B.C. judge cites Robin Hood in ‘breath of fresh air’ decision | John L. Hill

By John L. Hill

Law360 Canada (November 24, 2023, 10:26 AM EST) --
John L. Hill
John L. Hill
Homelessness and encampments are a pressing concern in many Canadian municipalities. There is a call for increased government spending to provide shelter for those who cannot afford shelter.

On the other hand, there is also public displeasure with the fact that for many who are sleeping rough — moving between temporary shelters or living on the street — there has been open drug usage and trafficking. This has led to a major schism in approaches in dealing with this very visible population. Some urge compassion and are willing to provide injection sites and ready access to drug overdose relief. Others despise what they view as the flaunting of lawlessness and suggest the only remedy is to “lock’em up.”

In the case of R. v. Campbell 2023 BCSC 2015, Justice Ian Caldwell dealt with the sentencing of Michael Gordon Campbell, a 47-year-old who had been convicted of multiple drug possession, drug trafficking and weapons offences. The oral reasons for sentence delivered at Powell River, B.C., on Oct. 19, 2023, could be considered a Canadian interpretation of “compassionate conservatism.”

Justice Caldwell considered Campbell’s background, who had lost family support due to the deaths of his parents and multiple marriage breakdowns. He had suffered from ADHD and depression and became addicted to drugs to self-medicate. His drug usage has been ongoing since age nineteen. He tried unsuccessfully to break his addiction by attending rehab centres on numerous occasions. He ran up drug debts and had been shot at by his suppliers. This led to his being armed for self-protection.

The sentencing judge listed a number of aggravating factors. The drugs involved were large quantities of fentanyl and methamphetamine, a digital scale, a stun gun and a four-inch knife. Campbell was on bail when arrested on a second occasion for trafficking the same drugs as when first arrested. Also, it must be recognized that the victims of his illegal activity are themselves vulnerable people who, when they overdose, take up resources that deprive innocent people of access to emergency care or hospital space for treatment.

However, the judgment does not overlook the mitigating factors. Campbell entered a guilty plea to his charges. Even though compromised by drugs, he was willing to stand up and take responsibility for his wrongdoing. Despite his tumultuous past, the judge also complimented him for living 47 years without a criminal record. While detained in custody and unable to self-medicate, he has accepted proper medication and presented himself in court with a much-improved demeanour.

Another mitigating factor was not so obvious. While being interviewed for his pre-sentence report, he did not deny selling drugs. He expressed pride in his sales being “to help people. If I sell them, they won’t die…Ambulances don’t get called when I sell drugs.” The sentencing judge took this to mean that Campbell was advancing “a Robin Hood kind of approach.” Although he was still under the ravages of street drugs when he made the remarks, he expressed a rationale that was not solely based on greed.

The proper sentence, Justice Caldwell assessed, was a global sentence of three and a half years with a 1.5 to 1 credit for his time in pretrial custody amounting to 90 days. With that credit, his sentence amounts to 1,187 days. There were ancillary orders to provide a DNA sample and a lifetime prohibition on weapons. However, his parole eligibility date will be a year and a month from the date of sentencing. It would be ludicrous, the judge determined, to impose a Victim Fine Surcharge while the accused is destitute and should not be saddled with a debt that will be an incentive to recommit his offences.

Even though a penitentiary term was imposed, the judgment is a breath of fresh air from sentencing decisions that stress the importance of deterrence and denunciation at the expense of rehabilitation.

Justice Caldwell should also be applauded for recognizing that s. 718.2(e) of the Criminal Code applies to more than Indigenous offenders. He considered not only what harm Campbell had committed but also looked at why he offended. In doing so, he did not let his power to impose a sentence become a dehumanization process that ignored the rehabilitative prospects of the accused to satisfy the public’s craving for vengeance for a terrible crime.

Hopefully, this judicial approach will be followed as we anticipate a call for more arrests as homelessness numbers increase.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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