R. v. Timmers, 2023 BCPC 199

Citation: R. v. Timmers 2023 BCPC 199 Date: 20230825 File Nos: 181820-1 181834-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. JACOBUS THEODORUS TIMMERS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.V. SACCA Counsel for the Crown: M. Adams Counsel for the Accused: J. Arnold Place of Hearing: Victoria , B.C. Dates of Hearing: May 29, 2023 and May 30, 2023

Date of Sentence: August 25, 2023 [1] Mr. Jacobus Timmers comes before the court after pleading guilty to possessing a loaded firearm without being the holder of alicence or authorization contrary to s. 95(1) of the Criminal Code, possession of psilocin or mushrooms for the purposes of traffickingcontrary to s. 5(2) of the Controlled and Substances Act and possession of a firearm while prohibited contrary to s. 117.01(1) of theCode. Circumstances of the Offence [2] The circumstances of the offence can be summarized as follows. In March of 2021 the police began an investigation suspectingMr.

Timmers of trafficking in mushrooms, hashish and marijuana. He was subsequently arrested for possession of each of thosesubstances including 200 grams of mushrooms, 254 grams of hashish and 816 grams of marijuana located in his living room. In theprocess of executing a search warrant, the police also discovered a loaded 38 calibre Smith and Wesson revolver in his bedroom. Asecurity vest resistant to cuts and stabs was located along with a knife and hammer by the door to his residence. A sign board with a pricelist was located detailing the going rate for mushrooms, hashish, lighters and rolling papers.

Circumstances of the Offender [3] A Gladue Report was completed and relied upon at sentencing. It provided extremely helpful and informative information aboutMr. Timmers, which I have considered in its entirety although for brevity I will only refer to some portions of the Report. Gladue Factors and Consideration [4] By way of background, Mr. Timmers is a 60 year old Indigenous man who is a member of the Halalt First Nation. He and hisolder brother were adopted to a British Columbia couple from Holland.

At the time of his placement with his adoptive family he was twoweeks old having been taken from his birth mother as part of the “Sixties Scoop” wherein Indigenous children were forcefully takenfrom their homes and placed in non-Indigenous homes. [5] He was raised with an adoptive sister, who was also Indigenous, and two sisters born from his adoptive family. His adoptivefather was abusive to Mr. Timmers. The abuse included physical, emotional and verbal abuse. The verbal abuse consisted of racializedslurs and degradation leading to a learned sense of worthlessness and despair. [6] Mr.

Timmers experienced racism and bullying in school. He received average grades and was able to graduate from secondaryschool. He began drinking and smoking marijuana at age 15 with his drinking escalating significantly over the years. He became ajourneyman carpenter and was gainfully employed until he fell four stories in 1982 breaking his back. He was later hit by a bus in 1997. [7] He described himself as being a severe alcoholic. He recounted a 10 year span wherein he encountered many injuries due toaccidents while intoxicated ultimately prohibiting him from working and relying upon disability benefits.

He eventually stopped drinkingand has been successfully sober for 25 years. [8] The first time Mr. Timmers participated in any Indigenous program was following the within charges after being referred to theVictoria Native Friendship Centre following a referral by the Native Court Worker and Counselling Association. It was this referral thatled Mr. Timmers to learn about his identity, heritage and culture. He has since participated in the six week Awakening the WarriorWithin program three times.

He has attended a Sundance ceremony and has become actively involved in his community finding his placein the world around him as an Indigenous man. [9] Mr. Timmers ultimately registered at the University of Victoria and commenced his first university course in September 2022successfully completing it with an over 80% grade. He has engaged in the supports available to him through the Office of IndigenousAcademic and Community Engagement and strives to obtain a university degree and perhaps go on to enrol in the law program. [10] Mr.

Timmers has clearly suffered from the intergenerational traumas that have impacted the Indigenous community including butnot limited to the loss of culture and language, loss of identity, loss of community, loss of parenting skills, family fragmentation, racismand systemic discrimination, family violence, substance abuse, low educational achievements, poverty and isolation. [11] He grew up not having any knowledge of his biological family or the community he was from instead being raised by hisadoptive father to be ashamed of his identity. He was told he “would amount to nothing”.

He learned of his biological mother’s name in1998 and was unable to meet her as she had passed the year prior. He learned that she had attended a residential school. [12] As quoted in the report, in R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688 at paragraph 67, the Court noted thesystemic and background factors which have affected Indigenous people in Canada: 67 The background factors which figure prominently in the causation of crime by aboriginal offenders are by now well known.Years of dislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment,lack of opportunities and options, lack or irrelevance of educations, substance abuse, loneliness, and community fragmentation.

Theseand other factors contribute to a higher incidence of crime and incarceration. [13] The overrepresentation of Indigenous persons in custody continues today. Sentencing Positions [14] The Crown submits the appropriate sentence in these circumstances would be a global custodial sentence of 40 months. Thedefence suggests a conditional sentence order of two years less a day followed by a period of community supervision.

Principles of Sentencing [15] The statutory objectives of sentencing are set out in s. 718 of the Criminal Code. The fundamental purpose of sentencing in everycase is to protect society and to contribute to the respect for the law and the maintenance of a just, peaceful and safe society.

Section 718of the Code identifies denunciation, deterrence and rehabilitation, among others, as important sentencing objectives. [16] Additionally, the principle of proportionality requires the sentence to be proportionate to the gravity of the offence and thedegree of responsibility of the offender. [17] Mr. Timmers is charged with serious offences deserving of a significant sentence to send a clear message that the unlawfulpossession of a loaded firearm and trafficking in narcotics will not be tolerated in our society. Specific and general denunciation anddeterrence are paramount factors to consider in this matter along with rehabilitation. [18]

Section 718.2(

e) of the Code must also be considered given Mr. Timmers’ Indigenous heritage. It provides: All available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done, should beconsidered for all offenders with particular attention to the circumstances of Aboriginal offenders. [19] As set out by Justice Marchand in R. v. Mero, 2021 BCCA 399: [66] In R. v. Gladue, [1999] 1 S.C.R. 688, , and R. v. Ipeelee, 2012 SCC 13, the Supreme Court of Canada makes clearthat s. 718.2(

e) is a remedial provision that was and is intended to deal with the crisis of over-representation of Indigenous offenders inthe Canadian criminal justice system. Sadly, the statistics are much worse today than they were in 1996.

Specifically, in the debates ofParliament cited in Gladue at para. 47, the national Indigenous prison population in November 1994 was reported to be 10.6%.According to publicly available information from the Government of Canada, in January 2020, the Indigenous population in Federalcorrectional facilities surpassed 30%. [67] The crisis described by the Supreme Court of Canada has been driven by the alienation, poverty, substance abuse, lower educationalattainment, lower rates of employment, and prejudice experienced by Indigenous people in Canada.

Sentencing judges are to take judicialnotice of how Canada’s colonial history and destructive assimilationist policies have translated into these terrible outcomes: Gladue atpara. 83; Ipeelee at para. 60. This history does not excuse or justify criminal conduct.

Rather, it provides context for sentencing judges’consideration of case-specific information within the sentencing exercise: Ipeelee at para. 83. [68] While the over-representation of Indigenous people in Canada’s prison population is tied to broad societal issues, the Court inGladue and Ipeelee recognized that culturally attuned sentencing for Indigenous offenders has a role to play in addressing the problem:Gladue at para. 65; Ipeelee at paras. 64–70. [69] Indigenous offenders are different from other offenders because, in the words of the Supreme Court of Canada, they “are victims ofsystemic and direct discrimination”: Gladue at para. 68.

As a result, and to help address the crisis of over-representation, Gladuechanged the way Indigenous offenders are sentenced, though not necessarily the result. In sentencing an Indigenous offender, asentencing judge must consider two factors: 1. The unique systemic or background factors that may have played a

part in bringing the particular offender before the courts; and 2. The types of sentencing procedures and sanctions that may be appropriate in the circumstances. See Gladue at para. 66. [20] In conclusion, the Court of Appeal stated that no sentence is so serious that it negates the need for a sentencing judge to considers. 718(2)(

e) and failure to do so constitutes an error in principle. Mero at para. 74. [21] I turn now to a review of the case law referred to by counsel and the sentencing ranges contained therein. Sentencing Case Law [22] The Crown referred to the following cases in support of their position on sentencing. R. v. Holt, 2015 BCCA 302 [23] The Crown in Holt appealed a sentence of 18 months imprisonment on one count of possession of a loaded restricted firearm. Onappeal, the sentence was increased to 30 months imprisonment. [24] The offender had spent the evening consuming alcohol and smoking crack cocaine.

When stopped by police for a drivinginfraction, and subsequently arrested for possession of drugs, a search was carried out. A backpack was located in the vehicle containinga loaded .22 calibre revolver and a box containing 43 cartridges capable of being discharged in a gun. [25] The court referred to firearm-related offences as being “serious and inherently dangerous” particularly when such firearms arepossessed for an illicit purpose. The sentences for these types of offences should reflect “society’s absolute rejection for suchunacceptable conduct”. (at para. 14). [26] At the time of sentencing Mr.

Holt was 66 years of age without a criminal record. R. v. Kachuol, 2017 BCCA 292 [27] The Crown in Kachuol appealed a conditional sentence order imposed for possession of a loaded prohibited firearm. On appeal, a

sentence of three years imprisonment was imposed. [ 28 ] The police stopped the offender while conducting an impaired driving investigation. A loaded handgun was located in the console of the vehicle. He was also prohibited from possessing any firearm by virtue of a prior drug conviction. [ 29 ] On appeal, the court found the trial judge erred by characterizing Mr. Kachuol’s conduct as something less than “truly criminal”.

The court went on to find the trial judge placed insufficient weight on the principles of denunciation, deterrence and public protection, given the circumstances of the offence, and undue emphasis on the personal circumstances of the offender. R. v. Racette , 2016 BCCA 275 [ 30 ] The Crown in Racette appealed a two year conditional sentence order for possession of a loaded sawed-off shotgun together with sentences for two trafficking offences and a breach of a firearms prohibition for a total sentence of four years imprisonment.

On appeal, a sentence of six years imprisonment was imposed. [ 31 ] The offender had an extensive and recent criminal record containing 42 entries including robbery with a firearm, breaking and entering and violent offences. He was prohibited from possessing prohibited firearms for life. [ 32 ] Mr. Racette was arrested by police in a busy restaurant populated in part by students from a nearby school.

He was found to have a sawed-off shotgun in his backpack along with methamphetamines. [ 33 ] Of the Court of Appeal cases summarized thus far, only the offender in Racette was Indigenous and Gladue principles were considered by the court. R. v. Roy, 2018 ONSC 3855 ; R. v. Jeaurond , 2019 ONSC 374 [ 34 ] The Crown relied upon the cases of R. v. Roy , 2018 ONSC 3855 and R. v. Jeaurond , 2019 ONSC 374 wherein the Ontario Supreme Court sentenced the offenders to eight months in custody in respect of trafficking in mushrooms.

These cases can be distinguished by the volume of substances found being 28 kilos versus the 200 grams in the case at bar. R. v. Ball, 2014 BCCA 120 [ 35 ] Lastly, the Crown relied upon R. v. Ball , 2014 BCCA 120 as authority for a range of six months to one year in custody for a breach of a prohibited firearms prohibition typically consecutive to a s. 95 offence. [ 36 ] All of the firearms cases relied upon by the Crown can be distinguished from this case by their facts.

Holt , Kachuol and Racette all involved offenders found to be in possession of loaded prohibited weapons in the public domain and for a criminal purpose. Mr. Holt and Mr. Kachuol were carrying loaded prohibited weapons in their cars and Mr. Racette had a sawed-off shotgun in his backpack in a busy public restaurant. All three were actively using substances including drugs and/or alcohol. [ 37 ] Moreover, only Mr. Racette was an Indigenous offender and he, unlike Mr.

Timmers, had an extensive criminal record including violent crimes and robberies with the use of a weapon. [ 38 ] The defence relies upon the cases of R. v. Sellars and R. v. Mero . R. v. Sellars , 2018 BCCA 195 [ 39 ] In Sellars , the Crown appealed a suspended sentence with a three year probationary term imposed following a conviction for possession of a prohibited handgun.

The court on appeal highlighted the seriousness of the offence thereby necessitating a greater sentence than the trial judge imposed however, in light of the offender’s Gladue factors, found a two year conditional sentence to be appropriate. [ 40 ] By way of facts, Mr. Sellars was stopped while driving his vehicle for possession of marijuana. A search of the vehicle resulted in the location of a loaded .32 calibre handgun under the right rear passenger seat along with ammunition that Mr. Sellars attempted to discard from his pockets.

In addition, a claw hammer, two hunting knives and a collapsible baton were also found in the rear passenger compartment. [ 41 ] Mr. Sellars was enmeshed in a gangster lifestyle involved in organized criminal activities. He had a history of substance and alcohol abuse along with a dated criminal history.

His conduct at the time of arrest was described as nothing less than “truly criminal” however, at the time of sentencing, he had made substantial changes in his life. [ 42 ] The court on appeal found the trial judge mischaracterized the conduct as less than illicit thereby minimizing the seriousness of the offences. While that resulted in a sentence with a greater emphasis on denunciation and deterrence, the court recognized the offender’s exceptional Gladue factors, in determining the appropriate sentence resulting in a conditional sentence order. R. v.

Mero , 2021 BCCA 399 [ 43 ] In Mero , the defence appealed from a 40 month and eight month custodial sentence imposed in respect of the possession of a loaded restricted firearm and possession for the purposes of trafficking.

On appeal, a two year conditional sentence order was imposed for the possession of a loaded restricted firearm and a suspended sentence with 12 months community supervision in respect of the possession for the purposes of trafficking offence. [ 44 ] In the course of executing a search warrant, the police located a loaded restricted firearm, ammunition, 23 grams of heroin, score sheets and a bullet-proof vest in Mr. Mero’s home.

[ 45 ] The offender was a 34 year old Indigenous man with a dated criminal record. His early life was described as “nothing but tragic” falling back into a criminal lifestyle when his ill health led to a loss of employment after a significant gap in his criminal record. [ 46 ] The court recognized that Mr. Mero’s offences were not low-level offences. As with Mr. Timmers offences, they were “serious and deserving to commensurate punishment” however, Mr. Mero’s moral blameworthiness had to be informed by the specific systemic and background factors identified in the Gladue Report which “played a

part in bringing the offender before the court”. (at para. 83 and 84). [ 47 ] In sentencing Mr. Timmers, I have considered the seriousness of the offences, his criminal conduct and the need to impose a sentence that properly addresses denunciation and deterrence. This must be balanced by the Gladue factors that have played a

part in bringing Mr. Timmers before the court. While these offences carry significant custodial sentences as highlighted in the cases presented by the Crown, I must recognize that the sentencing ranges provide guidance but are not binding where appropriate. As set out in paragraph 92 of Mero : [92] … In appropriate cases, a departure from an established range, one way or the other, will be justified. Sometimes, this may involve the sentencing court searching for “exceptional circumstances” to satisfy the court an offender has truly turned their life around: R. v. Voong , 2015 BCCA 285 at para. 59 . R. v.

Bitternose , 2023 BCPC 6 [ 48 ] Lastly, in this court is the case of R. v. Bitternose considered the appropriateness of a CSO. Mr. Bitternose was found intoxicated in a taxicab with an unloaded modified rifle and an empty bottle of vodka in his backpack. He was under an order prohibiting him from possessing weapons at the time of the offence. [ 49 ] Mr. Bitternose had pled guilty and accepted responsibility. He had an unenviable criminal record having accumulated at least one criminal conviction per year for the preceding 17 years. There were significant Gladue factors.

A CSO of two years followed by two years of community supervision was found to be a fit sentence. [ 50 ] In the case of Mr. Timmers, I have considered the Gladue factors summarized previously along with the following mitigating and aggravating factors. Mitigating Factors [ 51 ] Mr. Timmers has pled guilty and has avoided a trial in this matter. He has accepted responsibility and shown remorse in doing so. [ 52 ] He has been compliant with the terms of his release and has not committed any new offences. [ 53 ] Mr. Timmers has lived in the same apartment for 35 years.

He is liked and respected by his friends and neighbours. Various letters of support were provided to the court speaking to his good character. He is the primary caregiver to his ill partner of 30 years who lives in the suite next to his and requires daily care. Mr. Timmers clearly has community support, stable housing and a strong social network. [ 54 ] As reviewed previously in my judgment, Mr. Timmers has made great strides in his life; connecting to his culture and finding his spirit. He is deeply motivated to learn more about his heritage and enmesh himself further in his cultural community.

As the director of the Victoria Native Friendship Centre stated in the Gladue Report, Mr. Timmers is “completely transformed”. He has found a passion for learning and is excited by the prospect of continuing his university education. He is on a path he never believed himself capable of. Aggravating Factors [ 55 ] Mr. Timmers has a minimal criminal history consisting primarily of a possession charge in 2013 for marijuana. A 10 year firearms prohibition was imposed at sentencing and this was the order breached by the within charge in 2021.

The breach of the order is a further aggravating factor. [ 56 ] The seriousness of the offences namely the possession of a loaded restricted weapon and the trafficking of drugs are clear aggravating factors. However, in respect of the weapons offences unlike the fact patterns in the cases of Holt , Kachuol , Racette , Sellars and Bitternose , Mr. Timmers was not in a public place with the firearm nor was there any suggestion that he was impaired in any way by drugs or alcohol. [ 57 ] Moreover, in respect of the trafficking offence, Mr.

Timmers was trafficking mushrooms being on the lower end of the scale of prohibited substances. His trafficking operation was not sophisticated and there was no suggestion that he was part of an organized criminal enterprise. Sentence Imposed [ 58 ] Balancing the mitigating and aggravating factors, considering the significant Gladue factors, and taking a holistic approach to sentencing, I do not agree with the Crown’s sentencing position that a custodial sentence is appropriate. In considering whether a conditional sentence order would be appropriate I am mindful of R. v.

Proulx , 2000 SCC 5 and find that service of a CSO in the community would not endanger the safety of the community and such sentence would be consistent with the fundamental principles of sentencing set out in ss. 718 to 718.2 of the Code . [ 59 ] Mr. Timmers, I am therefore sentencing you to the following:

a) On the offence of unlawful possession: a conditional sentence order of two years less one day;

b) On the offence of trafficking: a suspended sentence followed by an 18 month probationary term; and

c) On the offence of breach: a suspended sentence followed by an 18 month probationary term to run concurrently. _____________________________ The Honourable Judge K.V. Sacca Provincial Court of British Columbia