[1]           THE COURT:  The Crown asks the court to revoke a suspended sentence imposed on April 5, 2016.  The application is made pursuant to s. 732.2(5) of the Criminal Code.  The sentence was imposed in relation to an offence of dial-a-dope trafficking of MDMA (ecstasy).  The offence was unsophisticated.  The Crown agreed the circumstances of the offence and the offender placed the offence at the low end of the seriousness for such offences.  I found that the circumstances of the offender were exceptional in accordance with the decision of R. v. Voong, 2015 BCCA 285.

[2]           Mr. MacArthur was placed on probation for a period of two years with various conditions, including to report as directed, abide by a curfew, attend counselling, pursue education, abstain from the consumption of drugs and alcohol, and to perform community work service.  The decision on sentence is reported as R. v. Evan William McArthur, 2016 BCPC 464.

[3]           Following the imposition of the sentence, Mr. McArthur reported to a probation officer on April 8th and again on April 11th.  He was directed to report again on April 21st and failed to do so.  He did not report again until a warrant for his arrest for a charge of failure to report was executed on November 15, 2016.  He was at large for seven months.

[4]           He pleaded guilty to the offence of failure to report on June 15, 2017.  He received a sentence of three days jail, of which two days was actual time in custody.

[5]           As to the reason why he did not report as required, Mr. McArthur says that he was moving and as a result forgot to report on April 21, 2016.  He became anxious about the potential consequences and so did nothing to address the issue.  Instead he carried on with his life although in a limited way due to his fear of being arrested.  He lived in an SRO in the Downtown Eastside and worked part-time at a restaurant.

[6]           During the period of time that Mr. MacArthur was at large, he did not commit any substantive offences.  However, after his arrest on the charge of failure to report on probation, he dealt with two counts of break and enter which arose on October 10 and 11, 2015, being after the trafficking offences occurred but before the suspended sentence in issue was imposed.  He was sentenced on those matters on April 26, 2017, and received a fine of $250 and probation for one year.  I infer from the sentence imposed that these offences were not serious.

[7]           Due to the legal right to be presumed innocent, the court was quite properly not informed about those outstanding charges at the time submissions were made.  However, submissions were made about the good conduct of the offender prior to the time of sentencing that were, given the illegal conduct of the offender during that time, misleading.  His then counsel, who was not Mr. Paruk, submitted he had been of good behaviour "since the offence" (transcript page 13, lines 14 to 16 and line 29).

[8]           As the two offences of break and enter arose in late 2015, some six months before the sentence in issue was imposed, I find that submission to have been misleading.  The court is unaware whether Mr. McArthur's counsel had been told by the offender about these outstanding offences or, if no charges had yet been laid, about this prior bad conduct.  I assume counsel was not aware or more care would have been taken in submissions.

[9]           What is significant is that Mr. McArthur would have known that he had not been of good behaviour "since the offence" and allowed his counsel to make that submission to the court.

[10]        Mr. McArthur now says that he has had a long-standing issue with anxiety.  However in the presentence report prepared in 2016 when he was nearly 27 years of age, he reported only that he experienced increased anxiety as a result of being arrested and charged.  During the sentencing hearing, his counsel submitted that he was "terrified".

[11]        He otherwise reported being in good mental health and said that he had been living a pro-social life with a positive peer group, and was employed.

[12]        Since his more recent arrest, Mr. McArthur has been fully compliant with the terms of his probation orders.  He has completed his community work service hours; he has sought the assistance of a physician to deal with his anxiety disorder and depression, and is taking medication which has improved his mental health.  He no longer consumes any alcohol, which was not an issue for him in any event.  As a result of his determination to stop drinking, he left the restaurant business and obtained a job as a commercial landscaper working for a large company.  He works on the weekends as a mover with a friend who met through AA.

[13]        His parents and sister are in the community and are supportive of him.  They have provided letters in which they say Mr. McArthur has had undiagnosed mental health challenges for some time.  In the past year, they have noted a significant improvement in his emotional state.  Mr. McArthur has a new relationship which is positive and supportive.  His BMX bike was stolen but he has replaced that activity with attendances at a gym.

[14]        When a sentence is suspended and probation imposed, the sentencing judge reserves his or her right to sentence the offender during the term of the probation if the probation order is breached or if the accused is convicted of another offence.

[15]        The basic principles of suspended sentence were discussed in Voong:

[16]        In R. v. Elendiuk No. 2 (1986), 1986 ABCA 53 (CanLII), 67 A.R. 221 (Alberta Court of Appeal), the court found that until the term of probation expires or until the suspension is revoked and the sentence is passed, the accused has not been "finally found guilty and punished" (paragraph 6).

[17]        In R. v. Paquette (1981), 1981 CanLII 3282 (QC CA), 58 C.C.C. (2nd) 413, the Québec Court of Appeal held that when a suspended sentence is revoked, the court ought to consider the accused's behaviour while on probation in determining the appropriate sentence:

[18]        The Ontario Court of Appeal made a similar finding in R. v. Casey, 1977 CanLII 1932 (ON SC), [1977] 1 W.C.B. 141, but added that intervening convictions after a sentence has been suspended should not be used to justify a lengthier sentence than would otherwise have been imposed at the time of the initial suspension.  Rather the intervening behaviour should only be used to assess the accused's character and prospects of rehabilitation.

[19]        Similar reasoning was applied in R. v. Tuckey, (1977) 34 C.C.C. (3d), where the Ontario Court of Appeal made it clear that an accused's conduct while on probation, including intervening convictions, can be considered by the sentencing judge.  The sentence must still be proportionate to the offence for which the sentencing is now being imposed:

[20]        This reasoning was again seen in R. v. Linklater (1982), 8 C.C.C. (3d) 48, upheld (1983) 1983 CanLII 3548 (YK CA), 9 C.C.C. (3d) 217 (Yukon Court of Appeal).  The accused was initially convicted of manslaughter and the trial judge imposed a suspended sentence with a two-year probation order.  While still on probation for the manslaughter conviction, the accused was subsequently convicted of assault causing bodily harm, breach of probation and failure to appear.  The suspended sentence for the manslaughter was revoked and the accused was sentenced to three years imprisonment for that offence.  The trial judge in rendering his decision held:

[21]        R. v. Nadeau, 2016 BCPC 316, concerned an accused convicted on drug charges relating to a dial-a-dope operation.  The original sentencing judge imposed a suspended sentence with two years' probation, based in part on the "exceptional circumstances" of the accused.  Subsequently, the accused was twice convicted of breach of probation and twice failed to appear before the court, resulting in the issuance of a bench warrants against him.

[22]        The Crown successfully applied to have the accused's suspended sentence revoked.  Taking into account the accused's demonstrated failure to adhere to his probation and to appear in court when so ordered, the court imposed a six-month jail sentence:

[23]        In addition to the authorities referred to above, some of which were not provided by counsel, counsel provided the court with R. v. Blanchard, 2009 YKCA 15, which deals with the principles to be applied to the revocation of a curative discharge relating to impaired driving sentences.  At paragraphs 40‑42, the court summarized the principles to be applied in the circumstances which are consistent with the approach outlined above, to be taken when assessing the sentence to be imposed following the revocation of a suspended sentence.

[24]        In R. v. C.(R.D.), 1987 A.J. No. 1161, at page 2, the court observed that subsequent convictions for which the offender has been sentenced may be taken into account but cannot be considered as aggravating the offence for which the suspended sentence was imposed. 

[25]        Academic literature supports the approach found in the jurisprudence, as discussed by J.A. Ramsey [as read in]:

[26]        In summary, once a court has determined to revoke a suspended sentence pursuant to s. 732.2(5)(b) of the Criminal Code, the sentencing judge may impose any sentence that could have been imposed at the time the sentence was suspended.  If the court finds it to be appropriate, a new suspended sentence with probation may be imposed and different terms may be considered.  In determining the appropriate sentence after revocation of the suspension, the sentencing judge may consider the accused's conduct and convictions while on probation for the purposes of assessing the accused's character and capacity for rehabilitation, and whether any degree of leniency should be granted.  Intervening convictions alone must not be used to justify a heavier sentence that would have been imposed at the time sentencing was suspended as those convictions would have already attracted their own separate sentences and punishment.

[27]        I find that the suspended sentence should be revoked.  The breach committed by Mr. McArthur was flagrant and ongoing.  His explanation provides no reasonable basis for his failing to report for seven months.  He only came into compliance as a result of an arrest.  He simply chose not to report after he realized he had missed his appointment.

[28]        It is trite that offences involving a failure to comply with the orders of a court are inherently serious offences as they undermine the Rule of Law.  Nevertheless it is easy to imagine scenarios where a failure to report or otherwise comply with the terms of probation may be found by the court, although wilful, to be technical or otherwise deserving of understanding and mercy.  In such circumstances it may well be that a court would decline to revoke a sentence or to impose a further period of probation with different terms.

[29]        Those who receive the benefit of a suspended sentence for an offence of dial-a-dope trafficking due to a finding of exceptional circumstances should understand that failure to comply with the terms of their probation will likely result in the court finding the suspended sentence should be revoked and the jail sentence should be imposed.

[30]        The failure to comply with an order of the court is a factor which militates against a finding of exceptional circumstances.  The exceptional circumstances as set out in Voong require the court to find that the offender has "turned their life around", and that their rehabilitation is well-established.  Ingrained in the foregoing is the finding that the offender is remorseful and has fully accepted responsibility.

[31]        In finding exceptional circumstances, the court looks to the ongoing conduct of the offender to establish that they are sincere and can be trusted to continue to pursue their rehabilitation through compliance with the terms of the probation imposed.  It is also essential that offenders be forthright with the court about their personal circumstances in order for the court to impose the appropriate terms to support their efforts in the community.

[32]        Should an offender put themselves in a position where the Crown seeks to revoke a suspended sentence, all of their circumstances, including convictions for other offences, regardless of when the offence occurred, will be put before the court to assist in determining their character, prospects for rehabilitation, and whether leniency is a factor to be given weight in determining what sentence should be imposed.

[33]        In determining the sentence to be imposed following revocation, the court must consider the circumstances as they were at the time the original suspended sentence was imposed in light of the conduct of the offender of which the court is entitled to be apprised on a revocation hearing (as opposed to the more limited evidence and information which may be put before the court at an original sentencing hearing).

[34]        I find that Mr. McArthur's circumstances can no longer be found to be exceptional.  He committed other offences some six months before the suspended sentence was imposed, failed to be forthright with the court about his emotional challenges, and as a result of his failure to report, flagrantly abandoned his responsibility to comply with his probation for a period of seven months.

[35]        In my view, to allow an offender to receive the benefit of a second finding of exceptional circumstances following a flagrant and serious breach would serve to undermine the Rule of Law and unduly diminish the fundamental importance of the need for compliance with orders of the court.

[36]        I accept that Mr. McArthur has now had a lengthy period of good behaviour in the community.  I find his current circumstances establish he is sincerely committed to his rehabilitation and is prepared to comply with the terms of his probation.  I accept that, at this time, he has come to terms with his mental health issues and is pursuing appropriate treatment.  These factors may properly all be taken into account at this time and mitigate in favour of a jail sentence at the low end of the range.

[37]        Balancing all of the factors to be considered respecting the imposition of sentence following revocation, taking into account the principles of sentence as set out in the Code and all of the circumstances of the offence and this offender, both at the time of the original sentence and at present, I find the sentence suggested by the Crown at the original sentencing hearing, being four months' incarceration, is a fit and proper sentence.  However, it would not be in society's interest in the long term to cause Mr. McArthur to lose all of the ground he has gained since coming into compliance with his terms of probation.

[38]        To avoid what would surely be cascading negative impacts due to the loss of his employment, I am prepared to reduce his sentence to one of 90 days to allow him to serve his sentence intermittently.

[39]        During the course of this intermittent sentence and for a period of two years, he will be bound by period of probation with conditions.