R. v. A.F., 2021 BCPC 204 (CanLII)
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2021 BCPC 204 |
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Date: |
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File No: |
39162 |
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Registry: |
Port Alberni |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
A.F.
ORAL REASONS FOR SENTENCE
OF THE
HONOURABLE JUDGE WOLF
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C. Proteau |
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Counsel for the Defendant: |
P. Hertzberg |
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Port Alberni, B.C. |
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Date of Hearing: |
August 19, 2021 |
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Date of Judgment: |
August 19, 2021 |
A Corrigendum was released by the Court on September 27, 2021. The corrections have been made to the text and the Corrigendum is appended to this document.
INTRODUCTION
[1] A.F. is a 42 year old Indigenous Metis woman. Tragically, in a very short time period, she lost three of her friends to overdoses. Fed up and frustrated with drug dealers, she grabbed some lighter fluid, went to a local apartment known as ‘The Ghetto’, and tried to light it on fire. She believed one of the people responsible for trafficking the drugs to her friends lived in this apartment building. She told the police “They keep selling drugs, and people keep dying, and nothing is being done about it.”
[2] I use the word “Indigenous” as, to me, it is inclusive of what the case law often refers to as “Aboriginal” and in an effort to be inclusive of anyone who self-identifies as Aboriginal, Metis, Inuit, First Nations, status or non-status Indian under the Indian Act and with respect to all individuals whether on reserve or off reserve and whether or not they have a close connection to their Indigenous culture.” There are points when I quote directly from statutes or reports and I may adopt the vocabulary used. For example, there is a point in these reasons that I have to use the word “Indian” when referring to the Indian Act.
[3] I could simply say what the sentence is and provide reasons at a later date, but A.F. in this case has had a long journey. There have been too many adjournments and years have passed since the offence took place. I imagine she feels her life is on hold because of the fear that she is going to jail. Such a feeling is not conducive to recovery or rehabilitation. This is why I am choosing to complete this sentencing process today.
ISSUE
[4] What sentence should A.F. receive?
CHARGE
Information 39182
[5] A.F., on or about the 19th day of October, 2018, at or near Port Alberni, in the Province of British Columbia, did intentionally or recklessly attempt to cause damage by fire or explosion to property, an apartment building, knowing or being reckless of the fact that the property was inhabited or occupied, contrary to Section 433(a) and Section 463 of the Criminal Code.
[6] Generally arson in circumstances where there is disregard for human life is punishable up to imprisonment for life.
[7] However, pursuant to Part XIII section 463(a) of the Criminal Code, in this case the accused is charged with an ‘attempt’ arson and is therefore liable to a maximum of fourteen years imprisonment.
FACTS
[8] A.F. got a lighter and a plastic container of lighter fluid and walked over to the building where she thought a drug dealer lived. She believed this drug dealer was the one that trafficked drugs to her friend who overdosed. Her intention was clear. She was going to attempt to burn the building down.
[9] Before starting to light anything on fire, she knocked on many of the doors and yelled “I’m A.F. and I’m gonna burn this place down!” Someone told her that the alleged drug dealer was not home. As a result of her loud warnings, a number of the other tenants left the building, but there is no indication that everyone left it.
[10] The Crown told the court that A.F. was seen spraying lighter fluid on the building and trying to light it on fire. The fluid on the building was not igniting, so A.F. put the plastic bottle of lighter fluid on the ground and stepped on it. More fluid squirted out and landed on a concrete block under the stairs of the building. She thought she successfully ignited the fluid, and then she came around the front of the building to watch it burn. Somewhere during this time period she lit herself on fire. It is unclear whether lighting herself on fire was an act of suicide, as indicated in some of the reports. However, in the sentencing proceeding, the Crown made a submission that the act of lighting herself on fire was an accident. This submission was not challenged by defence.
[11] Her injuries were minimal. No one else was physically injured. The building was not damaged. I note the building has a complicated local reputation and is referred to as “The Ghetto”. This is not a term that I will refer to in these reasons. It may well be that this housing unit houses some indigent people or people suffering from addictions or mental health issues. But this building is their home. And they are entitled to every protection as any other citizen. They should feel safe in their home.
[12] The police easily located A.F. At the moment of contact, she immediately blurted out “I know I tried to burn down that building”. She told the police she “was mad about her friend who just died from an overdose.” She told the police that she “was not trying to kill people, but to destroy or burn what was inside the building that was killing people.”
POSITION OF THE CROWN
[13] The Crown submits that the mitigating factors are that A.F.: pled guilty, disclosed information to the police at earliest opportunity, is Indigenous, has a history of mental health issues and has no real related record.
[14] The Crown submits that the aggravating factors are that: arson is inherently dangerous, there was intentional use of an incendiary device, and while the building never did light on fire, the attempt to light a residential building on fire could have potentially ended up with fatalities. An excellent and insightful submission of the Crown was that “Just because the attempt did not give the desired consequence, it is still a very dangerous act. They also stress that denunciation and deterrence should be paramount considerations since this offence was motivated by vigilantism.
[15] With respect to the above submissions of the Crown, I agree.
[16] The Crown argues that this was a deliberate act. They submit that this is not a case where mental illness created some sort of delusion. They argue she was cognizant of what she was doing. They argue that A.F.’s moral culpability is extremely high. On this one point, I disagree.
[17] With respect to ‘parity’, the idea that similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances, the Crown concedes that there may be no reported decisions for attempt arson endangering life. However, they contend that there are many cases to do with arson of property, that also has a maximum sentence of 14 years. In those cases, the Crown argues the range of sentence is wide, ranging between a suspended sentence and lengthy periods of jail.
[18] In summary, the Crown submits that the range of sentence in this case is probably best considered to be between two and six years jail. The Crown provided R. v. Combdon 2008 NLTD 71 as authority for the general proposition that “for the charge of arson with disregard for human life, the sentence will rarely be for a period of less than two years.” I do not disagree with this general starting point, I note that the Combdon case is nearly 15 years old, did not involve an Indigenous accused and the sentence of three years for trying to burn down his cabin with his girlfriend in it was imposed after a jury trial.
[19] Even though the Crown argues that the above range is a good starting point, they ask the court to consider a jail sentence of one year. They acknowledge that a number of the background factors in the reports we have, warrant a jail sentence outside the general range. While not expressly stated, it appears that the Crown is proposing a significantly mitigated sentence based on, amongst other things, Gladue factors.
[20] Defence submits a conditional jail sentence is the appropriate sentence.
[21] In response to the defence position, the Crown argues that “a community based disposition is inconsistent with the fundamental purposes of sentencing.” They emphasize that “the primary considerations are deterrence and denunciation and Gladue factors do not supplant other factors.”
POSITION OF THE DEFENCE
[22] Defence counsel submits that a jail sentence is appropriate and agrees that the circumstances of the offence are serious and that denunciation is a leading principle that a sentence must address. However, defence counsel argues that if a jail sentence is required, that it can be less than two years, and as a result, a conditional jail sentence must be considered. Defence points to a number of Gladue factors and urges the court to balance these factors with the other aggravating and mitigating features of this case. Essentially, defence implicitly argues that conditional jail sentences can address denunciation and deterrence in a meaningful manner. In addition, the Gladue factors favour a conditional jail sentence.
THE LAW
GENERAL FRAMEWORK OF SENTENCING
[23] I am always thankful to the many judges that spend countless hours writing their decisions. This case is no exception.
[24] As a starting point, The Honourable Justice Marchand’s analysis in R. v. Laforge 2020 BCSC 1269 is very helpful. In addition to the paragraphs below, the decision also refers to nearly a dozen arson cases where homes and business were burnt down for different reasons. The sentences ranged from a suspended sentence up to three years incarceration.
[25] The facts of Laforge are set out in paragraph 1. Essentially, the accused was suffering from a delusional belief that “he was being interfered with by intrusive brain-altering and perception-altering technologies” (para. 4). He drove his vehicle into the front window of a 7-Eleven store, exited his vehicle and poured gasoline on it. Everyone left the store and then he lit the vehicle on fire. There was extensive damage. At paragraph 16 Marchand J. concluded that “the economic and psychological impact of the fire has been significant.” He was charged with mischief, but also “intentionally causing damage by fire contrary to s.434 of the Criminal Code”.
[26] The actual charge in our case is different, his mental health was not the same as A.F., and he had spent 548 days in custody. The Crown and defence jointly submitted that three years probation was the appropriate sentence.
[27] One main similarity is that the accused in that case, and A.F. in this case self-identify as Metis.
[28] With respect to A.F., I adopt Marchand J.’s reasoning in paragraphs 32 to 43 with respect to the guiding sentencing principles:
Sentencing Principles
[32] Sections 718-718.2 of the Code set out the purpose and principles of sentencing.
[33] Under s. 718, the fundamental purpose of sentencing is to protect society and promote respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. The objectives of such sanctions include denouncing unlawful conduct, deterring offenders and others from committing crimes, separating offenders from society where necessary, rehabilitating offenders, providing reparations for harm done to victims or to the community, and promoting a sense of responsibility in offenders.
[34] Section 718.1 sets out the fundamental principle of sentencing. Under s. 718.1, a sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the offender.
[35] Section 718.2 sets out a number of other sentencing principles. Under s. 718.2(a), sentences are to be increased or reduced to account for any aggravating or mitigating circumstances. Section 718.2(b) sets out that sentences should be similar for similar offences committed by similar offenders in similar circumstances. Finally, ss. 718.2(c) to (e) promote restraint in sentencing.
[36] Under s. 718.2(c), the combined effect of consecutive sentences should not be unduly long or harsh. Under s. 718.2(d), offenders should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. Section 718.2(e) has special importance in the circumstances of this case. It provides as follows:
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Gladue Principles
[37] Given Mr. Laforge’s Métis heritage, s. 718.2(e) of the Code deserves special attention.
[38] Section 718.2(e) was introduced in 1996. Cases such as R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13 make it clear that it is a remedial provision that was and is intended to deal with the crisis of over‑representation of Indigenous offenders in the Canadian criminal justice system. Sadly, the statistics are worse today than they were in 1996.
[39] The crisis described by the Supreme Court of Canada has been driven by the alienation, poverty, substance abuse, lower educational attainment, lower rates of employment, and bias experienced by Indigenous people in Canada as a result of Canada's colonial history and destructive assimilationist policies, including a disproportionate number of child apprehensions.
[40] While these are broader societal issues, the Court in Gladue and Ipeelee has recognized that sentencing Indigenous offenders has a role to play in addressing their over‑representation in the criminal justice system. Indigenous offenders are different from other offenders because, in the words of the Supreme Court of Canada, they "are victims of systemic and direct discrimination".
[41] To help address the crisis, Gladue and Ipeelee changed the way Indigenous offenders are sentenced, though not necessarily the result. In sentencing an Indigenous offender, a sentencing judge must consider two factors:
1. The unique systemic or background factors which may have played a part in bringing the particular offender before the courts; and
2. The types of sentencing procedures and sanctions which may be appropriate in the circumstances.
[42] According to Gladue and Ipeelee, a sentencing court must take a holistic approach to imposing a fit sentence. A fit sentence is one that is proportional and appropriately balances the seriousness of the offence with the moral blameworthiness of the offender. In striking the appropriate balance, the unique systemic or background factors that may have played a part in bringing the particular offender before the court speaks to the moral blameworthiness of the offender. While a causal connection between systemic and background factors, and the offence at issue need not be established, a link may be important or helpful in finding a fit sentence.
[43] Finally, restorative sentences may be more appropriate for Indigenous offenders, but taking a restorative approach will not necessarily lead to a reduced sentence. Generally, the more serious or violent the crime, the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for an Indigenous and a non-Indigenous offender.
CIRCUMSTANCES OF THE OFFENCE
Arson Cases Generally
[29] Once more, I rely on Marchand J.’s words in Laforge at paragraph 48 to 50 wherein the law with respect to arson cases is:
[48] For sentencing purposes, arsonists can generally be divided into four types: pyromaniacs or persons suffering from mental illness; people who burn for no special reason; vandals; and people who burn for revenge or financial gain. Of these, persons who are suffering from mental illness are often considered to have the lowest level of moral blameworthiness while those who commit arson for revenge or financial gain are generally considered to have the highest: Sharun at para. 38 citing R. v. K.H., (1994) 1994 CanLII 17267 (NB CA), 146 N.B.R. (2d) 372 (C.A.). See also the numerous authorities reviewed in Leer at paras. 85 to 109.
[49] Because arson is committed in so many different ways, by so many different types of offenders for so many different reasons, the range of sentences is particularly broad. That said, arson offences committed by offenders with mental health issues and no prior record that cause significant property damage but no loss of life have resulted in custodial sentences of two to three years: Leer; Barnes; Keber. Of these, only Barnes involved an Indigenous offender.
[50] In exceptional circumstances, for example, where an offender has taken significant and objectively verifiable steps to maintain their mental health, has gainful employment, has a supportive family, shows remorse and poses a low risk to the community, a suspended sentence with a lengthy term of probation may be imposed: Bogue; Sharun. Neither of these cases involved an Indigenous offender.
[30] The Honourable Judge Brecknell in R. v. Sharun 2017 BCPC 367 made this comment at paragraph 36 and 41:
[36] Arson offences have been the topic of judicial consideration and comment on numerous occasions. Humankind’s historic interaction with and fear of fire, the great conflagrations that consumed many cities over the centuries, as well as the seeming randomness of what fire destroys once started all seem to play a role in how arson offences are addressed in determining an appropriate sentence.
[41] It is commonly accepted that sentences imposed in other cases may be of limited assistance in determining a fit sentence.
Endangering Life versus Endangering Property
[31] In my view, the deliberate act of trying to set fire to damage property or injure people is inherently dangerous. I accept when it is done for fraudulent purposes, the degree of moral blameworthiness is extremely high. I also accept that a person suffering from a significant mental illness may lead to a conclusion that the degree of moral blameworthiness is extremely low. I also accept that when there is significant damage, this factor can be considered to be aggravating. On the other hand, I do not think in this case that it is a mitigating factor that no actual harm to people or damage to property took place. The intention was there, and I conclude that A.F.’s actions were not driven by any significant mental illness or any particularized state of intoxication. In other words, she knew what she was doing, and if she was successful there very well could have been significant loss of residential homes and injury to humans. I agree with the sentiment that the seriousness of fire has to do with its unpredictability.
Vigilante Justice – Motive for committing the fire - Vengeance
[32] A.F. has been harmed by the drug dealers in our community. Some of her friends were addicted to drugs, they were given drugs and they died as a result of over-doses. While R. v. Joon 2017 BCPC 301 is a sentencing case involving a drug trafficker, the Honourable Judge Challenger commented on the amount of overdose deaths in BC. The Joon decision came out a number months before A.F. committed this crime. At paragraphs 19 and 45 Judge Challenger writes:
[19] Coroners Service documents relating to illicit drug overdose deaths in BC from 2007 to April 30th, 2017 show a marked spike, indeed a doubling in number, as of late 2015 into early 2016.
[45] Those who traffic in opiates, cocaine and synthetic drugs such as methamphetamines have long been described by the courts as “Merchants of Misery”. I think it is now apt to describe those who traffic in fentanyl as “Merchants of Death.”
[33] As a citizen of British Columbia, I understand how A.F. feels. She has lost friends to over-doses. Whether it was fentanyl or some other hard drug, the loss is tragic. I see the ravages of hard drugs everywhere I go. As a citizen I recognize that we as a society need to do better when dealing with humans that have mental health, poverty and addiction issues. But dealing with these issues must be done without resort to vigilante justice. We must not take matters into our own hands, or there will be significant consequences, both criminal and societal.
[34] The Crown relies on R. v. Jack 2008 BCCA 437 where the Honourable Mr. Justice Chiasson, writing for the majority essentially acknowledged the trial court judges view with respect to why we cannot excuse vigilante behaviour. At paragraph 43:
Ours is a civilized society in which we enforce the basic code of values enshrined in our criminal law through the rule of law. The rule of law does not recognize revenge, or vigilante justice, as having any place in a civilized society. The fundamental purpose of sentencing, which as noted is respect for the law and the maintenance of a just, peaceful and safe society, could never be achieved if such conduct was to be regarded as a mitigating circumstance when assessing the moral culpability of the offender.
[35] As a Judge, I firmly stand by the proposition that vigilantism must not be tolerated. Concerned citizens need to report crimes to the police. Justice is dispensed within our Justice system not by trying to burn places down. Absent some extremely exceptional circumstances, I am of the view if you try to burn a home down, the only result is a jail sentence.
[36] While I have concluded that a jail sentence is appropriate, I have not yet determined the length of the sentence. However, I am mindful that the Crown submits that a jail sentence in the range of one year may be appropriate. As a result, it would be unusual for me to double the sentence suggested by the Crown. Although I have done exactly that in one case where I imposed a two-year jail sentence when both Crown and defence jointly submitted that a one year jail sentence was appropriate. I mention this unlikely scenario of doubling the sentence, as that means, if I were to accede to the Crowns position, it is possible that this accused would receive a sentence of less than two years. This automatically means that I should at least put my mind to whether a conditional sentence order is appropriate. I believe it is important for the public to understand some basic principles of conditional jail sentences or ‘CSO’s’. Sometimes there has been confusion about a ‘conditional discharge’ and a ‘conditional sentence’ as a penalty.
[37] To be clear, a conditional ‘discharge’ in its simplest form means that a person has to do certain things within a certain time period, such as community service work or counselling. In exchange for the completion of the conditions, they would be ‘discharged’ versus ‘convicted’. The end result is that they do not receive a criminal record.
[38] A conditional sentence is totally different. It is a jail sentence. But, it is one that can be served in the community, versus an actual corrections facility. The extreme example would be putting a condition on a person that they can serve their jail sentence in the community if they abide by 24 hours house arrest. A failure to abide by conditions often requires the accused to be removed from the community and placed in jail to serve a portion of their jail sentence.
CONDITIONAL JAIL SENTENCE
[39] The headnote in R. v. Proulx 2000 SCC 5 is an extremely useful starting point in understanding why conditional jail sentences (CSO’s) need to be considered in some cases. While perhaps a bit unnecessary to provide this information to those of us who work within the legal system, I provide it here for the public’s ease of reference.
The 1996 sentencing reforms (“Bill C-41") substantially reformed Part XXIII of the Code, and introduced, inter alia, an express statement of the purposes and principles of sentencing, provisions for alternative measures for adult offenders and a new type of sanction, the conditional sentence of imprisonment. Bill C-41 in general and the conditional sentence in particular were enacted both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing.
A conditional sentence should be distinguished from probationary measures. Probation is primarily a rehabilitative sentencing tool. By contrast, Parliament intended conditional sentences to include both punitive and rehabilitative aspects. Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty. Conditions such as house arrest should be the norm, not the exception.
No offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment, nor should there be presumptions in favour of or against a conditional sentence for specific offences.
Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.
The requirement in s. 742.1(a) that the judge impose a sentence of imprisonment of less than two years does not require the judge to first impose a sentence of imprisonment of a fixed duration before considering whether that sentence can be served in the community. Although this approach is suggested by the text of s. 742.1(a), it is unrealistic and could lead to unfit sentences in some cases. Instead, a purposive interpretation of s. 742.1(a) should be adopted. In a preliminary determination, the sentencing judge should reject a penitentiary term and probationary measures as inappropriate. Having determined that the appropriate range of sentence is a term of imprisonment of less than two years, the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community. As a corollary of the purposive interpretation of s. 742.1(a), a conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.
The requirement in s. 742.1(b) that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence, and not the primary consideration in determining whether a conditional sentence is appropriate. In making this determination, the judge should consider the risk posed by the specific offender, not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law. Two factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. A consideration of the risk posed by the offender should include the risk of any criminal activity, and not be limited solely to the risk of physical or psychological harm to individuals.
Once the prerequisites of s. 742.1 are satisfied, the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. This follows from Parliament’s clear message to the judiciary to reduce the use of incarceration as a sanction.
A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.
Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community.
Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved. However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served. A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances.
No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. The judge should consider all relevant evidence, no matter by whom it is adduced. However, it would be in the offender’s best interests to establish elements militating in favour of a conditional sentence.
Sentencing judges have a wide discretion in the choice of the appropriate sentence. They are entitled to considerable deference from appellate courts. Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.
[40] Is a conditional jail sentence available in the circumstances? Until very recently, a conditional jail sentence was not available for this charge where life imprisonment is the maximum punishment. Once more, however, this crime was an attempt and thus the maximum punishment shifts to a maximum of 14 years imprisonment. Even with this shift, up until recently a CSO was not available even for the attempt offence.
[41] I am thankful to the extra efforts of the Crown who has approached this sentencing with an extremely high degree of professionalism and has been proactive in researching the law. They provided me an Aide-Memoire with respect to a recent decision that is relevant to the ability of the court to impose a CSO in this case. I provide it in full.
On April 7, 2021, Mr. Justice Schultes gave oral reasons for judgement in R. v. Chen, 2021 BCSC 697 finding that ss.742.1(c) and 742.1(e) (ii) violated s.7 of the Charter. These sections restrict the availability of a CSO where:
c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life
…
e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that
…
(ii) involved the import, export, trafficking or production of drugs …
The Crown’s position is that Chen is only dispositive of ss.742.1 (c) and (e)(ii) where the Crown proceeds by indictment, this leaves in place the following restrictions:
• Offences subject to mandatory minimum sentences [s. 742.1(b)];
• Offences involving terrorism or criminal organizations subject to 10 years imprisonment [s. 742.1(d);
• Offences subject to 10 years imprisonment that result in “bodily harm” [s. 742. 1(e)(ii) or “use of a weapon” [s. 742.1 (e) (iii)]
• Offences listed in s. 742. 1(f), including: criminal harassment, sexual assault, kidnapping, motor vehicle theft, theft over $5,000, B&E other than a dwelling house.
In the Crown’s submission the decision effectively disposes of the constitutional validity of s. 742.1(c) and (e)(ii) both in proceedings in Provincial Court and in the BC Supreme Court. CSO’s are now legally available in BC for offences prosecuted by indictment involving a maximum sentence of 14 years or more.
However, the Crown would note for the Court that prior to 2007 CSO’s were available but only rarely imposed by courts for serious offences subject to 14 years or more imprisonment. Thus there is jurisprudence addressing the appropriateness of CSO’s for such offences as aggravated assault, manslaughter, robbery, etc.
[42] To be clear, I take the Crown’s submission to be this. If the court deems it appropriate, then a CSO is an available sentence. However, I understand that the Crown questions whether conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. To shore up their position with the Proulx language, they seem to argue that the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.
[43] There is no minimum punishment and the offence charged does not create a barrier. As I have determined below with respect to risk to the community, a jail sentence served in the community does not endanger the community. The fact that she has been in the community for nearly three years since the offence date without incident supports this conclusion. As well, A.F. has reported to a bail supervisor consistently, and on time. A.F.’s bail supervisor indicates that there are no concerns of non-compliance. In short, this means there is every reason to believe that she is able to abide by conditions in the community.
[44] Is the sentence of a CSO consistent with the fundamental purposes and principles of sentencing? That is, in balancing all the principles, including denunciation and deterrence, would a CSO be appropriate in the circumstances? I acknowledge that if we simply created sentences based on the seriousness of the crime, the Crown’s argument mentioned above is a compelling argument that favours an actual jail sentence versus one served in the community.
[45] However, I also need to address the accused personal circumstances and background.
CIRCUMSTANCES OF THE OFFENDER
Pre-Sentencing Report (PSR)/Forensic Psychiatric Services Commission Report/Gladue Report
PSR
[46] These reports all provide important information about A.F. The pre-sentencing report (PSR) is written by a probation officer. It covers different headings of information such as “Current Circumstances”, “Court History and Interventions” and “Sentencing Considerations for Indigenous Offenders”. The author confirms that with respect to “factors that contributed to subject’s offending include unresolved trauma, poor-problem solving skills in terms of expressing frustration and anger, impulsivity, and substance misuse”. The report confirms that in 2000 and 2011 A.F. received a criminal record for impaired driving offences. The report also confirms that A.F. has reported consistently and on time to her bail supervisor, that there have been no concerns of non-compliance, and that A.F. has expressed “a willingness to abide by the requirements of the Court, including any direction to attend counselling or programming specifically as it relates to anger management and mental health”. Whether the sentence is to be served in the community or in a jail, the author lists conditions that would be appropriate.
Forensic Psychiatric Report
[47] This report is written by a Doctor Ferguson. Dr. Ferguson is a registered psychologist. The referral to Forensic Services was “for an assessment of A.F.’s mental health and any impact on her impulse control, behaviour and ability to connect with consequences, as well as her overall risk of recidivism”. The author describes A.F. as bright, with a somewhat anxious demeanor, and forthcoming. The doctor discusses “Education and Employment History”, “Substance Use History”, “Physical Health History and Medications”, and “Relationship History”. Many of these topics are also covered by the Gladue report that I will discuss later in these reasons.
[48] With respect to past traumas, the author confirms that she presented with symptoms consistent with depression, anxiety and post-traumatic stress disorder.
[49] Dr. Ferguson conducted a number of psychological tests. The report concludes that “A.F. is likely at low to moderate risk of violence…However, with improvements in mental health functioning, abstinence from alcohol, and improved coping and stress management skills, there is likely to be a commensurate reduction in her risk”.
[50] While arguably alcohol use played a minimal role in this offence, I think it is fair to say that the psychological assessment confirms that A.F. is open to, and actually embraces the idea of treatment “for alcohol use and mental health.”
Gladue Report
[51] I recognize that by creating a distinct ‘sub-heading’ here, near the end of these reasons, I might create an impression that I put Gladue factors above all other factors. On this topic, I instruct myself that I must not over-emphasize the Gladue factors that are present in this case. It is only one factor. Obviously, A.F. committed a serious crime and I need to balance the circumstances of the offence with all the antecedents of this offender.
[52] As is often the case when sentencing an Indigenous offender, A.F.’s personal history is so intertwined with who she is as an Indigenous person, that it would be impossible to consider the circumstance of this offender without a full consideration of her Gladue factors that may have played a role in bringing her before the court for committing this crime. The fact that some of these antecedents have been discussed in the forensic report and PSR is helpful in understanding ‘risk’ to the community. However, I find a Gladue report provides a broader, more meaningful medium of understanding A.F.’s Gladue factors.
[53] Of course, there is no checklist of what a Gladue factor is. But I will list some in a moment.
[54] I wish to express my thanks to Jodie Cote the author of the Gladue report. An immense amount of work goes into these reports, and I find them extremely helpful. The report is nearly twenty pages long, so I will only repeat portions of it.
Personal and Family History
• A.F. is now 43, she is Metis and originally from Alberta.
• Her mother had “abandoned her in a cold house for three days when she was two years old. Her mother is now deceased.”
• She has upwards of seven half-siblings and almost all parental type people around her were either “coke-heads” or alcoholics; she essentially became the care giver to all her step-siblings.
• “She suffered physical and sexual abuse between the ages of four and twelve years old.”
• “She witnessed violence and abuse of others throughout her childhood”.
• A.F. bounced between many different homes.
• She began to drink alcohol at age 12 when she lost her close relative to suicide.
• A.F. had one relationship for 13 years and lost one child who passed away at two weeks of age; a large part of the time they were together he was in jail for killing two people in car accident; she left this relationship due to physical abuse, which included one time where he smashed a whiskey bottle over her head (Information confirmed through Forensic report).
• On another occasion a boyfriend tried to strangle her in a tub (Confirmed through PSR)
Current Circumstances
• A.F. is living in a supportive housing program, which provides access “to health care, support programs, counselling and other services and support”. While she has a history of working, she currently supports herself on a disability allowance.
Health (Physical and Mental)
• Her past relationships have been abusive and violent.
• She is blind in one eye due to an accident; she only has hearing in one ear.
• She is on medications to help with a number of conditions, including one that makes her less prone to seizures. (I note some of the delay in concluding this matter was due to A.F. having to be taken to the hospital from court because she had a significant seizure in the courthouse).
• Once more, she has significant symptoms of depression, anxiety and post-traumatic stress disorder.
• As far as supports, she talks to health nurses every week, had a counsellor and is “going to try to connect with someone at the mental health office again”.
• I note that there have been suicide attempts in the past; A.F. attempted to hang herself when she was eight years old, she attempted suicide another seven times and most recently, during this assessment process and after meeting with the author of the PSR, she tried to strangle herself by hanging (This information obtained from Forensic report.)
Personal Goals
• “A.F. says she wishes to start over and change direction, and wants to overcome her drinking problem. She said she had three friends pass away around the time of her offence, and was drinking heavily. She reported that she had gone off the seizure medication she had been on as she could not get her prescription filled. She said she had not been eating well. She said she takes full responsibility for her actions and is remorseful. She felt at the time that a person living in the building she tried to light on fire was responsible for selling drugs to her friends who have died. A.F. said that she went and apologized to all the people living in the building as she, feels awful.”
• A.F. confirmed that she wanted to go to a treatment facility, preferably a culturally based program.
Aboriginal Community History
• The Metis community where A.F.’s family is from has a history consistent with that of most Indigenous communities. They have suffered from colonial oppression, and systemic racism. The Gladue report refers to https://en.wikipedia.org/wiki/Elizabeth_Metis_Settlement as a useful starting point to understand some of the traumas Metis people face in Canada.
• I think it is fair to say that A.F. was robbed of her cultural spirit. She used to practice Metis customs, such as jingle dancing. At points in time she was able to go fishing, attend cultural camps where she would make bannock, cook other traditional foods and embrace cultural hunting practices. But throughout her life her ability to participate in cultural activities became severely limited. As a result of moving around so often, she was housed in different environments that did not practice Metis traditions. She had to go to church and was raised at points as a Catholic.
• The Gladue author confirms that “A.F. shows signs and symptoms of historical and inter-generational trauma.” Much research has been done on trauma and the impacts traumatic effects can have upon those who experience them: as discussed below:
Of special importance is the concept of historical trauma, which has been developed and studied by Dr. Maria Yellow Horse Brave Heart, a Lakota scholar and social worker who has spent many years working within Indigenous communities researching and healing historical trauma. Her work has assisted us to understand historical trauma, which she defines as ‘the cumulative emotional and psychological wounding over the lifespan and across generations, emanating from massive group trauma experiences such as residential school attendance and land surrenders, among others’. The events comprising the historical trauma are characterized by three characteristics, including:
1. The event was widespread among a specific group or population, with many group members being affected;
2. The event was perpetrated by outgroup members with purposeful and often destructive intent; and
3. The event generated high levels of collective distress in the victimized group.
Guided by these three factors, we can see that many of the historical events that have shaped the life paths of Indigenous people in Canada constitute ‘historical traumas’. These include not only the residential school experience, but also such events as the taking of Indigenous lands by treaty, surrender and settler trespass; the forced relocation of communities and villages; the introduction of foreign diseases leading to mass epidemics; alterations to traditional economies, political structures and family life through colonization; the outlawing of traditional spiritual practices such as the Potlach and Sun Dance. We can add to these historical traumas such ongoing events as environmental degradation of traditional lands and the failure to respect and implement treaties. While this list is not exhaustive, it allows us to understand that historical traumas include many pivotal events and processes other than residential schools, and that those traumas remain significant and compelling events that have persistent, ongoing impacts at three levels: the individual, the family and the community (Evans-Campbell, 2008: 322; IPS Gladue Writing Course Material)
The pre-sentence report written for this matter discussed the Metis people, stating,
Like many of the First Nations communities in British Columbia, the Metis people were subject to assimilation in the residential school system and were governed by discriminatory social policies and practices.
The Metis are one of three distinct Indigenous peoples of Canada, recognized under the 1982 Constitution. The history of Canada has been greatly influence by the Metis peoples who emerged in west central North America with their own language (Michif), culture, traditions and self-government structures. Metis are people of mixed First Nation and European ancestry. The Metis culture draws on their ancestral origins, such as Scottish, French, Ojibway, and Cree. The distinct Metis culture arose after contact with the first European explorer/ settlers but prior to colonization. Fiercely independent, the Metis were instrumental in the development of western Canada. Many people self-identify as being Metis, like A.F. To be recognized as a citizen, there is a process involving genealogy. A family root to a historic Metis community is required.
Summary & Restorative Justice Options
“A number of adverse impact factors that affect Aboriginal peoples in general are present in A.F.’s personal life, including:
• A.F. has held employment on and off for much of her adult life and is currently unemployed;
• A.F. has a low level of education;
• A.F. has acknowledged she has an addiction issue and requires assistance to overcome her addictions;
• A.F. had family attend residential schools;
• A.F. was raised in a home where addiction was an issue;
• A.F. suffered physical, emotional, and sexual abuse in her younger years and in some of her relationships;
• A.F. witnessed much violence and abuse of others throughout her life;
• A.F. had a difficult relationship with her family while growing up;
• A.F. grew up quickly and had great responsibility as a youth to care for her siblings due to the use of alcohol by her parents, and neglect caused by this.
• (I note that the PSR also lists numerous alternatives to jail, which include many types of rehabilitative interventions that are found in her immediate community.
[55] There are extensive community/restorative based options available for A.F. The author details these alternatives that are available and they include very well thought out residential treatment options. In fact, part of the delay of this sentencing was to allow A.F. to pursue these residential treatment options. COVID has created hurdles in this process. As well, some recovery facilities would not take A.F. unless she concluded this sentencing process. I note, that since the offence date, A.F. had gone to detox and was trying to get into a residential treatment facility. However, she left the detox facility as she was sexually assaulted by another male going through the same detox program. As a result, an addictions counsellor, who attended court with her, has been trying to get her into a long-term residential women’s treatment facility.
[56] The matter was adjourned to complete the intake process to the specialized treatment centre.
[57] After a significant delay, and significant efforts, A.F. is in court with her addictions support worker. It seems that since she is a Metis person, and not a status Indian under the Indian Act, she is not eligible to go to the treatment centre that we all thought might be perfect for her. The treatment centre has specialized programming times for women only. It creates a safe place to heal. This is particularly important because of A.F.’s recent trauma she suffered while being in a co-ed detox facility. Unfortunately, the program located in Alert Bay does not accept Indigenous people who self-identify as Metis. Apparently their funding agencies require the clients in the treatment facility to have a ‘status number’.
[58] As a woman who self-identifies as Indigenous, here are some factors that I take into account in imposing her sentence. If she were in the lower mainland, she would have greater access to programming generally. More specifically, A.F. could potentially access Indigenous courts and their processes. Tragically, due to her being Metis, she is not able to access some local programming that would be excellent for her. On top of all that, if she goes to jail today, she is removed from Vancouver Island and shipped to a prison on the mainland of BC – because we do not have a prison here for her to go to.
[59] A.F. has applied to other centres and efforts are being made to get her into an appropriate detox facility. Since the last appearance she has cut down her alcohol intake by nearly a third, in an effort to increase the chance of success in detox. Her counsellor says that she shows care for others more than she cares for herself. Her counsellor gifted her sage to smudge, which she does regularly. Her counsellor says that as A.F. stops drinking, it is “vital that she continues accessing supports as her experiences of trauma surface during these times”.
[60] As A.F. is somewhat shy, she had her addictions support worker speak some of her words to the court today. These are extracts from my notes as to what she communicated to the court:
“I don’t know where my family came from – or anything. I’m a human from a government system. My mother abandoned me at three years old. But it’s not about how life treats me, it’s about the way I treat life. I’m here to find a reason to love… to do something good. I open the door to my heart a little bit when I’m here…then when I leave here I slam it shut.
I have goals. I want to know who my family is. I want to learn traditions … to pray to mother earth, share food, respect others, respect elders and to help anyone who needs help. I want to work again. But I want to put health before work.
CONCLUSION
[61] I don’t normally list all the aggravating and mitigating factors, but here are a few that I have taken into account.
Summary of Some Aggravating Factors
• Inherent danger of fire;
• This was an intentional attempt to ignite a building using an incendiary device;
• This act was motivated by vigilantism;
• There is a criminal record.
Summary of Some Mitigating Factors
• This is a guilty plea, and thus has saved the public the cost of a trial; she has consistently been remorseful;
• A.F. has consistently been cooperative with the police, and all the authors of the reports;
• Her criminal record is limited, older and not related;
• A.F. has performed well on bail for nearly three years. While perhaps the amount of time having her liberty restricted must fall into this category, I accept that she was simply abiding by conditions, and that could fall into the neutral category;
• A.F. has made attempts to deal with her risk factors, such as attending counselling, going to detox, and making significant efforts to get into treatment;
• There is a history of mental illness that could have played a role in this offending behaviour; (i.e.: she was off her prescribed medications during this time period and sleep deprived);
• There is a history of addictions that could have played a role in this offending behaviour;
• There are significant systemic and personal Gladue factors that lessen her moral blameworthiness.
Neutral Factors
• There was no damage or physical injuries caused;
• There has been a significant delay in completing this matter; there are many reasons, and COVID may be one of them;
• That there is no local corrections facility that would keep her closer to home if had to go jail.
[62] As I have mentioned, I believe when a person tried to burn a building down in these circumstances, a jail sentence is usually warranted. The real question is how long? The Crown argues 12 months is appropriate. I find that this is an extremely fair, reasonable, and well thought out Crown position that seems to truly take into account the Gladue factors in this case when determining ‘range of sentence.’
[63] However, in the end, I find the sentence, even with all the mitigating factors, including the Gladue factors, warrants a sentence in a higher range. Specifically, I conclude that a jail sentence in the amount of 18 months is the appropriate sentence. In my view this sentence is required in order to denounce the offence. As well, by way of general deterrence, the public needs to know that no matter what your personal antecedents are, if you take matters into your own hands like A.F. did, 18 months jail is a sentence you could receive.
[64] Should this be a jail sentence where A.F. is sent off to a corrections facility or can it be served in the community? I conclude no, she does not need to go to an actual corrections facility.
[65] I conclude that this conditional jail sentence can be served in the community. I have covered some of those reasons above. For example, A.F. is able to abide by conditions. To remove A.F. from the community now, takes her away from her counsellors, her supportive housing and from some of the cultural things she has been doing. To put her in jail now, delays getting her into a residential recovery program and limits the type of cultural programs that she can access. As I have covered earlier in these reasons, a conditional jail sentence is NOT probation. It is a jail sentence.
[66] A.F. is starting a new point in her life. She recognizes what she did is wrong. She knows that she is smart and has goals of making the world a better place. A.F. is an incredible human being who has endured unimaginable traumas. She is strong, able, and willing to work on her recovery. If she keeps reaching out to her supports, then her future is full of possibilities.
[67] You must comply with a conditional sentence order for a term of 18 months. The conditions have been provided to the court clerk and I will not repeat them in these reasons.
[68] I acknowledge that often after serving a conditional sentence, a probationary term follows. However, I do not believe one is necessary in these circumstances. Time has allowed for some involvement with counsellors. Another 18 months will allow these rehabilitative interventions to continue. To add another two years probation would create a situation where A.F.’s liberty would have been restricted for nearly six years. I am confident an 18 month conditional sentence order will adequately deal with the sentencing principles, which include denunciation, deterrence and rehabilitation.
_____________________________
The Honourable Judge Wolf
Provincial Court of British Columbia
CORRIGENDUM - Released September 27, 2021
In the Reason for Sentence dated August 19, 2021, the following changes have been made:
[1] Paragraph four (4) is deleted.
_____________________________
The Honourable Judge Wolf
Provincial Court of British Columbia