R. v. Clark, 2023 BCSC 853

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Clark, 2023 BCSC 853 Date: 20230425 Docket: 76957-3 Registry: Prince George Rex v. Kirk Arthur Clark Before: The Honourable Madam Justice Church Oral Reasons for Sentence Counsel for the Crown: M.L. Ahrens Counsel for the Accused appearing by videoconference: D. Hopkins Place and Date of Hearing: Prince George, B.C. April 12, 13, 14 & 25, 2023 Place and Date of Judgment: Prince George, B.C. April 25, 2023 [ 1 ] THE COURT: On April 12, 2023, Kirk Arthur Clark pleaded guilty to Counts 1 and 2 on Indictment 76957-3.

He thereby admits that he committed break and enter of various commercial or business premises in Prince George between May 10 and 11, 2022, with intent to commit an indictable offence, and that he assaulted a peace officer, Constable Groundwater, while that officer was engaged in the execution of his duties. [ 2 ] The facts underlying these offences are admitted and set out in an Agreed Statement of Facts filed as Exhibit 1 on sentence. I will not repeat them in detail, but in brief, during the evening of May 10 and early morning hours of May 11, 2022, Mr.

Clark and another individual, Mark Barg, broke into four business premises in the downtown of Prince George, stole a Dodge dually pickup truck, tools, a flat-deck trailer, and a licence plate from another vehicle and caused damage to several properties. [ 3 ] Police responded to reports of the break-ins and eventually located and pursued the stolen Dodge pickup truck in various locations around Prince George. The stolen Dodge pickup drove at excessive speeds and sometimes in the oncoming lane, resulting in near collisions with civilian vehicles.

The stolen Dodge pickup evaded attempts by police to stop it using four separate spike belts and the occupants of the vehicle threw various tools and implements out of the vehicle which could have caused serious injury had they struck someone or penetrated a nearby vehicle. The stolen Dodge pickup collided with the police vehicle operated by Constable Groundwater in the course of fleeing from police, as a result of which Constable Groundwater suffered soft tissue injuries. Mr. Clark does not admit to driving the stolen Dodge pickup.

The stolen Dodge pickup was eventually located abandoned in a residential area of Prince George and Mr. Clark and Mr. Barg were found and arrested about a block from the stolen pickup truck. [ 4 ] Both Mr. Clark and Mr. Barg were charged with numerous offences arising from this crime spree. Mr. Barg has since died. On March 28, 2023, the Crown filed a new indictment on this matter with only two counts to which Mr. Clark has pleaded guilty. Mr. Clark was in custody from the date of his arrest on May 11, 2022, until October 21, 2022, when he was released following a detention review hearing.

He breached a condition of his release and was returned to custody on November 9, 2022, and has remained in custody until his recent release which, as I understand it, is a total of 319 days. [ 5 ] By way of a joint submission, Crown and defence counsel propose that Mr. Clark not serve any further time in jail. He has served the equivalent of approximately 16 months in presentence custody after enhanced credit at 1.5 to one pursuant to s. 719(3.1) of the Criminal Code .

The Crown is also seeking a s. 109 firearms prohibition for life which is mandatory for Count 1. [ 6 ] The mechanics of the imposition of the sentence have been the subject of additional submissions after I expressed some concern about counsel's position at the last hearing date. Counsel jointly submitted to me that the sentence I should impose on Mr. Clark is 18 months' jail concurrent on both counts and they further submitted that Mr. Clark should received enhanced credit beyond what is described in s. 719(3.1) of the Criminal Code .

In support of that submission, counsel relied on an endorsement of the Ontario Court of Appeal in R. v. Duncan , 2016 ONCA 754 , in which the court found that in appropriate circumstances: … particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). [ 7 ] The court in that case directed that sentencing judges should consider both the conditions of the presentence incarceration and

the impact of those conditions on the offender. [ 8 ] I requested further submissions on this issue because I am not aware of what is termed in Ontario as " Duncan " credit being applied in British Columbia and I had not received any submissions from counsel regarding the particularly harsh presentence incarceration conditions that had been experienced by Mr. Clark. [ 9 ] I heard those additional submissions earlier today and, as I understand their positions, counsel are urging me to impose an 18- month sentence for these offences concurrently on each count and then credit Mr.

Clark with further enhanced credit beyond what is legislated in s. 719(3.1) of the Code in order to mitigate the harsh presentence custody. Crown counsel further submits that the particular way in which counsel have agreed to structure Mr.

Clark's proposed sentence forms part of the agreement between Crown and defence counsel and failing to give effect to this proposal would result in this court essentially failing to accede to the joint submission. [ 10 ] Once again, I was not referred to any British Columbia authorities where this approach has been taken, but counsel submitted that that I have jurisdiction to impose the sentence that is proposed and I should accede to the joint submission as it was presented. [ 11 ] I indicated during counsel's submissions that I am concerned about the manner in which counsel are seeking to give effect to this sentence and that it is contrary to the provisions of s. 719(3.1).

In my view, it is also not in keeping with the more recent and fulsome decision of the Ontario Court of Appeal in R. v. Marshall , 2021 ONCA 344 . In that decision, the court clarified what it meant in Duncan in terms of its application in mitigating sentences and its distinction from enhanced credit for presentence custody as per R. v. Summers , 2014 SCC 26 . The Ontario Court of Appeal said at paras. 51 to 53: [51] It is also important to appreciate and maintain the clear distinction between the “ Summers ” credit and the “ Duncan ” credit.

The “ Summers ” credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence. The “ Summers ” credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The “ Summers ” credit is statutorily capped at 1.5:1. It is wrong to think of the “ Summers ” credit as a mitigating factor.

It would be equally wrong to deny or limit the “ Summers ” credit because of some aggravating factor, such as the seriousness of the offence … [52] The “ Duncan ” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “ Summers ” credit will be deducted.

Because the “ Duncan ” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors. [53] Often times, a specific number of days or months are given as “ Duncan ” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence.

By quantifying the “ Duncan ” credit, only one of presumably several relevant factors, there is a risk the “ Duncan ” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “ Summers ” credit. [ 12 ] I understood counsel to be suggesting that I impose a sentence of 18 months which is otherwise appropriate and then mitigate that sentence down by deducting enhanced presentence credit beyond the statutory cap in s. 719(3.1).

This seems to be an approach that has been adopted by some judges in the Ontario Superior Court of Justice in cases that were referred to me by Crown counsel: R. v. Persad 2020 ONSC 188 ; R. v. McEwan 2023 ONSC 1608 . [ 13 ] In my view, that approach is entirely contrary to what the Ontario Court of Appeal has directed in Marshall . Particularly harsh presentence conditions are a mitigating factor in determining the appropriate sentence before deducting and assigning the credit prescribed in the Criminal Code .

I do not accept the submission of counsel that I have jurisdiction to impose sentence in the manner they suggested and I take the same view as Justice Pomerance of the Ontario Superior Court in R v. Hearns , 2020 ONSC 2365 , that I am not at liberty to assign presentence credit beyond that prescribed in the Criminal Code . [ 14 ] The substance of the joint submission is that, with mitigation for particularly harsh presentence conditions, an appropriate sentence to impose on Mr. Clark for these offences is 16 months.

While the form of the joint submission may not have been framed by counsel in that manner, I have concluded that that is the essence of the joint submission before me. [ 15 ] The Crown described this as a joint submission in the truest sense. Crown counsel candidly admitted that there have been extensive discussions between counsel and that there were elements of the various offences that would be difficult for the Crown to prove at trial including whether Mr. Clark was the driver of the vehicle.

Crown counsel also submitted that the trial would have required significant resources including three weeks of court time and testimony from more than 20 police officers. The Crown further submits that while it is aggravating that Mr. Clark has a fairly lengthy criminal record, his record is primarily for driving offences with only two convictions for violence, one for robbery in 2012 and one for assault in 2015. [ 16 ] Defence counsel on behalf of Mr.

Clark confirmed that this is a joint submission in terms of the appropriate jail sentence and made no submission with respect to the ancillary orders sought on Count 1. [ 17 ]

Section 718 of the Criminal Code provides that the purpose of sentencing is to contribute 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: denunciation of unlawful conduct, deterring the offender and other persons from committing offences, separating offenders from society where necessary, assisting in rehabilitation of offenders, providing reparation for harm done to the victims and the community, and promoting a sense of responsibility in offenders and acknowledging the harm done to the victims and the community.

The objectives of sentence in this case include denunciation, deterrence, promoting a sense of responsibility in the offender, and acknowledging the harm done to the victims and the community. [ 18 ] The sentencing sections of the Criminal Code also set out other sentencing objectives which include that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, that a sentence should be increased or reduced

to account for any relevant aggravating or mitigating circumstances, and that a sentence should be similar to sentences imposed on similar offences committed in similar circumstances. [ 19 ] The sentence proposed for each of the offences is the equivalent of 16 months. Mr. Clark's prior conviction for robbery and arguably more serious offence resulted in a sentence of two years less a day and thus the sentence proposed on Count 1 appears to be at the low end, but within the range of appropriate sentences for this offence.

I was not provided with any comparative ranges for the sentence with respect to Count 2, assaulting a peace officer, but note that Mr. Clark's prior conviction for simple assault in 2015 netted him a sentence of 45 days in jail and 12 months' probation. The proposed sentence of 16 months on Count 2 represents a significant step- up. [ 20 ] There are both mitigating and aggravating factors in this case. The most significant mitigating factor is that Mr. Clark has pleaded guilty and made it unnecessary for there to be a trial. The circumstances of Mr.

Clark's presentence custody were particularly harsh in that he had to endure three lengthy periods of 23-hour lockdown in custody due to COVID-19 protocols, that being periods of 90 days, 40 days, and 20 days up to January 2023. Additionally, Mr. Clark's co-accused, Mr. Barg, died of an overdose while out on bail and while Mr. Clark was in custody and his grandmother also passed away and he was unable to speak to or grieve with friends and family due to his custody conditions.

There is considerable jurisprudence that recognizes that the impact of such lockdowns on inmates awaiting trial is unduly harsh with conditions that, at times, border on inhumane. This is a significant mitigating factor to consider with respect to the appropriate sentences to impose on Mr. Clark. [ 21 ] The aggravating factors include that Mr. Clark has an unenviable and lengthy criminal record dating back to 2007, which includes prior convictions for robbery and assault.

I note that he was only released from custody a month prior to these offences after convictions for resisting arrest, failing to comply with a release order, and possession of a controlled substance. With respect to proportionality, there is no doubt that in terms of the gravity of the offences, these were serious offences that caused loss, damage, and inconvenience to business owners, and subsequent attempts to apprehend Mr. Clark and Mr. Barg created a dangerous and frightening situation for the police officers involved and the community at large.

It is a minor miracle that no one was seriously injured or killed as a result of Mr. Clark's offending on May 11, 2022. [ 22 ] In terms of Mr. Clark's background and circumstances, his counsel advises that he is 36 years of age and married with three young children. He is currently separated and his wife and children live in Calgary. His counsel further advised that Mr. Clark had good employment in the oil patch until the COVID-19 pandemic, at which point, he became unemployed. Mr.

Clark was also dealing with a significant loss in his life including the loss of his father and mother and more significantly the loss of his twin brother in July 2018 as a result of a motor vehicle accident. After losing his employment, it appears that Mr. Clark spiralled into substance abuse, in particular alcohol abuse. [ 23 ] His intention upon release is to live and work for his 91-year-old grandfather who has a property on West Austin Road in Prince George and operates 13 rental units. Mr.

Clark intends to assist his grandfather with the operation and maintenance of the rental units and also to reach out to his wife to try to reconnect with his children who are ages eight, six, and one-and-a-half years. During his time in presentence custody, Mr. Clark has participated in programming, completing modules in substance abuse management and “Meth Matrix”. He also participated in an Aboriginal program that he found very rewarding.

He reports that he has not consumed alcohol or drugs while in custody and has an understanding of what he needs to do to address his issues with substance abuse when he is released from custody. [ 24 ] It was apparent from his statement to the court that Mr. Clark is highly motivated to turn his life around and become part of his children's lives. He apologized for committing these offences in May 2022 and said that he has learned from his time spent in custody. He said that his goal is sobriety and that he understands the steps he needs to take. Mr.

Clark said he wants his children to be able to feel good about saying that he is their father, which I understood to mean that he wants to do better and be an example to them. More recently, he has been in contact with his wife who has indicated a willingness to allow him to begin to reconnect with his children as long as he can stay out of jail for at least the next 30 days.

This should be a very strong motivation to turn his life around and choose a healthier and more productive path in the future rather than continuing this pattern of offending and, essentially, living his life in installments. [ 25 ] I am mindful of the fact that the proposed sentence is a joint submission, the product of considerable discussion between Crown and defence counsel who have determined that the joint submission addresses the interests of both the public and the accused. As the Supreme Court of Canada has directed in R. v.

Anthony-Cook , 2016 SCC 43 , trial judges should not reject a joint submission lightly. They should only do so where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system. After considering the submissions of counsel, the relevant purposes and principles of sentencing, and the mitigating and aggravating factors, while I am not prepared to give effect to the form of the sentence proposed by counsel, I have concluded that the substance of the sentence jointly proposed is appropriate and meets the applicable objectives of sentencing.

It is not a sentence that is contrary to the public interest or one that would bring the administration of justice into disrepute. [ 26 ] Mr. Clark, would you please stand? [ 27 ] On Counts 1 and 2 of the indictment, I sentence you to 480 days in jail. You have served 319 days in presentence custody. With enhanced credit at 1.5 to one, you will be credited with 479 days leaving you with a sentence imposed today of one day. That sentence is served by your presence here today in court.

The sentences on Count 1 and 2 will be concurrent. [ 28 ] Count 1 attracts a mandatory firearms prohibition pursuant to s. 109 of the Criminal Code . This will be the second such offence with the first being your conviction for robbery from December 2012. Therefore, pursuant to s. 109(3) of the Criminal Code , you are prohibited from possession of any firearm, crossbow, restricted or prohibited weapon, prohibited device, ammunition, or explosive substance for life. Do you understand that order, Mr.

Clark? [ 29 ] THE ACCUSED: Yes, I do. [ 30 ] THE COURT: The one thing I did not ask either counsel about was the victim fine surcharge.

[ 31 ] CNSL D. HOPKINS: I believe I addressed it in my submissions and the concern I have is that he's going to be working for his grandfather and supported by him. So, at the time I made the submissions, I indicated, because of his time in custody and his lack of funds, that you consider waiving the surcharge. If the surcharge were to be imposed, I have been given instructions that he would need a lengthy time to be able to pay it. [ 32 ] THE COURT: All right. In the circumstances, Mr. Clark, I am going to impose the victim fine surcharge.

You must pay a victim fine surcharge, which I understand is $200 per indictable offence but the registry will clarify the amount for you. I will give you one year from today's date to pay that amount. [ 33 ] THE ACCUSED: Thank you. [ 34 ] THE COURT: If you need further time to pay the surcharge, you will have to apply to the court to ask for an extension. [ 35 ] All right, anything else, counsel? [ 36 ] CNSL M. AHRENS: Not from the Crown, thank you. [ 37 ] THE COURT: Mr. Hopkins? [ 38 ] CNSL D. HOPKINS: Nothing further, thank you. Nothing. [ 39 ] THE COURT: All right. Thank you. Good luck to you, Mr.

Clark. “The Honourable Madam Justice Church”