R. v. Tom, 2017 BCSC 452

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Tom, 2017 BCSC 452 Date: 20170116 Docket: 98173-2 Registry: Kamloops Regina v. Michael Seymour Tom Restriction on Publication: Pursuant to 486.5(1) C.C.C. Before: The Honourable Madam Justice Donegan Oral Reasons for Judgment on Application for Dangerous Offender Designation and Sentence Counsel for the Crown: A.M. Murphy Counsel for the Accused: K. Sommerfeld Place and Date of Hearing: Kamloops, B.C. April 19-22 and November 14, 2016 Place and Date of Judgment: Kamloops, B.C. January 16, 2017 [ 1 ] THE COURT: Mr.

Tom committed the predicate offences on June 30, 2014. Using a knife, his hands, and his knees, he repeatedly assaulted his girlfriend while confining her over a number of hours, causing her injury. [ 2 ] The Crown applies to have Mr. Tom declared a dangerous offender and sentenced to an indeterminate period of imprisonment. The defence does not contest Mr. Tom's designation as a dangerous offender, but seeks to have him sentenced to a lengthy determinate sentence, followed by a long-term supervision order for 10 years. OVERVIEW [ 3 ] On September 26, 2014, following a trial, Mr.

Tom was convicted of unlawful confinement, assault with a weapon, assault causing bodily harm, possession of a weapon for a purpose dangerous to the public peace or for the purpose of committing an offence, uttering threats to cause death or bodily harm, and two counts of breach of probation. [ 4 ] Mr. Tom has a lengthy criminal record which includes a number of convictions for violent offences, including violent offences against partners with whom he was in an intimate relationship. In addition to the offences that appear on his criminal record, Mr. Tom committed several other offences against former spouses.

Mr. Tom does not dispute any of his offending at this hearing. [ 5 ] Mr. Tom is currently 39 years of age. His parents were both victims of the residential school system. As a result, Mr. Tom suffered what can, I think, fairly be described as a chaotic, abusive, and troubled upbringing, setting the unfortunate stage for his repeated violent offending. [ 6 ] On November 25, 2014, on the Crown's application, the court issued a warrant remanding Mr. Tom for an assessment pursuant to s. 752.1 of the Criminal Code , R.S.C. 1985, c. C-46 [ Code ]. Dr.

Murphy, a forensic psychiatrist, prepared her report dated February 17, 2015. She also testified at this hearing. The Attorney General thereafter gave consent for the institution of this application. The Crown's notice of application was served and filed with the court. I am satisfied the procedural requirements for this application have been met. [ 7 ] The Crown applies to have Mr. Tom declared a dangerous offender pursuant to s. 753(1) (a)(

i) or (ii) of the Code . In support of its application, the Crown called a considerable body of evidence, all largely unopposed by the defence. [ 8 ] In addition to Dr. Murphy's assessment report and her viva voce evidence, the court has the benefit of a pre-sentence report prepared by probation officer, Lindsay Gordon. This report contains a detailed Gladue report within it. [ 9 ] The Crown also called viva voce evidence from other witnesses, including Mr. Tom's last probation officer, Ms. Hodgson, a parole officer, Mr. Forseille, and Mr.

Tom's former partners, L.B. and S.J. [ 10 ] Documentary evidence was tendered without objection, including Mr. Tom's criminal record and numerous transcripts of

sentencing hearings pertaining to those convictions. Records and reports regarding uncharged or charges that were ultimately stayed were tendered. The court also heard from Mr. Tom. [ 11 ] The Crown submits that it has proven, beyond a reasonable doubt, both a pattern of repetitive behaviour showing a failure to restrain his behaviour, as well as a pattern of persistent aggressive behaviour showing a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons of his behaviour. The predicate offences form part of each of these patterns. [ 12 ] The Crown argues that an indeterminate sentence of detention, pursuant to s. 753(4) (

a) of the Code , should be imposed as a result of the operation of s. 753(4.1) , as the evidence proves there is no reasonable expectation that a lesser measure, such as a determinate sentence followed by the long-term supervision order, will adequately protect the public against the commission by Mr. Tom of a serious personal injury offence. [ 13 ] The defence does not dispute the Crown has met its burden of proof under either s. 753(1)(a)(

i) or (ii), and that Mr. Tom will be declared a dangerous offender. The defence focusses its submissions on penalty and advocates for a determinate sentence in the range of seven to 10 years, followed by a long-term supervision order of 10 years, pursuant to s. 753(4) (

b) of the Code . It seeks this penalty arguing that the evidence adduced should satisfy the court that there is a reasonable expectation that this lesser measure will adequately protect the public. LEGAL FRAMEWORK [ 14 ] The following provisions of the Code are most relevant to this application:

PART XXIII - Sentencing Purpose 718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community. … Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 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, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act

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 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. …

PART XXIV - Dangerous Offenders

Definitions serious personal injury offence means (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or … Application for finding that an offender is a dangerous offender 753

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (

a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

a) of the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, … … Sentence for dangerous offender

(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period; (

b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (

c) impose a sentence for the offence for which the offender has been convicted. Sentence of indeterminate detention

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. … Evidence of character 757 Without prejudice to the right of the offender to tender evidence as to their character and repute, if the court thinks fit, evidence of character and repute may be admitted (

a) on the question of whether the offender is or is not a dangerous offender or a long-term offender; and

(

b) in connection with a sentence to be imposed or an order to be made under this Part. [15] In R. v. Haley, 2016 BCSC 1144, Fitch J., as he then was, outlined the purpose of

Part XXIV of the Code and summarized theprinciples informing its application at para. 22: [22] The purpose of

Part XXIV of the Code and the principles informing its application were addressed in R. v. Smarch, 2015 YKCA 13at paras. 46-48: There is no dispute that the primary purpose of sentencing in the dangerous offender context is the protection of the public: R. v.Johnson, 2003 SCC 46 at para. 19. In Johnson, the Court confirmed, however, that dangerous offender proceedings, as part of thesentencing process, "must be guided by the fundamental purpose and principles of sentencing contained in ss. 718 to 718.2" of theCriminal Code: Johnson at para. 23.

The Court further cited Lyons, (SCC), [1987] 2 S.C.R. 309 at 329, for theproposition that preventive detention "simply represents a judgment that the relative importance of the objectives of rehabilitation,deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention, correspondinglyincreased": Johnson at para 23. A sentencing judge must also consider "the possibility that a less restrictive sanction would attain the same sentencing objectives that amore restrictive sanction seeks to attain": Johnson at para. 28.

With respect to the principle of proportionality in dangerous offendersentencing, in R. v. Armstrong, 2014 BCCA 174, this Court held, "a proportionate sentence is one that not only balances the nature of theoffence and the circumstances of the offender, but also gives considerable weight to the protection of the public": Armstrong at para. 72.Similarly, the principles surrounding the sentencing of Aboriginal offenders, set out by the Supreme Court of Canada in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, apply in the context of dangerous offender sentencing, though their application may bemore limited: see R. v.

Ominayak, 2012 ABCA 337 at para. 41; and R. v. Standingwater, 2013 SKCA 78 at para. 49; contra R. v.Shanoss, 2013 BCSC 2335 at para. 165. In determining whether there is a reasonable expectation that measure will adequately protect the public, there has to be evidence beforethe court that the dangerous offender can be safely released into the community. In R. v. Bitternose, 2013 ABCA 220 at paras. 30-37, theCourt held that the mere hope of the existence of community programs is insufficient to address the reasonable expectation of protectionof the public.

There must be evidence of the existence of community resources that will provide the requisite level of supervision outsideof custody to provide adequate protection of the public. [16] The current legislative scheme, outlined above, was enacted in 2008. In R. v. Boutilier, 2016 BCCA 235, the Court discussedhow these 2008 changes returned the court's analysis in this sentencing regime to a two-stage process.

The Court explained thedistinction between the two stages at paras. 27-30: [27] The 2008 amendments formalized the distinction between the designation and sentencing stages by effectively codifying theanalytical process mandated in Johnson. There is no longer a mandatory indeterminate sentence triggered by a dangerous offenderdesignation.

While the court's discretion is removed at the designation stage, it is reinstated at the sentencing stage by adding alternativesentencing options for offenders designated as dangerous if there is a reasonable expectation their risk of future harm can be adequatelymanaged by a lesser measure and still provide the necessary protection for the public. In R. v. Steele, 2014 SCC 61, these changes werefound to have "built in a new flexibility regarding the consequences of such a finding [of dangerous offender]" (at para. 31).

While thechange from the 1997 terminology of "reasonable possibility of eventual control in the community" for a long-term offender order, to the2008 terminology of presumptively requiring the imposition of an indeterminate sentence unless there is a "reasonable expectation" that alesser measure would adequately protect the public, would seem to have potentially increased the number of offenders captured by theregime, it has not changed the nature or characteristics of the group of offenders targeted as dangerous in all three regimes. [28] In Szostak, Mr.

Justice Rosenberg summarized these changes as follows: [36] ...The trial judge's discretion has narrowed in one sense, the judge no longer having discretion not to find a person a dangerousoffender who fits the definition. But the discretion has been broadened in that the judge has wider sentencing options for a person whodoes come within the dangerous offender definition ...[which] have an impact on the

interpretation of the dangerous offender definition.In particular ... the possibility of successful treatment is of limited application in determining whether the person is a dangerous offender.The possibility of successful treatment is significant in choosing the appropriate disposition. ... [54] ...While the legislation is still narrowly targeted to a small group of offenders, that Parliament intended to broaden the group ofpersons to be labelled as dangerous offenders is apparent ... [55] Accordingly, it is of no assistance in interpreting the legislation to go beyond the words of the definition in s. 753(1) and introduceprinciples of intractability or attempt to predict the number of offenders that Parliament intended to bring within the legislative scheme. [29] In Steele, Mr.

Justice Wagner for the Court summarized the current regime in this manner: [28]

Part XXIV of the Criminal Code authorizes the indeterminate detention of individuals who are found to be "dangerous offender[s]"on the basis that their past conduct and patterns of behaviour show that they constitute a threat to the life, safety or physical or mentalwell-being of other persons (s. 753(a)) ... [29] The primary rationale for both indeterminate and long-term supervision under

Part XXIV is public protection. Both sentencesadvance the "dominant purpose" of preventative detention identified by Dickson J. in Hatchwell v. The Queen, (SCC),[1976] 1 S.C.R. 39, at p. 43, namely "to protect the public when the past conduct of the criminal demonstrates a propensity for crimes ofviolence against the person, and there is a real and present danger to life or limb". [30] Justice Wagner referred to Lyons, where La Forest J. wrote in response to a constitutional challenge to the 1977 regime (at 329):

"[Part XXIV] merely enables this court to accommodate its sentence to the common sense reality that the present condition of theoffender is such that he or she is not inhibited by normal standards of behavioural restraint so that future violent acts can quite confidentlybe expected of that person" (emphasis in original). Wagner J. also referred to the rationale from R. v.

Currie, (SCC),[1997] 2 S.C.R. 260, where Chief Justice Lamer wrote (at para. 26): "Parliament has thus created a standard of preventative detentionthat measures an accused's present condition to past behaviour and patterns of conduct" (emphasis added), and to the comments of Mr.Justice Cromwell in R. v. Sipos, 2014 SCC 47 (at para. 19), that the focus of the

Part XXIV provisions "is on imposing special measureson the offender in order to address an elevated risk of future offending." [17] It is with these principles in mind that I turn to the facts. BACKGROUND The Predicate Offences [18] On June 30, 2014, Mr. Tom committed a number of offences, mainly involving the perpetration of violence against his thengirlfriend, M.R. Following a trial a few months later, Mr. Tom was convicted of a number of offences, including the first four on theindictment which constitute the predicate offences.

They are, in short, unlawful confinement, assault with a weapon, assault causingbodily harm, and possession of a weapon for a purpose dangerous. Mr. Tom was also convicted of one count of uttering threats to causedeath or bodily harm, contrary to s. 264.1(1) of the Code and two counts of breaching his probation order contrary to s. 733.1(1) of theCode by possessing or consuming alcohol and by possessing a weapon. [19] The full circumstances of the events of June 30, 2014 are outlined in my oral reasons for judgment delivered on September 26,2014, indexed at 2014 BCSC 2660. I will provide a brief

summary of my findings here. [20] Mr. Tom was released from Kamloops Regional Correctional Centre on May 24, 2014, having completed a 30-day jail sentencefor breach of probation. On his release, he remained bound by the same probation order he had just been convicted of breaching. Thisprobation order had been imposed following a jail sentence in respect of a conviction for assault with a weapon. Of its many terms, thisprobation order required Mr.

Tom to abstain from the possession and consumption of alcohol and from the possession of weapons, asdefined in s. 2 of the Code. [21] That same day, that is the day of his release, Mr. Tom encountered the victim, M.R. He was familiar with her and asked her ifthey could start a relationship. She agreed. While M.R. is a person who, at the time, suffered from significant economic and healthdisadvantages, she was, I found, quite a resourceful person. She built a home utilizing a tent and tarps in a somewhat secluded woodedarea near the Thompson River, within the City of Kamloops. Mr.

Tom began to stay with M.R. in her tent from time to time. [22] Mr. Tom consumed alcohol on a regular basis following his release from jail. He exhibited jealousy and violence early in theirrelationship. [23] On the evening of June 30, 2014, the couple argued. M.R. returned home alone, went into the tent, and fell asleep. She awoketo the sounds of an angry Mr. Tom demanding her exit from the tent. He kicked the tent. He slashed the exterior of the tent with a knife.M.R. exited the tent. Mr. Tom was drunk and carrying a bottle of alcohol from which he continued to drink. He accused M.R. of beingunfaithful. Mr.

Tom then began his physical assault upon her. He repeatedly punched her in the face with the handle of his knife andwith his fists. While she was on all fours on the ground, he grabbed her hair, held her, and kneed her in the face. During the assaults, hewould ask M.R. which side of her face hurt more and would then strike the other side. [24] This assaultive behaviour continued for some time. While assaulting her. Mr. Tom also threatened her. He told her that if shemade noise or brought attention to them, he would stab her, roll her up in the tent, and put her in the river.

The river was approximately10 feet away. He told her he would break her jaw if he could. She tried to run away, but he grabbed her by the hair and kneed her in theface. When she tried another time, he grabbed her and told her she was not leaving, that no one would miss her or notice she was gonebecause she was not from Kamloops. This went on for hours. [25] Eventually, Mr. Tom directed M.R. to go back into the tent with him to sleep. He would not let her leave. When they woke, Mr.Tom directed her to wash up in the river. She was bruised and bloody.

M.R. did as she was told. [26] M.R. eventually managed to flee to safety and was later taken to hospital where her injuries were treated. Police were called andher injuries were photographed. Her injuries included two black eyes, a split lip, bruising on her chin, neck area, chest and leg. She foundbreathing painful. Months later, she reported persistently sore teeth and migraine headaches as a result of the beating inflicted upon herby Mr. Tom. [27] M.R. gave a statement to police while in hospital. Mr. Tom was arrested that evening. The knife used in his assault of M.R. wasfound in his possession.

By having a knife in his possession and by consuming alcohol, Mr. Tom was in violation of his probationconditions. [28] Mr. Tom was interviewed by Dr. Murphy during the assessment process. When Dr. Murphy asked Mr. Tom about theseoffences, he downplayed his conduct and essentially blamed M.R. He said that M.R. “triggered” him by calling him a “goof” and a“child molester”, terms that are particularly insulting for those who have been incarcerated. He told Dr. Murphy that M.R. should haveknown these terms were very hurtful to him because of the time he has spent in jail.

He reported being surprised that M.R. provided astatement to police. [29] Mr. Tom expressed the same type of attitude in his interview with Ms. Gordon, the author of the pre-sentence report.

Mr. Tom’s Childhood Circumstances [ 30 ] Ms. Gordon prepared a very thorough pre-sentence report that contains a detailed Gladue component. Dr. Murphy discussed Mr. Tom's background in her report as well. [ 31 ] Mr. Tom is a member of the St'át'imc First Nation of the central interior of British Columbia. This nation consists of 11 communities, including Seton Lake, where his mother, Karen Lougheed, resides, and Bridge River where his father, Wallace Peters, is a member. Ms. Lougheed and Mr. Peters both attended residential schools and were victims of the schools’ terrible, abusive legacy. [ 32 ] Mr.

Tom currently has no contact with his parents, siblings, or any family member. He has no social or community supports. He is not welcome in either of his parents' communities. [ 33 ] Mr. Tom has spent most of his adult life in and out of the revolving door of corrections. He is an alcoholic who is violent when he drinks. How he got to this place is well explained in the evidence. [ 34 ] As a result of his parents' residential school experiences, Mr. Tom's childhood was abusive and chaotic. He lived an impoverished life.

His parents abused alcohol, although his mother did not drink once she learned of her pregnancy with Mr. Tom. His parents remained together until he was three years of age. [ 35 ] As a toddler, Mr. Tom unfortunately bore witness to domestic violence between his parents. He saw his father assault his mother. Ms. Lougheed was then a single parent for approximately the next seven years. Through her personal residential school experience, Ms. Lougheed did not know how to parent and did not know how to express love to her child. She abused alcohol. She was angry “all of the time”.

She used physical violence to discipline Mr. Tom, including punching, kicking and hitting with the use of sticks, spoons, or belts. Mr. Tom was often locked in his room. [ 36 ] Ms. Lougheed now expresses remorse for Mr. Tom's upbringing, but she also, quite rightly, recognizes that her parenting deficiencies were as a result of the abuses she suffered in school. She knew nothing else. [ 37 ] Tragedy, hardship, and conflict were the foundations of Mr. Tom's upbringing. As a result of his mother's difficulties, Mr. Tom's older sister assumed the role of his main parental figure in his early life.

She, too, used physical violence as a form of discipline. [ 38 ] Mr. Tom's father was in and out of jail throughout Mr. Tom’s childhood. Mr. Tom stayed with him occasionally, on weekends, when he was not in jail. His father and his father's brothers, that is, Mr. Tom's uncles, consumed alcohol regularly. They gave Mr. Tom alcohol at a relatively early age, setting the stage for his addiction to alcohol. While in his father's home, Mr. Tom was sexually assaulted by his uncles. One uncle in particular continued to abuse him for many years. Mr. Tom reports this occurred until he was 18 years of age. Mr.

Tom has not addressed the effects this abuse had upon him through any counselling or other therapy. [ 39 ] When he was nine years old, Mr. Tom bore witness to the forcible removal of his elder sister, his main parental figure at the time, from his mother's home. His sister was placed in foster care and a few years later was tragically struck by a car and died. Mr. Tom has not dealt with this grief. [ 40 ] Mr. Tom's mother married Mr. Lougheed when Mr. Tom was roughly 10 years of age. Mr. Lougheed’s parenting style was the same as the others. Mr.

Tom began to run away from home, engage in fighting, bullying, and other behaviour at school that saw him suspended or expelled from time to time. Police involvement began. [ 41 ] By the time he was approximately 14 years old, Ms. Lougheed could no longer manage Mr. Tom's behaviours. After a dispute one day, she slapped him and told him he was no longer welcome in her home. Mr. Tom left and he never returned. [ 42 ] Following his departure from his mother's home, Mr. Tom's life spiralled downward. I am unclear exactly where he lived for the remainder of his teenage years because Mr.

Tom has given conflicting accounts. He reported to Ms. Gordon that he went to live with his father for about six months. He told Dr. Murphy that he first lived in a tent at the side of the river, then lived with his uncle, then lived with a “buddy's mom”, and then lived with his girlfriend's mother. [ 43 ] In any event, the evidence is clear that Mr. Tom stopped attending school and essentially lived either on the streets, near the riverbank, or temporarily in the homes of family or friends. [ 44 ] When he was 14 or 15 years of age, Mr. Tom was charged with breaking into cars in Lillooet.

He was convicted of mischief and sent to a youth custody facility, High Valley Camp. [ 45 ] While living in the riverside tent as a young teenager, Mr. Tom began the first of several significant romantic relationships in his life. He and J.N. were teenagers when their relationship commenced. They stayed together for several years and had a child. Their relationship ended when Mr. Tom went to jail in 1999 for manslaughter. Mr. Tom currently has no relationship with his daughter, but he hopes to one day. [ 46 ] I will discuss Mr. Tom's other romantic partners when I discuss his offending. [ 47 ] Ms.

Gordon summarized Mr. Tom's life succinctly and appropriately at page 10 of her pre-sentence report when she wrote: Mr. Tom has faced many of the systemic factors impacting First Nations people in BC: sexual abuse, family violence, alcohol addiction, interrupted parenting skills, community displacement, criminal behaviour and repeated periods of incarceration. Mr. Tom's Adult Circumstances

[ 48 ] I will organize this

section of my reasons chronologically, by reference to Mr. Tom's offending. Within this chronological framework, I will not only discuss the circumstances of the offences and, if applicable, the sentences imposed, I will also discuss what occurred at the various sentencing hearings, what Mr. Tom discussed with Dr. Murphy about some of those offences, and what occurred while Mr. Tom was in jail or in the community before and after his next offence. [ 49 ] Mr. Tom's adult criminal record is substantial, containing, by my count, 36 convictions.

Other offences – offences for which he was not convicted – have been proven by the Crown beyond a reasonable doubt. Indeed, all of the uncharged and/or stayed offences evidenced in the documents before me have been tendered without objection. [ 50 ] At the outset, I will make four general observations about Mr. Tom's offending. [ 51 ] First, his offending consists almost solely of violent offences, weapons offences, and breaches of court orders. [ 52 ] Second, many of his convictions resulted in very short, or what is commonly called “time-served” sentences, owing to the time Mr.

Tom spent on remand. [ 53 ] Third, many of Mr. Tom's offences occurred while he was subject to community supervision, either in the form of bail or probation. [ 54 ] Finally, Mr. Tom has spent nearly all of the last approximately 20 years of his life either in custody or under some form of supervision in the community. 1. Manslaughter - September 4, 1998 (Victim: Leo Peters) [ 55 ] Late in the evening on September 4, 1998, Mr. Tom, his uncle Leo Peters, and several other individuals were drinking alcohol together. Mr. Tom and Mr.

Peters had previously lived together, during which time they drank and fought frequently. Mr. Peters would often act aggressively and belittle Mr. Tom. On this particular night, Mr. Peters beat up Mr. Tom. Mr. Tom eventually shot him in the stomach with a rifle, killing him. [ 56 ] Mr. Tom expressed remorse about killing his uncle to authorities. The Crown accepted a guilty plea to manslaughter on the basis that Mr. Tom was too intoxicated by alcohol to form the specific intent to commit murder. Indeed, all of the evidence pointed to Mr.

Tom being heavily intoxicated. [ 57 ] On October 29, 1999, the court sentenced Mr. Tom to the equivalent of a four-year jail sentence, the minimum penalty. Having spent some time in custody already, the court required him to serve a further three years. The court found the minimum term was appropriate, noting the progress Mr. Tom had made and the circumstances surrounding the commission of the offence. The court also imposed a lifetime prohibition on Mr. Tom’s use of and possession of firearms. [ 58 ] During the sentencing hearing, the court expressed the hope that Mr.

Tom would learn something from this tragic and terrible event. The court identified alcohol as the root of Mr. Tom's difficulties and encouraged him to stop drinking. The court also recommended that prison authorities put Mr. Tom in a “work camp” to keep him busy and out of trouble. [ 59 ] Dr. Murphy asked Mr. Tom, nearly 20 years later, whether he felt guilty about the past and, in particular, the death of his uncle. Mr. Tom's response indicates that he continue to blame his uncle in some respects for what occurred. He told Dr. Murphy: I think about it from time to time. It was just another day.

He was like a bully to me - he touched some kid - sexually abused - nobody did nothing. For seven days he was drinking like crazy - he slashed me up that night. [ 60 ] Mr. Tom first went to Matsqui Penitentiary to serve his sentence. There, he fell into heavy drug use and became affiliated with a gang, the Indian Posse. He began to use heroin, a drug that he acknowledges he injected for roughly the next two and a half to three years. Mr. Tom engaged in bullying behaviour with other inmates. [ 61 ] By January 31, 2000, Mr. Tom had his parole assessment which included psychological and substance abuse assessments.

The psychological assessment dated February 24, 2000 included a full analysis of the offence, an interview with Mr. Tom, and the administration of a variety of actuarial tests. This testing included an evaluation of risk of violence in the future and recommendations for programming. [ 62 ] Dr. Murphy, in her assessment, reviewed this 2000 assessment and its results and summarized the author's final conclusion as follows: The final conclusion was that dynamic factors support the actuarial estimates of his risk to reoffend.

These are substance abuse, his association with antisocial peers, his poor anger management and his lack of employment skills. He was considered a moderate risk for general non-violent recidivism and high risk for violent recidivism including spousal violence. [ 63 ] Mr. Tom was eventually transferred from Matsqui to Elbow Lake Institution. While there, he completed a program called All My Relations, which is directed to "change aboriginal offenders' behavior" through one-on-one counselling and traditional circle settings. [ 64 ] Mr. Tom completed this program twice.

He was reported to have become "aware of his problems and he perceives them as substance abuse, being introverted, and unresolved sexual abuse issues." His participation in that particular program was rated as excellent and his involvement deemed successful. [ 65 ] Mr. Tom was eventually granted limited day parole from Elbow Lake in order to participate in an addictions program designed for First Nations people on Vancouver Island. While there, he received one-on-one counselling and group counselling between January 15, 2001 and April 16, 2001. His time there was not continuous. Overall, Mr.

Tom attended 13 hours of one-on-one counselling and 90

hours of group counselling. He was reported to have benefited from these sessions. One discharge report indicated that Mr. Tom was expelled from the program previously for becoming too emotionally involved with another client, contrary to the program's guidelines. The report also indicated that Mr. Tom had admitted to using drugs, specifically marihuana, following the program, as soon as he went back into the institution. He reportedly did this because he was “bored”. [ 66 ] From July 30 to September 19, 2001, Mr. Tom participated in a work release program where he gained experience in forestry practices.

During this program, it was recommended that he participate in escorted temporary absences to attend First Nations spiritual events and Alcoholics Anonymous or Narcotics Anonymous meetings in the community. He was bound by a condition to abstain from all intoxicants. However, Mr. Tom admitted to using marihuana. [ 67 ] Mr. Tom was encouraged to see a psychologist offered by Corrections Canada, but he was not motivated to do so. Overall, according to a September 20, 2001 parole report, his work release was considered a success. At Elbow Lake, Mr.

Tom was described as having a “great work ethic”. [ 68 ] On September 25, 2001, authorities discovered contraband (three screwdrivers and a wire cutter) in his room at Elbow Lake Institution. On September 28, 2001, Mr. Tom was involved in an altercation in custody involving the Indian Posse, where he received a black eye. [ 69 ] Mr. Tom was released from Elbow Lake Institution on October 26, 2001, to live in Bridge River, British Columbia, with his girlfriend. This girlfriend was someone he had met in the treatment centre. She had six children and lived and worked in Bridge River.

While living with her and while on statutory release, Mr. Tom worked for the Indian Posse in the drug trade. His girlfriend was not aware of his gang and drug-dealing activity, but was unhappy enough with his behaviour that the couple separated. Mr. Tom moved to Lillooet. [ 70 ] Over the next several months until warrant expiry in October of 2002, Mr. Tom continued to consume alcohol and marihuana. It was during these last few months before warrant expiry that Mr. Tom did meet with a psychologist, Dr. Madryga. He did so on three occasions. The records reveal that Mr. Tom's parole was revoked at some point.

They also reveal that he attended further addictions programming, a parenting program, and a 28-day treatment program. [ 71 ] During the entirety of his statutory release, Mr. Tom continued to work for the Indian Posse transporting drugs and collecting money for his superiors. This activity continued for several years. [ 72 ] Mr. Tom began his third significant romantic relationship in or about 2001 or 2002 with S.J. Their relationship lasted approximately six or seven years. S.J. testified at this hearing. She believed she and Mr.

Tom began to live together in and around 2001, shortly after his release from prison. Their relationship ended in approximately 2007. [ 73 ] When they first lived together, S.J. was working full-time in Lillooet and upgrading her education at home. Mr. Tom did not work in any legitimate field at that time. She reports that in the beginning their relationship was good. After a time, they had a few fights. Mr. Tom, to her observation, began to drink alcohol more and more.

She recalled him getting into trouble with the law a lot, saying there were “just fights and stuff like that”, all as a result of his drinking. [ 74 ] In 2003, Mr. Tom was drinking every weekend. He was continuing to sell drugs for the Indian Posse. In his interview with Dr. Murphy, Mr. Tom described himself as a leader in the gang. [ 75 ] As will be seen throughout the course of this narrative, Mr. Tom was very abusive to S.J. during their relationship. She described him when he was sober as “normal” and “nice”, but when he was drunk he was terribly mean.

She testified there was a “50/50” chance when he was drunk that he would assault her. 2. Assault Causing Bodily Harm X2, Uttering Threats - May 8, 2003 (Victims: Danny Seymour, Edward Oleman and Gary John) [ 76 ] On May 8, 2003, Mr. Tom and two of his companions were drinking heavily. While intoxicated, he assaulted two different victims. Mr. Tom had more physical contact with one of the victims than the other, but he encouraged his companions to assault the other victim. Both complainants were badly beaten. Mr. Tom also uttered a threat to cause death or bodily harm to the third victim.

It was during this event that Mr. Tom and his companions also beat and killed a dog. [ 77 ] In addition to the offences for which he was convicted, Mr. Tom was also charged with the offence in relation to the dog, under s. 445(1) (

a) of the Code . The court transcript indicates that Mr. Tom did not plead guilty to that offence, but a conviction for this offence does appear on his criminal record. This is obviously an error. Mr. Tom entered guilty pleas to the assaults and uttering threats part way through his trial. He was sentenced on October 12, 2004, at the same time as the offences I will now describe. 3. Uttering Threats and Possession of Ammunition Contrary to a Prohibition Order - August 30, 2004 (Victim: Rex Grant) [ 78 ] On August 30, 2004, Mr. Tom and two companions were outside of a convenience store in Lillooet. Mr.

Tom was intoxicated. Rex Grant, the victim, had parked his vehicle and was walking toward the store with his two children when he heard Mr. Tom yell "You called her a faggot" and "You white piece of shit, I'm going to kick your ass." Mr. Grant did not think these comments were directed at him, so he went into the store. [ 79 ] When Mr. Grant left the store later, Mr. Tom attacked him. Mr. Grant suffered a cut above his right eyebrow but he, in quite convincing fashion, fought off Mr. Tom and his companions. During the assault on Mr. Grant, Mr. Tom told him that he was going to kill him.

Police were called. [ 80 ] Mr. Tom was significantly intoxicated when the police arrested him that day. While in the back of the police car, Mr. Tom tried

to conceal four rounds of .22-calibre ammunition that had been in his backpack, but police found them. Of course, Mr. Tom was subject to the lifetime firearm and ammunition ban arising from his manslaughter conviction. He was also bound by a recognizance of bail at the time. [ 81 ] Mr. Tom entered guilty pleas to uttering threats and possession of ammunition. The assault causing bodily harm charge, a mischief charge, and three counts of breach of recognizance were stayed by the Crown.

His sentencing hearing on this matter occurred at the same time as the offences I have just described involving victims Danny Seymour, Edward Oleman, and Gary John. [ 82 ] During the sentencing hearing on October 12, 2004, the Crown expressed concern about Mr. Tom's continued violent conduct in the community while under the influence of alcohol. Defence counsel indicated that Mr. Tom wanted to attend for some form of alcohol treatment. Counsel suggested that Mr. Tom presented as two different people: a very nice person when sober and someone else entirely when drinking. Counsel also noted that Mr.

Tom had the support and loyalty of his then common law partner, S.J., even though she was said to be unhappy about what had occurred. [ 83 ] In imposing sentence, the court observed that Mr. Tom was a bright individual who knew he had a serious problem with alcohol. Mr. Tom said that he needed to move away from the area to avoid drinking in the future. The court encouraged Mr. Tom to take that step. The court also condemned Mr. Tom's past behaviour while under the influence of alcohol and said it could not happen again. [ 84 ] Mr.

Tom was sentenced to a global sentence of six months imprisonment, consisting of three months for each of the counts of uttering threats and possession of ammunition, concurrent to one another, but consecutive to another three months imprisonment for each of the counts of assault causing bodily harm and uttering threats, also served concurrently to one another. Mr. Tom was placed on probation for 18 months to follow. Of its numerous terms designed to promote his sobriety in the community. Mr.

Tom was bound by conditions requiring him to abstain absolutely from the consumption of alcohol and to attend substance abuse counselling as directed, among other things. [ 85 ] While in custody sometime during this timeframe, Mr. Tom completed a program called Respectful Relationships. [ 86 ] With respect to drug use during this timeframe, Mr. Tom regularly used marihuana. He regularly used alcohol. He also told Dr. Murphy that he used a lot of LSD from 2004 through 2006. 4. Breach of Recognizance - 2004 [ 87 ] Mr.

Tom was convicted on September 8, 2004 of failure to comply with a recognizance of bail contrary to s. 145(3) of the Code . He was sentenced to a term of imprisonment of one day, time served. The evidence adduced in this hearing does not disclose any information about the circumstances of this offence. 5. Assault X3, Breach of Probation - August 6, 2005 (Victim: Three 11-year old children) [ 88 ] On August 6, 2005, Mr. Tom and two companions were intoxicated in the community. They believed that three 11-year-old children were following them, so they began yelling at the children. Mr.

Tom pushed one of the children and spat on all three of them. He taunted them to fight, saying, "Come on, I'll kick your ass." The Crown did not proceed with these charges. [ 89 ] It was during this same summer, the summer of 2005, that S.J. recalled Mr. Tom working for a brief time at legitimate employment. He worked fighting forest fires for a time that summer. [ 90 ] In and around 2006, S.J. found her relationship with Mr. Tom became quite negative and violent. She attended some probation appointments with Mr. Tom during this time and observed that Mr.

Tom lied to his probation officer when he told him that he was not drinking. 6. Breach of Probation - January 21, 2006 [ 91 ] On this day, two police officers were parked in a police vehicle on Main Street in Lillooet. They observed a vehicle quickly turn right onto another street. The officers followed the vehicle and watched it pull into the parking lot of an apartment building. When they approached the vehicle, they noticed five occupants inside. A heavily-intoxicated Mr. Tom was one of them. He was arrested for breaching his probation order by consuming alcohol. [ 92 ] Two days later, on January 23, 2006, Mr.

Tom pled guilty to this offence. During the sentencing hearing, his counsel advised the court that Mr. Tom was adamant he would not breach his no-alcohol condition again. Counsel also advised, based upon Mr. Tom's instructions, that S.J. was in court to support him, that he was going to school and was working occasionally as a mechanic. [ 93 ] S.J. testified at this hearing and confirmed that none of these things were true. Mr. Tom was not going to school and, other than working on cars for family, he was not employed as a mechanic. [ 94 ] The court at that time admonished Mr.

Tom to do a better job of complying with his probation order in the future and sentenced him to one day in jail, giving him credit for the few days he had already spent in custody. 7. Driving While Over .08, Possession of a Prohibited Weapon and Breach of Probation - February 11, 2006 [ 95 ] On this day, a police officer in Lillooet noticed a car operating without its headlights, so he pulled it over. Mr. Tom was driving, had an open beer can next to him in the middle console, and exhibited a number of symptoms of impairment. When outside his vehicle, Mr. Tom had difficulty standing.

He was significantly intoxicated.

[ 96 ] Familiar with Mr. Tom's propensity for violence when intoxicated, the officer patted Mr. Tom down for weapons. He found a set of brass knuckles in the right front pocket of his pants. The officer arrested Mr. Tom for possession of a prohibited weapon and made a demand that he provide a sample of his breath. After four unsuccessful attempts, the fifth registered in a fail. Mr. Tom was then arrested for impaired driving and failure to comply with conditions of his probation order.

He eventually provided two samples of his breath that registered 150 and 140 milligrams of alcohol in 100 millilitres of blood respectively. [ 97 ] On March 1, 2006, Mr. Tom entered guilty pleas to charges of operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of his blood, possession of a prohibited weapon, and failure to comply with the no-alcohol condition of his probation order. The Crown directed a stay of proceedings in respect of the remaining counts. [ 98 ] During sentencing submissions, defence counsel advised the court that Mr.

Tom was determined not to drink alcohol any more, to finish school and get a job. Counsel communicated Mr. Tom's assurance that he would take all the steps necessary not to be involved in any further criminal activity. [ 99 ] Noting that he had already spent 19 or 20 days in custody, Mr. Tom received a sentence of one day in jail on each of the counts. He was given credit for having spent 40 days in jail. He was also then subject to a one-year driving prohibition and required to forfeit the brass knuckles. 8. Assault Causing Bodily Harm X2 - 2006 (Victim: S.J.) [ 100 ] S.J. recalled the first time Mr.

Tom assaulted her. She was unsure of the precise date, but from the other details provided, I infer it was in 2006. S.J. wanted to leave the house and go into nearby Lillooet. Mr. Tom did not want her to go. He punched her in the face. S.J. described it as a roundhouse-type of punch. It caused a deep cut between her eyebrows. S.J. showed the court the scar that remains evident today. [ 101 ] S.J. considered leaving Mr. Tom and/or reporting him to police, but she did neither. She was fearful of Mr.

Tom because he repeatedly threatened to kill her and members of her family if she left him. [ 102 ] S.J. testified about another scar on her forehead caused by Mr. Tom. During an argument at his uncle's house one day, Mr. Tom threw a lighter at her from about eight feet away. It cut her above her left eyebrow. In addition to the two scars she showed the court, S.J.’s psychological scars are evident, profound, and ongoing. She displayed remarkable courage in testifying at this hearing. [ 103 ] After the second scar, S.J. suffered, mostly “just bruises” at the hands of Mr. Tom.

He continued to physically assault her until the end of their relationship. 9. Sexual Assault, Unlawful Confinement and Firearms Offences - 2006 (Victim: S.J.) [ 104 ] In the winter of 2006, after watching a hockey game, S.J. and Mr. Tom went back home. Mr. Tom had been drinking. Mr. Tom's brothers were present. At some point, when everyone was ready to go to sleep, Mr. Tom tried to have sex with S.J. in front of his brothers. Her refusal was met with a head butt by Mr. Tom. Fearful, S.J. ran into the bedroom. Mr. Tom chased and caught her.

He beat her, called her names, threw her in a closet, pulled out a rifle and struck her with both its butt end and barrel more than once. Mr. Tom told her to kill herself because she was worthless. He then had sex with her against her will. [ 105 ] Following this sexual assault, Mr. Tom continued to physically assault her with his hands and with the firearm. He then stood in front of her and discharged the firearm by her head four or five times. He told her she would “die tonight”, either by her own hand or by his. He then tried to have her pull the trigger herself, in order to kill herself.

S.J. continually yelled for help, but no one came. [ 106 ] In an effort to have her kill herself, Mr. Tom told S.J. that if she did not pull the trigger, he would shoot and kill members of her family. He put the barrel of the rifle under her chin and tried to make her pull the trigger herself. S.J. testified that she very nearly did pull the trigger to end the protracted assaults against her. [ 107 ] After the events involving the firearm, Mr. Tom forcibly pinned S.J. to the floor and had sex with her again, despite her protests.

When she did protest, he would use what S.J. referred to as “wrestling moves”, such as striking his elbow into her face. The more she fought, the harder he would hit. After he was finished having sex with her, he left her alone. S.J. described that this event spanned four or five hours. Her face was swollen and bruised, she could barely walk or sit. Her facial injuries lasted about four weeks. S.J. would not go to police. She stayed with Mr. Tom. [ 108 ] In 2007, S.J. received a student loan to attend an educational institution in Vancouver. She rented an apartment there and Mr.

Tom joined her about a month later. Mr. Tom told Dr. Murphy that he moved to Vancouver to try and change his life and, in particular, to get away from the Indian Posse. S.J. says that he actually saw more of the Indian Posse when they moved to the Lower Mainland. 10. Robbery and Possession of a Weapon - May 5, 2007 (Victims: Two 17-year-old men) [ 109 ] On May 5, 2007, Mr. Tom and two of his friends were drinking beer at the side of the road in the Dunbar neighbourhood of Vancouver. Mr. Tom told Dr. Murphy that these two friends were also members of the Indian Posse. He also told Dr.

Murphy that in addition to drinking alcohol, he consumed six capsules of THC. [ 110 ] Two 17-year-old males were at the bus stop on the other side of the street, having just finished a workout at a nearby community centre. Mr. Tom and his companions taunted these young men for carrying squash racquets. One of the young men gestured rudely in response. Mr. Tom and his companions crossed the street and verbally confronted the two young men. Mr. Tom demanded that they give him their squash racquets. When they refused, he drew a knife, pointed it at one of them, and repeated his demand. The racquets were handed over.

Someone called police. Mr. Tom was arrested a short distance away. An unsheathed machete was found in his possession upon arrest.

[ 111 ] Mr. Tom pled guilty to robbery and possession of a weapon for a dangerous purpose on August 29, 2007. The Crown directed a stay of proceedings with respect to a second count of robbery, one count of assault with a weapon, one count of carrying a prohibited, concealed weapon, and two counts of possession of stolen property. [ 112 ] During the sentencing hearing, Mr. Tom's counsel advised the court that Mr. Tom was ashamed of his actions. Mr. Tom apologized for what happened. In a letter he read into the record, Mr.

Tom also advised the court that he was working to complete his high school education through home schooling, that he worked on his father's farm and performed odd jobs for his partner's father, that he was pursuing his journeyman's ticket to be a carpenter or mechanic, and that his partner, S.J., was pursuing post-secondary education. Mr. Tom said he was planning for a job in construction. [ 113 ] As we know now, none of this was true, except S.J.’s pursuit of her education. Mr. Tom was actually working for the Indian Posse, selling crack and marihuana on the Downtown Eastside of Vancouver.

His father had no farm and he was not pursuing any educational or legitimate vocational pursuits. [ 114 ] At the time of sentencing, Mr. Tom had been in custody for nearly four months. The court sentenced him to one day in jail reflecting time served, the equivalent of eight months in prison. He was also placed on probation for a period of one year. Noting that alcohol was the source of his troubles, the court imposed, among other things, a term that he abstain absolutely from the consumption of alcohol. [ 115 ] When asked by Dr. Murphy about these offences, Mr. Tom also blamed the victims.

He said "they started it" by making comments to him and his friends. 11. Breach of Probation - September 22, 2007 [ 116 ] On that day, police attended a residential address in Vancouver in response to a report of yelling inside the suite. Upon attendance, the police found an intoxicated Mr. Tom and informed him that he was breaching his probation order. Mr. Tom avoided arrest by telling the officers he had made a mistake and promised to return to his own home. The officers believed him and left. He did not return home. Police were called to the suite again later that same night. Mr.

Tom was still there and still intoxicated. This time he was arrested. Two days later, on September 24, 2007, Mr. Tom pled guilty to this breach of probation offence. [ 117 ] At his sentencing hearing, duty counsel advised the court that Mr. Tom had no intention of drinking that evening and had simply been caught up in the party atmosphere. The court was told Mr. Tom was employed at a roofing company, worked in the construction industry his entire life, and was studying math, English, and First Nations studies through distance education. [ 118 ] We now know that none of this was true. [ 119 ] Mr.

Tom was sentenced to one day in jail. Duty counsel also asked the court to vary Mr. Tom's probation order to remove the no-alcohol condition. The court declined to do so and encouraged Mr. Tom to speak to his own counsel about accessing resources in the community to promote him leading a sober life. 12. Breach of Probation - October 3, 2007 [ 120 ] Police responded to a 9-1-1 call from an individual who reported that several males had confronted him, one of whom produced a gun in a threatening manner. Police took five suspects into custody, one of whom was Mr. Tom.

There is no suggestion in the material that it was Mr. Tom who produced a gun. He was intoxicated. He told police he had consumed a six-pack of beer, some coolers, and some hard alcohol. He was bound by a probation order not to consume alcohol at the time. For reasons that are not clear from the material, the Crown did not proceed with this breach of probation charge. 13. Breach of Probation - October 23, 2007 [ 121 ] On this day, two police officers observed Mr. Tom and a friend walking down a sidewalk in Vancouver, each drinking beer. Mr.

Tom was arrested for breaching the no-alcohol condition of his probation order. What the police officers did not see, as S.J. has now testified, is that Mr. Tom also had drugs on him at the time. He threw the drugs into the bushes to avoid detection and then went back for them at a later time. [ 122 ] On October 26, 2007, Mr. Tom entered a guilty plea to a single count of failing to comply with his probation order. At the sentencing hearing, Mr. Tom's counsel noted that it was a "ridiculous, stupid move on his part" to drink beer in public in front of police officers. Defence counsel also explained that Mr.

Tom and his partner S.J. had been working hard to get their lives back on track after the probation order imposed in August of 2007. At that point, Mr. Tom had spent a few days in pre-trial custody and he was given credit for that time. He was sentenced to an additional one day in jail, which he served by attending court that day. [ 123 ] S.J. testified that during this timeframe, Mr. Tom continued to assault her when he was upset and drinking. She testified that anything would upset him, that he was jealous, controlling, and quick to anger. 14.

Assault - October 31, 2007 (Victim: S.J.) [ 124 ] On October 31, 2007, Mr. Tom arrived home drunk and angry. He said he was missing money and drugs. He accused S.J. He punched her in the face with a closed fist, shoved her up against the wall and struck her in the chest and shoulder. When he turned his back, S.J. fled from the apartment and ran toward her uncle's nearby residence. Mr. Tom pursued her and eventually caught her. He pushed her up against a fence. [ 125 ] A bystander tried to intervene, which momentarily distracted Mr. Tom and allowed S.J. to escape to her uncle's apartment. Mr.

Tom chased her and yelled that she was "fucking lucky this time" to have escaped. S.J. found refuge with her uncle and Mr. Tom fled the scene. [ 126 ] S.J. returned to their residence the next day to retrieve some belongings. When she got there, she discovered that Mr. Tom had gained entry to the apartment by breaking a window. He had removed some of his personal items from their apartment and then ransacked and destroyed everything in the apartment. [ 127 ] S.J. provided a statement to police about these events. In addition to relating the events of October 31, 2007, she also told police that Mr.

Tom had assaulted her approximately 20 times over the course of their relationship, over the last six years. Mr. Tom was arrested approximately two weeks later. He was released on a recognizance of bail, which included a condition that he not possess any knives. 15. Breach of Recognizance - December 3, 2007 [ 128 ] On December 3, 2007, while police were investigating a theft from vehicle complaint on a street in Vancouver, Mr. Tom walked by and was seen to conceal something in his pocket. He was carrying an open can of beer. The officer detained Mr. Tom and searched him. He located a folding knife in his pocket.

Mr. Tom was arrested for a number of breaches of both his bail and probation orders, specifically breaches of the no-alcohol condition, the condition not to possess knives, and the condition not to be in the City of Vancouver except for certain defined purposes. Mr. Tom was held in custody. [ 129 ] On January 15, 2008, Mr. Tom entered a guilty plea to a single count of breach of recognizance. The Crown directed a stay of proceedings in respect of all of the other charges, including the assault charges involving S.J. S.J. remains confused about why this occurred.

She testified that she attended court that day, expecting to testify about what Mr. Tom did to her on October 31, 2007. She waited outside the courtroom with police witnesses, but was never called. All she knows is that she was supposed to "talk that day," but her “lawyer talked on her behalf” and she remained outside. [ 130 ] At this sentencing hearing, Mr. Tom's counsel advised the court that Mr. Tom's difficulties stemmed from his challenge in adjusting to the pace of urban life after spending his entire life in Lillooet.

She advised the court that although he and S.J. had a good plan when they first arrived in Vancouver to attend school and work, Mr. Tom's plans did not work out, adding to his frustrations. The court was also told that Mr. Tom intended to return to Lillooet. [ 131 ] Of course, we now know that Mr. Tom was actually working selling drugs during this time. [ 132 ] Mr. Tom was sentenced to two days in jail, in addition to 21 days' time served, followed by a 12-month probation order.

Included in its several terms were conditions that he make reasonable efforts to obtain a residence outside of Vancouver and that he have no contact with S.J. [ 133 ] In imposing the no contact condition, the court noted that the assault charge involving S.J. was not proceeding, but it was taken into account when imposing that particular condition. S.J. did not see Mr. Tom again. Nine years later when she testified at this hearing, S.J.'s continuing fear of Mr. Tom was very evident. [ 134 ] Mr. Tom told Dr. Murphy that at some point in 2007 he managed to leave the Indian Posse.

He told her that he had been the leader of 20 to 30 people to whom he offered protection. He sold drugs through others to nine separate communities. He collected debts. He recruited young members. He also told her that he enjoyed "flaunting the bandana", a reference to wearing gang colours, but became frustrated when the gang's leaders did not support him while he was in custody by failing to send him money, as they had promised. [ 135 ] Mr. Tom told Ms. Gordon that since the gang did not look after him while he was in custody, he chose to leave.

To do so, he said that he called a meeting in Lillooet and engaged in a fight with one of the gang's co-founders in order to secure or earn his release from the gang. He was released, but described experiencing fallout from disgruntled members of the gang in the form of harassment and assaults. [ 136 ] Following his departure from the Indian Posse, Mr. Tom began to lead a less affluent lifestyle. The drug trade had been fairly lucrative for him. He explained to Ms. Gordon that after leaving the gang, he had no source of income. He had never held legitimate employment other than the short firefighting stint.

He reported being too ashamed to access social assistance or other services. When he is not able to find accommodations with friends, he lives on the streets. 16. Uttering Threats and Assault - March 5, 2008 (Victim: Alan Brady) [ 137 ] By this point in time, Mr. Tom was back living in Lillooet. On March 5, 2008, Alan Brady exited a youth centre to ask his cousin for some chewing tobacco. His cousin happened to be with Mr. Tom. Mr. Tom was intoxicated. Mr. Tom swore at Mr.

Brady, punched him in the face, and told him if he did not back off or if he did anything afterward, he would pull out his knife. [ 138 ] The victim suffered injuries, including a swollen nose, clicking jaw, and a chipped tooth. Mr. Brady provided a statement to police where he related these events. He reported fearing for his safety because Mr. Tom was much older. [ 139 ] On November 4, 2008, the Crown directed a stay of proceedings of the charges arising out of this incident, because Mr. Brady was not prepared to testify. 17. Uttering Threats - August 5, 2008 (Victim: Ms. Draney) [ 140 ] On August 5, 2008, Mr.

Tom was in Bridge River. He and a friend, Mr. Sam, invited Ms. Draney’s common-law partner, Mr. Johnny, out to meet some people. The three men went down to the river and consumed alcohol. Mr. Tom and Mr. Johnny began arguing. Mr. Johnny decided to leave. As he was walking away, Mr. Johnny was struck in the head from behind. The blow rendered him

unconscious. He did not know who hit him. When he awoke, his feet were in the river. [ 141 ] In the meantime, Mr. Tom and Mr. Sam left the river and walked past the residence where Ms. Draney was staying. She asked about the whereabouts of her husband. Mr. Tom told her that Mr. Johnny was beat up and they had thrown him in the river. He then threatened Ms. Draney that if she called police, she and her daughter would be next. [ 142 ] The Crown accepted a guilty plea to a single count of uttering threats to cause death or bodily harm and directed a stay of proceedings in respect of the assault charge.

During sentencing submissions on January 21, 2009, Mr. Tom's counsel noted that Mr. Tom's longstanding drinking problem continued to plague him. Mr. Tom was said to have completed a violence prevention program while in custody, to be working toward completing his Grade 12 education, and to have been recently re-established with his daughter. The court was also advised that Mr. Tom had silviculture work available through a local band. [ 143 ] The court noted at that time that Mr. Tom had a “frighteningly violent record” and expressed hope that the violence prevention counselling he took in custody would help him.

Mr. Tom had spent the five and a half months in custody. The court gave him credit for serving 11 months. He was sentenced to time served and an additional day in custody, followed by 12 months' probation with a number of conditions, including a condition that he attend, participate in, comply with rules of, and successfully complete any assessment, counselling, or program as directed by his probation officer, including programs related to anger management, drug abuse, or alcohol abuse. 18.

Uttering Threats and Breach of Probation - March 31, 2009 (Victims: Karen and Wesley Francis) [ 144 ] On this day, Karen Francis and Wesley Francis were walking down Main Street in Lillooet when a truck pulled up beside them. Mr. Tom got out of the vehicle and told them he was going to kill them. He reminded them he had shot and killed his own uncle. He got back in the vehicle as a passenger and the driver pulled away. [ 145 ] Both complainants felt threatened because they knew Mr. Tom was a violent person who had killed someone before. Mr.

Tom was on probation at the time, bound by a condition that he keep the peace and be of good behaviour. Mr. Tom was arrested and held in custody. [ 146 ] In April of 2009, while in custody, he was caught by corrections officials trying to send a letter to a person he was court ordered not to contact. [ 147 ] Mr. Tom's trial on this matter was scheduled for May 19, 2009, but neither victim attended court. As a result, the Crown directed a stay of proceedings. Mr. Tom was released. 19.

Dangerous Operation of a Motor Vehicle and Assault X2 - May 28, 2009 [ 148 ] On May 28, 2009, police responded to a complaint of a pickup truck speeding excessively and swerving up and down Main Street in Lillooet. The responding officer saw the truck travelling toward him and activated the emergency lights on his vehicle. Mr. Tom was driving. Instead of pulling over, Mr. Tom revved the engine loudly and increased his speed dramatically, passing the police vehicle. The officer made a U-turn and pursued. The officer estimated the truck was travelling approximately 100 kilometres an hour, twice the speed limit.

The truck then braked, swerved to the side of the road, hopped the curb, and struck a wooden post. [ 149 ] Mr. Tom fled the scene on foot, ignoring the commands of the officer to stop. The officer did not run after Mr. Tom, because he noticed that Mr. Tom's vehicle was rolling backward into the street. Mr. Tom had failed to put it into park after the collision. After securing the vehicle, the officer then spoke with three passengers who remained in the vehicle. They provided Mr. Tom's identity as the driver, and indicated that Mr. Tom might have been intoxicated. Mr.

Tom lacked a valid driver's licence at the time. He was later arrested. [ 150 ] On March 10, 2010, Mr. Tom entered a guilty plea to a single count of dangerous operation of a motor vehicle arising from these events. He had spent some time in custody since the offence date, on and off, as he would be released, re-offend, and then be released again. For the count of dangerous driving, Mr. Tom was sentenced to one day in jail, having been credited for 132 days of time served. The court also imposed a three-year driving prohibition. 20.

Assault X2 - October 29, 2009 (Victims: Robert and Morris Terry) [ 151 ] On October 29, 2009, in the early morning, Mr. Tom entered the residence of his aunt and uncle on the Bridge River Reserve near Lillooet. He watched television for a while but soon, for reasons that are not explained, began to throw items around the residence. When the two victims attempted to stop him, he punched one in the face and struck him in the head with a glass liquor bottle. He then punched the other in the head. For reasons that are not explained, the Crown did not proceed with charges. 21.

Breach of Probation - Various Dates in 2009 [ 152 ] As a result of his January 21, 2009 conviction for uttering threats, Mr. Tom was bound by a probation order. One of its conditions required him to report to a probation officer. He did report as directed for the first few months, but was then incarcerated for a few months. When he was released on May 19, 2009, Mr. Tom failed to report to his probation officer that day or any time thereafter. [ 153 ] On December 18, 2009, Mr. Tom entered a guilty plea to a single count of breaching his probation order by failing to report to his probation officer.

At the sentencing hearing, Crown counsel observed that reporting to his probation officer was something that was very important for Mr. Tom, as oversight was necessary to ensure that he attended counselling and complied with his no-alcohol condition. His failure to report throughout much of the order, at least the time when he was not in custody, prevented the arrangement of any counselling.

[ 154 ] Noting that Mr. Tom was in custody until at least March of 2010 on other matters, the court sentenced Mr. Tom to 30 days in jail. 22. Mischief - October 2, 2010 [ 155 ] On October 2, 2010, Mr. Tom was drinking alcohol with his cousin, Ms. Peter Mr. Tom became intoxicated and started causing problems. Ms. Peter asked him to leave. He initially refused because he had with him a significant quantity of alcohol and did not want to leave it behind. Mr. Tom eventually left the residence without his alcohol but returned sometime later, asking to be let back in the house. Ms.

Peter and her 17-year-old daughter refused to allow him entry because they were frightened of him. He was very angry, shouting and screaming. When they continued to refuse him entry, Mr. Tom picked up a chair from outside of the house and broke the glass window in the door. The two women ran out of the residence through another door and fled to a neighbour's house to call police. Their fear of Mr. Tom was increased as a result of their knowledge about his violent past. [ 156 ] Mr. Tom's trial on this matter commenced on October 20, 2011. After the Crown completed direct examination of its first witness, Mr.

Tom entered a guilty plea. At the sentencing hearing, defence counsel advised the court that Mr. Tom had one course left to complete to obtain his Grade 12 education and that he was looking for work as a mechanic. Mr. Tom indicated that he recognized that alcohol was a problem for him. He apologized to the court for his behaviour and acknowledged that he made a mistake. [ 157 ] The court imposed a suspended sentence and placed Mr. Tom on probation for 12 months. The conditions were the same, or similar, to many probation orders that went before. Mr.

Tom was to take counselling and refrain from contacting the victims, among other things. He was also ordered to pay restitution. [ 158 ] In 2011, Mr. Tom began another significant relationship in his life with L.B. L.B. testified at this hearing. As with S.J., L.B. clearly remains very fearful of Mr. Tom to this day. Her fear was demonstrated not only by her words, but by her profound emotional reactions and responses while she testified. As with S.J., it is clear that it took tremendous courage for L.B. to testify in this hearing about the abuse she suffered at the hands of Mr. Tom.

Fortunately, L.B. was required to testify for only part of her examination-in-chief. Mr. Tom instructed his counsel to admit her evidence and allow her to leave. [ 159 ] L.B. believes she and Mr. Tom started dating in approximately October of 2011. She had four children at the time. At first, things were fine, but as time went on Mr. Tom drank more and more. He exhibited signs of jealousy early. 23. Assault, Uttering Threats X4 - May of 2012 (Victim: L.B.) [ 160 ] L.B. described four incidents, significant incidents, where Mr. Tom was violent toward her. [ 161 ] The first incident occurred on May 1, 2012. Mr.

Tom was intoxicated. He accused L.B. of talking to an ex-boyfriend. He gathered his belongings and asked her to drive him to his father's residence in Bridge River, which was about 20 minutes away. She did so. Mr. Tom remained angry and jealous. He began punching her in the head as she drove. [ 162 ] When they arrived at his destination, Mr. Tom got out and removed items from her vehicle. L.B. started to drive away, but he stopped her and told her to wait. He then went into the residence and came back out with a bottle of alcohol. He told her to start driving him back to Lillooet. She complied.

About five minutes from home, Mr. Tom made L.B. stop the vehicle and turn it off. He continued to accuse her of infidelity. L.B. was not unfaithful. She tried to say as much, but every time she would respond, Mr. Tom would strike her. At one point, Mr. Tom got out of the vehicle and told L.B. to get out as well, in order that she might “fight” him. He wanted to fight her, to “show her the hurt” that she made him feel. L.B. refused to get out of the vehicle, because she knew if she did she would be badly hurt. Mr.

Tom threw a large rock at the vehicle, leaving a dent in its hood. [ 163 ] It was after testifying about this event that L.B. was excused from testifying further. The rest of her evidence was admitted by Mr. Tom to be accurately recorded in the records adduced in evidence. [ 164 ] Those records reveal that the second incident occurred on May 2, 2012. Mr. Tom was intoxicated and assaulted L.B., again in a jealous rage. He punched her several times in the face, nose, and lip. On at least two occasions, her head struck the vehicle they were standing beside as a result of the blows. When L.B. rubbed her head, Mr.

Tom told her to stop rubbing it and punched her again. During the course of these assaults, he told L.B. he could throw her in the river and no one would know where she was. She protested that she had children. Mr. Tom said that they would end up motherless. [ 165 ] On May 10, 2012, the third incident occurred. Mr. Tom was intoxicated and accused L.B. of sleeping with someone else. He demanded that she drive him to his father's residence. On the way there, he struck her multiple times in the head and made her stop at a bridge.

He said he would throw her off the bridge and her children would be motherless. [ 166 ] The fourth incident occurred on May 20, 2012. The police responded to a call early in the morning from L.B.'s mother that Mr. Tom had assaulted her daughter. When police arrived at their residence, they found Mr. Tom passed out in L.B.'s bedroom. He was roused and arrested. Police noted that he was unsteady on his feet, had glassy eyes, and a faint odour of liquor on his breath. [ 167 ] When the officers spoke to L.B., they noticed that she appeared physically exhausted. Her face and eyes were swollen, bruised, and red.

L.B. told them that Mr. Tom had punched her in the face about four times after accusing her of sleeping with other men and calling her a liar when she denied it. L.B.'s children were home at the time the assaults occurred. [ 168 ] Two days after his arrest, on May 22, 2012, Mr. Tom entered a guilty plea to a single count of assault and a single count of uttering threats to cause death or bodily harm in relation to all of these matters. The remaining counts were stayed.

In imposing a four-month jail sentence, the position put forward by the Crown, the court, among other things, noted the combination of alcohol, jealousy, and anger which led to Mr. Tom's violence. The court implored Mr. Tom to get at the root of his issues with alcohol dependency and anger, noting that they may have originated with the abuse he suffered in the past. The court placed Mr. Tom, following

his period of imprisonment, on a probationary period for 12 months, including numerous conditions which were by then too familiar to Mr. Tom. However, this time the no-alcohol condition was varied to simply prohibit Mr. Tom from possessing, consuming, or being under the influence of alcohol or other drugs while outside his residence. 24. Breach of Probation - October 31, 2012 [ 169 ] On this day at 9:15 p.m., responding to a complaint of an intoxicated male yelling at a group of teenagers in a public park, Lillooet police located Mr. Tom. Mr.

Tom dropped a can of beer at his feet when he noticed the police officer approaching. He admitted the beer cans around him belonged to him and police could see a half bottle of vodka in Mr. Tom's open backpack. Mr. Tom was intoxicated. He was arrested and his backpack was searched. In addition to the vodka, police discovered a large screwdriver, latex gloves, and some marihuana. [ 170 ] On November 2, 2012, Mr. Tom entered a guilty plea to a single count of failing to comply with the condition of his probation order requiring him not to possess or consume alcohol outside of his residence.

At this sentencing hearing, defence counsel suggested there was no formal program in place to address Mr. Tom's alcohol abuse. Mr. Tom apologized for taking the court's time and sa

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