R. v. Sprout, 2023 BCPC 190

Citation: R. v. Sprout 2023 BCPC 190 Date: 20230525 File Nos: 43431-2-A, 43433-1, 43436-1, 43439-1, 43444-1, 43581-1, 43582-1 Registry: Campbell River File No: 90298-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. NATHAN TYLER SPROUT ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.M.D. STEWART Counsel for the Crown: J. Petty, via videoconfence Counsel for the Defendant: S. Runyon, via videoconference Place of Hearing: Courtenay , B.C. Date of Hearing: May 5, 2023 Date of Judgment: May 25, 2023 [ 1 ] THE COURT: These are my reasons for sentencing in the matter of Nathan Sprout.

The sentencing was with respect to Informations 43581, 43582-1, 43444-1, 43436, 43433-1, 43439-1. The circumstances were carefully particularized by Crown counsel.

No issues were taken with those circumstances as particularized. [ 2 ] In a very quick

summary, with reference to the gravity of the offences, Information 43581, an offence on April 19, 2021, was a break and enter to the McDonald's at the Esso at 16th Avenue. What was stolen was $3800.00 in cigarettes. Those were not recovered. [ 3 ] Information 43582-1, the offence date is June 18, 2021. That was a residential break and enter. This was the home of Katherine Pagan, Mr. Sprout's former partner and the mother of two of his children. Using the knowledge he had from that home, he accessed the safe and stole $450.00. I will note that it is an aggravating circumstance, that it is a residential premise.

It is the break and enter equivalent of a K file. He stole essentially from a family. There is a breach of that trust placed in him with respect to him being in that home. [ 4 ] Information 43444-1, the offence date is September 9, 2021. This is a theft from the Walmart. There were marine batteries that were recovered. There was food that was recovered but was unsaleable due to the fact that it had been stolen and it was disposed of. [ 5 ] Information 43436-1, the offence date is October 1, 2021. This is the Campbell River Museum. There was also a theft from an individual.

Various items were taken from a display and the individual. [ 6 ] Information 43433-1, the offence date is October 27, 2021. This is a break and enter to a commercial premise, a bike shop, Pedal Your World, in Campbell River. Two bikes were taken, one worth $5,000, one worth $1,000. Those bikes were recovered. [ 7 ] On Information 43439-1, the offence date is December 11, 2021. Count 1 is a breach of a release order, a no-go Campbell River. Count 3 is an assault of a peace officer. The circumstance is that Mr. Sprout was resisting arrest. The physical force used was described as a kneeing of Constable Nixon.

The kneeing was two strikes. [ 8 ] On Information 43431-2-A, the offence date is July 22, 2022. These are breaches. Mr. Sprout was released to treatment pursuant to a release order. After a period, he left that treatment facility, the New Roads Therapeutic Recovery Centre. There was a quick relapse to his substance use disorder, and he is rearrested. [ 9 ] With respect to the gravity of that matter, Crown emphasized the need to enforce bail breaches, and I agree. When a person is released from custody, in particular, with a focus in terms of their pre-trial treatment, it is a significant opportunity for a person.

I also bear in mind the fact that treatment is a form of health care. It should be accessible to people whether they are in custody or released from custody, and I view the relapse through the lens of what we know about addiction. [ 10 ] In terms of the parties' position on sentence, the Crown seeks a global disposition of 34 months in jail, plus 18 months probation, and various ancillary orders. Defence sought a time served disposition and took no issue with the probation and ancillary terms. [ 11 ] As at the date of sentencing, on May 5, the time served disposition was around 700 days.

Since May 5, 21 days have passed, but the result then is that his actual time served is 488 days credit, at the enhanced rate of 1.5, is 722 days, 24 months and 12 days. [ 12 ] In terms of range of sentence, the Crown provided the following authorities. R. v. Belcourt, 2016 BCCA 507 . That involved a break and enter into a restaurant and stealing money. The sentence with respect to the B & E is referenced at paragraph 16 and it is five months. [ 13 ] Tab 2, R. v. Kelter, 2010 BCCA 252 , a decision of the B.C. Court of Appeal. This is a break and enter into a service station in Nanaimo.

After trial, the sentence was 18 months. [ 14 ] Tab 3, is the decision of R. v. Brown , 1998 BCCA 5540, again a 1998 Court of Appeal decision. The sentence there, again, a B & E, were three separate sentences of five months, served consecutively, so three times five is 15 months. [ 15 ] The case in R. v. Groleau, 2010 BCCA 363 , a 2010 decision of the British Columbia Court of Appeal. This was a residential break and enter. There was a guilty plea, and the sentence there was 36 months in jail. [ 16 ] The next case was a 2007 decision of the British Columbia Court of Appeal in R. v. Powis , 2007 BCCA 108 .

There, the Court of Appeal varied a CSO to jail for three years. This is involving three residential break-ins. [ 17 ] So then, next, was a decision of R. v. Turlock , 1995 BCCA 2605, again a decision of the British Columbia Court of Appeal. This was a residential break and enter. The accused was 18 years old. A two-year sentence was reduced to 18 months. [ 18 ] Lastly, the decision in R. v. Hewitt , 1994 BCCA 1882 , a 1994 decision of the Court of Appeal.

A custodial sentence of one year on conviction on a guilty plea of a break and enter of a motorhome and theft of such items as a camera and some jewelry. [ 19 ] Defence concedes that the Crown position, where Crown seeks 34 months, is within the range. The issues that were focused upon in the sentencing submissions related to gravity, with particular reference to the impact to the community, balancing that with individual responsibility, with particular focus on the circumstances of Mr.

Sprout's substance abuse disorder. [ 20 ] In colloquy with counsel, I raised how this sentence would be understood by the retail community in Campbell River and individual business owners. I also raised whether the efficacy of available sentence is something that is measured. Said a different way, are there objective measures of efficacy such as rates of recidivism, crime rates? And, a related concept in terms of how such things are measured, what is the appropriate timeline or timeframe for such measurements? [ 21 ] In making my decision, as necessary, I returned to the mandated discipline of the Code .

Section 718, the purpose and objectives of sentencing.

Section 718.02 is engaged here, where there are offences against the police. The primary consideration must be given to objectives of denunciation and deterrence.

Section 718.1 is always engaged, the fundamental principle of proportionality, balancing the gravity of the offence, the degree of responsibility of the offender. In achieving that balance, regard must be had for

section 718.2(e);

available sanctions, other than imprisonment, considered for Aboriginal offenders, that is essentially the codification of the considerations in Gladue . [ 22 ] In terms of considering the circumstances of the offender, in

summary, there is a youth record. I do not place much weight on that, given the limitations we place in terms of youthful offending behaviour. I do not ignore it. There is then an adult record, largely focused on a period of time when Mr. Sprout is living in Alberta. That appears consistent with what is referenced as a period of time where he was working in the oil patch after having worked in various aspects of the fishing industry in B.C. [ 23 ] It is not a serious record. It is consistent with a substance abuse disorder. There are impaired convictions. There is an assault with a fine.

There is a driving while prohibited, a possession of stolen property, and failures to appear. [ 24 ] From 2012 to these offences, there is nothing. There is a nine-year period. There is an indication of some interactions with police, but there is no criminal record. That is significant and consistent with what is referenced in the pre-sentence report. Mr.

Sprout is someone who was a young man having difficulties with the law while he is off working in Alberta, but from 26 when he is still relatively young until he is 34 or 35, he has no criminal record. [ 25 ] It is at this point that things go off the rails for Mr. Sprout. My sense is, he was likely holding things together for that period, but had achieved a great deal. He was hardworking. He had a family. He had a partner. He had a home. There is a sequence of events that occurs, that leads then to these issues in 2021. These are described as the convergence of a number of difficulties.

There was the 2019 strike in the logging industry. There is then the loss of employment and the loss of income, a breakdown in a relationship, a recovery from a surgery, turning to cocaine and then opioids with respect to managing that. There is the loss of his relationship with his partner, with his children, with his father, the loss of his home, living in the streets, and addicted to street level drugs. [ 26 ] I made reference to this period, in terms of when he is 26 to 35 as holding things together.

I am not a psychologist, but I do look to his early childhood history and the history of his family, and there are here significant Gladue considerations. He was raised in a family where both parents were alcoholics. He was raised in what is described as a chaotic environment. He himself is the victim of child physical abuse, mostly in the manner in which he was disciplined by his father, but the discipline from his father included pieces of wood or kindling to hit him and a differentiated treatment of him from his brothers.

His mother also admitted periods where she was herself suffering from at least excessive drinking, and she was spoken to [in the completion of the PSR]. The mother confirmed that his father was very strict, that he and the father did not get along. He described the father to be a binge drinker when he was home from camp and would go days upon days consuming alcohol to excess. [ 27 ] Also, in terms of Mr. Sprout's circumstances and the determination of his individual responsibility, he is diagnosed with having Attention Deficit Hyperactivity Disorder.

That is an organic difference in the way that his brain is formed. He was prescribed medication to assist with his focus, which is critical to those suffering from ADHD and their ability to make progress with school, and his mother made the decision to stop the administration of the prescription drug. He ends up leaving school in Grade 10. That is coincident with the birth of his first child, but the suggestion is that his progress in school was impacted by the difference in his cognition. [ 28 ] It is in this context that we look at both the individual and responsibility.

He is Indigenous, and the pre-sentence report captures the significant impacts to Mr. Sprout's Indigenous community, the specific impacts in residential schools. His grandmother attended residential school, and as we see so often, it is that intergenerational experience of living with trauma, growing up in homes with excessive alcohol and violence, and the impacts that we know that then has on each successive generation. [ 29 ] It is with deep regret, and I include in this, that Mr.

Sprout's own children are then that next generation of Indigenous children who have grown up with a parent who is untreated with respect to the trauma he endured as a child; is suffering from a substance abuse disorder, and whether through the period where Mr.

Sprout is living in the streets, addicted, or whether now, in the last equivalent of two years, he has been in prison, then being disconnected from their father. [ 30 ] In terms of the gravity of these offences, beyond what I have commented upon before, in general these property offences are unsophisticated, unplanned, consistent with a person living in the streets, needing to afford the substances that they are addicted to. [ 31 ] In terms of prospects for rehabilitation, we know his recent experience having left residential treatment. He has, to his credit, sought out treatment during his time in custody.

He is on the methadone program, the Opioid Agonist Therapy. There is every indication that he is doing well with that now and has put his mind to ensuring that the prescription and the arrangements for that are in place, whether he is there in prison or whether he is then released from prison. [ 32 ] It is not for me to comment in terms of the benefits, whether it is better or not for him to be in residential treatment versus being treated in the community.

He has explained that he found it difficult to be around others who were dealing with addiction, constantly talking about addiction, and that that was hard for him. He believes that his path forward is to return to the community to continue with his Opioid Agonist Therapy, and as best he can return to the life he had in terms of working in the logging industry.

Consistent with the court's understanding, there is a need for labour in that industry, and he believes, and it would seem believable that his prospects for re- employment are high. [ 33 ] I benefitted very much from what I am coming to expect as very articulate, very well-informed submissions from both Crown counsel and defence counsel on the case law I should consider beyond the very carefully prepared authorities in terms of range. I was referenced to the Supreme Court of Canada decision in R. v. Parranto, 2021 SCC 46 .

Parranto does assist me in how I then use the ranges of sentence that were provided by Crown. I have included paragraph 36 of that decision which states: [36] The key principles are as follows: 1. Starting points and ranges are not and cannot be binding in theory or in practice ( Friesen , at para. 36); 2. Ranges and starting points are "guidelines, not hard and fast rules", and a "departure from or failure to refer to a range of sentence or

starting point" cannot be treated as an error in principle (Friesen, at para. 37); 3. Sentencing judges have discretion to "individualize sentencing both in method and outcome", and "[d]ifferent methods may even berequired to account properly for relevant systemic and background factors" (Friesen, at para. 38, citing Ipeelee, at para. 59); and 4. Appellate courts cannot "intervene simply because the sentence is different from the sentence that would have been reached had therange of sentence or starting point been applied" . . .

The focus should be on whether the sentence was fit and whether the judge properlyapplied the principles of sentencing, not whether the judge chose the right starting point or category (Friesen, at para. 162). The court went on to say: These principles settle the matter. Contrary to the Crown’s submission, it is not an open question whether sentencing judges are free toreject the starting-point approach. Sentencing judges retain discretion to individualize their approach to sentencing “[f]or this offence,committed by this offender, harming this victim, in this community” (R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688, atpara. 80 (emphasis in original)). There is no longer space to interpret starting points (or ranges) as binding in any sense. [37] Having made clear that starting points and ranges are tools and not straitjackets, we turn to the role that a sentencing range orstarting point plays in appellate sentence review. [34] I want to be clear; that statement from Parranto is not different than what was submitted by Crown. I do not ignore sentencingranges. They are helpful. I am just not bound by them. [35] I also considered certain cases on the concept of deterrence.

I referenced the Supreme Court of Canada decision in CartawayResources Corp. (Re), 2004 SCC 26 , [2004] 1 SCR 672, a 2004 Supreme Court of Canada decision, where Justice LeBeldescribed the role of deterrence in the law, and I cite paragraph 52, 53, and 54. In a certain regard, this is me going out and looking tosee what the courts have said about deterrence, the starting off point being the colloquy and the discussion in terms of how we viewthis. The paragraph 53 stating: 53. General deterrence as an aim of sentencing in criminal law is well established [citing R. v. M. (C.A.) and R. v. Morrisey].

It then references Jeremy Bentham, in terms of an early proponent. Then at paragraph 54: 54. However, general deterrence is not without its critics. In the criminal context, commentators and courts have expressed doubts as tothe effectiveness of imprisonment as a general deterrent: They are citing R. v. Wismayer, (ON CA) and the Canadian Sentencing Commission, Sentencing Reform. [36] I was at least encouraged to know that I am not the only person that sometimes then wants to know more about whether thesethings are measured. Then I looked at R. v.

Nur, 2015 SCC 15, a 2015 decision of the Supreme Court of Canada, where the court struckdown on constitutional grounds the provisions of the Criminal Code which imposed mandatory minimum sentences for firearmoffences. But of relevance, Chief Justice McLachlin, writing for the majority, offered the following explanation about the role of generaldeterrence in assessing the fitness of a proposed punishment. This is at paragraph 45. [45] General deterrence — using sentencing to send a message to discourage others from offending — is relevant.

But it cannot,without more, sanitize a sentence against gross disproportionality: “General deterrence can support a sentence which is more severewhile still within the range of punishments that are not cruel and unusual” (R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 45,per Gonthier J.).

Put simply, a person cannot be made to suffer a grossly disproportionate punishment simply to send a message todiscourage others from offending. [37] I want to make clear that insofar as I look to that passage, it is not suggested that Crown's position here is anywhere neardisproportionality or gross disproportionality. Indeed, defence concedes the Crown position on sentence is within the range.

What Itake from that is mostly, again, just the fundamental principle that I must keep the objective of deterrence in balance with all otherobjectives. [38] The Nur decision is relevant for its discussion of the fundamental importance of proportionality as the basis for a legal sanction. Again, Chief Justice McLachlin quoted with approval the following passage from R. v. Ipeelee, 2012 SCC 13, the 2012 decision of thesame court. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence.

Thisis closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.

In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [39] I will comment briefly, as well, with respect to R. v. Ellis, 2022 BCCA 278, referenced, I think -- yes, by both Crown anddefence, and before I do that, though, I also just have a cite to say that I looked just to see what the Supreme Court of Canada says withrespect to denunciation. So often denunciation is always said in the context of denunciation and deterrence as a single thing withoutdifferentiating one between the other.

It is not often that we see denunciation referenced separately from the context of deterrence. Paragraph 102 of Proulx, 2000 SCC 5, the Supreme Court of Canada, references denunciation as the communication of society'scondemnation of the offender's conduct, again citing M. (C.A.), at para. 81 . . . In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be

punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74 , at p. 77 : “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”. Then carrying on, in Proulx . Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration.

That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances. [ 40 ] One of the things I noted in my review of Ellis was the fact that Ellis actually makes reference to the objectives of deterrence and denunciation as something that can be achieved in the context of a suspended sentence.

It is important to remember that in Ellis ultimately the Court of Appeal maintains that sentence. This is at paragraph 176 where the court commented that: [176] Given the gravity of Ms. Ellis’s offences, deterrence and denunciation are live issues in this case. In this context, it is appropriate to impose a probation order for Ms. Ellis that is substantially longer than the one imposed in the Provincial Court. In my view, no less than a three-year probation order is required. This is what I emphasize. Probation orders are principally intended to facilitate rehabilitation.

However, the law recognizes that “they can also have a deterrent and denunciatory effect, particularly if they contain terms that significantly curtail liberty” . . . [177] In Schneider, this Court noted that one of the ways a probation order can have a deterrent and denunciatory effect is that it may “provide a longer period of supervision than an appropriate term of imprisonment” . . . Such would be the case here. On appeal, the Crown seeks a cumulative sentence of 18 months’ imprisonment. A three-year probation order allows for supervision and monitoring of Ms. Ellis’s conduct for twice that length. In Ms.

Ellis’s own words, probation orders have kept her “accountable” in the past. [ 41 ] The other thing I noted, also, in terms of my review of Ellis , was the comments in Ellis , that it is not a novel concept, the idea that deterrence and denunciation being given adequate effect without a custodial term. There is nothing about Smith that prohibits this result. In those cases, a finding of significantly diminished moral blameworthiness arising from the offender’s social context, background and their personal circumstances, including a substance use disorder, are likely to play a pivotal role.

Then they cited their own decision in 1990, in a case of R. v. Preston, 1990 BCCA 576. . . . it is right to conclude that the principle of deterrence should yield to any reasonable chance of rehabilitation which may show itself to the court imposing sentence . [ 42 ] I did look at the cited case by Crown. This was the decision in R. v.

Hamlyn , 2016 ABCA 127 , which was the referenced comment that: . . . it is “an error of principle for a trial court to discount the deterrent effect of any particular kind of punishment provided for in the Criminal Code , such as imprisonment, because he or she believes that imprisonment has not proven effective”: . . . Discounting the deterrent effect of imprisonment because of his subjective doubts about its general efficacy was a material legal error. [ 43 ] I noted that Hamlyn has been cited in British Columbia. It is cited, not specifically for that proposition, but in the case of R. v.

Forner , 2020 BCCA 103 , a 2020 decision of the B.C. Court of Appeal, with some differentiation between the fact that Hamlyn was an incidental circumstance of psychosis, not a circumstance with respect to a prolonged substance abuse disorder, but it was mostly then in referring to the recent decision in Ellis , and the Court of Appeal focus there in terms of how a probation order itself can affect a deterrent effect that was my focus.

I think that this was accepted and understood, but my questions and colloquy about measuring efficacy, I remain interested in that issue, and I was not able to get it figured out. [ 44 ] I will say this in a general sense. We very commonly receive psychiatric reports in the context of violent offenders. It is clear that as they go through their various different studies and categorizations, they are referring to recidivism range. So -- there is some science of measuring the efficacy of sentencing.

I am just not aware of how that is used and whether we are doing that on a broader range in terms of what are the outcomes of the sentences that we impose? But in a general sense, I am not discounting the deterrent effect of incarceration or its denunciatory effect. Instead, I was looking at what was the correct balance. [ 45 ] Finally, then, after having reviewed my path to this, I will communicate my decision on sentence, which is as follows. [ 46 ] Denunciation and deterrence, both general and specific, are met here with a jail sentence.

This is not like the circumstance in Ellis when the Court of Appeal was considering jail or no jail. Mr. Sprout has already served 488 actual days in jail.

Had he been sentenced to a two-year-less-a-day sentence, he would have been released a few weeks ago. [ 47 ] A two-year sentence is a long sentence for what were unplanned, unsophisticated, addiction-motivated property crimes, and the assault of a peace officer while resisting arrest for breaches. [ 48 ] With reference to the perception of the community and specifically the business owners, that is not to ignore the other victims here, but with a focus of some of those discussions with counsel, I find that denunciation and deterrence is achieved by such a sentence.

Beyond the declaration of relative gravity through this sentence, the denunciation of such conduct, Mr. Sprout is also now in recovery from his addiction having submitted to Opioid Agonist Therapy while in prison. I find that Mr. Sprout's way forward is through

continuing with that therapy and his motivation to return to the well-employed, productive, prosocial lifestyle he maintained from 2012 to 2021. I find he must be monitored, not merely supported in his recovery. [ 49 ] I have decided that Mr. Sprout has spent enough time in jail and should be released to serve a period of probation, with certain restrictions designed both to protect the community, as well as support him in his recovery from his substance abuse disorder. [ 50 ] I have generated a sentencing

summary to capture the details of this sentence and somehow, over the lunch hour, I had forgotten that Crown and defence would be appearing virtually, so I do not have this to hand out to you. I will ask that the clerk email this to you both. It is just going to be helpful in terms of tracking what the sentence is. I will give this to Madam Clerk because it is going to assist her in generating this.

This is a multi-information, multi-count sentencing, and I have followed, as directed, the process in terms of making decisions -- individual sentencing decisions on individual informations and individual counts, and then turning my mind to the totality principle to generate what is effectively a 24-month sentence. [ 51 ] I will say, returning to -- submissions were made on R. v. Lee, 2018 BCCA 428 and the process I should follow in the consideration of whether sentences should be served consecutively or concurrently.

I do find that the two non-residential break-ins in October, 2021, are relatively close in time and are similarly substance abuse motivated, unsophisticated crimes. But, while you will see that I made determinations with respect to concurrence versus things being served consecutively, that final determination was mostly to effect a principle of totality. So I ordered those to be served concurrently. [ 52 ] With respect to the residential B & E, I do not find that the consideration in R. v. Lee regarding concurrent sentences would apply.

Instead, to effect a total sentence of 24 months, I have ordered that this sentence be served concurrently to the October B & E's, but I have increased the total sentence, and I have made that allocation to the residential break and enter to 13 months, just so that the math rounds out to a total of 24 months. This was essentially an exercise in math. Another approach that can be followed is a pro rata reduction across all of the sentences. I have done that sometimes. It is not exactly a determination of whether the consideration of R. v. Lee , regarding consecutive sentences, should apply.

To be clear, that I increased the effective sentence on the residential B & E from 12 months, sought by Crown, to 13 months, is not an over jumping. It is essentially a 13-month global sentence across the three B & E's to result in a total sentence of 24 months. [ 53 ] So in terms of the sentencing

summary, Madam Clerk, you have the document. On Information 43581, Count 1 -- and this is -- I am trying to follow what I am told by the Court of Appeal I should do. So the jail sentence before consideration of totality will be six months. The jail sentence imposed before time served is six months, the total jail sentence then being six months. [ 54 ] Information 43582-1, Count 1, the jail sentence before consideration of totality, 12 months, consecutive to the first.

The jail sentence imposed before time served, 13 months, concurrent to 43436 and 43433-1, resulting in a new total of 19 months. [ 55 ] On Information 43444-1, the jail sentence before consideration of totality, 30 days. The jail sentence imposed before time served, 30 days. So the total sentence now comes up to 20 months. [ 56 ] 43436, Count 1, six months. The jail sentence imposed before time served six months, concurrent to 43582-1 and 43436, Count 3 -- it should be Counts 1 and 3. Oh, so Count 3, and the other one is -- so -- and then Count 3 is 30 days, and that is concurrent to the earlier and to Count 1.

The result is then a sentence of 21 days [the reference to days was in error, this should read 21 months]. [ 57 ] 43433-1. It is a six-month sentence before totality, with totality six months concurrent to 43582-1 and 43433-1. The total stays at 21 [months]. [ 58 ] 43439-1, Count 1, 30 days. Those 30 days are consecutive, taking the total to 22 [months]. [ 59 ] 43439-1, Count 3, 30 days.

Those 30 days are consecutive, so that takes the total to 23 [months]. [ 60 ] Count 4 -- sorry, and the last information is -- which is the single count -- sorry, I missed the information in, Madam Clerk, and it is the . . . yes, that is 43431-2-A . . . 30 days consecutive, taking the total to 24 months. [ 61 ] The actual time served is 488 days. The credit for time served at 1.5 days equals 722 days. That is 24 months and 12 days. The sentence remaining after consideration for time served is no new jail.

Today is his last day served, that would be on 43439-1, Count 1, he is to be released today. [ 62 ] Probation to follow on all informations on all counts. The duration is -- Madam Clerk, I have got a typo, is 24. So two years probation. [ 63 ] 2001, you must comply with the probation order for a term of 24 months. The conditions are as follows. [ 64 ] 2001, you must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or the officer of any change in employment or occupation. [ 65 ] 2103, you must report by telephone to a probation officer. I do not have -- I did not have the phone number for Campbell River. I guess it is on the PSR. Yes, they had reporting in person. So, Madam Clerk, just include the phone number for Campbell River. So he is to do that by 3 p.m. tomorrow, Friday, May 26, 2023. After that, you must report as directed by your probation officer.

If you do not speak to a probation officer, you must continue calling daily during regular business hours until you have spoken to one and have received further direction to report. [ 66 ] 2201, when first reporting to your probation officer, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one. You must not change them without prior written permission from your probation officer.

[ 67 ] 2002, you must have no contact or communication directly or indirectly with Katherine Pagan. The exceptions are: (

a) through email or text and/or online banking for the sole purpose of paying child support, and for; (1) arranging parenting time; (2) picking up and dropping off your children for parenting time; (3) paying child support; (4) health or other emergencies involving your children. (

b) as allowed by a family or child protection order made by a judge or a master who has been given a copy of this order; and (

c) through or in the immediate presence of one or more of the following professionals, after they have been given a copy of this order: (1) the counsellor; (2) a Family Justice counsellor and/or a family dispute resolution professional; (3) a professional mediator; (4) a Native court worker; (5) an Elder. Add this: but any such elder must be confirmed in advance with the probation officer; and (6) a restorative justice counsellor; and (

d) through court documents served by a third party and during scheduled court appearances and conferences. If the court appearance or conference is in person, a sheriff must be present, unless a master, judge or judicial justice waives this requirement. [ 68 ] 2005, you must not go to or be within 10 metres of any place where Katherine Pagan lives, works, attends school, worships, or happens to be. If you see them, you must leave their presence immediately without any words or gestures. The exceptions are: (

a) to pick up and drop off your children for parenting time (you must remain inside your vehicle during all pickups and drop-offs); (

b) as allowed by a family or child protection order made by a master or a judge who has been given a copy of this order. You must immediately file a copy of this order in any family or child protection proceeding in which you are a party or become a party. [ 69 ] Before I leave the no-go and no contact restrictions with respect to Ms. Pagan, different than the circumstances of the other victim, I know there has been some up and down in terms of where things are at in terms of that relationship. Certainly, the relationship with Ms.

Pagan, if it is something that changes and it is contemplated that there be a resumption in contact, this is different than a circumstance where there has been domestic violence. This is a B & E. This is a circumstance where if he brought an application seeking a change, that that application is contemplated. [ 70 ] Next, 2005, you must not go to or be within five metres of the following locations in Campbell River, B.C.: (

i) Campbell River Museum, located at 470 Island Highway; (ii) Campbell River Esso, located at 16th Avenue; (iii) Campbell River Walmart; (iv) Pedal Your World, located at 465 Merecroft Road. [ 71 ] Next, this is standalone, Madam Clerk, but as indicated. For the first six months of this probation order, you are only permitted to be in a commercial, business or retail premise for two consecutive hours per day, the start time and end time to be the same each day and detailed in advance in writing by your probation officer.

Any variation of the start time and end time is to be confirmed in advance, in writing by your probation officer.

The exceptions are: as permitted in advance in writing by your probation officer for the purposes of your attendance at work, your attendance at AA, NA meetings or other programs of counselling, and you will provide your probation officer with any information requested by your probation officer to consider the exception or verify that your attendance was in accordance with the permitted exception. [ 72 ] 2043, for the first 12 months of this probation order, you must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden, or any other business from which minors are prohibited at any time by the terms of a liquor licence. [ 73 ] 2501, you must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer. [ 74 ] 2507-1, having consented in court, you must: (1) attend, participate in and successfully complete any intake, assessment, counselling, or treatment program to address your substance use as directed by the probation officer; (2) attend all scheduled appointments with your doctor, pharmacist, counsellor and treatment provider to treat your substance abuse; (3) take all Opioid Agonist medications and medical treatment prescribed for you; (4) provide your probation officer with the names, addresses and phone numbers of all your treating professionals, including your doctor, pharmacist, counsellor and treatment provider; (5) authorize your probation officer to give all professionals identified in this condition a copy of this order; (6) authorize your probation officer to tell all professionals identified in this condition that if you do not follow this order, they have your permission to inform your probation officer; (7) sign any document that is necessary for your probation officer and all professionals identified in this condition to confirm your attendance and completion of any intake, assessment, counselling, or treatment program; (8) if you decide not to follow these directions, you must immediately report this in person to your probation officer and tell them why.

If their office is closed, you must return immediately on the next business day during regular business hours. [ 75 ] 2508-A, having consented in court, you must: (

a) sign any document that is necessary for your probation officer, doctor, psychiatrist, psychologist, counsellor, or mental health worker, to share information concerning your attendance and completion of any intake, assessment, counselling, or treatment program and/or (

b) provide proof of your attendance and completion of any assessment, counselling, or treatment program if your probation officer requests it. [ 76 ] There will be the following standalone restitution orders, pursuant to s. 738. You pay restitution in the amount of $450.00 to Katherine Pagan through the clerk of the court. [ 77 ] Next, in the amount of $3,800.00 to McDonald's Campbell River Esso through the clerk of the court. [ 78 ] Lastly, in terms of the probation order, 2509, you must complete 35 hours of community work under the direction of your probation officer.

Such work is to give consideration to your skills in logging, specifically opportunities for trail maintenance in the local mountain biking/hiking community, hopefully with direction or ideas given by Pedal Your World, Campbell River. [ 79 ] Ancillary orders. You will submit to the RCMP detachment in Campbell River for the taking of a sample of your DNA by June 30, 2023. The DNA order follows Information 43439-1, Count 3. That is the assault of the peace officer. [ 80 ] I will waive the payment of a victim fine surcharge.

I do so considering the quantum of the restitution orders, and also the fact of there being dependent children who have not been supported by their father, it would appear, since 2019. [ 81 ] So I am going to go back, Mr. Sprout, just to a couple of things. You are familiar with probation orders. The first -- so in terms

of the no-go, no contact with Ms. Pagan, it permits parenting time. It permits communication for that purpose. It permits communication for paying child support.

It also permits you to go to Family Court and seek variations to this order there, so a variation there is effective here. [ 82 ] Next, the no-go's of the places where the break and enters and the thefts occurred, what is not something you are familiar with, is for the first six months of this order, there is only going to be two hours in any given day where you are allowed to go out and get groceries, go to the pharmacy, do what you need to do in terms of going into those types of facilities.

So because your crime was a property crime -- certain of your crimes were property crimes involving commercial facilities. You are only going to be permitted to go into those places, and you cannot go into certain of them, so you cannot go to Walmart; but if you are going into a business and you can - - you are going to have to have that time, I am going to leave it to you to discuss with your probation officer.

Like so if you get a job and you are leaving at seven in the morning and getting home at seven at night, then you get that permission from your probation officer, saying, "I need from 7:30 to 9:30 to be able to go do my grocery shopping." If it needs to be changed, you need to change it in advance, right. So it is going to be the same two hours, that same window, for you to be able to go out and do those things. Otherwise, you are not in any places like that. [ 83 ] There are exceptions, right.

So if there is an NA meeting somewhere that is in sort of a business premise, or an AA meeting, or if you are going into places like that for your counselling or for your treatment, etc., those are exceptions.

You will discuss those exceptions with your probation officer. [ 84 ] If for whatever reason in terms of any job you get, if for whatever reason you are unsuccessful in getting work in a logging camp and you are doing something else, you are going to need to speak to your probation officer about making exceptions for when you are there at work. [ 85 ] For the first 12 months of this order, you can go and have fast food at the A&W or wherever you want to go.

You cannot go to any restaurant that has got a liquor licence, okay, and that is intended largely to support you and your recovery to just be away from places that are serving alcohol, because I look at your past. You had some issues with alcohol in the past. I know it is not a significant thing now, but let us just keep you away from those things. [ 86 ] The next thing is the very -- it is a long description. It is 2507. It is basically this. You are going to continue your methadone program. I will call it that. I do not know what exactly you are being prescribed. The basic consideration is this.

There is complete transparency between your medical, mental health, and addictions treatment team, and your probation officer. So they can speak to your probation officer or your probation officer can speak to them.

So your probation officer becomes essentially embedded within that team. [ 87 ] So if you are supposed to -- I don't know if you have an injectable or if it is a daily dose, but if you miss going on the day that you are supposed to go to get your methadone, then the expectation is your medical team will contact your probation officer and say, "He didn't show up for his methadone." So the alert goes out. All right. [ 88 ] THE ACCUSED: Okay. [ 89 ] THE COURT: Hopefully, there is a quick intervention. Maybe something happened. You did not get a ride back from your logging camp, and there is an explanation.

Otherwise, we know about it and so an intervention can occur. [ 90 ] There are standalone restitution orders. The 35 hours of community work service is -- there was -- one of the victims was the B & E with respect to the bike shop. I will say that my assumption, given your background, is you have some skills. You know how to run a chainsaw. You know how to build roads. You know how to do the kind of things that happen in the logging industry. I genuinely believe this, that that would be a good way for you to be able to then be a part of your community.

I am aware that most bike shops have an involvement in that type of work, and they are always looking for people to clear logs and clear trees that have fallen across trails, etc. My expectation is your probation officer will speak with an organization like that, and that you can then use your skills in a prosocial way, to do something like that, and I actually believe that it is likely something that you would enjoy. [ 91 ] I will just leave this with you, Mr. Sprout.

It is not a part of my sentencing decision, but we recently had an opportunity as judges to hear from an addictions expert within the public health system. I am not going to get this right, but it was essentially this, the opposite of addiction is not being clean or substance free. The opposite of addiction is connection. It is becoming a part of a community and having that social engagement. That idea of you doing something positive and prosocial as part of your probation and doing things like that and seeing your value in your community is, I think, a good part of your recovery.

It is likely also, and I encourage you to reconnect with your community, and I don't know your community -- your Indigenous community as well as I know some of those on the North Coast, but my sense, too, is that that type of giving back is also consistent with the traditional principles of your role within your community. You can just, you know, imagine kids, [indiscernible] mountain biking, doing positive things and you being a part of that, all right, and perhaps even teaching other people how to do that. [ 92 ] If you lived in Prince Rupert, there is a person that I would want you to meet.

An Indigenous man who had a very, very serious criminal record and background, but from his experience in logging became an arborist. He is a constant point of contact for people like you, in terms of people on their release from jail, finding work, gaining skills, getting back on their feet, and also being supported by someone who has faced his addictions and faced his criminal past and has returned himself to the life he was meant to live. [ 93 ] I need to assure myself, Mr. Sprout, that you understand the conditions of your probation order?

You do? [ 94 ] THE ACCUSED: Yes, I do, Your Honour. [ 95 ] THE COURT: You understand that if you breach those conditions, you can be arrested in relation to the breach. You can be taken into custody. That you, once in custody, you would await a decision by a judge whether you would be released. You could stay in custody until your matters were heard by trial and a breach can result in further criminal charges. Do you understand all of that? [ 96 ] THE ACCUSED: Yes, I do.

[ 97 ] THE COURT: Madam Clerk, I am satisfied that Mr. Sprout understands the conditions of his probation order and the consequences of breach thereof. In the circumstances, I dispense with the need for him to appear before the court be read into the probation order and affix his signature to that probation order. I do not believe that a restitution order is something that needs to be mailed out, is it, to your knowledge? [ 98 ] THE CLERK: I am not sure, Your Honour. [ 99 ] THE COURT: All right. If it is, all we can do at this point is mail it to probation, because I take it, Mr.

Sprout, do you -- you do not have -- you do not know where you are going to live yet, do you? [ 100 ] THE ACCUSED: Not yet, no, Your Honour. [ 101 ] THE COURT: All right. The last thing is this, Mr. Sprout, before I turn to the Crown, because I think there are some outstanding counts. I want to make sure you do have a plan in place. I mean, you have been clean now for some period of time.

Do you have a plan in terms of what supports you are going to engage with, where you are going to go? [ 102 ] THE ACCUSED: Yeah, I've got -- I have family in Say -- I have family in Sayward and friends in Campbell River that I might be able to stay with. I just don't have phone numbers in here to contact them right now, but as soon as I get out, I will be able to talk to them. [ 103 ] THE COURT: Okay.

Do you have your prescription ready for methadone? [ 104 ] THE ACCUSED: Yes. [ 105 ] THE COURT: When is your next dose? [ 106 ] THE ACCUSED: In the morning. [ 107 ] THE COURT: Do you get it every day then? [ 108 ] THE ACCUSED: Yes. [ 109 ] THE COURT: Are you able to get methadone in Sayward? [ 110 ] THE ACCUSED: Yep. Yep. They have it up there. [ 111 ] THE COURT: All right. Okay. Just make sure that you have got all -- like your plan contemplates where you are going to get your methadone, supporting that, getting to meetings, being supported.

I mean, I am sure you are resolved not to find yourself where you were and take advantage of this period where you have been clean. Make sure you seek out and ask supports, okay. Your first thing -- your first focus has to really be, what you know you need to do to maintain -- to live without your substance abuse. Clear? All right. [ 112 ] THE ACCUSED: Yes, sir. [ 113 ] THE COURT: Crown, are there stays? Are there outstanding counts? I am not sure. [ 114 ] CNSL J. PETTY: Yes, there are, Your Honour. On Information -- so I will go through those now.

The Crown stays Counts 2 and 4 on Information 43436, Count 2 on Information 43439, and Count 2 on Information 43431-2-A. [ 115 ] THE COURT: All right. Is everything clear on your end, Madam Clerk? [ 116 ] THE CLERK: Is it a primary or secondary -- [ 117 ] THE COURT: On the DNA? [ 118 ] THE CLERK: -- on the DNA? [ 119 ] THE COURT: It is secondary. [ 120 ] THE CLERK: Okay.

Thank you. [ 121 ] THE COURT: I did not put it on the record, but given his record, given the minimal intrusion on his privacy, given the nature of the offence, an assault on a peace officer, he should have a DNA sample. [ 122 ] THE CLERK: Okay. [ 123 ] THE COURT: Thank you. (REASONS FOR SENTENCE CONCLUDED)