



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Charlie,







2008 
          BCCA 44



Date: 20080131

Docket: CA035344

Between:

Regina

Appellant

And

Martin 
    Patrick Charlie

Respondent




Before:


The 
          Honourable Madam Justice Rowles




The 
          Honourable Madam Justice Saunders




The 
          Honourable Mr. Justice Frankel








P.A. 
          Eccles


Counsel for the Appellant




L.K. 
          Mirsky


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




15 January 2008




Place 
          and Date of Judgment:


Vancouver, British Columbia




31 January 2008








Written 
          Reasons by
:




The 
          Honourable Mr. Justice Frankel




Concurred 
          in by:




The 
          Honourable Madam Justice Rowles

The 
          Honourable Madam Justice Saunders



Reasons 
    for Judgment of the Honourable Mr. Justice Frankel:

Introduction

[1]

The Crown seeks leave to appeal, and if leave is granted, appeals an 
    18-month conditional sentence order imposed on Mr. Charlie by Judge Gulbransen, 
    of the Provincial Court of British Columbia, following a plea of guilty to 
    a charge of possession of cocaine for the purpose of trafficking.  The sentencing 
    judges reasons are indexed as 2007 BCPC 296.

[2]

When Mr. Charlie committed this offence, he was serving a first conditional 
    sentence imposed as a result of his conviction on drug-related charges.

[3]

The Crown raises two grounds.  First, it submits that the sentencing 
    judge erred in treating the fact that the original conditional sentence was 
    reinstated after the commission of the present offence as a matter favourable 
    to Mr. Charlie.  Second, it says that in considering the application of s. 
    718.2(e) of the
Criminal Code
, R.S.C. 1985, c. C-46, the sentencing 
    judge placed undue weight on Mr. Charlies aboriginal background.  Section 
    718.2(e) provides:

A 
    court that imposes a sentence shall also take into consideration the following 
    principles:

(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.

Factual Background

[4]

In the early morning hours of October 16, 2005, a member of the Royal 
    Canadian Mounted Police stopped a vehicle being driven by Mr. Charlie for 
    making a left turn without signalling.  The officer saw a cellular telephone 
    on the passenger seat.  Upon checking Mr. Charlies name by means of a police 
    computer, the officer discovered that Mr. Charlie was serving a conditional 
    sentence with a condition that he not possess a cellular telephone, or be 
    in a vehicle with one.  At this point, Mr. Charlie was detained for breaching 
    the conditional sentence order.  In searching Mr. Charlies vehicle, the officer 
    found 30 packages of rock cocaine (total weight  6.65 grams); 16 packages 
    of heroin (total weight  3.55 grams); three packages of methamphetamine (total 
    weight  0.75 grams); and two cellular telephones.  Mr. Charlie had $760.00 
    in his pocket, and a further $320.00 in his wallet.  The drugs had a value 
    of approximately $1,200.00.  Mr. Charlie was released by the police on a promise 
    to appear.  Sometime later, an information was sworn charging him with three 
    counts of possession of a controlled substance for the purpose of trafficking; 
    i.e., a separate count for each drug.

[5]

As the sentencing judge noted in paragraph 1 of his reasons, the facts 
    disclosed that Mr. Charlie:

[W]
as part of an operation which is colloquially 
    called a dial-a-dope operation; he was the driver who would go places and 
    deliver the drugs to people who phoned for them. He was kind of a travelling 
    salesman for drugs, certainly not the main operator of the business.

[6]

On the day Mr. Charlie was stopped he was subject to a nine-month conditional 
    sentence order imposed on April 8, 2005, in respect of his conviction on three 
    drug charges arising out of his involvement in another dial-a-dope operation.  
    He spent 14 weeks in custody before this sentence was imposed.  That is his 
    only previous conviction.

[7]

The April 8, 2005 order contained a number of conditions in addition 
    to the ones prohibiting Mr. Charlie from possessing a cellular telephone or 
    being in a motor vehicle in which there is a cellular telephone.  These included 
    a house arrest provision requiring Mr. Charlie to remain inside his residence 
    24 hours a day except for work or school related purposes, medical appointments, 
    etc.  This curfew was in effect for five months.  While subject to this curfew, 
    Mr. Charlie was required to present himself at the front door of his residence 
    at the request of a police or corrections officer.  This curfew expired approximately 
    five weeks before Mr. Charlie was again found trafficking drugs.

[8]

After receiving the police report regarding the events of October 16, 
    2005, the Crown obtained a warrant for Mr. Charlies arrest.  Mr. Charlie 
    turned himself in on December 8, 2005.  He appeared that day before a judge 
    of the Provincial Court who released him on $2,000.00 cash bail, with conditions 
    akin to those in the April 8, 2005 conditional sentence order, including a 
    curfew.

[9]

On April 25, 2006, Mr. Charlie appeared before a judge of the Provincial 
    Court pursuant to s. 742.6 of the
Criminal Code
on the breach 
    allegation.  Mr. Charlie admitted to the breach.  The judge reinstated 
    the conditional sentence order and extended it to May 30, 2006.  The house 
    arrest condition was varied so that it remained in effect throughout the term 
    of the extended order.

[10]

The drug charges arising from the events of October 16, 2005, came 
    before the Provincial Court on April 18, 2007.  Mr. Charlie entered a plea 
    of guilty to possession of cocaine for the purpose of trafficking.  At the 
    request of his counsel, sentencing was adjourned for the preparation of a 
    pre-sentence report and a technical suitability report with respect to the 
    use of electronic monitoring.

[11]

The sentencing hearing took place on July 26, 2007.  The parties agreed 
    that, although Mr. Charlie had pleaded guilty only to the cocaine-related 
    charge, the other drugs seized from his vehicle were to be considered by the 
    sentencing judge in deciding on the appropriate punishment.

[12]

At the time of sentencing, Mr. Charlie was 25 years old.  He is a member 
    of the Hesquiaht First Nation, located near Tofino, on Vancouver Island.  
    As noted by the sentencing judge, Mr. Charlies background is a sad one.  
    He was raised by a single mother who had a drinking problem, and was physically 
    abused by his stepfather.  He has never met his father.

[13]

Under the heading Attitude / Understanding Regarding the Offence 
    the pre-sentence report states:

Martin 
    advised that a former associate introduced him into the drug trade.  He advised 
    that for a few years it became part of his lifestyle.  He advised that the 
    lure of easy money made it difficult to quit dealing drugs.  Martin advised 
    that he has made significant changes in his associates and priorities.  He 
    expressed a strong desire to refrain from further criminal activity.

[14]

The report further indicates that Mr. Charlie resides with his partner 
    in Cloverdale, where they live in a basement suite with their two-year-old 
    daughter.  His partner describes their relationship as positive and supportive, 
    and Mr. Charlie as a committed father.

[15]

Mr. Charlie has a Grade 12 education.  At the time the report was prepared 
    he had been employed for three months with a construction company.  The owner 
    of the company described Mr. Charlie as a reliable worker.  Letters provided 
    to the sentencing judge confirm that Mr. Charlie is a member in good standing 
    of a trade union, earning approximately $20.00 per hour, plus benefits.

[16]

Under the heading Summary and Proposed Intervention, the report states, 
    in part:

Martin 
    advised he has made significant changes in his lifestyle and is confident 
    he will not return to criminal activities.  He is gainfully employed in the 
    construction trade and has the opportunity to continue with a company that 
    he enjoys working for.

Martin 
    expressed a desire not to be away from his family.  He added that being placed 
    on a restrictive curfew for the period of his bail supervision has not been 
    problematic for him.  Family members support Martins lifestyle changes and 
    would like him to continue attending regular family gatherings and activities.

Although 
    Martin has a history of alcohol abuse, significant others relate that he rarely 
    consumes the substance and abstains from drug use.  Should Martin receive 
    a community disposition he may be directed to complete the CORE Substance 
    Abuse Management program offered by community corrections.  The next program 
    offered at the Langley Office is scheduled for September, 2007.

The 
    report notes that Mr. Charlies residence meets the requirements for electronic 
    monitoring, and recommends a number of conditions that would be suitable should 
    a non-custodial sentence be imposed.

[17]

The Crowns position was that a period of actual incarceration in the 
    range of 18 months to two years was appropriate.  Crown counsel submitted 
    that the fact that Mr. Charlie had become involved in a dial-a-dope operation 
    for the second time while under a conditional sentencing order was an aggravating 
    factor, and that deterrence should be given precedence over rehabilitation.

[18]

Mr. Charlies counsel submitted that a conditional sentence in the 
    range of 18 months to two years less one day was appropriate.  She stressed 
    that since October, 2005, Mr. Charlies has been focused on providing 
    for his family.  She noted that he has the support of his family, friends, 
    and employer.

[19]

While acknowledging that dial-a-dope operations involve serious criminal 
    offences, the sentencing judge recognized that it was his responsibility to 
    craft a sentence which imposes a just sentence in these particular circumstances:  
    para. 4.  In choosing to give rehabilitation primacy, the sentencing judge 
    stated:

[10]      I think society has, as a goal, that people raise families and 
    raise children and form those units.  It is something that is very important 
    for rehabilitation.  Those two factors, a job, a regular job, getting decent 
    money, working hard and raising a family, having the support of a spouse are 
    ways in which people live normal lives as opposed to the life that perhaps 
    Mr. Charlie was living before.  That is a very strong signal to me that this 
    man is well on the way to rehabilitation, has a strong potential for rehabilitation.  
    So I must, in these circumstances, give significant weight to that rehabilitation.

[20]

With respect to the fact that Mr. Charlie re-offended while subject 
    to a conditional sentencing order, the sentencing judge stated:

[11]      Then I have to consider, though, the fact that he was on a conditional 
    sentence.  What can I do in relation to that?  I have to consider that because 
    my normal practice is, One conditional sentence and that's it, Im not going 
    to give another one.  Most judges are fairly strict when people violate their 
    conditional sentences.
I note that Mr. Charlies conditional sentence 
    wasn't terminated, that must mean something.  It is something favourable to 
    him.

[12]      One other thing thats quite important in this case in terms 
    of deciding whether a conditional sentence should be imposed is that would 
    it endanger the community to release him on a conditional sentence?  Well, 
    clearly, in my view, it would not.  For a man for the last 20 months or so, 
    21 months, has been working hard, looking after his family, demonstrating 
    to all who can see him that he can lead a normal life and not commit any crimes, 
    despite the fact that he committed a crime while on a CSO, shows me that he's 
    changed his ways considerably and there is little likelihood that hell commit 
    an offence in the future.  I can't truly predict the future. Ive made mistakes 
    in the past, Ill make them again Im sure. I don't know for sure he wont 
    commit another offence, but my judgment is, my assessment is the probabilities 
    are, given that hes got a family, hes got work, hes got the support of 
    his friends, he's not in the drug lifestyle, it is unlikely hell commit further 
    offences.  The only offences on his record are drug offences, so in those 
    circumstances, those prerequisites are met.

[Emphasis added]

[21]

With respect to s. 718.2(e) of the
Criminal Code
and 
    Mr. Charlies aboriginal background, the sentencing judge said this:

[16]      It seems to me that in looking at the various issues that I 
    have to give weight to and sentencing principles in this case, is that Mr. Charlie's 
    aboriginal background, unfortunate as it is, has been addressed by him personally 
    in many significant ways.  He has a daughter that he wants to care for; hes 
    not going to, in any way, make that daughters life like his was.  He has 
    a spouse whom he cares for; he's not going to make his spouses life like 
    his mothers life was.  Hes got a job.  He is not someone who is likely to 
    go in and out of jail.  I think it's important to point out, its not as if 
    aboriginal people are all oppressed people or problematic people, there are 
    many excellent citizens who have aboriginal backgrounds, whove got good jobs 
    and help people and work hard and never get in trouble.  His background is 
    similar to the kinds of backgrounds that come up in this court very often 
    with aboriginal people.  So its a long way of saying
that I think its 
    a very important factor in this sentence, despite his prior conviction, of 
    his aboriginal background
.

[Emphasis added]

[22]

In conclusion, the sentencing judge gave the following reason for not 
    sentencing Mr. Charlie to a period of actual incarceration:

[17]      Having said all that, in my view the principles of sentencing 
    can be met by imposing a conditional sentence, despite the prior conviction, 
    given my confidence that Mr. Charlie is pretty well on the way to rehabilitation.  
    If I possibly can, I ought not to prevent that from continuing.

[18]      Judges sometimes have to take chances.  This is the kind of 
    case where Im comfortable taking a chance.  As I said, I cant predict the 
    future very well, I cant predict it, other than taking the probabilities 
    into account, and the probabilities here look good.
In my view it would 
    be unjust not to impose a conditional sentence, given the fact that the prospect 
    of rehabilitation is so great despite the other negative factors
;
so 
    for all those reasons I will impose a conditional sentence.

[Emphasis added]

[23]

In the result, the judge sentenced Mr. Charlie to a period of incarceration 
    of 18 months to be served in the community.  The order includes an 8:00 p.m. 
    to 5:00 a.m. curfew that expired on January 26, 2008.  While the curfew was 
    in effect, Mr. Charlie was subject to electronic monitoring.  He was 
    required to present himself at the door of his residence when requested by 
    a corrections officer, peace officer, or supervisor, to verify compliance 
    with the electronic monitoring and curfew.

Analysis

Reinstatement of the Previous Conditional Sentencing 
    Order

[24]

The Crown submits that the sentencing judge gave undue weight to the 
    fact that Mr. Charlies previous conditional sentence had not been terminated.  
    It says it was not afforded an opportunity to address why the previous order 
    was reinstated and that there was nothing before the sentencing judge as to 
    why this occurred.

[25]

In my view, it cannot be said that the sentencing judge erred in the 
    way he dealt with the reinstatement of the original conditional sentence.  
    Having regard to the entirety of the reasons for sentence, I take the sentencing 
    judges comments as indicating only that he considered the fact that another 
    judge had been prepared to permit Mr. Charlie to continue to serve his original 
    sentence in the community.  He found this to be an indication of Mr. Charlies 
    potential for rehabilitation.  In the end, it was Mr. Charlies actual positive 
    efforts with respect to rehabilitation during the 21 months since his second 
    apprehension that the sentencing judge considered to be a strong mitigating 
    factor.  He was clearly entitled to take those efforts into account.

Mr. Charlies Aboriginal Background

[26]

The Crown submits that the circumstances here are such that rehabilitation 
    should not have trumped the principles of deterrence and denunciation.  
    While accepting that Mr. Charlies aboriginal background warrants consideration, 
    the Crown says that the sentencing judge gave it undue emphasis.  As Mr. Charlie 
    chose to re-involve himself in serious criminal activity while serving a conditional 
    sentence for similar offences, the Crown says this is a case in which both 
    aboriginal and non-aboriginal offenders should be treated alike.  In this 
    regard, it points to the following passage from the judgment of Mr. Justice 
    Iacobucci in
R. v. Wells
, [2000] 1 S.C.R. 207, 2000 SCC 10:

44        
    Let me emphasize that s. 718.2(e) requires a different
methodology
for assessing a fit sentence for an aboriginal offender; it does not mandate, 
    necessarily, a different
result
.  Section 718.2(e) does not alter the 
    fundamental duty of the sentencing judge to impose a sentence that is fit 
    for the offence and the offender.  Furthermore, in
Gladue
, as mentioned 
    the Court stressed that the application of s. 718.2(e) does not mean 
    that aboriginal offenders must always be sentenced in a manner which gives 
    greatest weight to the principles of restorative justice and less weight to 
    goals such as deterrence, denunciation, and separation (at para. 78).  As 
    a result, it will generally be the case,
as a practical matter
, that 
    particularly violent and serious offences will result in imprisonment for 
    aboriginal offenders as often as for non-aboriginal offenders (
Gladue
, 
    at para. 33).  Accordingly, I conclude that it was open to the trial judge 
    to give primacy to the principles of denunciation and deterrence in this case 
    on the basis that the crime involved was a serious one.

[Underlining in original]

[27]

Dial-a-dope offences clearly fall on the serious end of the spectrum  
    Most recently, in
R. v. Tran
, 2007 BCCA 405, 245 B.C.A.C. 171, 
    this Court, in allowing a Crown appeal, set aside a conditional sentence of 
    two years less one day and substituted a sentence of two-years incarceration.  
    In so doing, Madam Justice Saunders stated:

[34]

This case involves a dial-a-dope cocaine marketing 
    scheme for profit only.  Mr. Tran is not an addict.  He has a history of 
    offences of similar nature.  This Court has discussed dial-a-dope circumstances 
    in the past and noted that it is a more aggravated form of the drug business.  
    By its nature it has a degree of sophistication and marketing to sustain the 
    business, indicating a significant level of committed endeavour, and it poses 
    extra difficulty for police investigation.  Mr. Tran was a part of this scheme, 
    even if he was not its main player.

[35]

Cocaine, as noted by courts repeatedly, is a highly addictive 
    drug.  On a daily basis courts see the negative toll it takes on people who 
    use it.  By engaging in the business of dispensing cocaine in an operation 
    such as this, Mr. Tran has lent himself to misery in his community. And he 
    has done so for profit when he has been earlier warned by the courts, through 
    his prior conviction and incarceration, not to do so.

[36]      
    In my view, notwithstanding his family circumstances, the sentence must speak 
    to deterrence and denunciation.  I do not consider that the sentence, in the 
    circumstances, accomplishes that goal.

[28]

However, as each case must be decided on its own facts, it is also 
    clear that not all those convicted of drug offences committed while serving 
    a conditional sentence need to be incarcerated.
R. v. Bui
, 
    2001 BCCA 471, 158 B.C.A.C. 21, is such a case.  Ms. Bui pleaded guilty to 
    possession of four flaps (i.e., 1.6 grams) of cocaine for the purpose of trafficking.  
    These drugs were found during a search of her residence.  At the time, she 
    was nearing the end of a 15-month conditional sentence for possession of heroin 
    and cocaine for the purpose of trafficking.  Having been given one-years 
    credit for time spent in pre-trial custody, she was sentenced to two years 
    in jail.

[29]

On appeal, this Court substituted a conditional sentence of two years 
    less one day.  In so doing, Saunders J.A., having determined that the sentencing 
    judge had misapprehended the facts with respect to the extent of Ms. Buis 
    involvement in trafficking, stated:

[11]      
    What then is a fit sentence?  I agree with the sentencing judge that commission 
    of an offence while on a conditional sentence is an aggravating factor.  In 
    all but the rarest of cases I would not expect a conditional sentence to be 
    followed by another conditional sentence.  This is, however, in my view, one 
    of those rare cases.

[12]      
    Ms. Bui has already endured what the trial judge said was equivalent to a 
    years incarceration.  The tripling of the time spent illustrates that it 
    was, in other words, hard time indeed.  This time undoubtedly would have 
    specific deterrent effect upon Ms. Bui and general deterrent effect so far 
    as the circumstances become known in the community.  Recognizing that, the 
    efforts made towards rehabilitation by Ms. Bui since August 1999 [when she 
    was arrested] and the investment of the community in that process, in my view, 
    a second and likely last conditional sentence may be countenanced, in accordance 
    with the provisions in the
Criminal Code
that direct the Courts 
    to sentence other than to jail if such can be done in accordance with the 
    principles of sentencing.

[30]

Whether Mr. Charlies sentence is unfit because too much emphasis 
    was placed on his aboriginal background is an arguable point.  However, it 
    is not one that I need decide because, even if the sentencing judge erred 
    as alleged by the Crown, I would not interfere with the sentence he imposed.

[31]

Before being sentenced, Mr. Charlie spent some 21 months in the community 
    following the commission of the present offence.  In light of the positive 
    changes Mr. Charlie had made to his life, the sentencing judge was of 
    the view that there was little likelihood that hell commit an offence in 
    the future.  Another six months has passed since Mr. Charlie was sentenced.  
    There is no suggestion that Mr. Charlie has done other than continue to be 
    a productive and law-abiding member of the community.

[32]

More than two years has passed since Mr. Charlie re-involved himself 
    in drug trafficking.  Why this case has taken this long to reach this point 
    is not entirely clear, and I attribute no fault to either party.  However, 
    it is a fact that during this period Mr. Charlie has been subject to 
    stringent conditions, and is a much different person today than he was in 
    October, 2005.

[33]

This Court has been reluctant to allow a Crown sentence appeal and 
    substitute a custodial sentence for a non-custodial one when to do so would 
    interfere with an offenders positive efforts at rehabilitation.  Such was 
    the situation in
R. v. Morphy
(1974), 21 C.C.C. (2d) 62 (B.C.C.A.).  
    Mr. Morphy was convicted of possession of marihuana for the purpose of trafficking.  
    Having spent three months in pre-trial custody, he was sentenced to pay a 
    fine, and placed on probation for three years.  The Crowns appeal came on 
    for hearing six months later.  Although of the view that a jail sentence should 
    have been imposed, this Court declined to do so.  In this regard, Mr. Justice 
    McFarlane stated (at 64):

Having regard to the circumstances outlined and particularly 
    the fact that this respondent, with a favourable pre-sentence report, continues 
    in steady employment and is not likely to repeat his offence, I think the 
    Court should be most reluctant to send him to prison now.

[34]

R. v. Nelson
, [1992] Y.J. No. 171 (C.A.) (QL), is also apposite.  
    Mr. Nelson had been sentenced to three months in jail to be followed 
    by three-years probation.  The Crowns sentence appeal was not heard until 
    six months later.  In dismissing the appeal, Mr. Justice Hinds said:

[37]      
    Absent special circumstances, the court is often reluctant to reincarcerate 
    a person, particularly if that person is satisfactorily performing terms of 
    a probation order and is making progress towards rehabilitation.  In this 
    case there was an opportunity for the sentence appeal to have been brought 
    on for hearing in June, 1992 when a division of this Court was sitting in 
    Whitehorse, or in July or August when a division of this Court was sitting 
    for one week in each of those months in Vancouver to deal with urgent matters 
    during long vacation.  Unfortunately the Crown, which had the responsibility 
    for this appeal, did not apply for it to be heard during the foregoing months.  
    It was not heard until October, 1992, several months after the respondent 
    had been released from prison.  In my opinion, it would not have been just 
    in the circumstances of this case to reincarcerate the respondent.

[35]

The concern expressed in
Morphy
and
Nelson
applies here.  It would be unjust, and counterproductive not only to Mr. Charlies 
    interests, but those of society at large, to interfere with his successful 
    efforts at rehabilitation by sentencing him a period of incarceration at this 
    time.  It is on this basis alone that I would dismiss this appeal.

Conclusion

[36]

I would grant leave to appeal and dismiss the appeal.

The Honourable Mr. Justice Frankel

I AGREE:

The Honourable Madam Justice Rowles

I AGREE:

The 
    Honourable Madam Justice Saunders


