R. v. Hindle, 2022 BCPC 219

Citation: R. v. Hindle 2022 BCPC 219 Date: 20221014 File No: 260157-3S Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. ADAM JAMES HINDLE CONDITIONAL SENTENCE BREACH DISPOSITION OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Crown: A. Allard Counsel for the Accused: L. Fumano Place of Hearing: Vancouver , B.C. Date of Hearing: September 27, 2022 Date of Judgment: October 14, 2022 INTRODUCTION

[ 1 ] In June 2022, Mr. Hindle received an 18 month conditional sentence for the offence of possessing a weapon dangerous to the public peace. Within days of being sentenced, Mr. Hindle breached conditions of his sentence by drinking two beers and as a result he was ultimately arrested and detained. Mr. Hindle admits the breach and this Court must consider how to respond to the breach. PARTIES POSITIONS [ 2 ] The Crown urges the court to terminate Mr. Hindle’s conditional sentence and direct that he serve the remaining balance in custody.

In support, the Crown points to the seriousness of the index offence, the timing of the breach, the nature of the breach and Mr. Hindle’s subsequent conduct. As an alternative, the Crown points to the option of directing Mr. Hindle to serve a portion of his sentence in custody with him being released to serve the balance in the community. [ 3 ] Counsel for Mr. Hindle urges the court to take no action and impose additional conditions involving forensic counselling, medication and an area restriction. In support, counsel highlights Mr.

Hindle’s breach and notes his conduct was directly related to him not taking his medication and therefore the proposed medication with monitoring will avoid further breaches. Counsel also argues the approach suggested recognizes Mr. Hindle’s self-reporting of his breach, the minor nature of the breach (drinking two beers), that he is not charged with further offences and finally taking no action contributes to the rehabilitative gains that Mr. Hindle has made. THE LEGAL PRINCIPLES [ 4 ] Pursuant to

section 742.6(9) of the Criminal Code , a court has four options available when dealing with a breach of a conditional sentence: (1) do nothing; (2) vary the conditions of the order; (3) suspend the order for a time; or (4) terminate the order. [ 5 ] When an offender breaches a condition without reasonable excuse there is a rebuttable presumption that the offender will serve the remainder of their sentence in custody.

The benefits associated with the threat of custody include; it contributes to offender compliance, it sends a message to others about the importance of complying with a conditional sentence and it distinguishes a conditional sentence from probation: R. v. Proulx, 2000 SCC 5 . I would also add, the strong threat of jail maintains public confidence in the sentencing process [ 6 ] Despite the presumption of terminating a sentence, it is important to recognize that termination is not mandatory.

If Parliament had intended termination in every case, then there would not have been the statutory options of taking no action, changing the optional conditions or suspending a portion of the order: R. v. Langley, 2005 BCCA 478 at para. 6 .

In sum, the presence of options is a clear indication that termination is not automatic, rather, it is presumed and this presumption is rebuttable with judges being given the discretion as to the appropriate response. [ 7 ] In Langley , the court observed that the courts possess flexibility in fashioning an appropriate response that is appropriate for each offender and the circumstances so that the purpose of sentencing can be achieved and the public protected. At para. 7 the court stated: The absence of specific guidelines for the exercise of the discretion given by this

section of the Code provides flexibility for courts to fashion a disposition appropriate to each offender and the circumstances of the breach so that the mandated purposes of sentencing can be achieved and the public protected from further criminal activity. With that flexibility comes the obligation to explain the factors taken into account in exercising the wide-ranging discretion and the reasons for selecting the particular disposition.

So too comes the obligation on the offender in breach to establish that sentencing principles can be met with a disposition other than termination. [ 8 ] In terms of factors to consider when identifying an appropriate response in the circumstances of a breach, guidance is found at para. 13 of Langley .

This brief review of the appellate authorities following Proulx , suggests the task of the court at a disposition hearing is to consider the nature of the offence; the nature, circumstances, and timing of the breach; any subsequent criminal conduct and sentences for that conduct; changes in the plan for community supervision; the effect of termination on the appropriateness of the sentence for the original offence; and the offender’s previous criminal record, in determining whether the presumption of termination for breach is to be applied.

If the presumption is rebutted, the court then is to ask itself which of the other three options is appropriate, having regard to those same factors. I do not understand the list of factors to be closed. APPLICATION OF THE FACTORS TO MR. HINDLE Offence resulting in the Mr. Hindle’s conditional sentence. [ 9 ] On August 9 th 2020, Mr. Hindle drove to the downtown eastside with the intention of assisting a friend who had been assaulted. When he arrived, Mr. Hindle exited his vehicle carrying an imitation machine gun at the low ready position.

Thereafter, he walked throughout a lane, into a grocery store, into a small convenience store and on East Hastings Street. Throughout, he pointed the machine gun at numerous vulnerable persons and he verbally threatened them. It is undisputed that Mr. Hindle’s actions caused people to believe that they were about to die, thus, triggering a significant police response. [ 10 ] In the period leading up to his offence, Mr. Hindle had undergone various stressors.

He was suffering from a bulging disk, he was unhappy in his intimate relationship, he stopped taking his mental health medications and he had resumed drinking. He has always maintained that he did not intend hurt anyone one. [ 11 ] In terms of his charge and sentence, Mr. Hindle pled guilty to the offence of possessing a weapon dangerous to the public peace. He was sentenced on June 16, 2022, to an 18-month conditional sentence that focused on the sentencing objectives of denunciation, deterrence and rehabilitation.

As for the rehabilitative conditions, the sentence included the following terms; residing at Together We Can recovery house, abstention from alcohol and drugs, a curfew, electronic monitoring and participation in forensic counselling assessment and treatment

Circumstances of the breach and Mr. Hindle’s subsequent actions. [ 12 ] On June 23, 2022, Mr. Hindle disclosed to the staff at the recovery house that he had consumed two beer. The consumption of the beer was in violation the recovery house rules and a breach of his conditional sentence. The staff responded by asking Mr. Hindle to leave the recovery house. Mr. Hindle complied and he booked a room at a motel with a reputation for having drug traffickers and users onsite. Thereafter, he reported to his conditional sentence supervisor. [ 13 ] On June 27 th , Mr.

Hindle’s supervisor submitted a breach report and she informed Mr. Hindle recommending that he attend court. The breach report resulted in a warrant being issued for Mr. Hindle. The next day, Mr. Hindle appeared in court and the warrant was executed. He was then released on bail with conditions directing that he seek admission into a recovery house and return to court in 2 days. [ 14 ] On June 30 th , Mr. Hindle appeared in court and advised that Together We Can would have a bed for him on July 4 th . With this in mind, Mr.

Hindle’s release conditions were amended with a requirement that he reside at Together We Can effective July 4, 2022 and that he report to corrections immediately after court. After court, Mr. Hindle reported to corrections who then directed him to report on July 4 th . [ 15 ] On July 4 th , Mr. Hindle violated his release conditions by failing to report to corrections and by failing to reside at Together We Can. A further violation was noted at 8:01 pm when Central Monitoring recorded that Mr. Hindle’s electronic monitoring bracelet had been cut off. Central Monitoring tried to contact and locate Mr.

Hindle but they were unsuccessful. At 9:45 pm, Mr. Hindle went to Together We Can, and removed his belongings telling the staff that he is going to live with a friend. [ 16 ] Mr. Hindle’s whereabouts remained unknown until the early morning hours of July 8 th , when he was captured on CCTV driving his truck erratically at a high rate of speed in the downtown east side. At one point, he stopped and entered a rooming house on Abbott Street. Thereafter, he re-entered his truck and drove onto Carrall Street. While on Carrall Street, Mr.

Hindle passed a group of people and for unknown reasons he performed a U-turn heading back toward the group. At that point, someone in the group shot Mr. Hindle’s truck. Mr. Hindle then drove around the block returning to the area where the shot occurred and he confronted the person who he thought was responsible for the shooting. Mr. Hindle then stated: You’re dead motherfucker. Yo, you’re dead. Yo, hey, you’re dead. I’ll be back. [ 17 ] Mr. Hindle then left the area and he did not come to the attention of authorities until July 10 th .

On this date, the police received a call from a family member asking them to check on Mr. Hindle. Apparently, Mr. Hindle had texted his sister saying nonsensical things about being a gangster and overdosing on fentanyl. From the information received, the police managed to locate Mr. Hindle and they arrested him on the warrant that issued for breach of his release conditions. [ 18 ] Mr. Hindle has been in custody since his arrest which is approximately 3 months. Proposed changes in Mr. Hindle’s community supervision. [ 19 ] Counsel for Mr.

Hindle advocates that his supervision and support can be enhanced by imposing strict forensic reporting and monitoring conditions, as well as, a medication condition. Counsel also points out, an additional safeguard would be to prohibit Mr. Hindle from attending the downtown eastside. In suggesting this prohibition, counsel suggests the area appears to be a source of problems for Mr. Hindle. As for the other sentencing conditions, counsel recommends that they remain the same as originally imposed. The effect of termination on the appropriateness of the original sentence. [ 20 ] Given that Mr.

Hindle’s original community sentence is longer than would have been imposed if he had originally received a custodial sentence, termination would mean that Mr. Hindle would experience an overall longer sentence. [ 21 ] A further impact of termination is that it would undermine the rehabilitative aspects of the original sentence. Specifically, Mr. Hindle would lose the connections he has at Together We Can, his employment would be impacted and much of his rehabilitative strides between Sept. 2021, and June 2022 would be lost. Mr. Hindle’s criminal record. [ 22 ] Mr.

Hindle’s record starts as a youth with property offences. Thereafter, and commencing in 1992, he has a varied criminal record with convictions for assaults, property offences, failing to comply with orders, robbery, driving offences, threats and weapons. Between 2002 and 2007, there is a 5-year gap in his record and a second gap between 2014 up to his current offence in 2020. Based on the gaps, Mr. Hindle’s expression of wanting to live a prosocial life, his recovery efforts between September 2021 and June 2022, and his community supports, I am satisfied that Mr. Hindle’s rehabilitation is a viable goal. Mr.

Hindle’s personal circumstances. [ 23 ] Mr. Hindle is 50. He was born in the UK and he moved to Canada when he was an infant. His parents divorced when he was young and he stayed with his mother who struggled with alcohol misuse. After his parents divorced, Mr. Hindle’s mother re-married and between the ages of 5 and 12, Mr. Hindle suffered extensive psychological and physical abuse including suffocation and strangulation. Mr Hindle ultimately ended up in foster care and he found comfort and stability playing football. [ 24 ] Despite not completing high school, Mr.

Hindle is an experienced heavy-duty equipment operator. His employer recognizes him as a highly skilled and valuable employee who was diligent, reliable and receptive to feedback. His current supervisor, Scott Guest, appeared before the court and confirmed Mr. Hindle’s value as an employee and as a person. He also confirmed that Mr. Hindle will have employment when he is ready and that the employer is committed to supporting Mr. Hindle. Mr. Hindle also has the support of his

brother, Jeremy, who understands Mr. Hindle’s challenges and does not enable his negative behaviors. [ 25 ] In terms of his mental health, a psychological report prepared in relation to Mr. Hindle, confirms he has a number and variety of mental health issues including; mood, trauma related, head injury and substance abuse. Additionally, there is some information that he has been diagnosed as being bipolar. HAS MR. HINDLE REBUTTED THE PRESUMPTION OF TERMINATION? [ 26 ] I conclude that Mr. Hindle has rebutted the presumption of termination.

Specifically, I am satisfied that the relevant sentencing principles can be met with a response other than termination. My conclusion is based on several factors. First, Mr. Hindle’s breach did not pose a direct threat to persons or property, rather, he consumed two beers and without minimizing the impact of this on him or those in the recovery home, he did not act out against persons or property. Second, Mr. Hindle responded to the breach by self-reporting which shows a desire to get back on track. Third, the proposed changes to Mr.

Hindle’s conditional sentence would provide an added component to the monitoring of Mr. Hindle’s mental health. Thus, it will assist him in managing his mental health and daily stressors. Forth, termination would result in a longer sentence than would otherwise have been imposed. Fifth, termination would negatively affect his rehabilitation and the positive things he has such as employment and community support. Six, although Mr. Hindle’s criminal record is concerning, I note the gaps which suggest a slowing trend and indicates an ability to remain prosocial for long periods of time. Lastly, I have considered Mr.

Hindle’s behavior between June 23 rd and July 10 th, and in this regard, he did not accumulate new charges and his mental health strongly contributed to the events that transpired. WHICH OF THE RESPONSES IS APPROPRIATE FOR MR. HINDLE? [ 27 ] I conclude that an appropriate response to Mr. Hindle’s breach is to direct that he be released from custody and that he resume his conditional sentence order with additional conditions. In my view this response, recognizes the 3 months he has spent in custody since his arrest. Specifically it has driven home to Mr.

Hindle that breaches; regardless, how small, will result in a swift response by the justice system. [ 28 ] In addition, the additional conditions will give enhanced support to Mr. Hindle’s rehabilitative needs in terms of his mental health and substance use. In my view, and through this approach, Mr. Hindle’s long-term personal circumstances are improved and the protection of the public is enhanced. In essence, this approach further supports the objectives of sentencing and it protects the public. ADDITIONAL CONDITIONS AND CHANGES a.

You must not go to the area of Vancouver, BC, bounded by Powell Street and Water Street on the North; West and East Pender Street on the South; Hawkes Avenue on the East; Cambie Street on the West. b. Condition 13 is deleted. c. H a v i ng consented in court, y ou m ust: 1. Report to Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling, or treatment as directed by your conditional sentence supervisor. 2. Attend all scheduled appointments with your doctor, psychiatrist, psychologist, counsellor and mental health worker. 3.

Take all medications and medical treatment prescribed for you. 4. Provide your conditional sentence supervisor with the names, addresses and phone numbers of your doctor, psychiatrist, psychologist, counsellor and mental health worker. 5. Authorize your conditional sentence supervisor to give all professionals identified in this condition a copy of this order. 6. Authorize your conditional sentence supervisor to tell all professionals identified in this condition that if you do not follow this order, they have your permission to inform your conditional sentence supervisor. 7.

S i g n any document that is necessary for your conditional sentence supervisor and all professionals identified in this condition to check y our at t en d ance and c o m p l et i o n o f a ny intake, assess m ent, c o unse l l i n g , or treatment p r o g r a m . 8. If you decide not to follow the terms of this order, you must immediately report this in-person to your conditional sentence supervisor and tell them why. If their office is closed, you must return immediately on the next business day during regular business hours and speak to them. d.

You are not to operate a motor vehicle for 30 days consecutive days starting on the first day that you are released from custody. _____________________________ The Honourable Judge R.P. Harris Provincial Court of British Columbia