



COURT
OF APPEAL FOR
BRITISH COLUMBIA




Citation:



R. v.
Bodaly
,









2010 BCCA
  9




Date: 20100107

Docket: CA37022

Between:

Regina

Respondent

And:

Stacey Terry
Bodaly

Appellant






Before:



The
  Honourable Madam Justice Newbury





The
  Honourable Madam Justice Huddart





The
  Honourable Mr. Justice
Tysoe




Sentence Appeal from the Provincial Court of
British Columbia

R. v.
Bodaly
,
Port Alberni Registry No. 40281,
April 14, 2009

Oral Reasons for
Judgment




Counsel
  for the Appellant:



P. Gibb





Counsel
  for the Respondent:



P.
LaPrairie





Place and
  Date of Hearing:



Victoria, British Columbia





January 7, 2010





Place and
  Date of Judgment:



Victoria, British Columbia





January 7, 2010






[1]

NEWBURY,
J.A.
:
Mr.
Bodaly
, who is now 47
years old, was convicted at Port Alberni almost a year ago of one count of
possession of marihuana for purposes of trafficking, after pleading guilty. He
was sentenced by a Provincial Court judge to three months imprisonment with one
year probation.

[2]

The offence took place
in Mr.
Bodalys
home, which was across the street
from a community park where youths often gathered. Police observed both adults
and youths coming and going from the house. When the police executed their
search warrant, there were three youths around the kitchen table with
marihuana paraphernalia, including a girl who was about 12 years old. She was
not Mr.
Bodalys
daughter, but the daughter was,
we may infer, being exposed to the marihuana operation in the house where she
lives.

[3]

Mr.
Bodaly
applied to appeal the sentence in April of last year on various grounds,
including that the sentencing judge had disregarded a recommendation of
community supervision in the pre-sentence report and had failed to give due
consideration to the appellants Aboriginal status as required by s. 718.2(e)
of the Code.

[4]

The
PSR
had noted the appellants dreadful upbringing was in a household full of
neglect, abuse and indifference. Mr.
Bodaly
left
home in Port Alberni at age 14 and became self-sufficient. He had a child,
Ashley, in 1997 and has always been her primary caregiver. He left school in
Grade 8 and is basically unable to read or write, perhaps due to a reading
disability. Yet he has managed to hold down decent jobs for extended periods
until about 2001. He has been living in recent years on social assistance of
$664 per month plus rent. When young, he abused alcohol until he quit,
certainly when his daughter is around, but in
latter
years he has self-medicated with marihuana and, it appears, pills.
Accordingly to the report, this assists him in coping with depression, anxiety
and ongoing back pain.

[5]

He has a criminal
record but not a lengthy one, the last offence having occurred in 1995 for
possession of a narcotic. Most of the offences relate to alcohol or drug use or
possession. He told the author of the
PSR
that he now
realizes that with a child around, he cannot continue trafficking in drugs and
that he must act in accordance with the law. I should also note the sentencing
judge had evidence from a social worker to the effect that Mr.
Bodalys
daughter was receiving good care from her father
and is doing well at school.

[6]

Mr.
Bodaly
was born a member of the
Snuneymuxw
First Nation but
has not cultivated his ties to the band, having made it on his own to this
point. The author of the
PSR
noted that no
information regarding programs that might be available for or from members of
the band was available before sentencing. The author was of the view that Mr.
Bodaly
sincerely wanted to change his behaviour,
especially if anything he does impacts his daughter or his ability to maintain
custody of his daughter. The
PSR
recommended a
period of community supervision subject to various conditions.

[7]

The defence sought a
conditional sentence and suggested the appellant would benefit from community
assistance, perhaps from Aboriginal sources. The Crown sought a term of
imprisonment of three months and, as we have seen, that is what the sentencing
judge ordered. He emphasized deterrence, although he was troubled by the gap
in Mr.
Bodalys
record and the fact he had done well
in raising his daughter single-handedly. On the other hand, the location of the
offence was seen as an aggravating factor, and properly so.

[8]

The sentence appeal was
first set down to be heard on November 2 of last year. At that hearing, defence
counsel argued that the sentencing judge had not given adequate weight to the
appellants Aboriginal status. The Court, however, was not given any evidence
or information regarding any alternative to imprisonment that might be provided
by the
Snuneyuxw
First Nation. The Court concluded
that in light of Mr.
Bodalys
background as
detailed in the
PSR
, the gap in his record and the
Courts duties under s. 718.2, more information was required. The appeal was
therefore adjourned to permit counsel to file evidence of alternatives
available to him from the
Snuneymuxw
First Nation.
The appeal was rescheduled to today and Mr.
Bodaly
was released on bail in the meantime.

[9]

Today there is evidence
that there are community services available through the Band, that is, a
program that assists with substance abuse, as well as counselling, a health
nurse, a program that assists people who have been out of school for a long
time, and a friendship centre close to the community. It also appears Mr.
Bodaly
made arrangements to begin counselling in December
2009 in Port Alberni and has been attending for counselling with Mr.
Zyrd
.

[10]

The Crown takes the position that
the sentencing judge did not err or impose an unfit sentence on Mr.
Bodaly
and notes that the judge was not required to comment
on the appellants Aboriginal status, of which the Court had clearly been made
aware. Counsel says the sentencing judge considered a conditional sentence,
citing
paras
.
5-6 of his reasons.
I must say I see no reference to that alternative in those paragraphs or
elsewhere. The sentencing judge did emphasize that the offence was a serious
one (and one cannot disagree with that) and told Mr.
Bodaly
he was not here to sentence your daughter, I am here to sentence you. This is
true, but it does not explain why a conditional sentence was not thought
appropriate. I do not suggest that every sentencing judge must in every case go
through the reasons why he or she thinks a conditional sentence is not
appropriate.
In many cases that is self-evident or is
implicit in the analysis.
In this case, however, a conditional sentence
was in my respectful view an obvious and viable option, and why it was rejected
is
not
self-evident. Section 718.2(e) instructs courts that they must in
every case take into consideration all available sanctions other than
imprisonment that are reasonable in the circumstances ... for all offenders
with particular attention to the circumstances of aboriginal offenders.
R.
v.
Gladue
([1999] 1
S.C.R.
688) tells us that this is a remedial provision intended to alter the method
of analysis which each sentencing judge must use in determining the nature of a
fit sentence for an aboriginal offender.
(Para.
33.)

[11]

It is true Mr.
Bodaly
has lived apart from his Aboriginal community since he was able to remove
himself from the care of his obviously dysfunctional family. That does not mean
he is any the less a victim of his upbringing or disentitled to have
s. 718.2(e) given due consideration in his case. Even if he were
not

Aboriginal
, he would be entitled to have a conditional
sentence seriously considered, given his background, the long gap in his
criminal record and his ability to hold employment in the face of severe
educational deficiencies and his family situation.

[12]

In my view, the sentencing judge did
not give adequate weight to s. 718.2(e) or to the personal and family
circumstances that militated in favour of a conditional sentence in this case.
Given Mr.
Bodalys
attitude and recognition that he
cannot keep breaking the law, it is likely that deterrence and protection of
the public are not as important in this case as rehabilitation. It appears now
that there is a reasonable alternative to imprisonment that may help Mr.
Bodaly
return to a way of life that is stable and
productive and enables him to continue to provide his daughter with the
environment she needs. We are told he realizes he cannot do so if he flouts the
law and I would add the warning that if he is convicted of another criminal
offence, imprisonment is more likely  with all that would entail for this
family.

[13]

In all the circumstances, and
considering also that Mr.
Bodaly
did serve 21 days in
custody (with rather serious consequences for his daughter), I find that a fit
sentence would be a conditional sentence of three months, giving credit for the
21 days already served, subject to the following conditions:

1.
        There would a curfew from 9:00 p.m.
to 6:00 a.m., except when Mr.
Bodaly
is
attending to go to work or to attend rehabilitation or counselling programs or
sessions.

2.        
He must attend and participate in rehabilitation substance abuse and other
counselling programs that may be recommended by his probation officer, whether
Aboriginal-based or otherwise.

3.        
He must refrain from associating with persons that he knows are users of
illicit substances.

The one
year probation order would continue in place. On these conditions, I would
allow the appeal.

[14]

HUDDART,
J.A.
:
I agree.

[15]

TYSOE
,
J.A.

I agree.

[16]

NEWBURY,
J.A.
:
The appeal is
allowed, and a conditional sentence of 90 days substituted for the sentence of
three months
imprisonment
. The conditions stated
shall be imposed, and the probation period and terms remain unchanged.

The Honourable Madam Justice
Newbury


