R. v. Woods, 2021 BCPC 307

Citation: R. v. Woods 2021 BCPC 307 Date: 20211215 File No: 68215-1-K Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. SCOTT WOODS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: A. Ward Counsel for the Defendant: E. Warren Place of Hearing: North Vancouver , B.C. Dates of Hearing: May 19, September 15, 2021 Date of Judgment: December 15, 2021 [ 1 ] On November 12 th of 2020 Scott Ryan Woods pled guilty to one count of arson contrary to s. 433 (

a) of the Criminal Code . The offence occurred on August 23 rd of 2020. He set fire to a residential property located on Squamish Nation Lands in North Vancouver. The home was occupied and he was reckless as to whether anyone was in the home.

[ 2 ] The sentencing proceedings were held in Indigenous Court. The Court heard the Crown’s submissions on May 19 th and the Defense submissions on September 15 th , 2021. The Court had the benefit of a Pre-Sentence Report and a thorough Psychological Assessment. [ 3 ] The decision in R. v. Chen , 2021 BCSC 697 was released on April 7 th , 2021. In that decision, the Court followed the reasoning in R. v. Sharma , 2020 ONCA 478 , and found that ss. 742.1 (

c) and (e) (ii) which served to preclude the imposition of a conditional sentence for offences with a maximum sentence of 14 years or life should be struck down as unconstitutional. The submissions in this matter proceeded on the basis that the Court could consider the imposition of a conditional sentence. [ 4 ] Although this offender’s life has not been impacted by the Gladue factors except in a somewhat indirect manner, the matter proceeded in Indigenous Court in part because the offence was of significant concern to the Squamish Nation. CIRCUMSTANCE OF THE OFFENCE [ 5 ] Mr.

Woods was involved in a relationship with a female who lived in the subject home with her father and brother. Up until the night before the offence, Mr. Woods had also been residing in the home for some time. The relationship between Mr. Woods and his intimate partner was toxic and both parties engaged in physical altercations with each other. There had been many police attendances at the home as a result. [ 6 ] Two days prior to the offence Mr. Woods is alleged to have choked his intimate partner. As a result he was evicted from the house.

The night before the offence, he was treated in the hospital for a laceration to his head. Mr. Woods says the injury was the result of being hit on the head with a piece of wood by members of his partner’s family and her friends in retaliation for his alleged assault on her. [ 7 ] On the evening of the offence, Mr. Woods became intoxicated and began texting his former partner making threats, using misogynistic language and making demands for sex. She responded to a few of his texts dismissing his requests. He said “I guess your house gets it then.” Later he texted her and says her house is on fire. [ 8 ] Mr.

Woods went to a gas station, filled a jerry can with gas and went to the residence. He did nothing to conceal his identity or his conduct. The fire investigation revealed that attempts were made to ignite three areas outside the house. The house caught fire after Mr. Woods put a ladder up against the house, opened a bathroom window on the main floor, emptied the jerry can into the bathroom and ignited it. The fire spread rapidly. The father of his partner was able to safely leave and suffered minor smoke inhalation. Neighbours came out and tried to assist by using residential fire extinguishers. [ 9 ] Mr.

Woods was seen by a neighbour. He smelled of gasoline and his hair was singed. This person was aware of the toxic nature of his relationship with an occupant of the home and called the police. [ 10 ] The main floor of the home was gutted. The entire structure needed to be repaired and renovated. [ 11 ] Mr. Woods candidly acknowledges that he was motivated by revenge against his former partner and her family. VICTIM IMPACT [ 12 ] The residents of the home continue to be fearful and anxious. The offence traumatized them and their ongoing sense of insecurity is due to the actions of Mr.

Woods having been so unpredictable. They lost the contents of their home including irreplaceable items of sentimental value. ANTECEDENTS OF THE OFFENDER [ 13 ] Mr. Woods is now 33 years of age. He identifies as being of Nisga’a heritage through his father. His great grandfather was half Nisga’a and was one of the first Nisga’a people to graduate from university. He acted as an interpreter during the Nisga’a land claims. He died in the 1970’s before the offender was born. Mr. Woods has had little connection to his indigenous heritage over his life. [ 14 ] Mr.

Wood’s father grew up in the Skeena social housing development in East Vancouver and did not identify as indigenous. He reports that when he was growing up people did not talk about their indigenous heritage. He had substance abuse issues which led to criminal involvement including a long sentence for robbery which he served when Mr. Woods was a child. Much to his father’s credit he has been sober since his release and now lives a pro-social life. [ 15 ] Mr. Woods experienced a chaotic and neglectful early childhood. His mother also had substance abuse issues. His father inflicted several head injuries on him.

The last involved fracturing Mr. Wood’s skull when he was three years old. Mr. Woods and his sister were then apprehended and placed in foster care. He remained in care except for a brief period when he was returned to his mother and removed again. [ 16 ] Mr. Woods spent the balance of his childhood with the same foster parents who provided him with a safe and loving home. They remain supportive today and he has a close relationship with them.

Both his biological parents are now sober and he also enjoys a good relationship with each of them. [ 17 ] As a newborn he experienced withdrawal and was found to have neo-natal abstinence syndrome and fetal alcohol effect. He was also diagnosed with ADHD and took Ritalin until he was in his mid teens. He had difficulties in school and required one to one assistance and tutoring but did obtain his Dogwood Diploma. He continues to face limitations due to his low cognitive capacity. [ 18 ] Mr. Woods has a criminal history. His primary criminogenic factor is substance abuse in the context of intimate relationships.

He has two convictions for intimate partner violence from 2011 and 2012 for which periods of probation were imposed. He was compliant and engaged with his probation and the programs he was directed to complete.

[ 19 ] The first offence involved a short term partner. She was pregnant and he restrained her on a bed while threatening to kill the baby and shoot her with an air pistol. He struck her with the butt of the gun. [ 20 ] The second conviction involved the mother of his son. He shoved her up against a dumpster when she refused to hug him. Witnesses intervened and separated them. He went on to harass her by repeatedly texting her. [ 21 ] He has a history of misuse and abuse of substances dating back to his mid teens.

He left the home of his foster parents and moved in with his biological Mother when he finished high school. She was still abusing substances and his own substance abuse accelerated. [ 22 ] He has not used street drugs for some time but remains addicted to alcohol. At times his substance abuse has resulted in psychotic symptoms and he has been hospitalized for psychiatric treatment on two occasions. He also experiences suicidal ideation and engages in self harm and reported that this was occurring in early 2020.

The psychological report also suggests he is suffering from PTSD as a result of being the victim of violent attacks, including at the hands of his former partner. [ 23 ] Despite these many challenges, Mr. Woods has been employed since finishing high school. He now supplements a disability income with part time employment. He is currently doing re-bar work. He attempted to start his own re-bar business just prior to the pandemic but had to put that on hold and continue working for his current employer. [ 24 ] He designs fancy sneakers and is trying to develop a market for his shoes on-line.

He also enjoys making rap music. He has been accepted into a marketing and social media program at CDI College which started September 27 th , 2021. [ 25 ] His son is now 11 and lives with his maternal grandparents. Mr. Woods has a good relationship with the child’s mother and her parents. He is devoted to his son and sees him regularly. He is described as being a good father. [ 26 ] It would appear that for Mr. Woods this offence constituted him reaching his “rock bottom”. He has abstained from the use of alcohol since this offence occurred. He is eager to pursue treatment and wishes to remain sober.

He has been compliant with the terms of his release. POSITIONS OF COUNSEL [ 27 ] The Crown submits that a sentence in the range of two to five years imprisonment is appropriate. If the court imposes a sentence of two years or less, a lengthy period of probation should follow. The Crown says that a conditional sentence would not meet the principles of general deterrence and denunciation. [ 28 ] Counsel for Mr.

Woods submits that the range of sentence suggested by the Crown is correct but that this offender should receive a sentence at the low end of the range to allow for a conditional sentence followed by a lengthy probationary period. Such a sentence would permit Mr. Wood to continue his rehabilitation in the community and properly reflects his reduced moral culpability. The principles of general deterrence and denunciation can be met through the imposition of a conditional sentence. AGGRAVATING AND MITIGATING FACTORS [ 29 ] The nature of the offence is highly aggravated. Mr.

Woods took steps to carry out his offence by going to a gas station and filling a jerry can with accelerant. He then made several attempts to start a fire on the outside of the house and when that failed he took a ladder and poured accelerant into the house and lit it on fire. He was reckless as to whether anyone was in the home. He acted out in revenge for what he saw as bad treatment at the hands of an intimate partner. He caused extensive damage to the home and caused upset in the community due to the potential for injury to others and damage to nearby homes. [ 30 ] In mitigation, Mr.

Woods entered an early guilty plea. Although his moral culpability cannot be seen to be reduced due to the impact of the Gladue factors directly, it is attenuated by his low cognitive capacity and mental health issues. These issues arose as a result of drug and alcohol abuse by his parents, both pre and post natal, neglect of his needs as an infant and toddler and violence in the family home including head injuries suffered by Mr. Woods at the hands of his father. THE LAW [ 31 ] The maximum sentence for an offence under s. 433 (

a) of the Criminal Code is life imprisonment where the Crown proceeds by indictment. There is no mandatory minimum penalty. [ 32 ] I have carefully considered the decision of Mr. Justice Marchand, as he then was, in R. v. Laforge , 2020 BCSC 1269 . In that matter, an indigenous male with schizophrenia drove his car into a 7/11 store, demanded that everyone leave the store, poured gasoline into the interior of his car and lit it on fire. He committed the offence to gain attention due to delusional thinking. The store was gutted.

The vehicles of two employees also suffered heat damage. [ 33 ] The offender was dealing with one count of arson contrary to s. 434 of the Code which carries a maximum sentence of 14 years imprisonment. As Chen had not yet been decided, the option of imposing a conditional sentence was not open to the Court.

In that matter a sentence of 18 months time served to be followed by probation for three years was imposed. [ 34 ] The Court addressed the principles of sentence, the application of the Gladue factors and the appropriate range of sentence for arson offences: [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 theseriousness 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 toaccount for any aggravating or mitigating circumstances.

Section 718.2(

b) sets out that sentences should be similar for similar offencescommitted 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) hasspecial 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 tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. 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, (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 ofIndigenous 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, lowereducational attainment, lower rates of employment, and bias experienced by Indigenous people in Canada as a result of Canada's colonialhistory 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 offendershas a role to play in addressing their over-representation in the criminal justice system.

Indigenous offenders are different from otheroffenders 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 theresult. 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 isone that is proportional and appropriately balances the seriousness of the offence with the moral blameworthiness of the offender. Instriking the appropriate balance, the unique systemic or background factors that may have played a

part in bringing the particularoffender before the court speaks to the moral blameworthiness of the offender. While a causal connection between systemic andbackground 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 notnecessarily 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. Range of Sentence for Arson [44] Sentencing is a highly-individualized process. The type of available sentence may be constrained by statutory provisions andthe range of appropriate sentence is generally established through a consideration of sentences imposed on similarly-situated offenderswho have committed similar offences in similar circumstances. [45] Under s. 430(4) of the Code, Mr.

Laforge is liable to a maximum punishment of two years imprisonment in relation to hismischief offence, while under s. 434 of the Code, he is liable to a maximum punishment of fourteen years imprisonment in relation to hisarson offence. Under s. 742.1(c), a conditional sentence order is not available in relation to Mr. Laforge’s arson offence. Otherwise, allsentencing options are available. [46] Counsel referred me to a number of sentencing authorities, including R. v. Bogue, 2017 BCPC 58, R. v. Leer, 2017 BCPC235 and R. v. Sharun, 2017 BCPC 367.

I have also reviewed a number of the authorities cited in these cases, including R. v. Barnes, 2005BCCA 432 and R. v. Keber, 2005 BCCA 543. These cases outline a number of important principles that emerge from the case law. I willsummarize these below. [47] Arson is a serious offence. The maximum punishment of 14 years imprisonment reflects that fire is erratic, unpredictable andmay give rise to unforeseen consequences such as extensive property damage, serious personal injury and/or death: Sharun atpara. 38 citing R. v. K.H., (1994) (NB CA), 146 N.B.R. (2d) 372 (C.A.).

Protection of the public, denunciation anddeterrence, both general and specific, are the primary sentencing objectives: Leer at para. 124; Sharun at para. 37. [48] For sentencing purposes, arsonists can generally be divided into four types: pyromaniacs or persons suffering from mentalillness; 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 forrevenge or financial gain are generally considered to have the highest: Sharun at para. 38 citing R. v. K.H., (1994) (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 priorrecord 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 maintaintheir mental health, has gainful employment, has a supportive family, shows remorse and poses a low risk to the community, asuspended sentence with a lengthy term of probation may be imposed: Bogue; Sharun. Neither of these cases involved an Indigenousoffender.

Principles of Sentence Deserving of Greatest Emphasis [63] As noted, the authorities are clear that public safety, denunciation and deterrence are the primary sentencing principles in casesinvolving arson. [64] Nevertheless, the authorities are also clear that in cases where mental illness plays a central role, deterrence and punishmentshould be given less weight while treatment and protection of the public should be given more weight.

That is because, offenders whoseconduct is the product of impaired reasoning, delusional thinking and other compromised mental conditions have a reduced level ofmoral blameworthiness and must be distinguished from “ordinary, fully accountable offenders”. As a result, a more lenient sentence thanwould otherwise be called for may be appropriate for an offender suffering from a serious mental illness: R. v. Badhesa, 2019 BCCA70at paras. 39-44. [35] Crown counsel provided R. v. Yellowknee, 2017 ABCA 60, R. v. Monias, 2019 CarswellMan 443, R. v. Fewer, 2004CarswellNfld 389, R. v. Jonah, 2014 ONCJ 19 and R. v.

Berg, 2016 BCPC 379 in support of the appropriate range of sentence. [36] In Yellowknee the Court found no error in the imposition of a 12 month period of incarceration followed by one year of probationfor an offence under s. 434. The indigenous offender lit his own trailer home on fire while intoxicated. No one else was present in thehome. Mr. Yellowknee had remained sober after the offence. [37] In Monias a suspended sentence with probation for two years was imposed for an arson to a vehicle under s. 434. The firejumped to a nearby building which was not forseen by the indigenous offender.

The Gladue factors were found to have impacted Mr.Monias. He was an alcoholic who was highly intoxicated at the time of the offence. [38] In Fewer the offender lit a storage shed next to a residence on fire and pleaded guilty to an offence under s. 434. Mr. Fewer, analcoholic, was intoxicated and angry because his mother would not let him use her car. A two year sentence was imposed. [39] In Jonah the offender was found guilty after a trial for an offence under s.434. The offender attempted to light himself on fire inthe bedroom of his home. He was upset over a break up with the mother of his child.

He was not suffering from any ongoing mentalhealth or addiction issues. The Court declined to impose a conditional sentence solely on the basis it would not meet the principles ofdenunciation and general deterrence. A sentence of 6 months imprisonment was imposed followed by two years of probation. [40] In Berg the offender lit the home of his former girlfriend on fire in the middle of the night while it was occupied. He was foundguilty after trial. The fire destroyed the house as well as caused damage to surrounding residential properties. No one was injured. Mr.Berg was an alcoholic who was intoxicated.

He had suffered from head injuries and some mental health challenges and was consideredto be a high risk for future violence. He had a lengthy and serious criminal history. A sentence of three and a half years was imposed. ANALYSIS AND CONCLUSION [41] There can be no doubt that the offence committed by Mr. Woods was a serious one which could have resulted in serious harm toany occupants of the house. The offence created a risk to neighbours, other properties and to the firefighters who had to come to supressthe fire. Mr. Woods lit the fire to avenge a wrong done to him involving an intimate partner. [42] Mr.

Woods has maintained his sobriety since the time of the offence. He is remorseful and accepts responsibility. He isprepared to cooperate with a community based disposition and has proven himself able to be compliant. He does not present a risk forfurther violence if he remains sober and addresses his mental health issues. [43] Mr. Woods has done very well in the community given his challenges. He has employment and is occupied with pro socialactivities including further education. He has a son who he has a close relationship with. He has family support. Mr.

Woods has takenthis charge seriously and has taken the opportunity to try to better his life. [44] The issues of concern for the Court are that Mr. Woods does not have insight into the seriousness of his substance abuse. Healso minimizes his responsibility for the violence in his relationships and instead externalizes blame for his behaviours. However, hislack of insight and understanding of these matters is likely due in part to his cognitive deficits. In my view, these issues can best beaddressed through counselling and treatment. [45] Mr.

Woods’ circumstances are not exceptional to the degree that a suspended sentence could be found to be appropriate. A twoyear sentence is at the low end of the range for similar offences and similar offenders. However, the authorities reviewed here and thesummaries of other cases in the authorities support that a custodial sentence of two years would be appropriate where the circumstancesof the offence are serious but the offender’s moral culpability is attenuated by cognitive deficits, poor mental health and addiction. Ihave also taken into account that, given Mr.

Woods many challenges, a period of incarceration in an institution would likely result in him

losing the ground he has gained and could well cause him to significantly decompensate. [ 46 ] I find that in all the circumstances a conditional sentence of two years followed by three years probation can meet the principles of general deterrence and denunciation. I find Mr. Woods can safely serve a sentence in the community and terms can be imposed on a community based disposition which will serve to effect his rehabilitation and protect the public. It is in the long term interests of society that Mr.

Woods be given the assistance he needs to stay sober, be a good father and continue to be as self sufficient as he can. [ 47 ] I impose a sentence of two years to be served conditionally in the community followed by three years probation. ______________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia