R. v. Criddle Date:, 2014 BCPC 108

Citation: R. v. Criddle Date: 20140416 2014 BCPC 0108 File No: BC900476-1 Registry: Bella Coola IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GEORGE AUBRAY CRIDDLE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE B.G. HOY Counsel for the Crown: C. HOUGH Counsel for the Accused: A. ROBINSON Place of Hearing: Surrey , B.C.

Date of Hearing: December 13, 2013 Date of Sentence: April 16, 2014 [ 1 ] THE COURT : The defendant was found guilty of trafficking in methylenedioxyamphetamine and ketamine. The drugs weighed 29.6 grams and were a mixture of the two substances, popularly known as Ecstasy and the date rape drug. Normally, this is sold in .1 gram doses. The quantity of drugs yields almost 300 doses with a street value of $2,360. This is considerable given what is normally encountered for street dealers. [ 2 ] The defendant targeted the remote and small community of Bella Coola on March 1st, 2011.

This was done on the recommendations of another person who is a member of the Nuxalt First Nations and from Bella Coola. At the beginning of each month, there is extra cash from Social Assistance. It was this money, along with others who have addiction that prompted the defendant to drive from Vancouver. He set up his point of sale from his contact's grandmother's residence on a downtown reserve of the Nuxalt Nation. His contact is a known drug user. This person contacted others in the community to advise them of the availability of drugs.

In the course of surveillance, several known drug users came to the residence. [ 3 ] The defendant was stopped by the police as he was leaving town in the evening hours of March 1st. From his backpack, a variety of drugs were seized in addition to that for which he has been convicted. [ 4 ] The Crown says that the appropriate sentence is 18 months' incarceration. The defence submits that, with properly-crafted terms, a conditional sentence should be imposed. The Defendant : [ 5 ] The defendant has a significant, serious and related prior record. His criminal history started in 1999 until 2009.

The specifics include these drug offences: March 10th, 2004, trafficking, five months' conditional sentence; March 10th, 2008, simple possession, one day; March 11th, 2008, simple possession times two, 30 days; and, June 24th, 2009, simple possession, one day.

Further noteworthy from his record are these offences: February 10th, 1999, mischief, probation ten months, 30 hours community work service; March 9th, 2000, breach of probation, $150 fine; January 8th, 2003, break-and-enter, three-month conditional sentence; January 8th, 2003, breach of a conditional sentence, 40 days; February 27th, 2003, carrying a concealed weapon and obstruction, 30 days; March 14th, 2007, theft under, probation, six months; December 3rd, 2007, breach of probation, one day; March 11th, 2008, fail to attend court, 30 days concurrent to simple possession times two conviction referred to previously; and, June 25th, 2009, breach of recognizance, one day. [ 6 ] From the pre-sentence report, the probation officer observes his past community supervision has been poor.

He specifically noted from previous community corrections records, his failures to abide by curfews or non-reporting to probation, incomplete community work service hours and the commission of new offences while under supervision. [ 7 ] The defendant is 34 years old and in a common law relationship. They have a three-year-old child in their care. Over the years, he has worked for Lower Mainland Steel in construction. About the past three years, this has been full-time employment, earning $80,000 per year. Prior to that, he was unemployed for five years.

A reference letter from his employer notes him to be a valued employee. [ 8 ] Addiction has been a continual source of difficulties in his life. It appears that the driving factor in the trafficking offence he now faces was an opportunity to generate additional income to fuel his own addiction. It is noteworthy at page 3 of the pre-sentence report the probation officer also stated that the defendant denied that finances led him to commit this offence. [ 9 ] His abuse of drugs was chronic until three years ago but it still persisted.

He describes having had relapses for a period of about a year from November 2012 until November 2013. He separated from his spouse. His spouse's objective was to ensure he was leading a clean lifestyle before re-committing to him. From the pre-sentence report, she says that since his last slip of a year ago, he has otherwise been doing well. The defendant says his slip occurred prior to 2012. [ 10 ] In addressing his addiction since this offence, he has not attended treatment or counselling.

He expresses an absence of any need for intervention but at the same time acknowledged that he would comply with any court orders in that regard. The probation officer is quite guarded of the defendant's depth of understanding of his insight into his addiction cycle and criminal conduct. He observes there is no plan in place to avert relapses. The Authorities : [ 11 ] The Crown notes that methylenedioxyamphetamine was, at the time of the offence, a

Schedule 3 drug. On November 6th, 2012, this changed to a

Schedule 1 drug. This altered the maximum sentence from ten years to life. Parliament has taken a serious view of this substance. In making these observations, I am cognizant that I am bound to the legislation at the time of offending. The various authorities reviewed by the Crown are directed to the unique features of those who commit trafficking offences in small communities. In R. v. Curtis , [1982] Y.J. No. 4 , Yukon Territorial Court, this was said at paragraph 12 and 13: People in remote Yukon communities are usually less aware of the destructive potential of drugs.

Residents of these communities do not have access to the same preventive and curative resources. Limited professional resources to counsel against experimenting with drugs and the absence of extensive recreational activities, makes anyone in isolated communities relatively easy prey for drug traffickers. In small remote northern communities especially, the destructive and disruptive impact of even small amounts of drugs can be severe. Alcohol has well established its viciously destructive and insensitive capacity to undermine the spirit and well-being of life in small northern communities .

Drugs pose an even greater threat. The vulnerability of people and their communities in Yukon to the destructive potential of drug abuse, prompts the court to clearly signal

by severe deterrent sentences that drug offences in Yukon are particularly condemnable. [ 12 ] To similar effect, see R. v. Marada , [2010] YKTC 62 at p. 5, para. 18 and R. v. Holway , [2003] YKYC 62. [ 13 ] In R. v. Kasakan , [2006] SKCA 14, the Court of Appeal upheld a four-month period of incarceration rather than a conditional sentence for trafficking in marihuana. In sentencing, the court reiterated the unique challenges facing small communities and the disruptive nature of drugs. A community-based sentence was determined not to meet the sentencing principles of denunciation and deterrence. [ 14 ] From R. v.

Trinder , [2008] BCPC 148, the court dealt with a cocaine dial-a-dope trafficker in Sechelt. The local circumstances of a small community were given weight with deterrence and denunciation as prominent features in sentencing. [ 15 ] The defence has reviewed a number of cases where conditional sentences have been imposed. For convenience, they are listed as follows: R. v. Kreutziger , [2005] BCCA 231, R. v. Sidhu , [2007] BCSC 876, R. v. Quach , [2006] BCPC 38, R. v. Wallis , [2007] BCCA 377, R. v. Nesbitt , [2012] BCCA 243, R. v. Olson and Pennell , [2013] BCSC 2238 and R. v. Owens , [2014] BCSC 32.

I note that none of the authorities dealt with the unique situation of small, isolated communities with attendant severe social problems arising from addiction. Furthermore, except for the Quach and Olson decisions where each of those respective defendants had records, although unrelated to drug offences, the other decisions pertain to individuals who did not have any prior convictions. Discussion and Conclusions : [ 16 ] In assessing the appropriate sentence, I am reminded that this is a highly individualized process.

The offence and the offender are carefully weighed within the legislative framework of s. 718 and 742.1 and the authorities. [ 17 ] In the course of submissions, the Nuxalt Nation Safety Committee made its views known to the court. Bella Coola is a small, isolated town of about 3,000 people comprised of approximately 60 percent First Nations persons. Over one-half of this population are youths. The community suffers from very high unemployment. Many rely on Social Assistance. Addiction is problematic. [ 18 ] The infusion of drugs complicates and aggravates the welfare of the members of the community.

Money that might otherwise be used for food and shelter is instead diverted to the destructive consequences of drug use. The orderly social fabric is further stressed and compromised in circumstances where there are already many other existing challenges. [ 19 ] Having sat in this community for the past two years, the majority of persons who have come in contact with the judicial system are First Nations. From the numerous probation, Gladue and Child and Family Community Services reports, I have read, one common theme is addiction.

This is extremely challenging to deal with given Bella Coola's size, economic difficulties and remote location. Added to this is a paucity of easily accessible specialized services for addiction that others in the province have far easier access. [ 20 ] The defendant's expression of remorse is accepted, although it cannot be said that he fully appreciates the harm he caused to the community of Bella Coola. He claims he did not know about the Aboriginal context of the Bella Coola population.

I am suspicious of that assertion given that the person who introduced him to the community was First Nations and he sold his drugs from a residence on reserve land. It is likely true he did not appreciate the depth of devastation such drugs has upon this community. Such reflection probably never even passed his mind as he went about his business of making a fast dollar in a captive market. [ 21 ] Considering the degree of the defendant's culpability, the community of Bella Coola was singled out for his offending.

He took advantage of others who were in dire addictive circumstances for the purposes of financial gain to enhance his own access to drugs for his addiction. He took deliberate steps to maximize his financial return by focusing his trafficking at the beginning of the month when a flush of money was available through Social Services. In this process, he used an addicted First Nations person to contact others in the community who were also in addictive circumstances to promote the availability of his illicit drugs. I find in these circumstances, his culpability as high.

Trafficking in these circumstances will be strongly condemned. [ 22 ] The defendant presents as a person who has brought his addiction under control. He is commended for the accomplishments he has made. There are, however, concerns expressed by probation, that he lacks a depth of understanding of his addiction cycle which has been longstanding and chronic. He does not have in place any support mechanism or counselling services to protect him from relapsing.

It is of interest to observe he does not feel the need for such intervention but is nonetheless prepared to be compliant with probation for any treatment that might be recommended. This resistance to remedial treatment supports the view of his lack of comprehension of his addiction cycle. Hopefully, counselling will assist in his long-term rehabilitation and prevention of relapses. [ 23 ] It is noted there is absence of any indication from probation of non-compliance with terms of his release. By the same token, there is some evidence of relapses in drug use while on bail.

As to when the last relapse occurred is uncertain as the defendant and his spouse gave different timelines of its occurrence. Regardless of the specific time, he had relapsed while on bail. I am also mindful his criminal record has multiple offences of non-compliance with court orders, which included breaches of various probation orders, failing to attend court and a breach of a conditional sentence. [ 24 ] As noted previously, he has an extensive and related record.

The most aggravating aspects are his drug offences which include four counts of simple possession between 2008 and 2009 and trafficking in 2004 for which he received five months of conditional sentence. There is some age to his criminal history. However, it has been persistent over the years. His last conviction for breach of probation was less than two years prior to the offence he faces today. [ 25 ] The Crown submitted that as an aggravating factor, he had a variety of drugs for sale beyond that for which he was convicted.

While I am mindful of this, in my view, it would be an error to add them as another negative aspect of sentencing as he was not convicted of them. [ 26 ] In the course of submissions, the defence says the trial was avoidable if better particulars from the police had been provided such that he could properly advise his client. But for this, a plea would have otherwise been entered at a much earlier stage. Essentially,

he wants to lay claim to acknowledgment of responsibility at an earlier stage of the proceeding and thus points to this as a mitigating factor at sentencing. [ 27 ] With respect, I decline to embark on the merits of how defence counsel might have conducted their case. There are innumerable scenarios. The fact of the matter is that a trial was had with rulings made on various Charter questions. A trial is not an aggravating circumstance for sentencing purposes. [ 28 ] It was submitted by the defendant that as time has passed, the denunciatory and deterrent effects of a sentence diminishes.

That the focus shifts to the offender's changed circumstances and that deterrence and denunciation must give way to the positive gains he has made in his life. The point made is he is now a different person from three years ago. He has taken on the responsibility of parenthood and leads a productive life. That it would be counterproductive to incarcerate him at this juncture. [ 29 ] I do not agree with counsel's submissions. The sentencing process requires a balance of all the elements which are presented to the court.

While there are positive changes, there are a multitude of aggravating aspects of the offence and the offender. To simply say the passage of time causes deterrence and denunciation to fade diminishes the value of these sentencing principles. I also find it unlikely that the message of denunciation and deterrence will be lost in this small, remote town where the problem of addiction which affects so many lives is a continual source of dysfunction. I am quite confident in saying members of this tightly-knit community are keenly aware of those in conflict with the judicial system.

Others must be warned that selling drugs to those who are vulnerable through their own addiction and poverty in isolated communities will be sanctioned. [ 30 ] In all the circumstances, this is not a situation where a community-based sentence is appropriate. Given the nature of the offence and the defendant's prior related drug record, a conditional sentence would not adequately address the sentencing principles. Furthermore, his past history of non-compliance with court orders makes him a poor prospect for community supervision. [ 31 ] Sir, if you could just stand for a moment, please.

I impose a sentence of 18 months' incarceration to be followed by two years of probation. The probation terms are these: Keep the peace, be of good behaviour. On your release, report forthwith to probation; thereafter, as directed. To provide your address to probation and not change it without his prior approval. To take and successfully complete such counselling or programs as directed. [ 32 ] By s. 109, there is a ten-year weapons prohibition.

Section 498.051(a), you are to provide a sample of your DNA. [ 33 ] I order a forfeiture of the drugs and paraphernalia. B.G. HOY Provincial Court Judge