R. v. Wilson Date:, 2014 BCPC 193

Citation: R. v. Wilson Date: 20140829 2014 BCPC 0193 File Nos: 35333A5, 35333A6 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHANE ARTHUR WILSON REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Counsel for the Crown: A. Baines Counsel for the Defendant: M. Houg Place of Hearing: Prince George , B.C. Date of Hearing: March 14 and June 24, 2014 Date of Judgment: August 29, 2014

INTRODUCTION [ 1 ] The Defendant, Shane Arthur Wilson, has pleaded guilty to two breaches of a recognizance (the Recognizance) under s. 810.2 of the Criminal Code (the Code ) by failing to comply with the residence requirement and the reporting requirement set out in the Recognizance between August 8 and 20, 2013, contrary to s. 811 of the Code. [ 2 ] The Crown seeks a sentence of 18 months incarceration in a provincial prison, with credit for time already served on a 1 for 1 basis followed by a Probation Order for three years. [ 3 ] Defence counsel seeks a sentence of time served with credit for time already served on a 1.5 to 1 basis followed by a brief Probation Order.

CIRCUMSTANCES OF THE OFFENCES [ 4 ] The Defendant was released from custody on May 8, 2012 and subject to the Recognizance for a two-year period. The Recognizance required the Defendant, inter alia , to report to a Probation Officer as directed and to reside in an approved residence. [ 5 ] Beginning on August 8, 2013, and up to August 20, 2013, the Defendant failed to report to his Probation Officer and did not reside in an approved residence. In fact, he was not located until November 10, 2013 when he was arrested.

He has remained in custody without applying for bail since then for a total of 293 days. [ 6 ] As described in the Presentence Report the Defendant accepts responsibility for his breaches but claims he had no choice because the Royal Canadian Mounted Police (RCMP), Community Corrections and the “justice system” campaigned to see him incarcerated. The Defendant, convinced of this situation, decided to breach the Recognizance and enjoy his summer and create memories to sustain him while in custody. He expresses no regrets for deciding to breach the Recognizance.

THE DEFENDANT’S PERSONAL HISTIORY [ 7 ] The circumstances of the Defendant’s personal history were primarily obtained from the reports filed. [ 8 ] The Defendant is 36 years of age and is of Métis heritage. He has three siblings two who are older and one who is younger than him. [ 9 ] He was sexually abused as an infant by his father.

He received some counselling for the abuse at a young age but it provided little assistance to him. [ 10 ] The Defendant was exposed to alcohol abuse and violence by adults towards each other and towards him during his childhood years. [ 11 ] The Defendant had a difficult relationship with his stepfather, particularly after his half-brother was born. The Defendant’s behaviour became unmanageable and he was placed in foster care.

He was subjected to many placements while in foster care and often ran away because, as he described it, he “didn’t like to be confined”. [ 12 ] He left school in Grade 6 and largely provided for himself by whatever activity would provide financial gain. He obtained Grade 12 and some other employment related certificates while in prison. He has no stable employment history. [ 13 ] He has had a few intimate personal relationships in his adult life with the longest one lasting approximately 3 years.

He has developed a large number of negative peer acquaintances throughout his life. [ 14 ] He is well read in a variety of subjects and utilizes that knowledge to assist himself and others in attempts to obtain better prison conditions. [ 15 ] He is a regular user of marijuana, even while in prison, which he says assists in keeping him calm but denies other substance abuse issues. [ 16 ] He says he has a friend who has provided him with several thousand dollars to allow him to make a fresh start in Manitoba upon his release from custody.

THE DEFENDANT’S CRIMINAL HISTORY [ 17 ] The Defendant has a lengthy and serious criminal record dating back to 1993 which consists of the following convictions:

a) Three robberies,

b) Three wearing a disguise with intent,

c) Eleven break and enters,

d) Three thefts,

e) Three obstruction of a peace officer,

f) One obstruction of justice,

g) Four assaults,

h) One threatening

i) Two attempt to escape lawful custody,

j) Two dangerous operation of a motor vehicle,

k) Two weapons offences,

l) One possession of a controlled substance,

m) Two mischiefs, and

n) Ten breaches of recognizance for a total of 48 criminal convictions. [ 18 ] The Defendant has been subject to a total of three s. 810.2 Recognizances since September 10, 2008.

During those almost six years the Defendant has been in the community in lawful compliance of the Recognizances for total of 260 days (or approximately 12% of the time), he has been unlawfully at large for a total of 205 days (or approximately 9% of the time) and he has been in custody for a variety of reasons for 1,765 days (or approximately 79% of the time). [ 19 ] At the time of the present offences the Defendant was also on a three-year probation order for spousal assault and previous breaches of the Recognizance.

THE LAW Criminal Code [ 20 ] The following sections of the Criminal Code have application in arriving at a just and appropriate sentence in this matter: a) s. 524(8)

(8) Where an accused described in subsection (3), other than an accused to whom paragraph (

a) of that subsection applies, is taken before the justice and the justice finds (

a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or (

b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10).

b) s. 718 - s. 718.2 (in part) 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. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 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… (

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

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

c) s.719 (3) and (3.1) (3.2) and (3.3)

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody 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).

(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.

(3.3) The court shall cause to be stated in the record and on the warrant of committal the offence, the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed.

d) s. 732.1(3)(h)

(3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following: (

h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender’s successful reintegration into the community.

e) s. 810.2 (1), (3) and (4) 810.2

(1) Any person who fears on reasonable grounds that another person will commit a serious personal injury offence, as that expression is defined in

section 752, may, with the consent of the Attorney General, lay an information before a provincial court judge, whether or not the person or persons in respect of whom it is feared that the offence will be committed are named. …

(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for a period that does not exceed 12 months. (3.1) however, if the Provincial Court judge is also satisfied that the defendant was convicted previously of an offence referred to in subsection (1), Judge may order that the defendant enter into the recognizance for a period that does not exceed two years.

(4) The provincial court judge may commit the defendant to prison for a term not exceeding twelve months if the defendant fails or refuses to enter into the recognizance.

f) s. 811 811. A person bound by a recognizance under

section 83.3, 810, 810.01, 810.1 or 810.2 who commits a breach of the recognizance is guilty of (

a) an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) an offence punishable on

summary conviction. Case Law Presentence Custody Credit [ 21 ] Counsel presented the following cases on the issue of presentence custody credit:

a) R. v. Summers 2014 SCC 26 ,

b) R. v. Foster 2014 ONCA 483 . Appropriate Sentence Crown [ 22 ] The Crown relied on the following cases on the issue of the appropriate sentence to be imposed:

a) R. v. Zimmerman 2010 ABPC 288 and 2011 ABCA 276 ,

b) R. v. Lanferman 2011 BCCA 438 ,

c) R. v. Ballantyne 2012 SKPC 168 ,

d) R. v. Labbe [2006] O.J. No. 4347

e) R. v. Spurr [2000] O.J. No. 6040. Defence [23] The Defence relied on the following cases on the issue of the appropriate sentence to be imposed:

a) R. v. McLean 2014 BCPC 74 , 2014 BCPC 0074,

b) R. v. De Gayton 2007 BCPC 182 , 2007 BCPC 0182

c) R. v.Teneycke 2007 BCPC 410. PRESENTENCE CUSTODY CREDIT Evidence and Submissions [24] Defence counsel did not produce any evidence in support of his contention that the Defendant should receive 1.5 to 1 credit.Instead, he relied on what he described as the default situation concerning the loss of early release as described in Summers and thatalthough the Defendant was occasionally difficult while in custody his behaviour was not enough to deprive him of the enhanced credit. [25] The Crown presented evidence of the Defendant’s Client Log and a

summary of that Log prepared by the Assistant DeputyWarden, Sentence Management Unit for the Prince George Regional Correctional Center (PGRCC). [26] Both of those documents indicate that, much like when he has been under the supervision of Community Corrections, theDefendant has regularly been defiant, noncompliant or obstructive with directions given by PGRCC staff thereby interfering with thegood order of that institution. [27] The Crown submitted that the Defendant has not met the onus placed on him under s.719 (3.1) and the Summers decision todemonstrate that enhanced credit is appropriate.

The Crown referred the Court to several paragraphs of Karakatsanis’ J. decision onbehalf of the Supreme Court of Canada in Summers including: [48] Second, an

interpretation of “circumstances” that includes loss of eligibility for parole and early release does not rendersubsection 3 redundant. Where an accused falls under an explicit exception to s. 719 (3.1) (for instance because she has been detained forbreach of bail conditions), the one -for-one cap set by s. 719 (3) will apply. Moreover, enhanced credit need not be granted in every case.For example, when long periods of presentence detention are attributable to the wrongful conduct of the offender, enhanced credit willoften be inappropriate.

Section 719 (3) continues to exist for such cases. … [71] The loss of early release, taken alone, and generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if theconditions of detention are not particularly harsh, and parole unlikely. Of course, a lower rate may be appropriate when detention was aresult of the offender’s bad conduct, or the offender is likely to obtain neither early release nor parole.

When the statutory exceptionswithin as. 719 (3.1) are engaged credit may only be given at a rate of 1 to 1. … [78] However, judges are often called upon to make assessments about the offender’s future, for example by considering prospectsfor rehabilitation. I see no reason why judges cannot draw similar inferences with respect to the offender’s future conduct in prison andthe likelihood of parole or early release. [79] The process need not be elaborate. The onus is on the offender to demonstrate that he should be awarded enhanced credit as aresult of his pre-sentence detention.

Generally speaking, the fact that pre-sentence detention has occurred will usually be sufficient togive rise to an inference that the offender has lost eligibility for parole or early release, justifying enhanced credit. Of course, the Crownmay respond by challenging such an inference. There will be particularly dangerous offenders who have committed certain seriousoffenses for whom early release and parole are simply not available. Similarly, if the accused conduct in jail suggests that he is unlikelyto be granted early release or parole, the judge may be justified in withholding enhanced credit.

Extensive evidence will rarely benecessary. A practical approach is required that does not complicate or prolong the sentencing process. [28] The Crown relies on these paragraphs from Summers to support their submission that a 1 for 1 credit should apply in this case. Discussion and Decision [29] On the day the Defendant was arrested he was on the Recognizance.

The Recognizance is effectively both a form of bail andthe promise of the person entering into it to perform certain duties and obligations to the Court and the community to avoid, in somecircumstances, the possibility of criminal charges being preferred or in others to avoid being held in custody until matters are resolved. [30] At the time of his arrest the Defendant was in breach of two distinct and separate terms of the Recognizance.

He was, byoperation of s. 524 (8) of the Code, in contravention of the Recognizance and subject to automatic detention pending his reasonableopportunity to show cause why he should be released. The Defendant chose not to seek his release. It is not appropriate for him toattempt to utilize the fiction that because he did not seek his release on bail that he was not “detained”. He was detained immediatelyupon the warrant executed at the time of his arrest. [31] In the circumstances of this case the Defendant is not entitled to enhanced presentence credit for two reasons. First, the

Defendant was in effect detained under s. 524 (8) . Second, his behaviour while in custody has been such that, to date, he has demonstrated that it is very unlikely that he will gain any early release other than that which is statutorily or mandatorily required. [ 32 ] As such, the Defendant shall receive credit for the 293 days he has been in custody on a 1 for 1 basis. APPROPRIATE SENTENCE Crown Evidence [ 33 ] At the request of Defence counsel the Crown called Cindy Ross the Defendant’ s supervising Probation Officer since February 2010. Her evidence can be summarized as follows:

a) she provided a detailed review of her dealings with the Defendant from 2010 to the present including her attempts to refer him to a variety of community resources most of which were either declined by the Defendant or by the resource providers,

b) one resource provider suggested to her that the Defendant had disabilities but was not specific as to what those were,

c) she permitted the Defendant to move from Prince George to Quesnel in 2013 and soon thereafter he ceased reporting completely until his arrest in November 2013,

d) she attempted to get the Defendant assessed and assisted by Forensic Psychiatric Services but the Defendant was never legally in the community long enough to put assessments or counselling in place,

e) despite information she had from other sources the Defendant denied any substance or alcohol abuse issues,

f) she did not obtain some reports prepared by the Correctional Service of Canada concerning the Defendant because she had enough information about him available to her from other sources,

g) she acknowledged it was her responsibility to refer the Defendant for assessments, counselling or programs as detailed in the Recognizance,

h) she was unable to definitively indicate what assessments, counselling or programs she would offer to the Defendant upon his release from custody because she could not predict how the Defendant would respond to the programming available to him while in custody and additional resources available in the community both from the perspective of what the Defendant would accept and which programs would accept the Defendant,

i) she acknowledged that the Defendant never refused her assistance but that he didn’t seem to have a mature or adult understanding that his actions may result in certain outcomes or consequences,

j) when the Defendant was last out of custody in August 2013 there was no immediate plan in place to refer him to mental health counselling but there were other programs available to the Defendant in Prince George which he could have utilized but the Defendant wished to move to Quesnel where such programming was unavailable. Defence Evidence [ 34 ] The Defendant gave evidence on his own behalf. That evidence can be summarized as follows:

a) the Presentence Report does not reflect what he told Ms. Ross in several instances,

b) in several areas Dr. Morgan misunderstood or misinterpreted what the Defendant told him resulting in inaccuracies in his report,

c) he does not drink alcohol but has infrequently used other drugs except for marijuana which he uses regularly,

d) he would like to return to Manitoba upon his release because it would get him away from his criminal associates in Prince George. He has a network of family and friends in Manitoba and an opportunity for employment upon his return,

e) he re-established contact with his family in Manitoba over a year ago and keeps in touch with them through letters and phone calls. Reports [ 35 ] During his time in the criminal justice system the Defendant has been assessed and reports have been written about him on many occasions. The first in time presented to the Court was a Psychological Risk Assessment Report prepared on May 18, 2007 by a Registered Psychologist employed by the Correctional Service of Canada. [ 36 ] In that report three previous Psychological Assessments were reviewed and referred to by the author.

Those previous reports described the Defendant as an untreated violent offender with a risk for violent recidivism likely to cause serious harm if released and who was only in the initial stages of considering a pro social change. [ 37 ] However, the May 18, 2007 report noted that although the Defendant was accessing a variety of counselling and programs while in custody he was, up until very recently before the report’s date, not ready or willing to make prosocial changes.

The author did comment that due to recent intense counselling and programs the Defendant was beginning to acquire the necessary tools to be successful upon release. [ 38 ] The second report was the Presentence Report prepared on May 23, 2014 by Probation Officer Cindy Ross. The salient points

from that Presentence Report not already referred to in this decision can be summarized as follows:

a) the Defendant’s family wants him to return to Manitoba. They have worked hard to overcome their difficulties and challenges from the past and believe they can assist the Defendant.

b) the Defendant’s family members acknowledge knowing very little about the Defendant for the past 16 years including his criminal history, his substance abuse issues and his personal life,

c) the Defendant’s extensive criminal history includes violence and opposition to authority including his involvement in the Kent Institution riot, assaulting a correctional officer and attempted prison escapes,

d) the Defendant has been described in previous reports prepared on him by correctional authorities to be “an untreated violent offender who was at high risk to reoffend in a manner that could be dangerous to public safety”,

e) during his times in custody the Defendant has been disruptive, defiant and noncompliant with correctional staff

f) during the several times the Defendant has been on a Recognizance he has committed a variety of further substantive criminal offences,

g) while in the community the Defendant has been uncooperative with Community Corrections and unwilling to abide by the terms of his Recognizance,

h) during his limited time in the community while on recognizances the Defendant has not requested income assistance but has been able to meet his shelter, food and other needs through the help of what he describes as “friends”,

i) the Defendant holds the view that because he now understands his risk factors and has the desire to stop that activity he will be able to do so immediately upon release. However, the Defendant has said such things before both while in and out of custody without much success. [ 39 ] The third report was a Psychiatric Risk Assessment Report prepared on June 16, 2014 by Dr. D. W. Morgan, a consulting psychiatrist to the Forensic Psychiatric Services Commission. Dr. Morgan’s report relevant to this proceeding can be summarized as follows:

a) the Defendant experienced difficulties with interpersonal relationships and authority figures since childhood,

b) the Defendant has a long history of criminal behaviour including many violent offences (but none since 2001) and many breach convictions, gang involvement and substance abuse difficulties,

c) the Defendant has no mental health history,

d) for the most part the Defendant’s criminal history are offences based on planned out activities as opposed impulsive actions,

e) the Defendant reports he is very aware of his “rights” while in prison and is not reluctant to be oppositional to assert them,

f) the Defendant presented as a superficially charming, intelligent and articulate person capable of discussing complex issues at length and in depth,

g) the Defendant wants to return to Winnipeg, Manitoba because he has no criminal associates there, he has family support and employment possibilities,

h) the Defendant’s highest risk for violence would be instrumentally based on his lifestyle choices and may include weapons and the likelihood for such activities is high,

i) the Defendant is also at risk of impulsive violence against an intimate partner or immediate associates which behaviour would be increased if he was intoxicated with stimulants or alcohol,

j) the Defendant has underlying long-standing psychological issues surrounding authority, trust, rejection, control and abandonment. These are deep-seated behaviours which will pose challenges for those in authority who have to deal with him. Crown Submissions [ 40 ] The Crown emphasized that the primary considerations in sentencing the Defendant must be the protection of the public, specific and general deterrence. [ 41 ] In support of that position the Crown pointed to portions of Dr.

Morgan’s report and the Presentence Report that raise many concerns about the Defendant’s past behaviour and the risk for him to commit further criminal offences in the future. These included the following points:

a) the Defendant’s aggressiveness, defiance and noncompliance concerning his management both in custody and out of custody,

b) the Defendant’ s lack of employment history and lack of social supports resulting from not having any long-term relationships,

c) the Defendant’s lack of any mental illness but his ongoing and regular substance abuse,

d) the need for a curfew and a residency requirement to monitor the Defendant despite his deliberate decisions to breach the terms of

his Recognizance,

e) the Defendant’s family supports may be positive but they have had no real contact with him for over 16 years and know little of his lifestyle or criminal behaviour during that period,

f) based on all information available and the reports provided the Defendant is at high risk to reoffend,

g) although probation orders are fundamentally meant to be rehabilitative the Court can impose conditions in order to protect society. Defence Submissions [ 42 ] Defence counsel submissions can be summarized as follows:

a) that the placing the Defendant on a series of almost continuous recognizances have not served him or the community very well,

b) after almost 6 years of being on recognizances the Defendant is unable to “connect the dots” between his actions and the consequences,

c) despite a duty to do so the Defendant’ s probation officer has offered him nothing in the way of a plan for assessment, counselling or programs either in the past or in planning for his future upon his release,

d) the Crown seems content to subject the Defendant to another in a series of recognizances at the end of his present sentence rather than trying to address his issues,

e) prison is for punishment and probation orders are for rehabilitation but the Crown’s position is both harsh and draconian with regard to the length of prison sentence they seek, the nature of the credit the Defendant should receive for his time in custody to date and the length, terms and conditions of the probation order,

f) since the Defendant’s release from his robbery convictions many years ago he has not participated in any significant further violence,

g) the Defendant has a plan for his release to return to Manitoba to reintegrate with his family. Although his family may not be perfect they have moved forward in their lives and offer a better opportunity for the Defendant then he has available to him in British Columbia.

h) the Defendant would better react to a probation order with the bare minimum of terms and conditions so as to reduce the risk of him committing breach offences. Discussion and Decision [ 43 ] The Crown and the Defence both presented numerous cases in which sentences of various lengths were imposed for a breach of a s. 810.2 recognizance.

Most of those cases discussed the various principles to be applied to the specific facts of the case and the circumstances of the offender before the court. [ 44 ] However, two of the cases presented provide considerable guidance to the Court in arriving at an appropriate and just sentence in this case. [ 45 ] In Zimmerman the Alberta Court of Appeal referred to the sentencing judge’s decision and summarized eight considerations for sentencing relevant to a breach of an as. 810.2 recognizance as follows:

a) the primary purpose of sentencing for breach of an s. 810.2 recognizance is the protection of the public and paramount consideration should be placed on this purpose and on the sentencing objectives of specific and general deterrence;

b) the gravity of the breach must be examined in the context of the offender’s history;

c) the sentencing judge must never lose sight of the proportionality principle;

d) a breach of a s. 810.2 recognizance will usually result in a more serious sentence than a breach of a probation order as s. 810.2 recognizances and probation orders have different primary purposes and come with different risks when breached;

e) a s. 810.2 recognizance has similar purpose and method as a long-term offender order but should not be confused with a long-term offender order;

f) when sentencing for a breach of a s. 810.2 recognizance the sentencing judge should be concerned about managing the offender’s risk to the community;

g) deliberately absenting oneself to subvert the conditions of close supervision in a s. 810.2 recognizance is an aggravating factor; and,

h) the sentencing judge must consider all of the principles of sentencing in s. 718 to s. 718.2 of the Criminal Code . [ 46 ] In Ballantyne Robinson, PCJ of the Saskatchewan Provincial Court referred to and applied the Supreme Court of Canada’s decision in R. v. Ipeelee 2012 SCC 13 as it pertains to the importance of focusing on rehabilitation of offenders. Although Ipeelee dealt with the breach of a long-term supervision order pursuant s. 753.1 of the Code like the court in Zimmerman he recognized the similarity between those breaches and breaches of an s.810.2 recognizance.

[47] The judge in Ballantyne quoted from the decision of the Supreme Court of Canada in Ipeelee where Lebel J, for the majority,said at paragraph 48; 48. Reading the Criminal Code, the CCRA and the applicable juris prudence together, we can therefore identify two specific objectivesof long-term supervision as a form of conditional release: (1) protecting the public from the risk of re-offence, and (2) rehabilitating theoffender and reintegrating him or her into the community.

The latter objective may properly be described as the ultimate purpose of anLTSO, as indicated by s. 100 of the CCRA, although it is inextricably intertwined with the former. Unfortunately, provincial andappellate courts have tended to emphasize the protection of the public at the expense of the rehabilitation of offenders.

This, in turn hasaffected their determinations of what is a fit sentence for breaching a condition of an LTSO. [48] The Judge in Ballantyne also referred to Ipeelee in dealing with the issue of proportionality where at paragraph 37 of thedecision LeBel J. said: 37. … Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of theoffence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justicesystem.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moralblameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.In the Canadian criminal justice system, just sanction is one that reflects both perspectives on proportionality and does not elevate one atthe expense of the other. [49] On the application of the principles originally described by the Supreme Court of Canada in R. v.

Gladue (SCC), [1999] 1 S.C.R.688 the Judge in Ballantyne referred to LeBel J’s comments in paragraph 87 of Ipeelee: 87. The sentencing judge has a statutory duty, imposed by s. 718.2 (

e) of the Criminal Code, to consider the unique circumstances ofaboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of the statutory obligation. Asthese reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamentalprinciple of proportionality.

Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender,including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention. [50] The application of the eight factors described in Zimmerman to the circumstances of this case results in the following:

a) protection of the public and specific and general deterrence are paramount considerations. However, it appears up until now thatspecific deterrence is not having the desired effect on the Defendant. The Defendant made a deliberate and considered decision to breachthe terms of the Recognizance calculating that, from his perspective, it was worth it to do so in the face of punishment to follow so as tospend his time out of custody as he saw fit.

It appears that it would be hard to protect the public through a community-based supervisionof the Defendant because he is constantly breaching the Court's direction and regularly commits further substantive offences while underthe terms of recognizances,

b) the gravity of the breach in the context of the Defendant’s criminal history can be described as not as serious as some of hisprevious violent offence convictions but the breach was not an impulsive act but rather a calculated decision,

c) in dealing with proportionality it is useful to note that although the Defendant breached the Recognizance he did not commit anyfurther substantive offences while he was unlawfully at large unlike previous occasions,

d) the breach of the Recognizance is more serious than the breach of a probation order because of the nature of the behaviour that isattempted to be controlled,

e) the breach of the Recognizance is similar to but not identical to a breach of a Long Term Supervision Order and that must berecognized when comparing the facts here to the facts described in Ipeelee, Ladue and Ballantyne,

f) based on the reports presented managing the Defendant’s risk to the community will be extremely difficult and challenging basedon his behaviours both while in custody and out of custody,

g) the Defendant’s decision in deliberately absenting himself to subvert the conditions of the Recognizance is an aggravating factor,

h) all of the applicable purposes and principles of sentencing described in s. 718 to s.718.2 of the Code must be carefully applied inrelation to the circumstances of this case. [51] In addition, the principles enunciated in Gladue and reaffirmed in Ipeelee have to be given consideration. Even though there wasno evidence presented on how the factors described in those cases affected the Defendant, if at all, the underlying concepts enunciatedmust be given weight in arriving at a just and appropriate sentence. [52] Overall, the Crown’s position is too extreme in the circumstances.

By the same token the Defence counsel’s position is not asufficient judicial or community response to the Defendant’s deliberate and planned decision to breach the Recognizance and absenthimself from supervision for several months. [53] In arriving at the just and appropriate sentence for the Defendant in this matter the Court has considered the following:

a) the Defendant’ s personal history

b) the Defendant’s criminal history

c) the circumstances of the present offences,

d) the various reports prepared about the Defendant both in the past and present,

e) the evidence presented on behalf of the Crown and the Defendant,

f) the statute and case law provided,

g) the able submissions of counsel, and

h) the Defendant’s plans for his future upon release. ORDERS [ 54 ] The appropriate sentence for the two breaches of the Recognizance is a concurrent sentence of 453 days, approximately 15 months. The Defendant will receive credit for the time he has already served in custody of 293 days leaving a further sentence of 160 days.

This additional time in custody will also provide the Defendant with sufficient time to make the plans he wishes to make with his family to return to Manitoba as soon as Community Corrections can arrange such a move during his probationary term. [ 55 ] The prison sentence will be followed by a Probation Order for 18 months which will have the following terms and conditions:

a) You shall keep the peace and be of good behaviour.

b) You shall appear before the court when required to do so by the court.

c) You shall notify the court or the Probation Officer in advance of any change of name, or address, and promptly notify the court or the Probation Officer of any change of employment or occupation.

d) Within 48 hours after completing your jail sentence you shall report in person to the Probation Office located at #101-250 GEORGE STREET, PRINCE GEORGE, B.C ., and after that you shall report as and when directed by the Probation Officer.

e) After your first reporting to the Probation Officer, further reporting may include reporting by telephone, at the discretion of the Probation Officer.

f) You shall reside at a residence approved in advance by the Probation Officer, and you shall not change your residence at any time without first obtaining the written consent of the Probation Officer.

g) You shall obey a curfew by being inside of your residence (or on the lot on which your residence is located) between the hours of 11 p.m. and 6 a.m. each day, except as follows:

i) with the written consent of the Probation Officer obtained in advance. Such consent is to be given only for compelling personal, family or employment reasons. ii) when traveling directly to, or returning directly from, your place of employment, or while in the course of your employment. You shall provide the Probation Officer with written proof of employment; iii) when traveling directly to, or returning directly from, an educational institution at which you are enrolled, or while in the course of classes or extracurricular activities approved by the Probation Officer at such educational institution.

You shall provide the Probation Officer with written proof of your educational enrollment, your attendance at classes and your involvement in extracurricular activities; iv) in the event of a medical emergency and then only when traveling directly to or returning directly from a hospital emergency ward.

h) You shall present yourself at the door to your residence when any Peace Officer or Probation Officer attends there for the purpose of determining your compliance with the curfew conditions of this Order.

i) You shall respond personally and immediately to the telephone when a Peace Officer or Probation Officer makes a telephone call to your residence for the purpose of determining your compliance with the curfew conditions of this Order.

j) You shall not possess any weapon as defined in

Section 2 of the Criminal Code .

k) You shall attend, participate in and successfully complete any assessment, counselling or program as directed by the Probation Officer. Without limiting the general nature of this condition, such assessment, counseling or program may include and relate to:

i) anger management ii) alcohol or drug abuse iii) a full-time attendance program for alcohol or drug abuse and you shall comply with all rules and regulations of any such assessment, counseling or program.

l) you shall not knowingly associate with any person you are directed not to associate with by your probation officer

m) You shall have no contact or communication, directly or indirectly, with the victims of offences for which you have been

convicted or known members of their immediate families.

n) You shall not attend at, or be within 100 meters of any place which you know to be the residence, school or workplace of the victims of offences for which you have been convicted or known members of their immediate families.

o) You must carry a copy of this Probation Order with you at all times when you are in public. If you are stopped by a Peace Officer for any reason you shall immediately provide the Peace Officer with a copy of this document without being requested to do so. [ 56 ] The terms and conditions of the Probation Order will give the Defendant sufficient time to get his life arranged, move to Manitoba and demonstrate to the supervising authorities that he is capable of engaging in prosocial activities such as reuniting with and taking guidance from his family and seeking and maintaining employment.

At the same time it will also give the authorities more than sufficient time to consider whether a further recognizance pursuant to s.810.2 of the Code is necessary. M.J. Brecknell Regional Administrative Judge Northern Region Provincial Court of BC