R. v. NJB Date:, 2014 BCPC 49

Citation: R. v. NJB Date: 2014-04-01 2014 BCPC 0049 File Nos: 30002-C3; 30014-C2 Registry: Cranbrook File No: 88844-1 Registry: Port Coquitlam File No: 75459-KB2 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NJB ORDER FOR BAN OF PUBLICATION OF THE HONOURABLE JUDGE POTHECARY

Counsel for the Crown: Andrew Mayes (Cranbrook) Counsel for the Defendant: Gary Botting Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: October 8 & 10, 2013, January 31, 2014 Date of Judgment: April 1, 2014 LIMITED PUBLICATION BAN; [ 1 ] Portions of this judgment are subject to a publication ban pending the conclusion of related charges currently outstanding against one of the persons described herein. Details of that publication ban can be obtained by reference to the court files in this case.

For the purposes of convenience, the details of the order (edited) banning publication are contained herein: A. There will be a ban of publication on the following: 1) The submissions made in the publication ban application on October 10, 2013 and January 31, 2014; 2) The Court’s ruling on the application; 3) There shall be no reporting or reproduction of the following paragraphs in the Reasons for Judgment on this matter, filed April 1, 2014: Paragraph 21, Paragraphs 63 to 75 inclusive, including the heading … and Paragraph 88, that the sentence was further reduced by a finding ….

The fact of the reduction may be reported as “for other reasons”. B. This order terminates at the conclusion of the trial and any appeal period of Richard Drought. C. This order may be applied to be set aside on three days clear notice in writing to the Attorney General of British Columbia, through the Attorney General’s agent, the Crown Counsel Office, 201 Access Centre, 100 Cranbrook St. North, Cranbrook, B.C., V1C 3P9. Charges : [ 2 ] NJB pleaded guilty in Port Coquitlam on July 31, 2013 to a number of charges arising from two distinct incidents.

A presentence report was ordered and prepared for his sentencing hearing in October. The sentencing hearing could not be completed as a result of a request for an adjournment by counsel for Cst. Drought, and was delayed to January 31, 2014. Judgment was reserved from that date to today. [ 3 ] The charges are as follows: (

a) On September 13, 2012, in Port Coquitlam: possession of a device resembling brass knuckles for a purpose dangerous to the public peace contrary to s. 88(1) CCC; and breach of probation (of a New Westminster order) for possessing a weapon contrary to his conditions, contrary to s. 733.1 CCC; (b) (

i) On October 2, 2012 in Coquitlam: robbery of Denon Thompson contrary to s. 344(1)(

b) CCC; and assault of Kelvin Daryl Smith while using a weapon, bear spray, contrary to s. 267 CCC; (ii) On October 2, 2012 near Cranbrook: robbery of Alan Armstrong contrary to S. 344(1)(

b) CCC; dangerous driving contrary to s. 249(1)(

a) CCC; and evading a police pursuit contrary to s. 249.1(1) CCC. (iii) On October 5, 2012, in Cranbrook: uttering a threat to Noel Oslund to use death or bodily harm to Noel Oslund and Cst. Drought contrary to s. 264.1(1)(a). Circumstances : [ 4 ] The circumstances were provided in an Agreed Statement of Facts plus some supplemental materials. On September 13, 2012, police in Port Coquitlam were stopped by a civilian who described seeing a man walking along the Lougheed Highway yelling and challenging passing traffic, and carrying brass knuckles.

A detailed description was provided and the police located a man who matched the description walking westbound on the Lougheed Highway. Police recognized him as NJB and arrested him for possession of brass knuckles. NJB indicated that the item was in his backpack and that it was in fact made of plastic. The item was located in his backpack along with identification and bank cards in the name of another person. A hypodermic needle was found in his pocket. The item was indeed made of hard plastic and appeared to be homemade, in the shape of brass knuckles.

NJB later stated when asked to explain his possession, “Well, honestly, I’ve been jumped ten times in the past month.” It was possession of this item that was in violation of a term of a probation order imposed on January 25, 2012. [ 5 ] The events of early October, 2012 began at 3:15 a.m. in the underground parkade of the Real Canadian Superstore on the Lougheed Highway in Coquitlam. Two employees, Denon Thompson and Kelvin Smith, had just completed work and gone to their vehicles in the parkade. A man (NJB) and a young female entered the parkade, and the man approached the two employees, asking them

for a cigarette. They both indicated that they did not smoke and the couple walked away, apparently leaving. NJB suddenly turned and approached the two men again. He appeared angry, asking them what they said. They repeated that they had said they did not smoke. NJB then produced a can of bear-repellent spray and asked, “Are you sorry for this?” He demanded that they produce everything in their pockets. Mr Thompson began walking away and saying he did not want any trouble.

NJB then began counting down from ten and threatened to spray them if they did not comply. [ 6 ] Mr Thompson then put his cell phone and car keys on the ground and backed away. He and Mr Smith had begun moving towards the exit to the parkade when NJB called out to the female to get the keys and use them to start Mr Thompson’s car, a Chevrolet Malibu. At first, she was unable to start it. NJB then deployed the bear-repellent spray, hitting Mr Smith in the neck and back. Smith and Thompson ran from the scene. NJB entered Thompson’s vehicle and drove away in it, taking the cell phone with him.

Mr Smith called 911 to report the robbery. [ 7 ] Sometime later, staff from a car dealership in the area located a cell phone in the bushes near their workplace. It was later identified as Mr Thompson’s and returned to him. [ 8 ] That same day, at approximately noon, the Hope Detachment of the RCMP were notified about a quantity of personal papers strewn about in the area of a pull-out by Sunshine Valley on Highway 3.

They turned out to be papers removed from the Thompson vehicle, including documents bearing the name of the registered owner of the vehicle (not Thompson). [ 9 ] A photopack containing NJB’s photograph was shown to Mr Thompson on October 3rd. He selected the photograph of NJB as the person who had robbed him, being 85 per cent sure. Smith viewed the photopack on October 4th. He selected the photograph of NJB, saying he was 90 per cent sure.

He said he was not 100 per cent because he did not remember seeing the tattoo on NJB’s neck in the photograph. (He had however described the tattoo in detail in his original statement to the police.) [ 10 ] In the meantime, at 3:13 p.m. on October 2nd, about 12 hours after the original robbery in Coquitlam, police in Trail, BC received a report of a white Chevrolet Malibu weaving while heading eastbound along Highway 3B in Montrose. Police were unable to locate the vehicle. [ 11 ] At approximately 8:24 p.m., Alan Armstrong was driving his 2006 Toyota 4-Runner on Highway 3 in Kitchener, BC.

He was flagged down by a male and female who claimed to be out of gas and money. He agreed to give them a ride to Yahk, BC so that they could get fuel. They entered his vehicle then the male, NJB, told Armstrong to get out of his vehicle and he bear-sprayed Armstrong when he was out of the vehicle. They drove east on Highway 3. [ 12 ] Armstrong walked to the nearest residence, about 1 kilometre away, and called the police from there, reporting the incident.

Creston RCMP located the Chevrolet Malibu belonging to Thompson in the vicinity of where Armstrong had picked up the male and female. [ 13 ] Cranbrook RCMP were advised of the robbery and shortly after 9 p.m. dispatch broadcast that there had been a carjacking near Yahk, about 45 minutes south of Cranbrook. Other details provided included that the driver had been bear-sprayed, that there were two suspects, one male and one female, and that they had been picked up as hitchhikers after leaving their original vehicle by the highway.

The new vehicle was described as a gold Toyota 4-Runner with a chrome-plated grille, last seen headed north towards Cranbrook. No further description was given of the suspects or which one was driving. [ 14 ] Snow had started falling about 9 p.m. and it was cold out. Cst. Drought left the Detachment at about 9:20 p.m. and drove southbound in his marked police vehicle on Highway 3/95. However because of the heavy snow, he could only drive at a speed of 20 or 25 kmh.

After about five minutes of driving during which time he had difficulty seeing the lines on the road, he decided instead to pull over onto a side road to monitor the highway and to see if the vehicle passed him. At that time he was aware that there were two other members on duty and that a dog master had been called out. While he was there, two police vehicles passed his location headed southbound apparently also trying to locate the vehicle. [ 15 ] About 30 minutes later he saw a gold Toyota 4Runner with a chrome-plated grille drive past his location, northbound.

He pulled out of Mills Road and began following the vehicle. After about 5 kilometres, near the outskirts of Cranbrook, the 4Runner suddenly accelerated to about 110 kph and passed another vehicle that was ahead of it. Cst Drought then activated his emergency lights and passed the same vehicle. He broadcast that he was following the vehicle and that it was headed into Cranbrook. He activated his siren after the broadcast. [ 16 ] At this location, Highway 3/95 has two lanes in each direction, divided by a centre median.

The 4Runner struck the median with its left wheels which caused the driver’s side of the 4Runner to become airborne nearly resulting in its overturning. It did not and the driver continued northbound in the left lane. The Cst did not stop the pursuit, he said, as he believed that had he done so, the two suspects could have time to stop and steal another vehicle at gunpoint. [ 17 ] They continued through Cranbrook along Van Horne Street and Cranbrook Street (both part of the Highway). Traffic was light and they passed only four vehicles in 2 kilometres. They were driving at about 80 km/h in a 60 km/h zone.

Road conditions throughout were poor as a result of the falling snow. About 2 kilometres further on, the vehicles approached the intersection of Victoria Avenue and Cranbrook Street North. At that location, there were three lanes, two for northbound traffic and one left-turn lane. There were vehicles in all three lanes. [ 18 ] The 4Runner slowed and turned right onto Victoria Avenue. Cst Drought followed the vehicle south on Victoria Avenue for approximately 4 kilometres, in the curb lane. He was about 50 metres behind the 4Runner.

They passed through three light-controlled intersections, all with green lights, driving at about 70 to 80 kmh in a 50 kmh zone. [ 19 ] Just after passing the Rec Plex (an ice rink), the 4Runner began passing a pickup truck. The driver of the pickup truck slowed abruptly when he apparently saw the police cruiser lights, thus avoiding an accident.

[ 20 ] The 4Runner continued south on Victoria Avenue until it ended at 13th Street South. The 4Runner crossed that street, driving onto 22nd Avenue South, a dirt road about 200 metres long, covered with snow at that time. The 4Runner drove up an embankment at the side of the road (bordering on the campus of the College of the Rockies), again, nearly overturning. Again, it did not, and the driver returned to the dirt road driving to the end of the road which is a dead-end. At the end of the road is a three-foot wire fence. The 4Runner slowed then drove straight through the fence onto private property.

This appeared to Cst. Drought to be the large back yard of a property that had a residence and garage at the far end. He believed it was heavily treed although, according to photographs filed during sentencing proceedings, it appears to be mostly grassy and with some trees in a fairly natural state. The fence had two gates, one of which broke open when the vehicle went through the fence nearby.

The pursuit to this point had lasted 8 kilometres, nearly entirely within Cranbrook city limits. [ 21 ] [Deleted pursuant to publication ban] [ 22 ] At this point, based on what he had seen and what he said he had been told, Cst. Drought believed that one or both of the suspects was armed and that they both were dangerous. He believed that if the suspects escaped on foot through the trees, they could go to one of the nearby residences or could steal another vehicle. Either way, he believed, they presented a serious threat to anyone in the vicinity.

He was aware that other police were on the way but did not know how soon they would arrive. He decided that, given the poor lighting and the nature of the terrain, he should leave his vehicle to maintain contact with the suspects. He parked his vehicle with his headlights and emergency lights shining onto the property. [ 23 ] He passed through the gate on foot and could see the 4Runner in front of the garage facing in the direction from which it had come. He walked through the trees towards the 4Runner, avoiding the path on which it had driven to the garage.

He removed his firearm from its holster and says he announced his presence by calling “Police”. NJB said he did not hear him. The 4Runner began to move forward, following the same path on which it had entered, accelerating to leave the property.

NJB, who was driving, said he did not see the Cst perhaps as a result of being blinded by the headlights and emergency lights of the police vehicle. [ 24 ] Cst Drought raised his firearm, firing 11 rounds at the 4Runner as it approached and passed him, travelling at a speed of about 25 kmh. [In statements that Cst Drought made that night he said he fired four rounds and in a prepared statement given three weeks later, he said he fired, ”about four rounds”.] NJB was struck twice, once in the wrist and once across his back. [It is not clear if the back injury comprises an entry and exit wound or a graze with two points of connection on his back.] At about the time of passing the police officer, as he was shooting, the 4Runner swerved to the left, away from the officer.

It drove through the second gate that had remained closed, knocking it down, and rolled to a stop against some small trees. [ 25 ] NJB stated that as the shots were hitting the car, he took his foot off the gas and left the driver’s seat, throwing himself over the female passenger to protect her. It was at that time he received the injury to his back. It is not clear which shot injured his wrist. [ 26 ] Cst Drought reported that shots had been fired and called for an ambulance. He then approached the 4Runner, and heard someone say, “Don’t shoot. I’m hit.” He ordered the occupants out of the vehicle.

They both complied and were arrested. NJB was obviously injured. The female swore at the Cst. and NJB said, “You’re supposed to call it off, not keep pursuing.” NJB was taken to hospital where he was treated for his injuries and then released back to police custody. [ 27 ] No handgun or firearm was found in the vehicle and none is alleged to have been used.

No mention was made of a firearm being involved in the initial notification. [ 28 ] On October 4th, in a warned statement, NJB admitted his involvement in this incident although he stated he only put the bear spray to Armstrong’s head and did not actually spray him. He said he drove erratically believing that in so doing, the police would have to call off the pursuit. He said he did not see the Cst in the back yard and had no intention of running him over.

He added that he was a drug addict and had not slept for five days. [ 29 ] The female, a youth who has concluded her matters in Youth Court, also admitted the circumstances adding that NJB did spray Armstrong twice. She confirmed that they thought that the police would have to end the pursuit, and denied any attempt to run over the police officer. [ 30 ] On the evening of October 5th, while still in Detachment cells in Cranbrook, NJB stated to the cell guard, Noel Oslund, “When I get out of KR [Kamloops Regional Correctional Centre] I am coming back to this hick town to kill you and the cop that shot me.

It’s a small town and you will be easy to find.” [ 31 ] NJB also made further threats the following day, firstly to the guard at that time, Chris Ellis, as follows, “When I see you on the street, your life will end,” and stating later to other staff, “I am going to shoot everyone here.” [ 32 ] The Firearms Division of the RCMP Forensics Lab prepared a report after examining the 4Runner and other exhibits including 11 expended cartridge cases and a number of fired bullets and bullet jacket fragments. They concluded that all expended cartridges came from Cst. Drought’s firearm.

One bullet jacket fragment was positively identified as being fired by that firearm; the others were simply too badly damaged to be positively identified. The damage to the 4Runner was caused by at least nine distinct gunshots, all fired from outside the vehicle. Seven were fired from the direction of the front corner area on the passenger side towards the driver’s seat area and two from the direction of the passenger side rear door area towards the driver’s seat area.

The Lab was unable to provide a sequence of the shots, however it appears from the trajectory of the bullets that the two fired from outside the passenger side rear door are consistent with being the last two, fired as the 4 Runner was veering to the left, away from its previous track and away from Cst. Drought. This is also consistent with NJB’s statement that the last shot was the one that struck him in the back. Photographs of the vehicle show both passenger side door windows had shattered; numerous holes are visible in the front windshield.

Counsels’ positions on sentencing : [ 33 ] Although the September matters were spoken to initially by local Crown Counsel, by the end of the proceeding, Crown Counsel from Cranbrook ultimately took conduct of all matters, not just the October charges. Local Crown Counsel sought a sentence of 4

months for the weapons charge plus 2 to 3 months consecutive for the breach of probation. Crown Counsel from Cranbrook seeks, inaddition: 4 years and 3 years concurrently for the robbery and assault with a weapon in Coquitlam; 4.5 years consecutive for the robberyfrom Mr Armstrong; 2 years consecutive for the dangerous driving and evading police (concurrent to each other); and 7 monthsconsecutive for the threats, all of which totals 11 years, one month.

However, in consideration of the totality principle, without takinginto account the September charges, Cranbrook Crown seeks a sentence of 9 years, 2 months less actual time served (of 18 months). Crown disagrees with enhanced credit for time served and with a reduction for excessive use of force on the part of the police.

Thesesentences would then come to approximately 7 years, 8 months plus 6 months for September, thereby resulting in a sentence of 8 years, 4months after time served was taken into account. [34] Counsel for NJB argues that a number of factors besides those set out in sections 718, 718.1 and 718.2 of the Criminal Codeshould be taken into account in his client’s favour in determining sentence.

These include enhanced credit for time served of 1.5 to 1,pursuant to section 719(3.1) of the Criminal Code, and a reduction of sentence as a result of what he argues was excessive use of force onthe part of the police officer at the time of arrest pursuant to R. v Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206. Taking allthose factors into account, Counsel submits that an appropriate global sentence would be time served plus one day, with a maximum oftwo years of probation to follow.

Issues on sentencing: [35] As described above, a number of issues have arisen in determining a fit and proper sentence including appropriate credit for timeserved by NJB in awaiting his sentence and the effect of use of force on NJB at the time of his arrest, in addition to the statutoryconsiderations. [36] NJB, who is now 27 years old, has an unenviable record beginning in 2001 in Youth Court with a conviction for 2 counts ofbreach of bail.

While still in Youth Court, he compiled a total of 12 convictions for breach of court orders, 4 theft/possession of stolenproperty convictions, 2 convictions for taking an auto without owner’s consent, 1 mischief, 1 uttering threats, and 1 dangerous driving. His longest sentence arose from the dangerous driving for which he received 6 months of secure custody plus one year’s probation. [37] His adult record commences in 2005 with a conviction for 2 counts of robbery for which he was sentenced to 12 months incustody plus 15 months of pre-sentence custody and placed on probation for 2 years.

He was also convicted of 3 counts of robbery in2007 and received a sentence of 2 years on each count concurrently. He was again convicted of robbery in 2010, along with one count oftheft under, and was sentenced to 17 months in custody and 12 months of probation. In addition he was convicted of uttering threats in2006 (2 counts), 2007 and 2012 (2 counts). In the 2012 matter, he was sentenced to 5 months in jail after being credited for 1 month timeserved, and placed on probation for 12 months. He was subject to that probation order at the time of these offences.

He also has a 2008conviction for obstructing a peace officer. [38] His longest sentence as an adult was the 2 years he received in 2007. No pre-sentence custody was included in this sentenceand there was no probation order. He has no adult convictions for breach of court orders other than the one for which he is currentlybeing sentenced. [39] In a Presentence Report prepared for these proceedings, it is clear that NJB had a difficult and unstable childhood. His parents,who separated when he was five, were long-term substance abusers, and he describes his father as abusive and violent.

From the age often onwards he lived in multiple foster homes. In his teen years, he associated with a negative peer group, having begun abusing drugswhen he was 15. He has not had any long-term stable employment, working mostly in labouring jobs, although he reportedly hasobtained his GED. He recognizes that his offending behaviour is related to his substance abuse and negative peer associations.

He hasaccepted full responsibility for his actions and has expressed remorse for the impact of his actions. [40] NJB has been in custody since his arrest on October 2, 2012 in Cranbrook for a total of 18 months of actual pre-sentencecustody as of today. [41] The injuries he received from being shot have continued to cause him physical problems. He was finally able to see aneurosurgeon on May 7, 2013 regarding his wrist as a result of ongoing numbness, weakness and altered sensitivity as well as clumsinessand neuropathic pain.

Although his hand has improved since the original injury, in the Doctor’s opinion, “He will not achieve 100 percent recovery of the ulnar nerve and hand, leaving him with permanent motor and sensory deficits in the ulnar nerve distribution of theleft hand and perhaps some degree of hypersensitivity due to neuropathic pain.” The Doctor continued, “These disabilities and pain mayinterfere with future arm and hand function, including work and extracurricular activities.” He also received some injury to the radialnerve.

The doctor recommended intensive physiotherapy and exercises as well as prescription medication for pain relief. This reportwas forwarded to the doctor at the prison institution however none of these recommendations was followed by the institution. As aresult, NJB has had no physiotherapy and exercises, and no prescribed pain medication to address his wrist injury. He has receivedMotrin only, an over-the-counter medication. [42] In addition, NJB advises that the back injury has resulted in his having muscle spasms when lying down and that he finds it hardto find a comfortable position in which to sleep.

He has received no specific treatment for this injury. [43] In a letter to the Court, NJB states that he had been using heroin and crystal methamphetamine heavily in the six monthspreceding the October incident. After having not slept for five days, he decided that he might be able to make a fresh start if he left thearea. He recognizes that he made terrible choices in trying to follow through in this fashion and regrets the impact that his decision hadon so many others.

He has had considerable time to reflect on his actions and describes being shot as, “One of the scariest experiences ofmy life and [it] continues to haunt me daily.” He states that he has had a difficult time in custody including being cut by another inmate,requiring thirty stitches to his back, neck and head as well as being classified to Enhanced Supervised Placement (ESP) for a significantportion of his time in custody, thereby making him ineligible for programmes and school or work in the institution. [44] Counsel for NJB has argued that his client is entitled to enhanced credit for his time served as a result of his classification in theinstitution and the lack of response to his medical needs.

[ 45 ] The institutional Client Log for NJB was filed for the period October 11, 2012 to October 15, 2013. In addition, Gordon Negrin, Assistant Deputy Warden at North Fraser Pre-trial Centre was called by the Crown to testify about conditions at NFPTC. He described the classification ESP as being used for those with behavioural issues and past incidents requiring closer monitoring. The classification has three phases with Phase 1 being the strictest (prisoners are allowed out of their cells for 2 one-hour periods per day).

This increases to 3 periods for Phase 2 and 4 periods for Phase 3. [ 46 ] His review of the log showed NJB to have been placed in segregation for a total of 28 days during the period contained in the log. It also showed that NJB spent the majority of his time on ESP. He testified that he did not recall inmates being provided with physiotherapy and he commented that if a doctor felt it was urgent and required and was adamant that it be provided, that it would be.

He agreed that access to prison facilities like books, library time, use of computers and the program room including teachers was restricted and not reliably available to those on ESP as most of it was used by inmates in general population. He further testified that he knew nothing of the waiting lists for substance abuse and violence prevention programs or availability of health care. He added that health care was contracted to a private company and he had no information about it.

He agreed that NJB had been in secure protective custody since his admission, not necessarily for behavioural reasons but perhaps because of his high profile resulting from this incident. He also agreed it was preferable to not have inmates in segregation or ESP for long periods. [ 47 ] Mr Armstrong, the victim of the carjacking near Yahk, provided victim information to the Probation Officer who prepared the Presentence Report. He described being angry at being victimized, having to endure both emotional and mental stress resulting from the incident.

He incurred minor injuries to his eyes and skin from being bear sprayed although nothing long-lasting. He ended up missing three weeks of work because of this incident (he did not specify the reason), losing about $3,000 income. [ 48 ] As noted above, the female suspect in these matters was charged and has pleaded guilty and been sentenced in Youth Court. In addition, shortly before the sentencing hearing commenced in October, 2013, it was announced that the police officer involved has been charged pursuant to section244(2) of the Criminal Code with two counts of reckless discharge of a firearm.

That matter remains before the courts. He is of course presumed to be innocent of these charges unless and until he is proven guilty. Authorities cited : [ 49 ] Counsel provided me with the following authorities, all of which I have read and considered: Sentence generally : R. v. McCrea 2008 BCCA 227 R. v. I.J.W.C. 2008 BCCA 373 R. v. Nilsson 2012 BCCA 498 R. v. Gwyn 2013 BCCA 51 R. v. Caravetta 2005 BCPC 379 R. v. Hanna 2006 BCCA 417 R. v. Lundy 2012 BCPC 177 R. v. Pickford 2003 BCPC 397 R. v. T.C.S. 2006 BCPC 318 Excessive use of force : R. v. Nasogaluak 2010 SCC 6 R. v.

Dinh 2012 ONSC 1016 (excessive force and police misconduct) Enhanced credit for time served : R. v. Bradbury 2012 BCPC 529 R. v. Bradbury 2013 BCCA 280 ; [application for leave to appeal to SCC filed] R. v. Summers 2013 ONCA 147 R. v. Carvery SCC File No. 35115 – appeal heard Jan 23, 2014 – dcn reserved R. v. I.T.W. 2012 BCPC 305 In addition, I received a number of decisions related to ordering a ban on publication. As this was not contested, I am not going to list

those here. Principles of sentencing,

Section 718 CCC : [ 50 ] The Criminal Code defines the purpose of sentencing in

section 718, as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance 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. In addition, other sections define additional considerations in sentencing, as follows: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. and (pertinent sections only): 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,… (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,… shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; … [ 51 ] The cases provided by counsel suggest a sentencing range of high provincial time to substantial federal time in custody. Because each sentencing case is unique on its facts, these can only be a guideline. In addition decisions approach the matter of several sequential offences in different ways.

Some cases break down the incident into each separate offence, determine a sentence for each, then calculate the total as if all sentences were consecutive, finally adjusting that amount following the totality principle. In other cases, the incidents may be determined to form part of a spree and the sentence is calculated more collectively. [ 52 ] In this case, I am satisfied that in determining the appropriate sentence that should be imposed I should consider the September incident separately from the October incident.

I am also satisfied that the events comprising the October incident are properly characterized as a spree and should be considered collectively. Notwithstanding the distance travelled, the events all took place within about 18 hours. I am also including in the spree the threats made in cells a few days later as they are clearly the rantings of a person who has recently been shot and is in pain at a time that he was detoxifying from the illegal drugs he had consumed. [ 53 ] A key mitigating factor in this portion of the analysis is the fact of the guilty pleas.

As a result none of the civilians or investigators involved had to testify in what would clearly have been a very lengthy trial. While Crown Counsel described the case as being strong, some of that strength comes from the expectation that the youth would testify which would not necessarily be the case. In any event, there is an inherent uncertainty of outcome in any trial. In addition, although NJB is quite properly described as not being young, he is nonetheless relatively youthful.

In his interview with the probation officer and his letter to the court as well as his comments to the court, he has accepted full responsibility for his actions, expressed remorse, and indicated his intention to change his behaviour in future. He appears to have some insight into his issues knowing this can only happen if he is able to remain clean of drugs and change his peer group. He has identified, in addition, his impulsivity, poor decision making and poor problem solving skills.

He knows that it will not be easy but he is prepared to work on his rehabilitation expressing a desire for programs and counselling. [ 54 ] There are also many aggravating factors. He has a significant adult criminal record including six previous convictions for robbery, the most recent in 2010. It should be noted however that he has no breaches of court orders as an adult in his record, and there are some breaks in his record when he was apparently not on any court orders.

Nonetheless the presentence report indicates that he was not particularly compliant when on probation. [ 55 ] Also significantly aggravating is the seriousness of his actions during the October incident. He assaulted several people with bear spray even after he had possession of their keys or their cars. This was simply gratuitous. In addition, the driving in the Cranbrook area endangered both his passenger and innocent persons using the roadways during what were poor road and weather conditions.

Remarkably, there were no significant injuries to anyone other than himself. [56] At the time of both incidents he was on probation for two counts of uttering threats and at the time of the October incident, onbail for the September matter. A s.524 warrant had been issued for missing curfew. [57] The longest sentence he had received up to that time was 2 years on March 28, 2007 for three counts of Robbery. No probationwas attached.

He then appears to have stayed out of trouble from about mid-2008 to 2010 when he was next convicted of Robbery onApril 6th (except for a 17-day sentence for obstructing a peace officer in October, 2008). [58] Clearly while all purposes of sentencing are to be considered, deterrence and denunciation must be primary. This wasinexcusable, dangerous, frightening, illegal behaviour that cannot be condoned in any way.

As stated in s. 718.1 (supra), “A sentencemust be proportionate to the gravity of the offence and the degree of responsibility of the offender.” These are serious offences and theresponsibility for them rests wholly with NJB. [59] One cannot however lose sight of the fact that NJB was only 26 years of age at the time of these offences, and has a long lifeahead of him one hopes.

So although it is not a primary consideration, rehabilitation is also an important purpose. [60] Crown Counsel submits that NJB simply has too serious a criminal record and that these offences are too serious for hissentence to be restricted by the “step” principle. The “step” principle is described in the decision of R. v. Robitaille (1993, (BC CA), 31 B.C.A.C. 7, referred to in paragraph 17 of R. v. McCrae (supra) as follows: […] the theory that sentences should go up only in moderate steps is a theory which rests on the sentencing principles of rehabilitation.

It should be only in cases where rehabilitation is a significant sentencing factor. So the conclusion, in any particular case, that theincrease in sentence should not be too large rests on a consideration of the circumstance of the particular offender and a desire not todiscourage any effort he may be making to rehabilitate himself by the imposition of a sentence that may be seen by him to be a deadweight on his future life. [61] NJB has stated that being shot was very traumatic for him to the point where he may be suffering from PTSD.

Given this event,he has been consistent in his remarks that he really wants to turn his life around, with the appropriate counselling and help. If thesentence in this case is too big an increase from previous sentences, he may lose the necessary motivation to make the changes that couldput him on the road to a lawful and productive life. In my view, NJB is not yet at the stage where the step principle should be fullyabandoned. [62] NJB seems to recognize in his comments to the Court that he needs a lot of help.

It is appropriate that some of that comes fromprograms in the institution once sentenced and the rest with close monitoring and the support of his parole and probation officers (if any)once released from custody. At this stage, given his current motivation, he needs the opportunity to properly plan his reintegration intosociety and treatment and counselling “on the outside” after his release from prison.

This will take some time if it is to have anypossibility of being successful. [Deleted pursuant to publication ban]: [63] [Deleted pursuant to publication ban] [64] [Deleted pursuant to publication ban] [65] [Deleted pursuant to publication ban] [66] [Deleted pursuant to publication ban] [67] [Deleted pursuant to publication ban] [68] [Deleted pursuant to publication ban] [69] [Deleted pursuant to publication ban] [70] [Deleted pursuant to publication ban] [71] [Deleted pursuant to publication ban] [72] [Deleted pursuant to publication ban] [73] [Deleted pursuant to publication ban] [74] [Deleted pursuant to publication ban] [75] [Deleted pursuant to publication ban] Enhanced credit, s. 719 (3.1): [76] The subject of time to be credited for pre-sentence custody is addressed as follows: 719.

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent incustody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day

spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). [ 77 ] The meaning of subsection 3.1 has been discussed in numerous appellate courts across the country, without any consensus having been reached. The matter of R. v. Carvery (supra), from Nova Scotia, is currently awaiting decision from the Supreme Court of Canada.

The issue as described on the Court’s website is: “Whether the Court of Appeal erred in holding that a remand prisoner’s “loss” of remission or parole eligibility is a circumstance within s. 719(3.1) of the Criminal Code , R.S.C. 1985, c. C-46, that can justify enhanced credit at sentencing (at a ratio of up to 1.5:1) for time spent in pre-sentencing custody.” Appellate Courts in Manitoba and Ontario have agreed with Nova Scotia that it can justify enhanced credit. In British Columbia, however, the courts have expressly refused to follow this line of reasoning, as seen in R. v. Bradbury (supra).

This case is also wending its way to the Supreme Court of Canada. [ 78 ] However in British Columbia, s. 719.3 has been accepted in a different way by the Court of Appeal in Bradbury , when stating, 48. …however, circumstances that would justify enhanced credit must have a qualitative characteristic; that is, a characteristic that is individual to the offender but also distinct from those characteristics that are universal to, or almost universally held, by other similarly situated offenders.

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

Stated otherwise, circumstances to justify enhanced credit must be ones that are outside of the common experience of most offenders in remand custody. [ 79 ] In this case, NJB has been in secure protective custody for essentially all of his entire pre-sentence period.

It is not clear why from the Prison Log although the Deputy Warden agreed that in the situation of a case being high-profile, such as this was in the interior when NJB was initially in Kamloops Regional Correctional Centre, that might lead to a segregation classification and that classification could then follow him to other institutions. [ 80 ] In addition, notwithstanding his being in constant pain from having been shot, he was not provided with the recommended pain medicine nor given access to any physiotherapy, also as recommended by the specialist, to give him his best chance at recovery. [ 81 ] This classification significantly restricted his access to facilities and programmes within the prison, far beyond the restrictions imposed on most other prisoners. [ 82 ] In addition to his individual circumstances while in custody, he has also been waiting for a considerable period to be sentenced after pleading guilty, through no fault of his own.

The reasons for the delay have been set out above. Had he been sentenced at the time he entered his plea, of course, he could have earned remission on that sentence from that date. In NJB’s case, that delay has been over eight months. [ 83 ] Crown Counsel argues that no weight should be given to the submissions regarding enhanced credit on the basis that the defence did not call witnesses to testify to the issues surrounding the absence of medications and physiotherapy or provide forensic evidence regarding the position of the officer when shooting including diagrams, etc.

In reply Defence Counsel indicated the high cost of obtaining such evidence and, as such, the impossibility of obtaining it, although the Deputy Warden was of some help in that regard. He adds that notwithstanding this lack of evidence, there is still sufficient evidence on which to properly reach such conclusions.

I concur. [ 84 ] In consideration of the submissions made, and the evidence provided to the court, I am satisfied that NJB’s circumstances, “… are outside of the common experience of most offenders in remand custody.” As such, I find he is entitled to enhanced credit of 1.5 to 1 for his entire period of custody beginning October 2, 2012, for a total of 27 months.

Conclusion : [ 85 ] In weighing all of the factors outlined above, I find that an appropriate sentence for the September matters, that is the possession of the imitation brass knuckles for a dangerous purpose and breach of probation is 3 months in custody, concurrently. [ 86 ] I further find the appropriate sentence for the October matters is as follows: For the two counts of robbery the appropriate sentence is 6 years concurrent, one to the other, 2 years concurrent for the assault with weapon, 2 years concurrent for the dangerous driving and 3 years concurrent for the police pursuit.

The sentence for uttering threats is 6 months concurrent. [ 87 ] All of these sentences would be served consecutively to the sentence for the September matters, resulting in a total sentence of 6 years, 3 months. [ 88 ] [Deleted pursuant to publication ban] [ 89 ] As a result, the actual sentence I am imposing for all matters is 2 years less one day. With a sentence of this length, I can also place NJB on probation and am doing so, for a period of three years.

In this way, NJB will have adequate time to avail himself of numerous appropriate programs while in prison as well as to develop a release plan to include programs and treatment upon release with the aid of parole and probation officers. It is hoped that those programs while in custody include substance abuse treatment, life skills

treatment and psychological treatment for PTSD and other issues with which NJB is dealing. [ 90 ] The terms of the probation order are: To keep the peace and be of good behaviour and report to the court if and when ordered to do so. Within two working days of his release from custody to report to a probation officer at 2610 Mary Hill Road, Port Coquitlam or as otherwise directed, and to report thereafter as directed. To reside where directed by his probation officer and to not change his address without first obtaining the written approval of his probation officer.

At the earliest reasonable opportunity following his release from custody and as directed by his probation officer to enter into a residential treatment program and to fully participate in and to complete the program to the reasonable satisfaction of his probation officer. To abstain absolutely from the possession and consumption of alcohol and any drugs or substances described in the Controlled Drugs and Substances Act for which he does not have a lawful personal prescription.

To attend for such other counselling and programming including further residential treatment as directed by his probation officer, and to complete any such program to the reasonable satisfaction of his probation officer. To not have in his possession any weapons as described in the Criminal Code , including any knives except for the immediate preparation and consumption of food and for work purposes while at work only.

For the first nine months of this order to obey a curfew between the hours of 11 p.m. and 6 a.m., seven days a week, during which time he must remain in his residence, unless he has obtained in advance permission in writing from his probation officer which must be specific to the occasion, carried on his person and presented to any police officer who may speak with him. He must attend at the door of his residence in the event of attendance by a probation officer or police officer to determine his compliance with this curfew.

To seek and maintain employment or to attend school or other vocational training, as directed by his probation officer. [ 91 ] In addition I am making the following ancillary orders under the Criminal Code : s. 109 firearms prohibition, for life; s. 487.051 DNA order; and s. 259(2)(

a) prohibiting him from driving a motor vehicle anywhere in Canada for 3 years following his release from custody. In addition I am making an order pursuant to s. 98 of the Motor Vehicle Act prohibiting him from driving a motor vehicle within British Columbia for a period of 5 years. The Honourable Judge D. Pothecary Provincial Court of British Columbia