R. v. Mackenzie, 2024 BCPC 13

Citation: R. v. Mackenzie 2024 BCPC 13 Date: 20240116 File No: 95647-2C, 94419-2B Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. EDWARD ROSS MACKENZIE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.A. HARRIS Counsel for the Crown: K. Jansen Counsel for the Defendant: D. Schultz Place of Hearing: Abbotsford , B.C. Date of Hearing: November 24, 2023 Date of Sentence: January 16, 2024

INTRODUCTION [ 1 ] Edward Mackenzie has pleaded guilty to a breach of probation that occurred on October 3, 2022 and an aggravated assault that occurred on October 4, 2022. FACTS [ 2 ] The facts of this case are set out in detail in admissions filed as Exhibit 1 on the sentencing hearing. They can be summarized as follows: 1. On January 21, 2022 I sentenced Mr. Mackenzie for the offences of assault and assault causing bodily harm. He received a jail sentence of time served equivalent to 32 days and a further 118 days of jail. Following the jail sentence, Mr.

Mackenzie was required to comply with a Probation Order for two years. That Probation Order included terms that Mr. Mackenzie not possess any weapons or knives. 2. Mr. Mackenzie admits that he breached the January 21, 2022 Probation Order less than nine months after I imposed it. On October 3 rd of 2022 at 8:14 a.m. he was on a bus in Mission. He was observed smoking and was asked to leave the bus. He refused to leave so the bus operator called 9-1-1. 3. Police attended the scene and observed Mr. Mackenzie yelling and screaming at people on the sidewalk and holding a knife.

They ordered him to drop the knife at which point Mr. Mackenzie began yelling at the police to “shoot me”. He was taken to the ground and fought with police but was ultimately arrested. While being booked in, the police report says that Mr. Mackenzie behaved erratically, he was agitated and combative, and was speaking to non-existent people. Ultimately, police took him to the hospital and he was certified and sedated. 4. Mr. Mackenzie was released from the hospital and police custody either the same day or the following day. 5. Mr.

Mackenzie also admits that on October 4 th at about 10:50 pm, he grabbed hold of the Complainant, Mr. Jenken, and held him out on a train track while a large railroad maintenance machine came towards them at approximately 50 km per hour. The machine weighs 60,500 pounds and is just under 40 feet long. The operator of that machine, Mr. Forsythe, gave a statement saying that he first noticed Mr. Mackenzie and Mr. Jenken when he was about 300 feet away from them. He had to engage his emergency brakes to avoid running over Mr. Jenken, and believes he was only able to come to a full stop about two feet away from Mr.

Jenken. When the machine stopped, Mr. Mackenzie began to walk away. Mr. Forsythe yelled out that he could have killed Mr. Jenken. Mr. Forsythe said this was one of the most terrible things he has witnessed working on the railway. 6. According to a statement given by Mr. Jenken, he had seen Mr. Mackenzie a few times before this. He described that previously Mr. Mackenzie had been somewhat friendly to him although he had also seen him yelling loudly as he walked up the street. Mr. Jenken said the last time he had seen Mr. Mackenzie was on October 1 st when Mr. Mackenzie had accused Mr.

Jenken of taking his container. Mr. Jenken denied doing that.

CROWN POSITION [ 3 ] The Crown says that an appropriate sentence, taking into account the principles and purposes of sentencing, would be: • 30 days jail for the breach of probation; • 3 to 3.5 years or 1125 to 1307 days jail for the aggravated assault, less time served; • Time served as of the sentencing hearing on November 24, 2023 of 418 actual days and 627 with enhanced credit; • This would result in remaining jail sentence of 498 to 680 days. [ 4 ] The Crown acknowledges that all of the principles of sentencing apply, but that denunciation, deterrence and separation from society figure most prominently on this sentencing.

They argue that this is a particularly violent offence and that denunciation and deterrence should be primary considerations. [ 5 ] The Crown provided me with case law dealing with impact of mental health issues on moral culpability. The Crown acknowledges that the facts appear to indicate Mr. Mackenzie suffered from mental health challenges at the time of the offence, and that Mr. Mackenzie seems to be doing much better now. However, Mr.

Mackenzie declined to participate in both the Forensic Report and the Pre-sentence Report that were ordered so there is no clear medical evidence as to any diagnosis, available treatment options, or for the purpose of this sentencing, his risk to reoffend. DEFENCE POSITION [ 6 ] Defence counsel argues that an appropriate sentence would be: • 30 days jail for the breach; • 24 months jail for the aggravated assault less time served; • Time served as of the sentencing hearing should be, with enhanced credit, 21 months;

• This would result in remaining jail time of 4 to 6 months. [7] Defence counsel asks me to conclude that Mr. Mackenzie is less morally blameworthy for these offences based on theAdmission of Facts in Exhibit 1 and defence counsel’s submissions that there is a history of mental health and addictions issues. He wasnot able to provide me with details of a diagnosis but says Mr. Mackenzie tells him that since being in custody, he has been takingWellbutrin and Seroquel and that he seems to be doing much better now than at the time of the offence. CIRCUMSTANCES OF THE ACCUSED [8] Mr.

Mackenzie’s JUSTIN criminal record begins in 1997. By my count that record contains: • 15 convictions for breaching court orders. • 13 convictions for assault, assault causing bodily harm and assault peace officer. Many of those offences involved unprovokedattacks on strangers and included punching or kicking victims in the head or face for no apparent reason. • He also has a previous conviction for sexual assault, a previous conviction for robbery and a previous conviction for resisting orobstructing a peace officer and a few other convictions that are less relevant to the offence before me.

Pre-Sentence Report [9] A Pre-sentence Report (“PSR”) was ordered without Mr. Mackenzie’s participation. [10] According to the PSR, Mr. Mackenzie has been declining to meet with his Probation Officers, staff at the Forensic PsychiatricServices Clinic and the Abbotsford Mental Health Assertive Community Treatment team (“ACT”). He has also refused or failed toparticipate in any institutional services or supports including discharge and transition planning. At the sentencing hearing, Mr.Mackenzie told me that when released, he would agree to engage with ACT.

Unfortunately, the PSR says that the ACT team hasconcerns about Mr. Mackenzie’s prior refusal to engage, and says that previously they were only involved in administering medicationswhen Mr. Mackenzie was certified, and that police were required to be present for that because of his aggressive and confrontationalbehaviours. [11] The PSR contains some information from Mr. Mackenzie’s father and sister in Ontario. His father is unable to assist Mr.Mackenzie and says that they are not really in contact. Mr.

Mackenzie’s sister says that their father had his own mental health issueswhen they were children and was abusive to Mr. Mackenzie. She says that she has her own challenges and cannot support him directly,but she could point him in the direction of supports. She says she would welcome him back to Ontario after he receives some treatmentfor his mental health and substance use. However, Mr. Mackenzie tells me that while he will take medication pursuant to a prescription,he will not agree to a Rogers Order or any kind of order for treatment. [12] The PSR discusses on page 3 that Mr.

Mackenzie’s response to previous programs and interventions through communitycorrections has been abysmal. He has only ever completed one program and that was done while in custody approximately 10 yearsago. He has previously been referred to the Sexual Offender Treatment Program in relation to his sexual assault conviction; however, hewas not accepted because of his hostile attitude and denial of the offence. Mr. Mackenzie’s Submissions [13] Mr. Mackenzie reports through his counsel that his father was abusive and confrontational and appears to have struggled frommental health issues. Mr.

Mackenzie has a work history as a labourer which ended when he suffered an injury to his hand in a workplaceaccident in about 2003. It was after the accident in 2003 that he began to struggle with depression and started relying on alcohol to cope. A review of his criminal record shows that there was one Intimate Partner Violence conviction in 2000 and then there was a break in therecord. The majority of his convictions are dated between 2007 and 2016. There is then another break in his record and more recentlyhe incurred convictions from 2021 to now. [14] Mr.

Mackenzie reports some positive relationships in the community in the past and he has adult children, although it is unclearwhether he has any current relationship with those children. He says that his sister cared for him and that he was her protector when theywere growing up. [15] Mr. Mackenzie says he has begun taking Wellbutrin and Seroquel while in custody on these charges and as a result, his mentalhealth has improved since coming into custody.

The Applicable Range of Sentence [16] The Crown and defence counsel essentially agree that according to the British Columbia Court of Appeal the range of sentencefor an aggravated assault is generally between 18 months and 6 years in jail. [17] However, sentencing ranges are guidelines not rules, and sentencing is an individualized process. In any sentencing, the Judge isrequired to pronounce a fit and just sentence taking into account all of the applicable principles and purposes of sentencing; thecircumstances of the offence and the circumstances of the offender. (See: R. v.

Chambers, 2021 BCSC 1083 at paras. 52 and 53.) [18] While the severity of any injuries resulting from an aggravated assault is a factor to be considered, the most relevant factors arethe “…circumstances of the assault, including whether it was unprovoked, planned or spontaneous, or involved a weapon…” (seeChambers at para. 63). [19] The Crown provided some decisions to assist me in pinpointing the appropriate sentence. The most helpful and most factuallysimilar case is R. v. Brown, (ON SC). In that case, the accused and victim were on a crowded subway platform. The

accused tried to push the victim, who was a total stranger, onto the subway tracks. The attack was random and unprovoked. The first push knocked the victim within a foot of the edge of the platform and then just as the accused was about to push the victim for a second time, he was tackled by police. The accused was Indigenous, grew up in physical and emotional abuse by adoptive parents, suffered from fetal alcohol syndrome and was an alcoholic. He reported that at the time of the offence, he was so drunk he did not know what he was doing.

The accused had eight prior criminal convictions including a break and enter, two assaults and five failures to comply. There was a Gladue report and a PSR available to the sentencing judge. [ 20 ] The Justice in that case stated in para. 48 that: But for Mr. Brown’s aboriginal status and the details surrounding his upbringing, I would have had no difficulty imposing a sentence of two years or more.

Pushing or trying to push someone off a subway platform and thus endangering his or her life, requires a judicial response that emphasizes deterrence and denunciation and results in a significant period of incarceration. [ 21 ] Ultimately, the Court imposed an 18-month jail sentence followed by three years of probation. [ 22 ] Defence counsel points out that in Brown , the offender was drunk and did not suffer from mental health issues as Mr. Mackenzie does. I disagree. At para. 29 the Justice noted that Mr.

Brown had “…endured a number of mental and physical challenges…” including “…fetal alcohol spectrum disorder, alcohol related neurodevelopmental disorder[r], alcohol addiction and attention deficit hyperactivity disorder”, as well as significant learning disabilities. He also concluded Mr. Brown suffered from psychological problems and described him as impulsive and lacking empathy. I also note that Mr. Mackenzie has a far longer and more violent record that the offender in Brown .

Mental Health, Addictions and Moral Culpability [ 23 ] Both counsel agree that the analysis with respect to moral culpability is different when dealing with people struggling with mental health or addictions issues. I was provided with R. v. McConnell, 2014 BCSC 1743 and R. v. Badhesa , 2019 BCCA 70 .

Our Court of Appeal in Badhesa at para. 40 has clearly recognized that “Depending on the circumstances, both the mental illness and related self-induced intoxication may reduce the offenders moral culpability” and goes on to state, “Impaired reasoning, delusional disorders and other compromised mental conditions distinguish those afflicted from ordinary, fully accountable offenders for sentencing purposes”. [ 24 ] The Court of Appeal says a few paragraphs later, “When mental illness causes or contributes to the commission of an offence, it is a mitigating factor and a sentence may be reduced because the offender’s moral culpability is attenuated” (see Badhesa at para. 42 ).

They also note that general deterrence is a less weighty factor in sentencing a mentally ill offender than with a neurotypical or mentally well offender. [ 25 ] In the case of Mr. Mackenzie, I am satisfied that there is some evidence that he was mentally unwell at the time of the offences. The circumstances of the offences themselves lead to the logical conclusion that he was suffering from some sort of mental health condition at the time.

Unfortunately, because he has refused to engage with probation and forensics, I do not have reports that give me detailed information about specific diagnoses, medications or treatment options. I am aware that he has previously been involved with ACT, that they were giving him medication when he was on leave from hospital, and that he has previously been certified under the Mental Health Act including the day before the aggravated assault. [ 26 ] Defence counsel provided me with R. v. Marsman, 2007 NSCA 65 . In that case, there was medical and opinion evidence about the accused’s mental health issues.

The Court imposed a Conditional Sentence Order. I understood defence to rely on this case, much as the Crown relies on Badhesa and McConnell , to remind me that I must consider Mr. Mackenzie’s mental health challenges and that they are likely a mitigating factor. [ 27 ] Defence also provided me with R. v. Batisse, 2009 ONCA 114 . In that case there was an appeal after fresh evidence was obtained regarding the offender’s mental health challenges, the effect of incarceration on her mental health, as well as availability of treatment options.

At para. 16 the Court noted that her depression and personality disorder had led to the commission of the offence. At para. 38 the Court discusses that deterrence and punishment assume less importance on a sentencing where there are mental health issues than they would otherwise. They comment in that paragraph that specific deterrence is meaningless to offenders who “commit offences while they are out of touch with reality due to mental illness”. Aggravating Circumstances [ 28 ] I conclude that the following are aggravating circumstances on this sentencing: • Mr.

Mackenzie was on probation at the time of both offences; • The breach of probation was a breach for possessing a knife in concerning circumstances; • His criminal record – particularly the violence and breaches and the sheer number of unprovoked attacks on members of the community. His record is far more significant than that in the Brown case; • This is a very serious offence. I accept that Mr. Forsythe, the machine operator, has been profoundly affected by this incident. Mr. Mackenzie’s actions that day resulted in Mr. Jenken coming within two feet of losing his life. This was an unprovoked attack and Mr.

Jenken was telling Mr. Mackenzie to stop and put him down and struggled to get away, but to no avail. Mr. Mackenzie’s actions were not a shove as in Brown nor were they on that level. Mr. Mackenzie held Mr. Jenken over the tracks directly in the path of an oncoming machine that is approximately the size of a train car and that was going about 50 kms per hour. These facts are more serious than those in the Brown case. Mitigating Circumstances

[ 29 ] I conclude that the following are mitigating circumstances on this sentencing: • Mr. Mackenzie has entered a guilty plea. This is mitigating although I conclude that this factor gets less weight than it might in other circumstances given the overwhelming case against Mr. Mackenzie. The evidence is that there was an independent third party witness, Mr. Forsythe, and the police attended and arrested Mr. Mackenzie very shortly after. Further, Mr. Mackenzie spontaneously admitted to the first police officer he saw he had “pushed him in front of the train”. • Mr.

Mackenzie’s mental illness is a mitigating factor. There is no evidence of substance use or addiction at the time, although I understand there is a history of addiction. I have already commented on the issues around Mr. Mackenzie’s mental illness including that I have no expert or medical evidence. However, the Admissions of Fact include that during the breach of probation offence, Mr. Mackenzie was screaming at people who were walking on the sidewalk and also that he was certified on that date. The very next day, Mr. Mackenzie committed the aggravated assault.

His behaviour with the police included resisting arrest which resulted in him being pepper sprayed, screaming profanities at police and speaking to non-existent people. • I am satisfied that there was an issue with Mr. Mackenzie’s mental health at the time although it is unclear what exactly that issue was. I am also satisfied that he has a history of mental health issues. [ 30 ] It appears that the ongoing nature of Mr. Mackenzie’s mental health issues are due in part to his refusal to engage in services and programming.

There are details in the PSR regarding his engagement with ACT and he has made comments to me that he will not consent to treatment or counselling, although he tells me this is because it would set him up for breach. He has a history of not being compliant with treatment, or engaging in it at all. This goes less to the mitigation of sentence and more to the analysis on the need to separate him from society to in order to protect the community. Sentencing Principles [ 31 ] Rehabilitation is certainly a factor I must consider in this case. Mr. Mackenzie seems calmer and more stable now that he is on medication.

There is no guarantee that he will continue to get them in the community although there is a mechanism for him to do that. He has expressed that he has no interest in any counselling or treatment. He has a long record for unprovoked violence, usually committed against strangers. There is a five-year break in his record from 2016 to 2021 which indicates that he has existed in the community without incurring new charges. He told me that during this break in his record, he had stable housing. Currently, however, he has not engaged in transition planning and does not appear to have a stable residence to go to.

Based on his criminal record and historical lack of engagement, there is little hope that he will participate in counselling or treatment. [ 32 ] With respect to general and specific deterrence, the law says that these are less of a factor where the accused suffers from mental health issues. With respect to specific deterrence, I cannot say whether two years in jail or even three will really deter Mr. Mackenzie. His offending seems to come from a place of mental illness. He has been in custody for over a year and is still not engaging in programming.

I can accept that his mental health may be somewhat mitigated by being on medication and that he appears healthier than when he first came into custody. But I am not a doctor and I don’t have any medical evidence before me with respect to whether Mr.

Mackenzie can be deterred or even what his actual mental health challenges are. [ 33 ] When I consider denunciation, I conclude that this is an extremely serious offence that calls for significant denunciation despite any reduced moral blameworthiness resulting from the mental illness. [ 34 ] In my view, separation of the offender from society is one of the more important principles in this case. I have no risk assessment because he would not participate. Based on Mr.

Mackenzie’s unwillingness to get treatment and history of unprovoked violent attacks, I am satisfied there is a significant risk that he will reoffend. There is no plan to mitigate that risk other than to stay on medication and that plan is loose at best. Mr. Mackenzie says that stable housing kept him from offending for a number of years. He currently has no stable residence to go to. He also has a longstanding history of violence.

In my view, these two factors are significant in my determination that there continues to be a need to separate him from the community. [ 35 ] I have also considered the principles of making reparations and promoting a sense of responsibility in the offender. In my view, these factors are less significant. To a certain extent, Mr. Mackenzie has taken responsibility for his actions through his guilty plea. His ongoing refusal to engage with treatment, beyond simply taking medication, is not taking responsibility for himself.

I acknowledge the Crown’s submission and the case law that indicates that a refusal to seek treatment may be due in part to an offender’s mental illness. However, while on medication, Mr. Mackenzie has told me he won’t do it and it simply has to do with not wanting to breach. With respect to making reparations, in my view, Mr. Mackenzie is not really in a position to do that. He needs to work on taking responsibility for and maintaining his mental health.

This may be the mechanism for him to address reparations to the community. [ 36 ] I have considered both the principle of restraint and the principle of proportionality and taken into account the history of mental health challenges as it specifically relates to these two principles.

SUMMARY [ 37 ] In my view, Mr. Mackenzie’s conduct in this offence was even more serious than the conduct in the Brown case. Holding the victim in front of the oncoming machine despite pleas to be let go shows a more prolonged effort to endanger the Victim. Based on the evidence from Mr. Forsythe, I conclude that Mr. Jenken likely came within a few feet of death. [ 38 ] I accept Mr. Mackenzie’s moral culpability is lessened because he was suffering from some unspecified mental illness at the time. [ 39 ] Mr. Mackenzie’s history of violence and lack of treatment requires separation from the community.

Our community needs to be protected. This conduct needs to be denounced and in my view, given the lack of psychological or psychiatric evidence, deterrence is still a factor albeit less than if Mr. Mackenzie had been a mentally well individual.

[ 40 ] With respect to the aggravated assault, a fit and just sentence, taking into account all of the principles and purposes of sentencing, is three years in jail prior to credit for time served. [ 41 ] With respect to the breach of Probation Order, a fit and just sentence, taking into account all of the principles and purposes of sentencing, is thirty days in jail. SENTENCE [ 42 ] On the aggravated assault the sentence I would have imposed is 1095 days jail. I will give Mr.

Mackenzie credit for 471 actual days in pre-sentence custody with credit at a rate of one to one and a half which equals credit for 707 days. This results in 388 further days in jail. [ 43 ] Following that jail term I will impose a two year Probation Order. That order will include protective conditions, a no weapons condition, a no knives condition, a reporting condition and a provide address condition. [ 44 ] It will also include a counselling condition. I recognize that Mr.

Mackenzie does not wish to attend counselling, and I expect that he may not be a candidate for group programs as a result of his violent record and past behaviour. However, his consent is not required for a counselling condition and I must continue to consider rehabilitation and protection of the public. Both of those principles would, in my view, be served if Mr. Mackenzie is able to engage in some counselling. [ 45 ] The conditions of the Probation Order will be as follows: 1. You must keep the peace and be of good behaviour. 2. You must appear before the court when required to do so by the court. 3.

You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation. 4. You must have no contact or communication, directly or indirectly, with Corbin William Kenneth Jenken or Ryan Forsythe. 5. You must not go to or be within 100 metres of any place where Corbin William Kenneth Jenken or Ryan Forsythe live, work, attend school, worship, or happen to be. If you see them, you must leave their presence immediately without any words or gestures. 6.

You must report to a probation officer at 32375 Veteran’s Way, Abbotsford, BC within two business days after your release from custody unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different time frame. After that, you must report as directed by your probation officer. 7. If at any time prior to the expiration of this order you are arrested, detained, or have served a sentence for another offence, you must report to the probation officer within two business days of your release from custody. 8.

When first reporting to your probation officer, you must provide them with the address where you live and your phone number. You must not change your address or phone number without prior written permission from your probation officer. 9. You must not possess or consume alcohol, drugs or other intoxicating substances except with a medical prescription. 10. You must attend, participate in and complete any intake, assessment, counselling or education as directed by your probation officer.

This may include counselling or programming for: a. anger management; b. violence prevention; c. alcohol or drug addiction; d. mental health. 11.

You must not possess, directly or indirectly, any weapon as defined by the Criminal Code , including; a. firearms and ammunition; b. crossbows, prohibited or restricted weapons or devices, or explosive substances; c. anything used, designed to be used or intended for use in causing death or injury to any person, or threaten or intimidate any person; d. any imitation of all the above, including any compressed air guns or BB/Pellet guns; or, e. any related authorizations, licences and registration certificates, and you must not apply for any of these. 12.

You must not possess any knife outside your residence, except for the immediate preparation or eating of food. [ 46 ] I will not impose any treatment, Rogers or Forensics conditions because those specifically require Mr. Mackenzie to consent and he has refused. [ 47 ] On the breach of Probation Order the sentence I impose is 30 days in jail. That sentence will run concurrent to the sentence on

the aggravated assault. There will be no Probation Order to follow. Ancillary Orders [ 48 ] I will make an order prohibiting Mr. Mackenzie from possessing the items described in s. 109 of the Criminal Code for a period of 10 years. [ 49 ] Aggravated assault is a primary designated offence. I will make an order that Mr. Mackenzie provides a sample of his DNA while he is in custody. _________________________________ The Honourable Judge J.A. Harris Provincial Court of British Columbia