." The court therefound that the word "circumstances" in this context included the loss of remission and delayed parole eligibility which, in turn, "justified"a credit enhancement beyond a maximum ratio of 1:1. However, Justice Green went further than that and found that a proper analysis ofthe s. 719 credit provisions leads to a conclusion that they were intended to compensate only for the quantitative considerations regardingearned remission and parole.

Claims of qualitative deprivation or onerousness relating to the conditions of pre-sentence custody were tobe addressed as part of the mitigating considerations (outside of

Section 719). [17] The Crown, in response, says the Johnson decision is wrongly decided on those points. They submit, as far as I can gather, thatthe “circumstances” in Section 719(3.1) are those relating to the conditions of the pre-trial detention and that therefore ITW is notentitled to a further consideration of those conditions in a manner suggested by the defence.

They specifically submit that theirconcession regarding the applicability of Section 719(3.1) was not made in contemplation of any loss of earned remission. [18] Considerable time was spent in argument (with the assistance of helpful written submissions) dealing with the question ofwhether this court should accept the reasoning of the court in the Johnson case given that there are some British Columbia cases thatcall into question the correctness of the reasoning in that case. No appellate decisions have directly addressed this issue.

However theSupreme Court of Canada has dealt with the issue of pre-trial credit prior to the amendments. [19] In R. v. Wust [2000] SCC 18, Madame Justice Arbour explained why the then commonly endorsed credit of 2:1 wasappropriate in most cases (at 45): The often applied ratio of 2:1 reflects not only the harshness of the detention due to the absence of programs, which may be more severein some cases than in others, but reflects also the fact that none of the remission mechanisms contained in the Corrections andConditional Release Act apply to that period of detention. “Dead time” is “real” time.

The credit cannot and need not be determined bya rigid formula and is thus best left to the sentencing judge, who remains in the best position to carefully weigh all the factors which gotoward the determination of the appropriate sentence … [20] The defence submits then that Wust remains authority for the proposition that an appropriate sentence addresses two broadcomponents of pre-trial custody (See also R. v. Orr 2008 BCCA 76 and R. v.

Wilson 2010 BCCA 65 , [2010] B.C.J. 231(BCCA)): 1) the universal lack of statutory remission or parole eligibility; and 2) harsh conditions due to a lack of programming at remand jails. [21] Justice Green in the Johnson case characterized these two broad categories as one being quantitative and the other qualitativeand offered the following illustration at par. 27: 27 There are several important distinctions between pre-trial custody and the imprisonment that follows the imposition of a sentence.They fall into two broad categories, one quantitative and the second qualitative.

The first, the quantitative dimension, reflects the factthat, in Canada, the various statutory and administrative mechanisms that almost always result in significant abbreviation of a prisoner'scustodial sentence do not apply to or incorporate the inmate's period of pre-sentence custody. One near universal mechanism is sentenceremission. A second is parole, whereby prisoners may be released into the community to there complete their sentences subject toconditions imposed by parole boards. Not even nominal remission attaches to pre-sentence custody, nor is such custody considered incalculating parole eligibility.

By way of simple illustration, a convicted offender sentenced to six months in a provincial reformatory iseffectively credited with a half-day of remission for every day of served sentence and, as a result, will be released upon having served nomore than four months (that is, two-thirds) of his or her custodial disposition. On the other hand, an accused who spends six months inpre-trial custody serves every day of those six months.

If convicted and then immediately sentenced to "time served" or a single furtherday in jail, he will have served a 50% longer sentence of imprisonment than that ultimately served by an offender with identicalantecedents who is granted bail and later sentenced to six months incarceration for the very same offence. [22] The question dealt with in Johnson was, could it really have been parliament’s intention to effect such an unfair result solelydue to a denial of bail? [23] The lengthy and detailed legal analysis in the Johnson case is strong support that that question must be answered in thenegative.

[ 24 ] In

summary, and without meaning to overly simplify the thorough reasoning engaged in by Justice Green, Johnson finds that: 1) The “circumstances” which “justify” credit beyond 1:1 are loss of remission and parole eligibility. (par. 162) 2) Section 719(3.1) (the legislated cap of 1.5:1) deals only with the duration of pre-trial custody as opposed to its quality. (par. 162) 3) Before Bill C-25 (the Truth in Sentencing Act ), judges awarded 2:1 credit for a combination of quantitative and qualitative disadvantages in one “conflated metrication” . (par. 163) 4) A fair arithmetical formula which compensates for the universal loss of remission or parole eligibility is 1.5:1.

Wust clearly indicates that otherwise, unjust sentences would result. (par. 164) 5) As the quality of pre-trial custody differs for each prisoner and also affects each of them differently, it fails to translate into a formula.

In keeping with the existing jurisprudence, the nature of pre-trial custody is more properly treated as a mitigating factor on sentence than as a reason for compensation for pre-trial custody. (par. 167) [ 25 ] It is important to note that I also find persuasive the comments of Justice Green in paragraphs 163-166 of Johnson , particularly those regarding the awarding of credit being discretionary and that there are circumstances where credit may not be warranted at all. This idea is obviously contemplated by the legislative amendments themselves.

For instance, enhanced credit is not available to individuals who have been detained primarily due to a previous record (Section 515(9.1)) or detained under Section 524(4) or (8). [ 26 ] Of course, legislation amending the effective date for when a sentenced offender began to earn remission to take into account the pre-trial custody would remove the rationale for engaging Section 719(3.1) . I understand that there are jurisdictions who have already done just that.

The Treatment of the Johnson case in British Columbia [ 27 ] Crown takes the strong position that Johnson is wrong and has not been followed here in B.C. [ 28 ] The question becomes, does the jurisprudence created thus far in this province relating to this issue prevent me from adopting the reasoning in the Johnson case? [ 29 ] The British Columbia Court of Appeal has long recognized that the sentencing judge enjoys a discretion in the awarding of credit for pre-trial custody. The Court in R. v.

Mills [1999] BCCA 159, said at par. 46 and following: [46] Time in custody after sentence counts towards parole eligibility after one-third of the sentence is served and towards statutory release after two-thirds. Giving credit for double the time in predisposition custody hits the midpoint in range between earning the equivalent of three days for every day served for parole purposes and one and a half days in the case of statutory release.

[47] It is not an error in principle to give credit for double the time in predisposition custody; but it might well be an error for a judge notto give any credit without good reason. [48] In some circumstances, it would be inappropriate to give double time. Assume, for example, that an accused with a bad recordwould never get parole. In such circumstances a judge may refuse to give double time credit because otherwise the accused would obtaincompensation for a loss he is unlikely to suffer.

Since very few inmates are held beyond the statutory release date (after serving two-thirds of the sentence) the judge may properly consider giving more than straight time. [30] Of the cases that have considered Johnson the latest reported case seems to be R. v. D.W.J. [2012] B.C.J. No. 142 (B.C. Prov.Ct.), a decision of the Honourable Judge Brecknell.

The court carefully analyzed a number of cases that had referred to Johnson andconcluded that Section 719(3.1) should not be applied: 65 I agree with A.W.C., B.(J.) and Seymour that before the Court can even consider "if the circumstances justify" it is incumbent onthe applicant to present evidence. That was not done here. 66 Upon a review of all the cases provided I prefer the reasoning and outcomes set forth in Morris, Jones, Mayers, Sharkey andSeymour in concluding that I should not exercise my jurisdiction to provide additional credit to Mr.

J. as a result of any possible loss ofremission or parole eligibility. I do not conclude that "the circumstances justify" such a result. [31] I will have a little more to say with respect to the requirement of evidence in these types of proceedings later. However, in thecase at bar, of course, there was several days of oral evidence adduced from John Pastoruk, the Warden at North Fraser Pre-Trial Centre,Nedeljko Macesic, Deputy Warden for Programs at Fraser Regional Correctional Centre, ITW and his mother, EH. [32] Part of the evidence adduced by Mr.

Macesic is that the vast majority of sentenced offenders are released at two thirds of theirstated sentence pursuant to statute. I believe available statistics show that only 3-5 percent of inmates are detained all the way to WarrantExpiry. [33] Madame Justice Smith considered Johnson in R. v. Seymour 2011 BCSC 1682 , [2011] B.C.J. No. 2363 (BCSC). Sheconsidered a number of authorities and then seemed to require some consensus from those authorities before considering the argumentthat loss of remission alone could engage Section 719(3.1): 28 In R. v.

B.(J.), the court concluded at para. 18 that evidence is required regarding the impact of pre-disposition incarceration oneligibility for remission or parole. No such evidence was provided in this case. 29 Further, as I have noted, there is no consensus among the courts that have considered this issue as to whether the impact onremission or parole can, on its own, be a justification for enhanced credit. I therefore will not grant Mr. Seymour enhanced credit on thatbasis. Obviously, that case is not determinative of the issue. [34] His Honour Judge Ball considered the argument in a case called R. v.

Roberts 2011 BCPC 329 , [2011] B.C.J. No.2269 (BC Prov. Ct.). After referring to a passage from our Court of Appeal’s decision in R. v. Mayers 2011 BCCA 365 , [2011]BCJ No. 1677, Judge Ball stated: ..For instance, if the loss of remission which occurs in every case of a person detained before sentence were a basis for grantingadditional credit under 719(3.1) of the Code, then the effect of subsection (3) would be undermined and the intention of Parliamentfrustrated.

If Parliament had intended to change the status quo from two days for every day in pre-sentence custody to 1.5 days for eachday in custody, Parliament would not have enacted s. 719(3). 31 I do not intend to give effect to the submissions of defence counsel based on the case of R. v. Johnson. 32 Absolutely no evidence of the sort which might create circumstances to justify the use of the exception contained in s. 719(3.1) waspresented in the hearing before me.

No statistics for British Columbia, in general, or for the North Fraser Pre-trial Centre in particularwere presented, nor any particular facts that apply to Mr. Roberts at all. His participation in programs while in custody are clearlypositive but would not support the use of the exception. 33 Following the provisions of s. 719(3) in finding no factual basis for the use of the exception contained in s. 719(3.1), I will awardMr. Roberts one day credit for each day he has spent in pre-trial custody. [35] Our Court of Appeal in a pre-hearing application for Mayers (above) considered Johnson as well.

Interestingly, that caseinvolved Mr. Mayers’ appeal of the calculation of pre-trial credit he was granted. Prior to the hearing of the appeal, The Director ofPublic Prosecutions had sought intervenor status (at [2011] BCJ No. 1047) specifically due to the fact that the appellant would bearguing that the reasoning in Johnson should be applied. Madame Justice Saunders did not grant the intervenor status noting that theProvincial prosecutor could raise all the necessary arguments and that, in any event, Johnson was not binding on that court.

[36] When it came time for the appeal the Court of Appeal found that since the issue of the application and

interpretation of theSection 719(3.1) was not before the sentencing judge it was inappropriate for an appellate court to determine the law regarding discretionto grant additional credit under those provisions in a factual and legal vacuum. [37] In addition, the appellant in Mayers had been detained under s. 524(8) of the Criminal Code for contravening promises toappear and was thus clearly disqualified from any additional credit under s.719(3.1). [38] The passage that Judge Ball referred to in Roberts (above) is found in paragraph 23 of Mayers (the second citation): ...The clear wording of the Act indicates Parliament's desire to change the status quo under which sentencing judges generally grantedtwo days credit for each day in custody and to implement a different approach to sentencing.

The changes made to s. 719 give effect toParliament's intention. [39] However, the Court of Appeal also went on to say at par. 32: 32 The law on this important issue will appropriately be developed by sentencing judges considering particular factual circumstancesin the context of a proper legal analysis and

interpretation of the Act, and providing their reasons for exercising their discretion to grantor deny enhanced credit under s. 3.1 where "the circumstances justify it" or not, followed by appellate review. In the absence of a trial-level decision for review, the only appeal from an appellate court decision setting out guidelines or rules for the exercise of discretion bya sentencing judge would be by leave to the Supreme Court of Canada.

This issue requires greater consideration than could be obtained ifthis Court pronounced on it at first instance. [40] The first passage from Mayers (above) does not, in my opinion, give any direction as to how enhanced credit is to be dealt with.The court confirms that a different approach is mandated and, of course, I agree with that proposition. [41] The second passage from Mayers (above) makes it clear that sentencing judges will interpret the legislation and its applicationsubject to review by the appellate courts. [42] It should be noted that despite the Department of Public Prosecution’s concerns relating to the Johnson analysis being arguedor adopted, the Court of Appeal’s decision on the appeal does not even mention that case at all. [43] Other cases in B.C. have approved of Johnson (i.e.

R. v. Bui 2011 BCPC 158 , 2011 BCPC 0158 (B.C. Prov. Ct.),Challenger J.; R. v. Waage (unreported, 58966 Chilliwack Prov. Court, 29 August 2011)(B.C. Prov. Ct.), Dickey J.; R. v. Cahoose(unreported, 25 March 2011, BCSC, Kamloops Registry)(BCSC), Powers J.). None, however, have engaged in the precisequalitative/quantitative analysis so carefully delineated in Johnson. [44] For the completeness of the record, on this issue I have also considered the following cases:; R. v. Neudorf 2004 BCCA 374; R.v. JPB [2012] BCJ No. 288(BC Prov. Ct.); R. v. A.W.C. 2010 BCPC 179 (BC Prov. Ct.); R. v. McCrea 2007 BCPC 258 (B.C.

Prov.Ct.). [45] I find, in

summary, the reasoning of Justice Green in the Johnson case compelling and persuasive. I also find that there is nobinding authority preventing me from adopting the careful and thorough reasoning in Johnson. [46] It follows that I accept, as Justice Green did that, “the constitutionally graceful reading is simply one that recognizes that theloss of remission is a "circumstance" that can justify eligibility for enhanced credit” (par. 172 of Johnson).

Parliament must haveintended nothing less, should the circumstances justify, in order that the sentence of a detained person be properly characterized as a justsentence as contemplated in Wust. There is nothing in the evidence led in this case to show that ITW would not have been entitled toearned remission or parole were he to have been serving a sentence rather than being held on a detention order. [47] I also accept that a sentencing methodology that treats onerous remand conditions as mitigative rather than compensatoryconsiderations (i.e. outside of

Section 719) is consistent with existing common law as explained so thoroughly in the Johnson case. Conditions of Pre-Trial Detention in this Case [48] John Pastoruk gave evidence that he has been the Warden at North Fraser Pre-Trial Centre (NFPTC) since 2008. The facilitywas originally built for 336 inmates. Now the maximum capacity is 671. Other than an isolation unit there has been no physicalexpansion of that space.

During ITW’s stay there the average population was 577. [49] On November 12, 2010 ITW was admitted to NFPTC and remained there until June 7th, 2010 when he was voluntarilytransferred to Fraser Regional Correctional Centre (FRCC - a centre designed for sentenced inmates). ITW had requested the transfer as he wanted to have more access to programming. He was returned to NFPTC on September 19th, 2011. He was released on bail onOctober 12, 2011. [50] The cells at NFPTC are 4m x 2.4m big. There is a double bunk bed and the toilet is open to the view of any roommate sharingthe cell.

The facility was, at the time, 170-180 percent full. [51] During their considerable time locked up in cells the prisoners pass the time reading, writing, watching television, listening toradio, doing small hobby work, preparing for trials and some are involved in school work. There are books available but there is alimited supply of older used books on a wheeled cart. The only library available is a law library.

[ 52 ] There is a program room with 2 computers for up to 60 inmates in a pod. There is an exercise room but only 2-3 inmates can use this room at any one time. [ 53 ] Of the 577 inmates there at the time there were 97 jobs available for the inmates. There are 1.5 teachers for the entire population. The maximum number of people at any one time allowed into the substance abuse program or the violence prevention is nine and there are long waiting lists for these programs. [ 54 ] The average stay for a prisoner awaiting disposition of his matters is 29 days.

As can be seen ITW ’s time in pre-trial custody far exceeded that. [ 55 ] Mr. Pastoruk noted that they do the very best that they can do with the limited resources available and I accept that evidence. Recently, there has been a move towards providing more evidence-based shorter programming that is thought to be more appropriate for those inmates awaiting disposition. [ 56 ] He noted that there are more people in custody awaiting disposition of their matters than there are sentenced inmates in this province. Double-bunking was necessary to deal with over-crowding. Deputy Warden for Programs at FRCC [ 57 ] Mr.

Macesic is the Deputy Warden for Programs at FRCC. This facility was opened in 1990 and was designed to hold 267 single-celled inmates. The maximum capacity now is 624 double-bunked inmates (including about 100 inmates in open custody houses). There were 459 inmates at the time he gave his evidence. [ 58 ] They do take remanded prisoners when there is overcrowding at NFPC or a prisoner wants access to further programming (as was the case with ITW ). [ 59 ] Prisoners are allowed out of their cells up to 12 hours a day.

They are allowed access to the fitness facility every other day for an hour. [ 60 ] With respect to programming, sentenced inmates are given the priority. If there is space leftover then remanded prisoners can get a spot. There are waiting lists for all programs. Core programs are Violence Prevention, Respectful Relationships and Substance Abuse Management. Other programs available are Essential Skills to Success (employability etc.) and various vocational and work- related programs. The maximum number of inmates that can work on any one day is 230.

There is a waiting list for the small school program available. [ 61 ] He spent the most part of his incarceration at FRCC either in segregation (13 days, and thus locked up for 23 hours per day) or on the Enhanced Supervision Program (67 days, and unlocked for only two to four hours per day). The two institutional offences which he committed and which precipitated this punishment were 1) not immediately dis-engaging his aggressor during a fight and 2) tattooing another prisoner. [ 62 ] ITW spent his time at NFPC and FRCC and in that time he was subject to 32 cell movements.

He was subject to 10 living unit movements. Had he been a sentenced inmate that number of movements would be abnormally high. For the most part he was found to be polite and respectful to staff and other inmates. Other than the admittedly minor incidents of misbehaviour he was characterized as a good inmate who was not a problem for the institutions. The Issue of “Evidence” Being Required [ 63 ] I feel it necessary to say a few words about the evidence regarding the institutional settings here given by Mr. Pastoruk and Mr. Macesic.

It seems to me that the kind of information provided by these two dedicated (and, no doubt, busy individuals) could easily have either been given by way of counsel submissions or have been the subject of admissions between counsel.

Most of it was statistical, factual evidence relating to inmates in the institutional setting, programming, and ITW ’s cell movements etc. [ 64 ] Justice Chambers in Cahoose (above) noted that court frequently relies upon counsel submissions in sentencing hearings and that it is only in cases where issue is taken with those submissions that further evidence may be necessary. [ 65 ] Sections 723 and 724 of the Criminal Code make it clear that submissions are considered and that the court can, on its own motion require the attendance of witnesses.

Hearsay is admissible evidence as well as any facts agreed upon. [ 66 ] I mention this as it is clear that “evidence” can be presented in a number of different ways in a sentencing hearing.

I agree with the defence submission that those cases that seem to suggest that the “evidence” necessary for an accused seeking enhanced credit be of some different character than that specifically contemplated by the Code are not persuasive at all. [ 67 ] I would think it prudent, in cases like this one, where an accused would like to put things like correctional statistics, program availability and the like to the court that this information could be presented by agreement and/or by submission only.

This would prevent the obviously intolerable situation where busy correctional staff are being subpoenaed to testify on sentencing hearings on a regular basis. ITW’s Evidence [ 68 ] With respect to his time in pre-trial custody ITW testified that he was part of the methadone maintenance program the whole time he was in custody. At one point in August of 2011 he started hearing voices and was prescribed Loxapine (an anti-psychotic medication) which he is still taking today. [ 69 ] He stated that there was a lot of back and forth to your cell during lock-ups (approximately 6-7 a day). The only activities are

watching TV, playing cards or reading. Access to books is limited as the tray is poorly stocked. [ 70 ] The open shared toilet is difficult to deal with as you are in full view of your roommate. For 22 of the 24 times he was moved cells he was given a new roommate. [ 71 ] He completed the Substance Abuse Management Program at NFPTC and wanted to do more but there were waitlists. He thought it would be better at FRCC but he discovered that the waitlists there were so long that there was no point in applying. After considering the evidence from the wardens I accept that to be the case.

As well, of course, he did not know his length of stay would be so long. [ 72 ] He appeared remorseful for his actions and had thought that the young persons that he had robbed were actually involved in the trafficking of narcotics and that he had been homeless and was looking to make a little money to support his drug habit. [ 73 ] EH, ITW ’s mother, testified that he became quite depressed while he was in custody. He started to give up on any hope for a positive future. She described him as normally quite introverted and quiet and that the loss of dignity in prison affected him quite negatively.

She said he had always been respectful to her but around the time he was addicted to heroin he became secretive and would mislead her. Pre-Sentence Report [ 74 ] This report (dated June 20 th , 2011) confirmed that ITW’s parents split when he was very young and he stayed with his mother. She eventually entered a common-law relationship and that man was abusive to ITW. He found it difficult in school due to the cruelty of other kids (he was diagnosed as obese). He returned to his father’s home. His father died in 2001 in a car accident and this was particularly hard on ITW. He started abusing drugs at age 14.

At the age of 19 he received two hundred thousand dollars from his father’s insurance settlement. The money was gone in five months. [ 75 ] Prior to his incarceration he was homeless, drug-addicted and outside of his family he had few positive associates or supports. At the time of the report he had not fully engaged the treatment programs that may have been available to him on the outside. Psychiatric Reports [ 76 ] There are two reports dated October 5, 2011 and January 31 st , 2012 (update).

These reports also confirm that ITW struggled as a youth in forming relationships and was picked on as a youth for his size. [ 77 ] The psychological testing results completed by Dr. Whittemore indicate that he was experiencing symptoms consistent with depression. His temper was well-controlled and was within normal ranges. He appeared more motivated for treatment than those individuals not being seen in a treatment setting.

Overall the finding was that he was moderate risk for future violence but that risk was related to prior factors and it appeared the report offered recommendations that would assist in managing any risk. [ 78 ] The January update found him compliant with his bail conditions. However, he was not engaging in Forensic Psychiatric assessment requirements. He still had vague plans for the future. He continues to take Loxapine and Cogentin which he has found helpful in regulating his depression and the auditory hallucinations that were first reported while he was in custody. [ 79 ] Dr.

Whittemore suggested that ITW will need monitoring in the community and needs to commit to treatment. [ 80 ] It has now been six months since that last update and I am told that he is doing well on bail supervision. On April 25 th , 2012 I was advised that he had completed 60 days in a residential treatment facility (Options Recovery House), he was attending AA once or twice a week, he has reduced his reliance on methadone, and he has a more detailed plan for the future that would include him moving to Ft. St. John to work with a friend.

Summary and Conclusion [ 81 ] The evidence revealed that the daily routine for a remanded inmate at FRCC or NFPTC does not differentiate substantially between a remand prisoner and a sentenced prisoner. However, their treatment is certainly different when it comes to access to programs, education, books etc. Sentenced inmates at FRCC, being a Regional Correctional Centre rather than a remand jail enjoy a far greater variety of programs than the inmates at NFPTC.

As I already mentioned, there are waiting lists for all programs. [ 82 ] The submission of the defence is that the calculation for an appropriate sentence should be the one as outlined in paragraph 14 above.

The defence submits, as a result, that no further jail is necessary. [ 83 ] The Crown, on the other hand says that, after all mitigating and aggravating circumstances are taken into account, including the pre-trial conditions, a sentence of 22 months is appropriate. [ 84 ] I do not find that this process, that is the determination of a just sentence, lends itself very well to the kind of arithmetical calculation engaged in by Ms. Eder, for the defence. Having said that, I found the written submissions from Ms.

Eder with respect to the credit issue to be extremely helpful and reflect the fact that a great number of hours of work went into assisting the court on this matter. [ 85 ] Much has been said in other cases about the fact that in 1955, the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders adopted “Standard Minimum Rules for the Treatment of Prisoners” and I do not propose to repeat the arguments with respect to that issue. It is clear that Canada is a signatory to these internationally agreed upon standard minimum rules which remain in effect today.

It is equally clear that Canada falls short with respect to many of those minimum requirements. [ 86 ] I do not find it helpful nor appropriate to parse out the number of days or months of mitigation for each of the host of complex factors that are taken into account in this very difficult task of determining a just sentence in individual cases.

[87] I paid careful attention to the recent and thorough review of sentencing principles as noted by the Supreme Court of Canada inR. v. Nasogaluak 2010 SCC 6, specifically at paragraphs 39-46. [88] I should mention that I found Ms. Harvey for the Crown has conducted this hearing in the highest traditions of the bar evidencedby the fact that the Crown moderated their original sentencing position after considering the evidence that was presented on thesentencing hearing.

She has indicated that that moderation further takes into account the all of the personal circumstances of the offender(in many cases not always known by the Crown prior to defence submissions and material being tendered). [89] The Crown’s suggested sentence of 22 months would, I suspect, if imposed properly, survive appellate scrutiny. That is not,however, the issue here.

The issue is what the appropriate sentence should be for ITW, having due regard to the sentencing principles(including deterrence and denunciation), the circumstances of the offences and of ITW, the unique circumstance here of a lengthy periodof pre-trial custody of a drug addicted emotionally immature nineteen year old and the conditions under which that custody was served,followed by a lengthy period of interim release where ITW has made some significant progress, as well as the host of other factorsinvolved in determining a just sentence (that are just too numerous and varied to list). [90] I have concluded the appropriate sentence here is one of time served plus one day.

The record will reflect that ITW has served337 days in pre-trial custody. Due to the agreed upon application of Section 719(3.1) he is entitled to credit of 505.5 days. The Warrantof Committal can reflect that he has served the one day additional incarceration time by his attendance here today. [91] Very few legitimate sentencing principles would be met in my view by sending ITW back to prison (even for a brief periodtime).

Both society and ITW are best served at this point by ensuring that he remains on a solid path of rehabilitation and recovery. [92] On that basis I am also imposing a probation period of 18 months. I am taking into account he has been on bail conditions forthe past 8 months. [93] The conditions will be:

a) Keep the Peace and be of good behaviour;

b) Appear before court when required to do so;

c) Report to a Probation Officer at 2610 Mary Hill Road in Port Coquitlam, no later than 4 pm today and thereafter as directed;

d) Provide your residential address to that person and do not change it without notifying the Probation Officer of any change;

e) You are not to possess any weapons as defined in the Criminal Code;

f) You are not to possess or consume any drugs as defined in the Controlled Drugs and Substances Act for which you do not have avalid prescription;

g) You are to attend and participate in any counselling or other programs as directed and to the satisfaction of your Probation Officer;

h) You are to have no contact, direct or indirect, with YKN, AT, MC, WC, AM, DL, or MB;

i) You are not to attend at any residence or place of employment for any of those individuals that should become to known to you. [94] There will also be a

Section 109 prohibition order for ten years. [95] An order under

Section 487.051 for a sample of DNA will also be made. [96] I waive the victim fine surcharge. [97] Finally, I am sincerely indebted to counsel for the considerable attention paid to the preparation of the materials submitted inthis case. ___________________________ Judge D. St. Pierre R. v. ITW – Cases Considered Bell Express Vu v. Rex 2002 SCC 42 R. v. A.W.C. 2010 BCPC 197 , 2010 BCPC 0197 R. v. Billard 2011 NSPC 31 R. v. Blind 2008 BCCA 310 R. v. Bridgeman 2001 ONCJ 117

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