R. v. Voitovick Date:, 2017 BCPC 104

Citation: R. v. Voitovick Date: 20170217 2017 BCPC 104 File No: 91937-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. STEPHEN JAMES VOITOVICK ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: F. Malik Counsel for the Accused: M. Ellis Place of Hearing: Port Coquitlam , B.C. Date of Hearing: February 17, 2017 Date of Judgment: February 17, 2017

INTRODUCTION [ 1 ] THE COURT : The court is convened this morning for the purpose of sentencing Stephen James Voitovick in respect of Count 1 on Information 91937-1. That Information was sworn on October 15, 2014, with respect to matters that unfolded on June 5, 2014. Count 1 charges Mr. Voitovick with the offence of unlawfully possessing a controlled substance, that is to say, cocaine, for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 2 ] Earlier in 2016 when Mr.

Voitovick's trial on Information 91937 was scheduled to commence, he entered his guilty plea to Count 1. [ 3 ] Difficulties with the health circumstances of Mr. Voitovick's former counsel, Mr. Cranston, have resulted in unfortunate delays in proceeding with the sentencing. There have been several court appearances since sentencing submissions were begun. Those court appearances were not productive in the sense that the sentencing could not proceed due to the repeated inability of Mr.

Cranston to appear for reasons having to do with his health. [ 4 ] Today, the court has had the benefit of the submissions and representation of Mr. Voitovick by Mr. Ellis who has stepped in and taken over responsibility for this matter in light of Mr. Cranston's continuing medical difficulties. [ 5 ] The Crown proceeded against Mr. Voitovick on Information 91937-1 by Indictment. CIRCUMSTANCES OF THE OFFENCE [ 6 ] I will offer a very compressed and brief

summary of the circumstances of the offence for which Mr. Voitovick is now answerable. [ 7 ] The police interest in Mr. Voitovick was triggered by a Crime Stoppers tip in May of 2014. The tip informed police that the driver of a particular BMW, which was ultimately identified as being leased to Mr. Voitovick, had been observed selling drugs. The police, accordingly, commenced an investigation. It began with static surveillance of Mr. Voitovick's residence in which police observed him making multiple departures and returns to and from his residence.

That, I will say, enhanced police interest in his activities and was seen by police as some corroboration of the information received from the Crime Stoppers tipster. [ 8 ] Mr. Voitovick was also seen while out of his residence during some of these departures and returns to be involved in short- duration stops during which some hand-to-hand transactions appeared to take place. [ 9 ] All of these observations led police to apply for and obtain a search warrant, entitling them to search Mr.

Voitovick's residence. [ 10 ] On the offence date of June 5th, having made sufficient observations to give rise to a reasonable belief that Mr. Voitovick was arrestable for a drug offence, police arrested Mr. Voitovick and the search of his person conducted incidental to arrest turned up a baggy with 19 rocks of crack cocaine, another baggy with some powdered cocaine, and yet another baggy with an amount of heroin. Mr. Voitovick also had in his possession a BlackBerry cell phone and $340 in his wallet. Fortified in their belief that the tip had indeed revealed to them that Mr.

Voitovick was involved in illicit drug activities, the police then executed the search warrant they had obtained for his residence, number 115, 2477 Kelly Avenue. Is that Port Coquitlam, Ms. Malik? [ 11 ] MS. MALIK: Your Honour, the -- yes, Port Coquitlam. [ 12 ] THE COURT: Thank you. Within the apartment, upon executing the warrant, the police found a substantial quantity of other evidence indicative of involvement on Mr. Voitovick's

part in the illicit drug trade. There were multiple cell phones. There was a mini scale. There was, in one location, $3,720 in cash bundled up and segregated as to denomination. In another location, $3,252.12 in cash, once again, bundled up and segregated as to denomination. There were further quantities of crack cocaine, 20 pieces, or "rocks" as they are sometimes called, and so on. [ 13 ] While the investigation was ongoing, multiple incoming telephone calls were being received on the BlackBerry seized from Mr. Voitovick's person.

The officers who answered those incoming cell phone calls received requests for drugs. [ 14 ] Altogether, there were, in total, 11.79 grams of illicit drugs seized from Mr. Voitovick, either from his person or his residence, and $7,312.15 in cash. [ 15 ] Expert opinion evidence tendered by the Crown in the course of sentencing confirms the street value of the rocks of crack cocaine at $20 each so the 19 rocks obtained from Mr. Voitovick's person were of a value of $380 and the 20 rocks found in the residence were of a street value of $780.

The expert opined that the manner in which the money was located and configured, which is to say in denominated bundles, was consistent along with all of the rest of the evidence with a dial-a-dope, illicit drug operation. [ 16 ] That, I think, is a sufficient outline or

summary of the circumstances of the offence. EFFECTS OF THE OFFENDING ON VICTIMS [ 17 ] I turn to the issue of the effect of the offence on victims. Of course, we have before us no victim impact statement. There is no person before the court, either in person or in writing, to speak to the implications of Mr. Voitovick's offending for him or her.

However, as the cases widely recognize, involvement in the illicit drug trade, and in particular dial-a-dope drug operations, exacts a very substantial toll on society. [ 18 ] I am not going to turn to the authorities but I am going to paraphrase and speak in general terms about what the authorities tell us, starting with R. v. Franklin and the many cases that have cited it with approval. The illicit drug trade is a form of commercial activity

that depends on the dependency of drug users as the engine of its commercial success. That is to say, without people who are hopelessly and intractably in the grip of addictions, the illicit drug trade would have no commercial viability. Thus, the commercial activity of those who engage in drug trafficking can be tied directly to deep and pervasive human suffering. The drug trade represents a massive challenge for society as a whole.

It appropriates a large proportion of societal resources, including the resources of law enforcement, the resources of the medical and health care systems, the resources of the judicial system and those of the court system. All of these institutions within our society are disproportionately drawn upon to respond to problems originating with the illicit drug trade and, in particular, the illicit trade in hard drugs, the most addictive and most pernicious of all of the drugs that are available to be sold illicitly. The illicit drug trade spawns widespread ancillary criminality.

Crimes of violence are associated with the illicit drug trade. Other types of offending are associated with that drug trade and so when one speaks of the effect of the kind of offending that was committed by Mr. Voitovick on victims, one has to take a broad and holistic view and recognize that Mr. Voitovick was one of many cogs in a large machine that grinds society down and grinds down, in particular, some of its most vulnerable and pitiable members. [ 19 ] I am mindful, as I must be, of the fact that Mr.

Voitovick, while he was engaged in illicit drug activity involving crack cocaine and powdered cocaine, was one part of a larger enterprise that wreaks havoc in our society. No one should better understand that than Mr. Voitovick himself, who I am persuaded was in the icy grip of an addiction for a substantial period. [ 20 ] There is no victim impact statement but there is no shortage of impact on society as a whole and its various members for the court to take into consideration for the purpose of sentencing Mr. Voitovick. CIRCUMSTANCES OF THE OFFENDER [ 21 ] I turn to the circumstances of Mr. Voitovick himself.

I believe he is 28, Mr. Ellis? [ 22 ] MR. ELLIS: He's now 29, Your Honour. [ 23 ] THE COURT: Now 29. 27 at the time of the offence then? [ 24 ] MR. ELLIS: I think he was 26 actually. [ 25 ] THE COURT: 26? [ 26 ] MR. ELLIS: It's been almost three years. [ 27 ] THE COURT: All right. He was 26 at the time of the offending in June of 2014; now 29.

He has admitted what I think is recognized by the Crown to be an unrelated criminal history, which is to say he has one blemish on his record, that being a failure to or refusal to provide a breath sample conviction which was disposed of in November of 2007, a drinking and driving offence. [ 28 ] While Mr. Voitovick cannot say that he has no criminal record, the criminal record that he has is of near to negligible relevance for today's purposes. [ 29 ] Mr. Voitovick, as I understood Mr.

Cranston's earlier submissions, did not complete high school initially but later made up the shortfall in his education by taking high school courses later and obtaining either the equivalency of a Grade 12 certification or something close to it. [ 30 ] His family life was somewhat troubled. He comes from a family where his parents did not remain together. There was alcohol abuse in his family history and he began to drink alcohol himself as a teenager.

He became, as so often young people do, involved with illicit drugs after experimenting with alcohol and his experimenting with illicit drugs led him, rather swiftly, to become addicted first to cocaine and then to heroin. [ 31 ] Mr. Voitovick suffered an industrial accident where his foot was injured rather significantly. This required extensive medical management and he was prescribed Oxycontin for the purpose of controlling the pain.

Having already a history of experimenting with illicit substances, the medically-prescribed Oxycontin, while managing the pain of the crushed foot, ushered him into more experimentation, this time with heroin. His ability to meet his needs for illicit substances rapidly overtook his earnings which led him to get himself into debt with his suppliers and into difficulties with his suppliers. It is that economic crunch that ultimately propelled Mr. Voitovick to engage in the illicit drug trade as a person involved in the sale of drugs (where before he had simply been a consumer). [ 32 ] Mr.

Voitovick -- in his counsel's submissions that I take to be reflective of common ground between the Crown and defence -- had a binary motivation for his involvement in the illicit drug trade, the involvement that brings him before the court for sentencing today. Certainly some of the involvement was aimed at meeting his needs for money required to meet his needs for heroin. But some of it was driven by greed by an economic motive. We have Mr. Voitovick now answerable for the offence of possessing cocaine for the purpose of trafficking.

That offending was motivated in part by a need to service his own addiction and in part by a desire to fill his pockets with money resulting from his participation in a relatively sophisticated dial-a-dope operation. [ 33 ] In the wake of his arrest and being charged with the offence of possessing cocaine for the purpose of trafficking, Mr. Voitovick has taken proactive steps to address the underlying problem of his own addiction to heroin and to put his life on a more productive pathway forward. Mr. Voitovick finds himself today employed in two positions, one full-time and one part-time.

He is a full-time employee of a company called [redacted] where he is remunerated at the rate of $18 per hour. He has been working steadily for that company for a number of months. He also works part-time, one day per week, for an electrical company and he began performing services for that company for remuneration about a year ago. These steps taken by Mr. Voitovick to begin earning an honest dollar, as opposed to a dishonest dollar, are commendable and deserving of the court's acknowledgment and recognition. [ 34 ] Even more commendable are the steps that Mr.

Voitovick has taken to address the underlying cause, in part, of his involvement in the illicit drug trade. That is his own addiction. I have been provided today with a letter written by a medical practitioner called Dr. Adrian Oosterholt. The letter was written on November 7th of 2016. It chronicles Mr. Voitovick's engagement with Dr. Oosterholt

aimed at bringing his addiction first under control and ultimately to an end. I will read verbatim from some of the paragraphs of that letter commencing at the second paragraph: I first started treating Stephen for his heroin addiction on August 28th, 2015. I began with a standard methadone dose of 30 milligrams per day and he was seen weekly by me and the methadone dose was slowly titrated upwards to a stable dose of 60 milligrams methadone daily and Stephen was able to successfully discontinue his heroin use, which is a very difficult and challenging task for heroin addiction patients. I saw Mr.

Voitovick for a total of fully 30 visits in my clinic. During all of those visits, he was an excellent patient and his attendance in my methadone program was exemplary. Of importance is that over many months he was randomly tested in my clinic on many, many occasions with urine tests to look for any heroin or any other street opiate narcotic. He was always clean, that is, negative for heroin and all narcotics on all his random urine drug screens which was an excellent sign of success of his treatment in the methadone program. Going to the third paragraph now.

He was counselled by me over the many months and was able to secure a good job of part-time employment. Over time, his performance at work was quite productive and constant and he eventually received full-time employment at his company. This was very helpful for his self-esteem and confidence and was a very positive factor in his ability to continue to abstain from heroin or other illicit street narcotics. Those words by the treating physician betoken a meaningful, genuine and effective engagement with a healthcare professional on the part of Mr.

Voitovick aimed at curtailing his use of illicit substances and ultimately renouncing use of those substances altogether and turning his life in a new direction: a new, clean, healthy, safe and lawful direction. [ 35 ] On the question of acceptance of responsibility and insight into his offending, Mr. Voitovick could not be more clear. He took the time and trouble to prepare a statement to the court which I have in writing and which he read to the court with some elaboration this morning.

I will not read verbatim from the statement but I will say that what it conveys to the court is a very powerful sense of shame and embarrassment at his involvement with the illicit drug underworld -- a sense of shame and embarrassment about the harm that that involvement has caused, both broadly and more narrowly to those who care for him, his family, his friends and associates. The statement reveals what I take to be a sincere resolve and commitment to move past this dark

chapter in his life and to put this type of offending behind him permanently. [ 36 ] That, of course, as the cases acknowledge, is a massively challenging project for Mr. Voitovick and he will have heard many times -- and he will hear from me again today -- that he must be constantly vigilant for the risk of relapse, for the temptation to return to a pattern of self-medicating that will tempt him from time to time.

He must remain connected with and plugged into resources and professional supporters in order that he can achieve his clearly stated objective of remaining clean and living a lawful and productive life going forward. I have no doubt or question in my mind that a personal investment in a different kind of future, a law-abiding and healthy future, is writ large in his words -- as both handed up to me and expressed verbally by Mr. Voitovick. He knows and understands how he got himself into this mess and he knows and understands what he has to do to get himself out of it.

And, more important than either of those things, he has taken his knowledge and his understanding and converted them into concrete action. We do not have an offender saying he has plans to confront underlying causes in the future; we have an offender who comes before the court, saying, "I have confronted the underlying causes and while the job is not done, the job is well underway and has been well underway since before sentencing commenced this morning." It is worth acknowledging that Mr. Voitovick's assertions in that regard are independently corroborated by his physician. MITIGATING FACTORS [ 37 ] Mr.

Voitovick has pleaded guilty to Count 1 on Information 91937-1. A guilty plea relieves the Crown and the court of the need to have a full trial. Naturally, the earlier a guilty plea is tendered, the greater the mitigating force it has. Mr. Voitovick entered his plea of guilty on the first day of trial and I agree with Madam Prosecutor that the mitigating force of guilty plea is muted to some degree by its late tendering.

Let me add quickly that that is not to say that it retains no mitigating force; it does, but it does not have as much force by way of mitigation as a plea which might have been tendered earlier and further lightened the burdens on the Crown and the court. The idea behind mitigation regarding guilty pleas has to do with the allocation of resources to the running of a prosecution and, of course, the sooner you enter your plea, the fewer resources are deployed in preparation for a trial. Mr. Voitovick entered his plea on the first day of trial.

All of the trial preparation by the Crown was done, the court time was allocated, everything was ready to go and then his plea came, removing the necessity of proceeding through the trial. He cannot get credit for mitigation having to do with trial preparation because everyone had to do all of it right up to the moment when the trial was going to commence. [ 38 ] Mr.

Voitovick has a limited and unrelated criminal record and so I think he can be properly seen as someone for whom essentially no criminal record of importance for today's purposes is in existence and that has mitigating force and I treat it as such. [ 39 ] This sentencing has limped along for quite some time through no fault of Mr. Voitovick's and I have heard nothing to suggest that he has been anything other than strictly compliant with his release conditions, and that he has generally cooperated with authorities.

He is entitled to credit by way of mitigation for that. [ 40 ] He has, as I have said, taken proactive steps -- concrete, tangible and meaningful proactive steps -- to address the underlying problem that drove in part his criminality, that being his addiction, all with a view to preventing recurrences. He is entitled to have the court view that as having mitigating force and I view it as such. [ 41 ] Where a person makes sincere expressions of remorse and indications of insight into his or her offending, that has mitigating consequences and I view Mr.

Voitovick's comments to the court, both in writing and in his oral presentation, as being sincere and reflecting true remorse and considerable insight into what drove his offending. [ 42 ] There have been no breaches or new substantive offences while on bail. I have mentioned that in passing. That has mitigating implications. I appreciate that when we speak of risk to the community going forward that involves an element of prediction of the

future and, of course, none of us is able to predict the future with certainty. All we have to work with is the past in making an educatedprediction of the future and I would say, given the proactive steps that Mr. Voitovick has taken, it is reasonable to say that he represents alow risk to the community going forward: Not no risk but low risk. That has mitigating force and I treat it as such. AGGRAVATING FACTORS [43] Aggravating factors also exist in this case. As Ms.

Malik says for the Crown, the very nature of the offence of possessing sucha highly-addictive substance as crack cocaine and powdered cocaine is aggravating in itself. Mr. Voitovick chose to involve himself inthe illicit trade in one of the most pernicious substances, crack cocaine, a substance that can establish an addiction in a user in aremarkably short period of use. This, of course, serves the business model of illicit drug trafficking very well. It creates a dependentclient very swiftly; a client who quickly has his or her will subordinated by the intolerable and intractable cravings for more.

The factthat Mr. Voitovick turned to the trade in that type of highly-addictive substance is an aggravating factor which I must consider. [44] No one who is involved in a dial-a-dope operation can pretend that their offending does not involve planning andpremeditation. Dial-a-dope operations are, by their very nature, as the cases acknowledge, sophisticated. Different operators withinthem fit at different places in the hierarchy in terms of the sophistication of their involvement but there is nothing "in the moment" orspontaneous or opportunistic about being involved in a dial-a-dope operation.

You have to have the trust of, and a significant relationshipwith, people higher up in the hierarchy who supply you. You have to kit yourself out with cell phones and usually a vehicle. You have,as Ms. Malik says, to have an established client base that you serve. This does not happen in the moment. There is nothing opportunisticabout it. It requires planning and premeditation. It requires a dedicated, purposeful, intentional commitment to engage in criminalactivity. That is why it has force as an aggravating factor.

The momentary lapse in good judgment that causes someone to take propertyout of a shop and stick it in a pocket in a moment of bad judgment does not entail the same moral blameworthiness as offending thatinvolves careful, thoughtful preparation. [45] It is aggravating at common law to take advantage of a helpless victim. The end users of the crack cocaine that Mr. Voitovickwas selling through his dial-a-dope operation were helpless in a way that he only too well understands.

I would have thought that thegreat majority of them consumed the crack cocaine he had on offer not through choice but through necessity because their wills, theirability to control their own actions, will have been subordinated by the sheer force of the addiction, the craving, the need for more. Itwas that helpless state that served as the economic engine of his criminal activity and I must view that as an aggravating factor. PRINCIPLES, PURPOSES AND OBJECTIVES OF SENTENCING [46] Now, I am going to turn to brief discussion of the principles, and purposes and objectives of sentencing.

Section 718 andfollowing of the Criminal Code provide sentencing judges with guidance and direction as to how sentencing must proceed.

Section 718tells us that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just and peaceful society imposing just sanctions. I am guided by that statement of the fundamental purpose ofsentencing as I proceed with sentencing of Mr. Voitovick. [47] There are several proscribed objectives of sentencing found in s. 718.

They include denunciation, deterrence (specific andgeneral), separation of offender from society where necessary, rehabilitation, reparations for harm done to victims or community and thepromotion of a sense of responsibility in offenders plus an acknowledgment of the harm done to victims and to society generally. Theseobjectives are all found in the sentencing equation for every offender but they are not weighted in the same way in every case becausesentencing is quintessentially an individualized process.

The law requires that a sentence be tailored to the unique contours of thecircumstances of every individual case. Classes of cases deserve a certain kind of approach and treatment that differs from other classesof cases. We know from the authorities, including those handed up today, that in cases involving the illicit drug trade, and dial-a-dopeoffending in particular, that the sentencing objectives of deterrence and denunciation require a heavier weighting in the equation thanthey might require in other types of offending. [48] Reading from the decision of the B.C. Court of Appeal in R. v.

Voong, 2015 BCCA 285 , [2015] BCJ No. 1335,quoting paragraph 18: This Court has repeatedly said that general deterrence and denunciation are the main principles to consider when sentencing drugtraffickers.

While no one principle "trumps" the other, there are offences and circumstances where one or more principles come to theforefront and generally will be given more weight than others. [49] There is no question that in weighting the various elements in the objectives of sentencing equation, denunciation -- which is tosay condemnation, emphatic expression of disapproval against the offending -- and deterrence, and in particular, general deterrence, aregoing to occupy a prominent position in sentencing of anyone like Mr.

Voitovick who has engaged in a dial-a-dope-related offence, inthis case, possession of cocaine for the purpose of trafficking. Deterrence divides into two types, specific and general. As I said before,I do not think Mr. Voitovick is at much risk of re-offending in the future. That speaks to specific deterrence. General deterrence, as thequotation I just read from Voong says, looms large in this exercise. That is the deterrent effect on others that the sentence is intended toexert. What message does it send to those who might be minded to slip up the way Mr. Voitovick did?

What does the sentence do tocontribute to society's protection from this kind of offending going forward? How might it exert some force for the good in respect ofthose who may be tempted to follow the example set by Mr. Voitovick? I have to give that aspect of the objectives set out in s. 718,along with denunciation, special prominence. That is not to say that the other objectives are not there to be considered and to be reflectedin the sentence but they are junior in importance to denunciation and deterrence on the authorities. Yes, rehabilitation must be part of thepicture.

Reparations for harm done must be part of the picture. All of them must be part of the picture. [50]

Section 718.1 says: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This offence, on a worst-case scenario, can result in a life sentence. The authorities that talk about the general range commencing at sixmonths of real jail, all of these things tell us, as do the effects of illicit drug activity on members of society also tell us, that the gravity of

Mr. Voitovick's offending is considerable. Moreover, he has a high level of moral blameworthiness for his involvement in that offending. It is diminished in some measure by his own addiction and to the extent that he was involved in this illicit drug world to serve his needs for addictive substances, the degree of his responsibility is dialled back. But remember that Mr. Voitovick was not solely serving his own addiction; he was pursuing a commercial objective. He was in a business and that business, as the cases sometimes say, returns a very significant profit for a comparatively small investment of effort.

We are talking about offending of substantial gravity and an offender who bears substantial responsibility and moral blameworthiness for his involvement in the enterprise that he chose to become involved in. [ 51 ] The principle of restraint reflected in s. 718.2(

d) requires that an offender must not be deprived of his or her liberty if less restrictive sanctions may be appropriate in all the circumstances. I am mindful of that. [ 52 ] The principle of commonality requires that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. I return to the point about individual tailoring of sentences. The principle of commonality is there to guide me but I am also mindful of the fact that there is no point-to-point correspondence to be found between any one case and any other case.

The authorities provide me with guidance as to the governing principles and to the extent of their similarities, some assistance in ensuring that there is a coherence and a commonality reflected in the approach taken to individual cases that bear similarities to each other. REAL JAIL OR SUSPENDED SENTENCE? [ 53 ] This brings me to some of the authorities that have been presented for my consideration because I must take guidance, as that statement found in s. 718.2(

b) requires me to do. I must take guidance from the authorities that address similar circumstances. Looking at Voong again, as I have already said, the general expectation of the Court of Appeal of sentencing judges who are confronting individuals who are involved with offences of the kind Mr. Voitovick has committed is that they will require such offenders to serve a term of imprisonment starting at six months and possibly longer based on individual factors. The Crown urges the court to impose a period of six months' incarceration as the sentence for Mr. Voitovick citing those authorities: R. v.

Voong , supra, R. v. Oates, [2015] B.C.J. No. 1177 (C.A.) and, to some extent, R. v. Fargo, [2015] B.C.J. No. 872 (C.A.) . [ 54 ] Mr. Ellis takes a contrary view. Mr. Ellis says the court should suspend the passing of sentence on Mr. Voitovick and place him on strict probationary conditions over an extended period. [ 55 ] This is the sharp divide that separates the Crown and the defence in the sentencing recommendations with which I have been presented. Which of those pathways shall I take? The cases say that there is something near to a default position. The default position is at least six months in real jail.

The cases also acknowledge that where unique and special circumstances are made out, the suspending of the passing of sentence can be justified. To paraphrase the cases and try to collapse their import into a brief

summary statement, special and extraordinary circumstances must truly be special and extraordinary. Commendable progress in dealing with underlying causes has been recognized in cases where real jail was nevertheless imposed. A six-month period of incarceration at least will be the usual sentence and it is incumbent on the offender to be able to bring himself or herself within the rather narrowly-circumscribed exception where a suspended sentence is considered appropriate. [ 56 ] At paragraph 59 of Voong , the court, after discussing exceptional circumstances in respect of particular cases, offers a

summary. I will read that into the record, quoting: In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non- custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available. Thus, it will be the rare case where the standard of exceptional circumstances is met.

That is a

summary of what the Court of Appeal distils down to be the exceptional circumstances that will take an offender outside the reach of the ordinary sentencing paradigm for this type of offence. [ 57 ] The question raised for me by the differing submissions of the Crown and defence is, has Mr.

Voitovick established a basis upon which it can be said that his circumstances are so exceptional that the court ought not to sentence him in the ordinary way but suspend the passing of sentence to reflect those special circumstances? [ 58 ] I will say that after anxious consideration and with all respect to the very able submissions of Ms. Malik as Crown counsel, I am persuaded by Mr. Ellis' submissions, and by the materials to which he referred, and by the statement that was given by Mr.

Voitovick, that this is one of those rare cases where exceptional circumstances have been established justifying the exceptional approach of suspending the passing of sentence. I have not come easily or quickly to that conclusion. I say again that Ms. Malik made powerful and compelling submissions in favour of approaching Mr. Voitovick the way the court approaches most dial-a-dope offenders who commit offences like possessing cocaine for the purpose of trafficking. But there is something noteworthy and remarkable to be seen in the picture of Mr.

Voitovick that emerges from what the court was presented with this morning. [ 59 ] Ms. Charlton, one of the four offenders whose suspended sentences came up for review in the Voong decision, provides a helpful comparator for Mr. Voitovick. There are no cases that are on all fours with Mr. Voitovick's case but this one, Ms. Charlton's case, has some remarkable parallels. It is at paragraph 83 and following of Voong that we see the court's outline of Ms. Charlton's case. She, like Mr. Voitovick, was sentenced in the court below for one count of possession for the purposes of trafficking.

The substance I believe was heroin, and she also was facing and was sentenced for a breach. I pause there to say there are no breaches that complicate the picture for Mr. Voitovick who has been very diligent in abiding by his release conditions.

[ 60 ] Ms. Charlton's situation was worse because she was on probation at the time that she committed her offence and was answerable for that breach. Ms. Charlton was a courier for a dial-a-dope operation. Now, exactly how a courier's role and Mr. Voitovick's role might be compared is not clear to me. It suggests possibly that she had a lesser role than Mr. Voitovick but I do not have anything before me to flesh that out. What is important is that she was involved in dial-a-dope offending, as was Mr. Voitovick, so they share that in common. Ms.

Malik quite rightly points to dial-a-dope offending being particularly concerning. Ms. Charlton had a smaller quantity of drugs in her possession -- I see now that cocaine is part of it as well as heroin -- than did Mr. Voitovick. In that way, one might say that her offending was less serious but she had a meaningful quantity, as did Mr. Voitovick, and we are not talking about orders of magnitude of difference. [ 61 ] Ms. Charlton was about 28 at the time of her offending, a couple of years older than Mr. Voitovick at the time of his. [ 62 ] Like Mr. Voitovick, Ms.

Charlton did more than just take commendable steps to deal with underlying causes; she took independently-verifiable and extraordinary steps, both in terms of dealing with her own addictions and getting herself set up to live and operate on the lawful side of the line. She got herself employment. She dealt with underlying problems of mental health and addiction. She did more than make an admirable effort; she made an extraordinary effort and she received a suspended sentence in consequence. In that respect, Mr. Voitovick is comparable to Ms. Charlton. Dr.

Oosterholt's letter, in my view, with its references to faithful attendance, multiple negative drug screen results and so forth, attests to a genuine and effective and independently-verified success to this point in managing the addiction on the part of Mr. Voitovick. [ 63 ] This proactive effort, which transcends just the commendable and reaches into the realm of the extraordinary, is at the centre of the court's conclusion, along with the other factors in Mr. Voitovick's favour, that propel the court to the determination that a suspended sentence is proper and appropriate.

All of the factors that are referred to in that generic

summary are present in Mr. Voitovick's case, in my respectful view.

SENTENCE AND ANCILLARY ORDERS [ 64 ] Like all judges who are properly mindful of the law, I am slow to be persuaded of the appropriateness of a suspended sentence in a case of this kind but there do come along from time to time cases that fit the unique contours of the exception and I consider this to be one of those cases. [ 65 ] I have not lost sight of the fact that there is a special emphasis to be given to general deterrence and denunciation in cases of this kind but as we see at paragraph 43 of Voong , a properly-crafted suspended sentence with appropriately restrictive probation conditions can meet those requirements.

Of course, deterrence in its general sense has the protection of the public in mind and at paragraph 43 of Voong the court says: The statutory phrase "protection of the public" now found in the Criminal Code gives a broad discretion to sentencing judges to impose conditions (see Shoker at para. 3). The public is protected when a former criminal is rehabilitated and deterred from committing more crimes (see R. v . Grady [citation omitted]. It is also protected when other offenders are deterred by the sentence imposed.

Thus, imposing conditions for the protection of the community may have a deterrent and denunciatory effect in addition to a rehabilitative effect. I have that thinking in mind in concluding that a properly crafted suspended sentence with a properly restrictive set of probationary conditions can do what the law requires of me. [ 66 ] Would you please stand, Mr. Voitovick?

After having considered all of the careful submissions of Crown counsel and defence counsel and all of the authorities that have been presented to me, and against the background of all of the factors and considerations that I have expressed in these reasons for sentence, I have concluded that the appropriate sanction for me to impose here today upon you for the offence of possessing cocaine for the purpose of trafficking under Information 91937-1 is for me to suspend the passing of sentence and to place you on an order of probation for a period of 36 months. [ 67 ] I am going to ask you to stay standing.

I am going to ask Mr. Ellis a couple of questions. I know Mr. Voitovick works two jobs and I believe that a very restrictive curfew, almost house arrest-like condition, is an appropriate condition but I want to make sure that I craft it with a view to not interfering with his work.

I would say, subject to what you are going to tell me about what his work requirements may entail, that something in the nature of 10:00 p.m. to 6:00 a.m., seven days a week, for the first half of the probationary period with a review at that point to see whether or not it should continue would be properly restrictive but I do not know exactly how that would fit with his work schedule. [ 68 ] MR. ELLIS: That fits perfectly. [ 69 ] THE COURT: It works with the work schedule? [ 70 ] MR. ELLIS: Yes. [ 71 ] THE COURT: Any submissions on that, Ms. Malik? [ 72 ] MS. MALIK: No, Your Honour. [ 73 ] THE COURT: Okay.

What are the conditions of the probation order that would govern for the 36 months of your probation, Mr. Voitovick? They are these. [ 74 ] Firstly, you must keep the peace and be of good behaviour. [ 75 ] You must report to court as required.

[ 76 ] You must report in person, forthwith following today's court appearance to a probation officer at 2610 Mary Hill Road, Port Coquitlam, British Columbia, and thereafter as and when and in the manner directed by your probation officer. [ 77 ] You must reside where directed by your probation officer and not change your residential address without the written permission of your probation officer. [ 78 ] You must be within your place of residence between the hours of 10:00 p.m. and 6:00 a.m. seven days per week. [ 79 ] You must present yourself at the door of your residence during curfew hours to confirm your compliance with your curfew condition should a peace officer, your probation officer or an agent of your probation officer attend there for the purpose of verifying that compliance. [ 80 ] This curfew condition may be varied or removed on a review of your probation that is to be scheduled approximately 18 months into your 36-month probationary period.

I order the scheduling of such a review with a report from Mr. Voitovick's probation officer either to be provided in writing or in person by the probation officer on that occasion and that would be before me. Madam Registrar, I am sort of throwing in some stuff that does not really belong in the conditions but you know what I am saying here. [ 81 ] THE CLERK: Yes, Your Honour. [ 82 ] THE COURT: Thank you.

You must not possess or consume any alcohol or any drugs referred to in the Schedules to the Controlled Drugs and Substances Act other than those drugs or substances for which you have a prescription written in your name from a properly-qualified physician.

As to those substances, you may only consume them in strict conformity with the dosage stipulations in your prescription. [ 83 ] You must complete by the end of the 18th month of your 36-month probation period 50 hours of community work service to the satisfaction of your probation officer. [ 84 ] You must enrol in, participate in and complete such counselling and treatment as your probation officer considers appropriate having regard to such other counselling and treatment as you may be receiving. [ 85 ] Madam Registrar, I would just situate this point underneath the one about the curfew. [ 86 ] THE CLERK: Yes, Your Honour. [ 87 ] THE COURT: You may be outside your place of residence during curfew hours provided that you have obtained, in advance, permission in writing from your probation officer to be outside your place of residence during curfew hours.

I will just pause to say I have it in mind that you may have some counselling or treatment that would happen during curfew hours or you may find yourself doing your community work service during curfew hours, potentially. I do not know. The point here is you have to be inside during your curfew hours unless you have got permission to be outside and you can ask for written permission to be doing things outside your residence during curfew hours but only then. [ 88 ] I will make it a further condition, Madam Registrar, that Mr.

Voitovick must carry a copy of this probation order on his person at all times when outside his residence during curfew hours, together with the written permission provided to him be outside your residence during curfew hours. [ 89 ] I am going to come to the ancillary orders in a moment but is there anything about any of those conditions that gives anyone any difficulty? [ 90 ] MR. ELLIS: No. [ 91 ] MS. MALIK: Your Honour, perhaps another exception to the curfew, for emergencies in terms of being outside of the residence in case of emergency. [ 92 ] THE COURT: Right, okay.

Madam Registrar, can you just add -- it will just be freestanding. You may also be outside your residence during curfew hours, if required, by a medical emergency. [ 93 ] Otherwise, anything else? [ 94 ] MR. ELLIS: No, Your Honour. [ 95 ] MS. MALIK: Nothing further, no. [ 96 ] THE COURT: Ancillary orders. There will be a s. 109 weapons prohibition. Is that a ten-year prohibition, Ms. Malik? [ 97 ] MS. MALIK: Yes, Your Honour. [ 98 ] THE COURT: Yes.

A mandatory s. 109 weapons prohibition. [ 99 ] THE CLERK: Sorry, that's ten years, Your Honour? [ 100 ] THE COURT: Ten years. [ 101 ] THE CLERK: Thank you. [ 102 ] THE COURT: Ms. Malik, I am looking for my Code reference for the s. 487-something for the DNA.

[ 103 ] THE CLERK: Yes, .051. [ 104 ] THE COURT: 051? [ 105 ] MS. MALIK: Yes. [ 106 ] THE COURT: There we go. Madam Registrar always knows these things. [ 107 ] Under s. 487.051, I have a discretion to either require or not require you to submit a sample of your DNA. I am exercising my discretion in favour of requiring you to provide a sample of your DNA. The intrusion into your zone of privacy is relatively minimal and the availability of DNA samples in the DNA database assists law enforcement in holding those to account who should be held to account for criminal offences.

It also assists those who have been wrongfully accused of criminal offences in exonerating themselves. I am going to order that you cooperate with -- Madam Sheriff, can that be harvested here today or would he be going to the RCMP? I think because he is not in custody it would be RCMP. [ 108 ] THE SHERIFF: Report to the RCMP. [ 109 ] THE COURT: Right. There are certain days and that is written down somewhere. [ 110 ] THE CLERK: The Coquitlam RCMP, Your Honour, is Tuesdays and Thursdays. [ 111 ] THE COURT: Okay.

Between the hours of 10:00 and something? [ 112 ] THE CLERK: They do prefer specific hours so it is between the hours of 9:00 and 3:00 but if we just say 9:00 a.m., he can appear. [ 113 ] THE COURT: Okay. Any reason why you cannot go next Tuesday? [ 114 ] THE ACCUSED: I'll make it happen. This is number one so... [ 115 ] THE COURT: Right. Okay. That will be the 28th? [ 116 ] THE CLERK: The 22nd is this coming Tuesday, Your Honour. [ 117 ] THE COURT: Sorry.

You will report to the Coquitlam RCMP detachment for the purpose of supplying a sample of your DNA on that date. [ 118 ] There will be an order under s. 16 of the Controlled Drugs and Substances Act requiring forfeiture of the drugs that were seized from you, the cell phones, the scale and the cash that were seized in the course of the investigation of this offence. [ 119 ] Does that cover everything, Ms. Malik? [ 120 ] MS. MALIK: Yes, Your Honour. [ 121 ] THE COURT: Ms. Malik will draft a forfeiture order that I will sign at a later date. [ 122 ] MS. MALIK: Yes. [ 123 ] THE COURT: Okay. Victim fine surcharge.

Mr. Voitovick is working at two jobs. He will be able to pay that. I will give him until March 31st of 2017 to pay the victim fine surcharge. [ 124 ] MR. ELLIS: And how is that quantified, Your Honour? [ 125 ] THE COURT: Madam Registrar, I think it is $200 on a -- [ 126 ] THE CLERK: If it's indictable, it's $200 -- [ 127 ] MS. MALIK: Yes. [ 128 ] THE CLERK: -- to be paid at the registry. [ 129 ] THE COURT: Ms. Malik, I think you have got to do something about Count 2? [ 130 ] MS. MALIK: Yes, Your Honour, Crown directs a stay of proceedings with respect to Count 2 on that Information. [ 131 ] THE COURT: Thank you.

Does that bring things to a conclusion in everybody's opinions? [ 132 ] MS. MALIK: Yes, Your Honour, thank you. (REASONS FOR SENTENCE CONCLUDED)