R. v. Baptiste, 2013 BCSC 1918

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Baptiste, 2013 BCSC 1918 Date: 20131003 Docket: 95284-2 Registry: Kamloops Regina v. Derek Ryan Baptiste Before: The Honourable Madam Justice Donegan Oral Reasons for Sentence Counsel for the Crown: T.A. Livingston Counsel for the Accused appearing by teleconference: G.K. Gill Place and Date of Trial/Hearing: Kamloops, B.C. September 16, 2013 Place and Date of Judgment: Kamloops, B.C. October 3, 2013 Introduction [ 1 ] THE COURT: Mr.

Baptiste has entered a guilty plea to the aggravated assault of a fellow inmate, Bryan Johnson. [ 2 ] The assault occurred on September 6, 2012. At that time, Mr. Baptiste was in custody at Kamloops Regional Correctional Centre. Without warning, he stabbed Mr. Johnson several times with an unknown weapon. The victim did not instigate an altercation and had no opportunity to defend himself. Mr. Baptiste explained his conduct as a “pre-emptive strike” of sorts, arising out of his fear that some sort of a bounty was placed upon him. [ 3 ] Mr. Johnson was taken to hospital and treated for his injuries.

The court was told that his injuries caused no significant damage. No further victim impact information was provided. The Offender [ 4 ] The court has the benefit of two extensive reports to assist in understanding Mr. Baptiste's unique and somewhat tragic background. A 2012 pre-sentence report, prepared in the context of another proceeding and a 2013 Gladue report, as it is commonly called, again prepared in the context of another proceeding. [ 5 ] Mr. Baptiste is 29 years of age and has spent most of his life in prison. He is a member of the Osoyoos Indian Band.

Both of his parents attended residential schools as children and, as the materials disclose, suffered tremendous abuse while there. As detailed by the author of the Gladue report, their experiences not only negatively impacted their lives and abilities as parents, but negatively impacted the life of their child as well. [ 6 ] Mr. Baptiste was born with fetal alcohol spectrum disorder (“FASD”). He also suffers from attention deficit hyperactivity disorder. As the reports reflect, these disorders negatively affect his cognitive and behavioural functioning on some very basic levels.

FASD is recognized as a lifelong disability that cannot be treated with medication. [ 7 ] From an early age, Mr. Baptiste exhibited many behaviours consistent with his disorders, including inappropriate behaviours, poor social judgment and decision making, an inability to relate cause and effect, impulsivity, and anger management. At home, he was exposed to neglect and substance misuse. [ 8 ] The materials disclose that Mr. Baptiste began consuming alcohol at the age of five. By age 10, he was a regular consumer of both alcohol and marihuana, and began stealing to support these habits.

His involvement with the criminal justice system began at age 13. He was sent to a treatment centre out of province, where he reports being sexually abused. [ 9 ] By age 17, Mr. Baptiste was drinking alcohol every day and began using harder drugs such as crack cocaine. At age 18, while incarcerated, he began using heroin. He continues to struggle with substance misuse.

[ 10 ] Mr. Baptiste has a Grade 5 education and describes himself as illiterate. His employment history is sparse. His criminal history commenced in 1997, and has continued unabated to this time. He received his first custodial sentence at age 14, and his first federal sentence, two years for robbery, at the age of 20. His criminal record contains convictions covering a wide swath: property offences, non-compliance with court orders, violent offences, driving offences.

He has been offered and attempted multiple rehabilitation programs, both within the institutions and within the community, with very limited and fleeting success. Mr. Baptiste's level of cognitive functioning contributes to this lack of success. [ 11 ] Mr. Baptiste is now serving a global three-year sentence. This sentence was imposed on June 24, 2013, and relates to four break-and-enter convictions, one breach of recognizance conviction, and a conviction for possession of a weapon for a dangerous purpose. These offences occurred in the Oliver area.

Legal Parameters [ 12 ] Aggravated assault carries with it a maximum term of imprisonment of 14 years. Positions of the Parties [ 13 ] The Crown seeks a sentence of one year imprisonment, to be served consecutively to the three-year sentence Mr. Baptiste is currently serving. A consecutive one-year sentence, Mr. Livingston submits, would take into account the principle of totality. It would also emphasize deterrence and denunciation, and recognize the principle that separate offences must be treated separately. [ 14 ] Counsel for Mr. Baptiste, Ms.

Gill, does not quarrel with a sentence of one year imprisonment, but urges the court to have it run concurrently to the sentence he is currently serving. She, too, emphasizes the totality principle and urges the court to recognize that Mr. Baptiste thus far has become so institutionalized that by imposing an effective four-year sentence we are “warehousing him”. She submits that Mr. Baptiste is not beyond hope and has the opportunity to avail himself of various rehabilitative community services as set out in the two reports.

He has the support of his community and of his family. [ 15 ] Neither counsel provided any case authorities. Principles of Sentencing [ 16 ] I must consider the principles of sentencing set out in ss. 718 , 718.1 , and 718.2 of the Criminal Code (the “ Code ”): 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. … 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence

shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [17] While I recognize that no two cases are the same and must each be considered on their unique facts, I have reviewed some caseauthority. Specifically, I have reviewed: R. v. Rasanen, (BC CA), [1997] B.C.J. No. 1260 (BCCA); R. v. H.J.H.,2002 BCSC 1772; R. v. R.T.B., 2005 BCPC 415 , 2005 BCPC 0415; and finally, R. v. E.J.S., 2005 BCSC 1353.

The latter twocases deal specifically with significant assaults committed in jail. [18] Federal sentences are often imposed for aggravated assault convictions, again depending on the facts of each case. [19] In E.J.S., Mr. Justice Joyce convicted the accused of assault causing bodily harm in a situation where the accused becameinvolved in an altercation with another inmate. He found the accused initially acted in self-defence, but then when the victim wasprobably unconscious or at least incapacitated, he stomped on the victim's face and kicked him in the head.

Although not satisfied thatthose actions directly caused the victim's brain injury, the court viewed the assault as extremely serious. Mr. Justice Joyce sentenced thataccused to two years in prison, to be served consecutively to the sentence he was currently serving. Mitigating Factors [20] Turning now to the mitigating factors. Mr. Baptiste has pled guilty at a relatively early opportunity. He is a young man who,despite his many years of incarceration, expresses a desire to engage in meaningful rehabilitation.

There are options still available to himto accomplish this goal, and I note that he has the continued support of members of his family and of his community. Aggravating Factors [21] The aggravating factors are clear. This was a serious, unprovoked assault against a fellow inmate. Mr. Baptiste must haveplanned the attack, at least to a limited extent, in that he armed himself prior to approaching Mr. Johnson. The victim did nothing toinstigate the assault. He told Mr. Johnson he wanted to kill him, before stabbing him multiple times. Fortunately, the victim did notsuffer any serious injuries.

In addition, as I have noted, Mr. Baptiste has a lengthy criminal history with related convictions for violence. Decision [22] Mr. Baptiste's situation is unique and complex. My task is to craft a sentence that weighs his circumstances as an Aboriginaloffender and his interest in rehabilitation with the community's interests in deterrence, denunciation, and the need for social protection,all in accordance with the principles of sentencing I have outlined.

Courts have recognized that in the case of serious and violentoffences, even for aboriginal offenders, the balance will often tilt in favour of the community's interests: R. v. Whiskeyjack, 2008 ONCA800. [23] The offence committed by Mr. Baptiste is extremely serious and requires a sentence that emphasizes general and specificdeterrence and denunciation. He is, however, a relatively young man who, as a result of factors quite outside his control, suffers fromcertain deficits that have and will always impact his cognitive functioning in dramatic ways.

Despite these deficits, rehabilitation remainsa legitimate aim for Mr. Baptiste. His young age, his expressed desire for help, and community and family assistance support this. [24] His deficits stem from systemic and background factors affecting Aboriginal people. His decision making is impaired. He actsspontaneously and cannot think through to the consequences of some of his actions. These factors impact his degree of responsibility. [25] In the end, I find a concurrent sentence is wholly inappropriate in this case.

This offence does not arise out of the sametransaction as the offences for which he is currently serving a sentence. [26] As Mr. Justice Joyce stated in E.J.S. at para. 7: In my view, this is a situation where the Court has to be concerned with both general and specific deterrence. It is clearly a case for aconsecutive sentence. If a concurrent sentence were imposed here, it would not meet the principles of general deterrence.

Saying it wouldbe an invitation to engage in this sort of conduct would be putting it too strongly, but such a sentence would not sufficiently deter aninmate who is serving a long sentence from engaging in violent conduct while in prison. Therefore, general deterrence is an importantfeature, in my view. [27] I agree. Were it not for the mitigating factors and the factors unique to Mr. Baptiste's history and current circumstances that Ihave outlined in detail, Mr. Baptiste could have been facing a much longer sentence.

In my view, a one-year sentence, consecutive to thethree years he is currently serving, does not offend the totality principle in this case. It is not, in my view, unduly long or harsh,considering the gravity of this offence, Mr. Baptiste's culpability, the harm done, Mr. Baptiste's criminal history, and future prospects. [28] Mr. Baptiste, could you stand, please, sir.

[ 29 ] I conclude that a sentence of one year imprisonment consecutive to the sentence you are currently serving is a fit and appropriate sentence for you and for this offence. [ 30 ] In addition, I order that pursuant to s. 109 of the Code , you are prohibited from possessing the weapons outlined in that

section for life. [ 31 ] Finally, aggravated assault is a primary designated offence with respect to the provision of DNA, so I will make an order that you provide a sample of your DNA for inclusion in the DNA data bank pursuant to s. 487.051 of the Code . [ 32 ] Counsel, anything else? [ 33 ] MR. LIVINGSTON: My Lady, there are a number of exhibits -- [ 34 ] MS. GILL: Just with respect to s. 109 lifetime prohibition for weapons, he is an aboriginal person with aboriginal hunting rights, so I don't know how that will impact his hunting rights. [ 35 ] THE COURT: Is that something that you -- [ 36 ] MS.

GILL: [Indiscernible] it is something that he [indiscernible] on the reserve and he may want to [indiscernible] in his cultural activities and cultural lifestyle. [ 37 ] MR. LIVINGSTON: With respect, My Lady, that's a mandatory order. He's currently subject already to a s. 109 prohibition for life. Given that there has been a prior order, s. 109(3) makes that order mandatory and for life in the circumstances. [ 38 ] THE COURT: Did you hear that, Ms. Gill? [ 39 ] MS. GILL: I did, My Lady. I did.

Now, the other one, I would urge Your Ladyship to waive the victim surcharge as well. [ 40 ] THE COURT: Yes, I will waive the victim surcharge in the circumstances. [ 41 ] Are there exhibits that need to be dealt with? [ 42 ] MR. LIVINGSTON: There are. There are exhibits, My Lady, they are essentially the clothing of Mr. Johnson, and video and swabs that were all seized at the institution. There is no property interest of Mr. Baptiste in any of these items. I'll just ask that they be forfeit for destruction as the -- as Her Majesty may determine. [ 43 ] THE COURT: All right. I have just been passed, Ms.

Gill, for your purposes, and Mr. Baptiste as well, the Kamloops City RCMP major exhibit flowchart pertaining to this matter and it contains several pages. You've seen this, I take it, Ms. Gill? [ 44 ] MS. GILL: I have, My Lady, although I don't have it with me at the moment, but I -- I reviewed it during my preparation for the trial -- for the preliminary inquiry, yes. [ 45 ] THE COURT: All right, and do you take any issue with the Crown's application to have all of the items listed in this flowchart forfeited to the Crown for return to either lawful owner or destroyed? [ 46 ] MS.

GILL: No, My Lady. [ 47 ] THE COURT: All right. Thank you. This flowchart will be marked the next exhibit, I forget where we are at in this sentencing. [ 48 ] MR. LIVINGSTON: I believe it's Exhibit 4, My Lady. [ 49 ] THE COURT: Four, all right, and that order will be made. “S.D. Donegan J.” DONEGAN J.