R. v. James-Davies, 2023 BCSC 2385

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. James-Davies, 2023 BCSC 2385 Date: 20231013 Docket: New Westminster Registry: X084128 Rex v. Richard Elliot James-Davies Before: The Honourable Associate Chief Justice H. Holmes Oral Reasons for Sentence Counsel for the Crown: P. Bhatti Counsel for the Accused: B. Movassaghi Place and Date of Hearing: New Westminster, B.C. September 12 and 14, 2023 October 13, 2023 Place and Date of Judgment: New Westminster, B.C. October 13, 2023 INTRODUCTION [ 1 ] Richard James-Davies has pleaded guilty to arson by causing fire damage to property, knowing or being reckless of the fact that the property was inhabited or occupied, contrary to s. 433 (

a) of the Criminal Code . [ 2 ] The task now is to determine the appropriate sentence. CIRCUMSTANCES OF THE OFFENCE [ 3 ] It should be noted that the Crown no longer alleges that Mr. James-Davies set the fire intentionally or purposefully. Mr. James- Davies pleads guilty on the basis that he acted recklessly in setting the fire. [ 4 ] Mr. James-Davies lived alone in one of the two ground-level rental suites in a home in Surrey. The home is owned by a married couple, who live with their two adult children in the two upper levels. [ 5 ] Mr.

James-Davies started the fire in his suite at approximately 2:30 a.m. on March 29, 2021. As video footage later revealed, he then left the home without alerting anyone else, locking his door behind him. [ 6 ] One of the members of the family living upstairs saw smoke coming from Mr. James-Davies’ suite at approximately 2:35 a.m. That person phoned 911, and woke the others in the home. [ 7 ] Mr. James-Davies was arrested later that morning between 8:00 a.m. and 10:00 a.m. near an intersection elsewhere in Surrey.

He came to the attention of the police because of an incident in which his behaviour alarmed various individuals, including a police officer – I note in that regard that Mr. James-Davies acknowledges (and I accept as facts for the purposes of this sentencing) that he had taken cocaine, marihuana, and mushrooms, but not his prescribed psychiatric medication, and that his conduct gave the impression of a psychotic episode. Mr. James-Davies denies assaulting anyone, and the Crown does not seek to lead evidence to the contrary. [ 8 ] At the time of his arrest, Mr.

James-Davies claimed to be bleeding profusely from his head, but the two police officers involved with him saw no injury or blood. Mr. James-Davies was then apprehended under the Mental Health Act and taken to Surrey Memorial Hospital. He continued to display signs of paranoia and was agitated that people were talking about him. He was discharged on April 16, 2021 with a diagnosis of unspecified psychotic disorder, likely schizophrenia, and was placed on Extended Leave, a form of involuntary psychiatric community care. [ 9 ] The fire investigator noted two “hot spots” in Mr.

James-Davies’ suite, where, in each instance, fires had been separately started.

THE EFFECTS OF THE OFFENCE [ 10 ] The home sustained very substantial damage. Mr. James-Davies’ suite was completely destroyed, and the family was unable to rent out that suite or the other ground-level suite during the two-year renovation process. [ 11 ] An insurance company paid the family approximately $100,000 in compensation for the damage, including approximately $3,375 for the loss of rental income.

The family bore the burden of the $9,999 insurance deductible. [ 12 ] Several members of the family have either made a victim impact statement or spoken to the writer of the pre-sentence report about the effects of the offence. [ 13 ] Unsurprisingly, these family members were traumatized and remain anxious even now. At least one of them continues to feel particularly insecure in the home, especially in the early morning hours when the fire happened. One family member is no longer able to work. Most, if not all, have had trouble sleeping and eating.

Most have undergone counselling, funded for a time by employment insurance but not for as long as counselling has been needed. One family member with a pre-existing asthma condition has had to double her medication because of the long-lasting effects of inhaling smoke. MR. JAMES-DAVIES’ BACKGROUND AND CIRCUMSTANCES [ 14 ] Mr. James-Davies is 34 years old. He was raised by his mother, mainly in Ladner, as an only child. Though he faced financial difficulties growing up, Mr.

James-Davies advises that his childhood was mainly positive, except during a period in which he was verbally and physically abused in the home by a step-father, which lasted until his mother ended that relationship for Mr. James-Davies’ well-being. Mr. James-Davies values his relationship with his mother, but the relationship has at times been conflicted. [ 15 ] Mr. James-Davies did not thrive at school despite indications that he is intelligent. Contributing factors may have included his ADHD, which was diagnosed when Mr. James-Davies was five, and that he was bullied at school.

When he was 14, an alternative school program allowed him to combine his education with a part-time roofing job, but he remained with that program for only about a year. He did not complete high school until he returned at the age of 24 to obtain his high school equivalency. [ 16 ] Mr. James-Davies left home at the age of 16 to live in a group home for people with mental health challenges. However, he was obliged to leave because of behavioural issues. Then followed a number of places of residence, leading to the Surrey home where he committed this offence.

His mother had lived with him there for a while but had left by the time of the offence. Efforts to evict Mr. James-Davies had failed before, and a formal eviction process was underway at the time of the offence. [ 17 ] Mr. James-Davies’ employment history appears to have been sporadic. He worked in a variety of temporary labour and odd jobs. Dr. Leanne Meldrum (consultant psychiatrist at the Vancouver clinic of the FPI), who wrote a very thoughtful report, observes that Mr.

James-Davies’ ability to remain employed was adversely affected by the onset of multiple substance use disorders. [ 18 ] After being released on bail for this offence, Mr. James-Davies lived in a number of recovery houses that he described to the writer of the PSR as not a good fit. Since April 2022, he has lived at Reaching Out Recovery in Vancouver, and is evidently content to be there. Mr. James-Davies told the PSR writer that he has no issues with substance use but lives in recovery as a means of gaining release on bail. Mr. Stan Mingo of Reaching Out Recovery speaks very positively of Mr.

James-Davies in two letters filed with the Court, and does not suspect substance use since his arrival. [ 19 ] Mr. James-Davies’ mental health is clearly more of a factor in his life than he acknowledges. Both the PSR writer and Dr. Meldrum note that Mr. James-Davies denies any mental illness and has long done so. However, it is clear that mental health issues have played a big

part in his life and in his problematic conduct. Dr. Meldrum recounts a mental health history that began in Mr. James- Davies’ childhood, and that since 2010 has involved multiple referrals, assessments (including for fitness to stand trial), and diagnoses of psychotic illness. Mr. James-Davies was often hostile to these diagnoses and typically refused medication. [ 20 ] Currently, Mr. James-Davies reports to the Forensic Psychiatric Clinic to receive monthly injections of antipsychotic medication as mandated by a term of his continuing Extended Leave.

He reports as required and on time, in a polite and calm manner markedly different from his often aggressive or oppositional interaction with mental health professionals in the past. Nonetheless, he continues to deny that he has schizophrenia, or that medication may be helping him to avoid anti-social behaviour. Rather, he attributes his conflicts in the past, when he was not taking his medication regularly or at all, to “bad behaviour” and “stupid decisions”. Mr. James-Davies told the PSR writer and Dr. Meldrum that he has challenged his Extended Leave designation. He told Dr.

Meldrum that if he is successful in having his Extended Leave set aside (Dr. Meldrum understood Mr. James-Davies to be referring to a potential appeal) he will discontinue the medications altogether. [ 21 ] Dr. Meldrum concludes that Mr. James-Davies has a history of a major mental disorder, which appears to be schizophrenia, which has been exacerbated by various drug use disorders.

His risk of violence is elevated by several factors, including serious deficits in his insight, his minimization of the seriousness of his actions, his resistance to psychiatric treatment, and psychosocial factors that make him more than usually sensitive to stress and relapse into substance abuse. She projects at least a moderate if not high risk of re- offending, and recommends continuing antipsychotic medication, ideally to be administered as an injection to ensure compliance, and ongoing treatment with respect to substance use disorders. [ 22 ] Mr.

James-Davies receives a $1,500/month disability payment, of which $900/month goes to the recovery house. He advises that he owes $2,000 to ICBC, and that he has no assets.

[23] Apart from his mother, with whom he continues to have a close relationship, and who he regards as a positive influence in hislife, and his treating psychiatrist, case manager, and bail supervisor, Mr. James-Davies does not appear to have other supports in thecommunity. [24] Mr. James-Davies reports having a 7-year-old child with a woman whose full name he cannot remember. He understands thatthe child is in foster care in Alberta, and appears to intend to seek more access to the child once DNA tests satisfy social workers therethat Mr. James-Davies is the biological parent. [25] It is clear that Mr.

James-Davies’ insight into his offence and its consequences is very limited. THE PARTIES’ POSITIONS [26] The Crown seeks a sentence of imprisonment for 2 years less a day, followed by probation for two or three years, with strictconditions, including for psychiatric treatment and medication as prescribed.

The Crown also seeks a “stand alone” restitution order forapproximately $100,000. [27] The Crown emphasizes that a restitution order functions as an integral part of a sentence, for the reasons outlined in The Queen v.Zelensky, (SCC), [1978] 2 S.C.R. 940, and that the Crown’s position concerning the appropriate period of imprisonmentreflects its position about the appropriate restitution order. [28] The defence seeks a conditional sentence of imprisonment for 2 years less a day, followed by probation for two or, alternatively,three years (reduced, as mentioned shortly, to reflect pre-sentencing custody), with, throughout, the conditions proposed by the Crown.

Such a sentence would allow Mr. James-Davies to remain at Reaching Out Recovery where, by all accounts, he is doing well, and,Mr. Movassaghi submits, would best allow him to continue on the rehabilitative path he has been on, bringing positive benefits to societyover the long term. Mr. James-Davies consents to mandated treatment, including medication, if it is ordered as part of his sentence. [29] The Crown and the defence agree that Mr. James-Davies’ sentence, whether it is to be served in custody or in the community,should be reduced by one year as credit for the 8 months he spent in pre-sentencing custody.

THE LEGAL PRINCIPLES [30] The offence in s. 433(a), which is essentially arson with disregard for human life, is punishable by a very wide range ofsentences. The maximum sentence is life imprisonment, and there is no minimum punishment.

Available sentences include, in theappropriate situations, a suspended sentence or a conditional sentence of imprisonment. [31] Precisely where the sentence in a particular situation should fall within that broad range is determined according to the purposesand objectives of sentencing, and the guiding principles, most of which are set out in sections 718 through 718.2 of the Code.

Withinthis broad framework, and taking into account the particular offender and the particular offence, the judge assesses and finds theappropriate balance for all of the relevant factors so as to best achieve the objectives of sentencing. Fundamental to this task is ensuringthat the sentence is proportionate to the gravity of the offence and the degree of the offender’s responsibility. [32] The primary objectives of sentencing in arson cases are denunciation and deterrence of the offending conduct. But rehabilitationof the offender also plays a part.

Sometimes, as in this case in my view, rehabilitating the offender is also an important aspect ofprotecting society from further offences. [33] As Justice Ker noted in R. v. Doran, 2022 BCSC 1699, the life sentence available for arson indicates the seriousness with whichthis offence is viewed. One reason is that fire is unpredictable and erratic, and may give rise to very significant unforeseenconsequences, such as extensive property damage, serious personal injury, and/or death. Judge Gorman in R. v.

Fewer, [2004] N.J.No. 433 (N.L.P.C.) noted that arsonists put at risk the lives and safety of not only those in the immediate surroundings, but also those oursociety calls on to respond and to assist. [34] At paras. 62–3 of Doran, Ker J. helpfully reviewed the case authorities for this offence. The cases reveal a wide variety ofcircumstances and levels of seriousness, and therefore a wide range of sentences. Although generally sentences tend to be in the range oftwo to four years’ imprisonment (at para. 62), some fall outside that range, either below or above it.

Ker J. noted also that “the more theoffence is planned, premeditated, or undertaken for fraudulent or vengeful purposes, or the greater the risk to human life it presents, thegreater the sentence” (at para. 64). AGGRAVATING AND MITIGATING FACTORS Aggravating [35] The offence was committed during the night, when it was all the more likely that people would be in the home, indeed that theymay not notice the fire until too late. [36] Despite this, Mr.

James-Davies walked away from the home after causing the fire, without any effort to help the people he knewremained inside. [37] The fire exposed the individuals in the home to very serious risk. It caused no physical injury, apart from exacerbating oneperson’s asthma condition as I noted, but it did substantial psychological or emotional harm, as well as significant and costly property

damage. Mitigating [ 38 ] Mr. James-Davies’ guilty plea is an important mitigating circumstance. The plea is not an early one, coming as it did on, effectively, the first day of trial. However, through the plea, Mr. James-Davies accepts responsibility for the offence, and he also relieves society, and more specifically the witnesses, of the various burdens of a trial. [ 39 ] These mitigating effects might have been even greater had they been accompanied by true remorse on Mr. James-Davies’ part, or insight into his offending conduct.

However, on all the evidence, these are lacking. [ 40 ] Mitigating as well is that Mr. James-Davies has no related criminal history. The Crown accepts that Mr. James-Davies’ only previous conviction, which was for assault in 2017, should be viewed as dated at this point, and as of only limited relevance. [ 41 ] I take into account also that Mr. James-Davies has done well in complying with the conditions of his release.

He has also complied with the terms of his Extended Release from the Forensic Psychiatric Clinic, by, in particular, reporting for the monthly medication injections which, as I conclude, are so very important to his stability. [ 42 ] The evidence does not show a direct causal link between Mr. James-Davies’ mental health issues and the offending conduct. However, on all the evidence it is reasonable to infer that his mental health has played a part. This mitigates to an extent, or at least places Mr.

James-Davies within the group of arson offenders who, are considered less morally culpable than those who acted for financial gain or because of a grudge: Doran at para. 1 ; R. v. Laforge, 2020 BCSC 1269 at para. 48 . The fact that Mr. James-Davies acted recklessly, as contrasted with deliberately, in setting the fire has much the same effect, in the circumstances of this case. DETERMINING THE APPROPRIATE SENTENCE [ 43 ] Crown and defence counsel each provided sentencing decisions in arson cases for the Court’s assistance: The Crown’s cases: R. v. Doran , 2022 BCSC 1699 ; R. v. Laforge , 2020 BCSC 1269 ; R. v.

Cliffe , 2022 BCCA 305 ; R. v. Day , 2013 BCCA 172 ; R. v. Li, 2020 BCSC 113 ; R. v. Cootes , 2011 BCCA 398 ; and R. v. Clifford , 2015 BCSC 875 . The defence’s cases: R. v. Warwick , 2021 BCPC 331 ; and R. v. Wood , 2021 BCPC 307 . [ 44 ] No case is ever identical to another, but I found Doran to be the most similar on its facts, of the cases above.

Also, among the Crown’s authorities Doran is one of the few cases, and perhaps the only one, where the offence was arson with disregard to life (as in this case), as opposed to the somewhat less serious offence of arson damaging property (contrary to s. 434, with a maximum sentence of 14 years’ imprisonment). [ 45 ] In circumstances similar to Mr. James-Davies’, Ms. Doran, who was 42 years old and had no criminal record, set a fire in or around her suite in a community housing complex that provided supported assistance to the most vulnerable members of the community.

She had mental health issues that had brought her into contact with the provincial mental health system from time to time, and she had been experiencing significant stressors in her personal life. She viewed herself as a victim. Fortunately, the building’s fire detection system prevented any injury or damage from the fire directly, but water damage from the sprinkler system was significant, at a cost of approximately $95,000. [ 46 ] Ms. Doran’s conduct in setting the fire was pre-conceived and deliberate, making it more serious than Mr. James-Davies’ conduct, which was merely reckless. [ 47 ] Also, Ms.

Doran, who was convicted after a 10-day trial, did not benefit from the mitigating effect of a guilty plea [ 48 ] Ms. Doran’s sentence was imprisonment for 2 years less a day followed by probation for 3 years, a sentence which Ker J. concluded reflected the offence being a very serious one that could have had catastrophic consequences, but also reflected the maximum restraint (in the sense of the least restrictive sentencing option) permissible in the circumstances. [ 49 ] Justice Ker observed that Ms.

Doran appeared to fall within the most serious type of arsonist described by Justice Marchand (as he then was) in Laforge , namely those who set fire because of a grudge. However, Ker J. also acknowledged that that Ms. Doran may

actually have fallen within the least serious type, as an arsonist who suffers from mental illness. This was not possible to determine because Ms. Doran refused to cooperate with an assessment, and there was therefore insufficient evidence to show a causal link between an underlying mental disorder and the offending behaviour. [ 50 ] In my view, Mr. James-Davies’ sentence should, like Ms. Doran’s, be served in custody.

This is in part so that the sentence properly reflects the sentencing objective of denunciation and deterrence of the very serious offence. [ 51 ] I am also concerned that the sentence to be imposed support Mr. James-Davies’ rehabilitation, which seems particularly important in this case for the ultimate protection of the community. [ 52 ] Mr. James-Davies’ compliance with bail conditions and the conditions of his Extended Leave is commendable and encouraging, but it must be considered in light of other factors calling for caution. [ 53 ] One such factor is that Mr.

James-Davies’ own reports about his mental health history and some other matters are often at odds with the information in the FPI file. [ 54 ] Another is that Mr. James-Davies has been open in acknowledging more than once that he is willing to agree to terms if they will help gain his release, even though he considers the terms neither necessary nor helpful. [ 55 ] He sees his current stability as being a result of healthy choices and abstinence from substances, and does not believe that it has anything to do with his psychiatric medication. [ 56 ] As to restitution, it is clear that Mr.

James-Davies has very limited ability to pay a restitution in any amount at present. It is also clear that this is unlikely to change in the future in any significant way, hopeful though Mr. James-Davies properly is of returning to the work force. [ 57 ] An order for restitution could be valuable for Mr. James-Davies’ rehabilitation, as well as important in acknowledging the harm his conduct has done to the victims of his offence.

However, an order in the full amount sought would have a crushing effect, effectively undermining his prospects of rehabilitation, and, coupled with the period of imprisonment, excessive in the totality. SENTENCE [ 58 ] Mr. James-Davies, would you stand, please. [ 59 ] I sentence you to imprisonment for a period of 18 months. You have served eight months in pre-sentencing custody and you will have credit at one and a half times, for a total of 12 months. This means that the period remaining to be served is six months. [ 60 ] You will then be placed on probation for a period of three years.

That is the maximum available amount of time, and you will be on the precise conditions that the pre-sentence report recommends, many of which you have been on before.

The conditions that require you to have treatment are conditions you have consented to, and they apply not only to psychiatric treatment but also to medication as prescribed to you by a medical professional, which may very well include the injections of antipsychotic medication you have been receiving and duly reporting for. [ 61 ] I am going to briefly run through these conditions, but a justice of the peace in the registry will go through them with you again. [ 62 ] You must keep the peace and be of good behaviour. [ 63 ] You must report in person to a probation officer when you are released from prison, on your release.

I will leave it to the justice of the peace to specify the location, or perhaps counsel can do that when I conclude. [ 64 ] CNSL B.

MOVASSAGHI: Perhaps -- sorry to interrupt, Madam Associate Chief Justice, perhaps within 48 hours or two business days of his release from custody, just depending on what day he gets released, and I think if he's been reporting at 275 East Cordova Street, that address would just stay as is. [ 65 ] THE COURT: All right, then that will be the term, within 48 hours of your release, at 275 East Cordova Street in Vancouver. [ 66 ] You must at that time provide your address of where you live and regularly sleep and your phone number, if you have one, and you must not change them without the prior written permission of your probation officer. [ 67 ] You must have no communication, directly or indirectly, with the four people who were in the home at the time of the fire -- you know who they are.

The justice of the peace will read their names to you and their names will be set out in the probation order. They also appear in the pre-sentence report. [ 68 ] And you are not to go within a hundred metres of any place where any of those four people live, work, attend school, worship, or happen to be.

If you see any of them, you must leave their presence immediately without any words and without any sort of signs or gestures. [ 69 ] You must not possess any weapon as defined by the Criminal Code . [ 70 ] And, having consented in court, you must attend, participate in, and complete any intake, assessment, program, treatment, or full-time live-in treatment program as directed by your probation officer. This may include programming or treatment for alcohol or substance use, or psychiatric and psychological health.

[ 71 ] Also having consented in court, you must, on your release, report to the Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling, or treatment as directed by your probation officer. [ 72 ] You are to attend all scheduled appointments with your doctor, psychiatrist, psychologist, counsellor, or mental health worker. [ 73 ] You are to take all medications and all medical treatment prescribed for you. [ 74 ] You are to provide your probation officer with the names, addresses, and phone numbers of your doctor, psychiatrist, psychologist, counsellor, and mental health worker. [ 75 ] You are to authorize your probation officer to give all of these professionals a copy of the probation order, and you are to authorize the probation officer to tell the professionals that if you do not follow the order, they have your permission to inform your probation officer. [ 76 ] You are to sign any document that is necessary for your probation officer and all professionals to check your attendance and completion of any of the intake, assessment, counselling, or treatment mentioned. [ 77 ] If you decide not to follow the terms of this order, you must immediately report this in person to your probation officer and tell them why.

If their office is closed, you must return immediately on the next business day during regular business hours and speak to them. RESTITUTION ORDER [ 78 ] There will be a restitution order in favour of the individual who has completed the statement on restitution, which is now Exhibit 5. [ 79 ] CNSL B. MOVASSAGHI: Stand alone? [ 80 ] THE COURT: Stand alone. The

section number, Ms. Bhatti, please. [ 81 ] CNSL B. MOVASSAGHI: It's 738, I think. [ 82 ] CNSL P. BHATTI: Yes, it's s. 738. [ 83 ] THE COURT: And that will be in the amount of $9,999. There will be no other restitution order for the reasons I have given. ANCILLARY ORDERS [ 84 ] You are required to provide a sample of bodily substance suitable for DNA analysis. That order is made under s. 487.051(2) of the Criminal Code . [ 85 ] Is there anything else we need to deal with? [ 86 ] CNSL B. MOVASSAGHI: The victim fine surcharge. [ 87 ] THE COURT: Waived? [ 88 ] CNSL P.

BHATTI: Crown has no submissions on it. [ 89 ] THE COURT: All right, that is waived. [ 90 ] CNSL B. MOVASSAGHI: Thank you. [ 91 ] THE COURT: Thank you, counsel. I am sorry we are a little later than I predicted. Thank you, we will adjourn. “The Honourable Associate Chief Justice H. Holmes”