R. v. Weaver, 2022 BCPC 143

Citation: R. v. Weaver 2022 BCPC 143 Date: 20220721 File No: 85714-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. ZACHERY DANE WEAVER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: J. Rutherford Counsel for the Defendant: M. Ritzker Place of Hearing: Nanaimo , B.C. Date of Hearing: July 7, 2022 Date of Judgment: July 21, 2022

The Issue [ 1 ] Mr. Weaver was accused of possession of methamphetamine, heroin and fentanyl for the purpose of trafficking. On July 7, 2022, with the consent of the Crown, he entered guilty pleas to: (

i) the lesser included offence of simple possession of those drugs; and (ii) two counts of breach of his bail conditions by being absent from his home during curfew hours. [ 2 ] Ms. Rutherford, for the Crown, seeks a jail sentence of: (i) 2 days, concurrent, on each of the curfew breaches; and (ii) 5 days, consecutive, on the substantive offence. Mr. Weaver spent more than 7 days in pretrial custody, and so would serve no additional time if Ms. Rutherford’s submission were accepted. [ 3 ] Mr. Ritzker, for Mr. Weaver, concedes that, but for one factor, the sentence proposed by Ms. Rutherford would be appropriate.

However, he seeks an absolute discharge, on the ground that such a disposition would be a suitable remedy for the infringements of Mr. Weaver’s Charter rights, which were the subject of three earlier rulings in this case, reported at: (i) [2021] BCJ No. 1399 ; 2021 BCPC 163 ; (ii) 2022 BCJ No. 749 ; 2022 BCPC 73 ; and (iii) [2022] BCJ No. 1151 ; 2022 BCPC 127 . The Offender [ 4 ] Mr. Weaver is 29 years of age. He has struggled with substance abuse. His criminal record comprises: (

i) two convictions for theft of motor vehicles in February -March, 2017; (ii) two convictions for possession of stolen property during the same period; and (iii) one conviction for possession of a controlled substance in March, 2018. When first released on bail (in 2019), he was non-compliant (hence the two charges of breach of curfew). However, Ms. Rutherford concedes that he has been compliant for more than a year, and may be said to be doing well. He is employed, and there is no indication of current substance abuse. Mr.

Weaver made a favourable impression during the sentencing hearing, and spoke clearly and thoughtfully when invited to do so. A Discharge as a Charter Remedy [ 5 ] With her habitual sense of professional responsibility, Ms. Rutherford referred me to R v Nasogaluak 2010 SCC 6 ; [2010] 1 SCR 206. At paragraphs 48-49 and 63- 64, Justice LeBel said: Indeed, the sentencing regime under Canadian law must be implemented within, and not apart from, the framework of the Charter . Sentencing decisions are always subject to constitutional scrutiny.

A sentence cannot be "fit" if it does not respect the fundamental values enshrined in the Charter . Thus, incidents alleged to constitute a Charter violation can be considered in sentencing, provided that they bear the necessary connection to the sentencing exercise. As mitigating factors, the circumstances of the breach would have to align with the circumstances of the offence or the offender, as required by s. 718.2 of the Code . Naturally, the more egregious the breach, the more attention the court will likely pay to it in determining a fit sentence.

This is consistent with the communicative function of sentencing. A proportionate sentence is one that expresses, to some extent, society's legitimate shared values and concerns. As Lamer C.J. stated in M. (C.A.) : Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated.

In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code . [para. 81] A sentence that takes account of a Charter violation is therefore able to communicate respect for the shared set of values expressed in the Charter . In the words of Professor Allan Manson: The communicative function of sentencing is all about conveying messages. The messages are directed to the community.

They are about the values which ought to be important to the community. (" Charter Violations in Mitigation of Sentence" (1995), 41 C.R. (4th) 318 , at p. 323) Indeed, s. 718 of the Criminal Code describes the fundamental purpose of sentencing as that of contributing to "respect for the law and the maintenance of a just, peaceful and safe society". This function must be understood as providing scope for sentencing judges to consider not only the actions of the offender, but also those of state actors.

Provided that the impugned conduct relates to the individual offender and the circumstances of his or her offence, the sentencing process includes consideration of society's collective interest in ensuring that law enforcement agents respect the rule of law and the shared values of our society. * * *

The judgments relying on s. 24(1) appear to have been concerned about instances of abuse of process or misconduct by state agents in the course of the events leading to an arrest, to charges or to other criminal procedures. But, inasmuch as they relate to the offender and the offence, those facts become relevant circumstances within the meaning of the sentencing provisions of the Criminal Code . As such, they become part of the factors that sentencing judges will take into consideration in order to determine the proper punishment of the offender, without a need to turn to s. 24(1).

Factors unrelated to the offence and to the offender will remain irrelevant to the sentencing process and will have to be addressed elsewhere. In addition, the discretion of the sentencing judge will have to be exercised within the parameters of the Criminal Code .

The judge must impose sentences respecting statutory minimums and other provisions which prohibit certain forms of sentence in the case of specific offences. * * * I do not foreclose, but do not need to address in this case, the possibility that, in some exceptional cases, sentence reduction outside statutory limits, under s. 24(1) of the Charter , may be the sole effective remedy for some particularly egregious form of misconduct by state agents in relation to the offence and to the offender.

In that case, the validity of the law would not be at stake, the sole concern being the specific conduct of those state agents. There are no mandatory minimum sentences for the offences to which Mr. Weaver has entered a guilty plea. Application To This Case [ 6 ] In an earlier decision in this case ( [2022] BCJ No. 1151 ; 2022 BCPC 127 ) , I expressed my concern that the absence of a meaningful Charter remedy in this case would encourage the police in the belief that they can conduct unlawful searches (under the guise of “searches incidental to arrest”) without adverse consequences.

The “communicative function of sentencing”, referred to in Nasogaluak , seems admirably suited to address my concern. So, while the sentence proposed by Ms. Rutherford would be otherwise fit, I think that it should be reduced in an attempt to communicate effectively with the police. [ 7 ] I do not think that an absolute discharge would be appropriate in this case. An absolute discharge would have the same practical effect as a judicial stay of proceedings.

I have already expressed the view that the Charter infringement in this case would not justify a judicial stay of proceedings: [2022] BCJ No. 1151 ; 2022 BCPC 127 @ paragraphs 14 – 16. [ 8 ] Mr. Weaver is launched on a path to a productive and law-abiding future. However, he is in the early stages of that journey. I think that a conditional discharge and a period of probation would assist him.

He will know that, if he completes his probationary period successfully, the current offences will not appear on his record, but that, if he does not, they will be taken into account when he is sentenced for any future offence. I also think that he might benefit from some of the counselling services provided by Community Corrections. [ 9 ] In the result, I order, in relation to each of the three offences to which guilty pleas have been entered, a conditional discharge and a term of 18 months’ probation, on the following terms. Mr.

Weaver must: a. keep the peace and be of good behaviour; b. report in person to a probation officer at 17 Church Street, Nanaimo, British Columbia no later than noon on July 28, 2022; c. report thereafter as and when directed by his probation officer; d. provide his probation officer with his residential address and telephone number, and not change either of those without first notifying his probation officer; e. attend, participate in, and successfully complete any counselling program to which he is referred by his probation officer; f. not possess or consume any “controlled substance”, as defined by the Controlled Drugs & Substances Act , except with a valid medical prescription.

July 21, 2022 __________________________________ T. Gouge, PCJ