R. v. Sutherland Date:, 2016 BCPC 72

Citation: R. v. Sutherland Date: 20160330 2016 BCPC 0072 File No: 162102 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DANIEL CHARLES SUTHERLAND REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C.J. ROGERS Counsel for the Crown: S. Rupertus Counsel for the Defendant: J. Dunlap Place of Hearing: Victoria , B.C. Date of Hearing: January 18, 19, 20, 21, 26, 2016 Date of Judgment: March 30, 2016

[ 1 ] On March 4, 2014, Mr. Sutherland entered a guilty plea to a single count of arson, pursuant to s. 433 (

a) of the Criminal Code . He is before me for sentencing and, in particular, for the Crown’s application for a finding that Mr. Sutherland is a dangerous offender, pursuant to s. 753 of the Criminal Code . It is agreed that the Crown has met the statutory preconditions of notice and consent of the Attorney General. THE EVIDENCE [ 2 ] Much of the evidence in this hearing was received by way of admission. I received, and have considered, a total of 7 binders and some loose materials containing details of Mr.

Sutherland’s past convictions, his BC Corrections history, his Federal Corrections history, and past forensic and pre-sentence reports. [ 3 ] With respect to these records, I also heard evidence from Jennifer Ash, with respect to Mr. Sutherland’s history with Federal Corrections; Kevin Asselbora, with respect to Mr. Sutherland’s history with BC Corrections; and Nathan Buckham, a probation officer who supervised Mr. Sutherland, and who was familiar with the records of BC Community Corrections. [ 4 ] Exhibit 1 is the report of Dr. William Reimer, the Court ordered assessor of Mr. Sutherland.

I also heard vive voce evidence from Dr. Reimer. [ 5 ] Richard Pala is a Captain with the Saanich Fire Department. He testified about the circumstances of the predicate offence. I also heard about the predicate offence and its impact from Brent Johnston, the program coordinator for Seven Oakes, where this offence occurred. [ 6 ] No defence evidence was called. The Predicate Offence [ 7 ] The predicate offence in this matter is arson, pursuant to s. 433 (

a) of the Criminal Code . The maximum penalty under that

section is imprisonment for life. [ 8 ] At the time of this offence Mr. Sutherland was living at Seven Oakes, a community facility that provides housing and support for persons with mental illness. On February 12, 2014, he set fire to his bed in that facility by setting fire to some toilet paper which he placed on top of his bedding. After he set the fire, he approached the nursing staff with a request for permission to leave the facility. This was necessary as the unit he was residing in was a secure unit.

Before his request could be considered, the fire triggered the sprinkler system, an alarm activated and the doors were automatically unlocked. Mr. Sutherland left the building and departed from the grounds. [ 9 ] There were two staff members and six other residents in the unit at the time of the fire. All were safely evacuated, despite the fact that two had mobility issues and were dependent on staff to assist with their evacuation. [ 10 ] One of the staff members attended hospital the following day as a result of smoke inhalation but there were no other physical injuries.

Another staff member lost two day’s work as a result of stress. [ 11 ] As a result of the fire, the residents of the affected unit were displaced into other units on site. This displacement led to an increase in anxiety and psychiatric symptoms for all of those displaced, as well as for several other residents of other units on site. Several months after the fire, two patients continued to exhibit symptoms of the destabilization. Due to the damage to the building, it was over six weeks before the residents could return to their unit. [ 12 ] This fire destroyed all of the furniture in Mr.

Sutherland’s room, as well as the drywall and flooring. Other rooms and common areas had water damage to walls, flooring and furniture. The fire investigator estimated the total damage at $35,000.00. [ 13 ] Captain Pala testified about the potential for significant harm as a result of a fire of this nature. He testified that fires can typically double in size every 30 seconds and that in less than five minutes a fire can transition from a fire in a room to a full room on fire. In this case, fire fighters were dispatched at 17:41:15 and arrived at 17:49:27, more than 8 minutes later.

Luckily, the sprinkler system performed as designed and was able to control the fire and prevent it spreading. [ 14 ] Captain Pala also testified about the risks encountered by fire fighters whenever they respond to a fire, including accidents en route to the fire, injuries related to heat and smoke inhalation, burns, risk of building collapse, etc. For this fire, seven vehicles containing 12 fire fighters were dispatched. Mr. Sutherland’s Criminal History [ 15 ] Mr. Sutherland has a criminal history going back to 1991.

His record contains approximately 90 convictions in total, with six prior convictions for arson, and multiple convictions for breaching court orders. [ 16 ] His first arson conviction was in 1992 and involved a fire at a hotel in Langford. Little is known about this fire. [ 17 ] In May 2005, Mr. Sutherland was convicted of arson in relation to an earlier fire he set at Seven Oaks. He lit his mattress on fire and then left the residence. Luckily, little damage was caused as the fire was noticed quickly by a staff member. Mr.

Sutherland advised police that he had set the fire because he no longer wished to reside at Seven Oaks. [ 18 ] In February 2006, Mr. Sutherland was convicted of arson for setting a fire at Johnson Manor, a Cool-Aid Society residence. Mr. Sutherland placed toilet paper on his bed and lit it on fire, which started a fire on the mattress. Mr. Sutherland then left the residence without alerting anyone to the fire, but turned himself in to the police at the police department shortly thereafter. There were 20 “in need”

individuals residing at Johnson Manor at the time of the fire but, luckily, the fire activated a sprinkler system and was contained without harm to anyone. There was significant smoke and water damage. [ 19 ] In July 2007, Mr. Sutherland was convicted of arson for setting a fire at Eric Martin Pavilion, a hospital facility for mentally ill patients. Several hours prior to setting the fire, Mr. Sutherland threatened to burn the building down if he was not released from the hospital. Mr. Sutherland lit his mattress on fire using toilet paper to start the fire. After setting the fire, Mr.

Sutherland notified a staff member who was able to extinguish the fire. 19 patients and four nurses were affected. The staff member who extinguished the fire received medical attention for smoke inhalation. [ 20 ] In February 2010, Mr. Sutherland was convicted of arson for setting a fire at a Salvation Army residence. He set fire to his mattress using toilet paper. After setting the fire he left the residence without notifying anyone and before any alarms had sounded. At the time he set the fire, Mr. Sutherland was on probation with a condition that he not possess any flammable materials. [ 21 ] In June 2011, Mr.

Sutherland was convicted of arson for setting fire to a bed at Royal Jubilee Hospital. The bed was located in an area of the hospital that was not being used for patients. The fire was set by Mr. Sutherland on one bed, using toilet paper. It spread to two other beds, causing fire damage to a 25 meter radius area of the room and more than $50,000.00 in damage. 30 patients had to be evacuated. There was a sprinkler system in place but it did not deploy. Mr. Sutherland left the hospital after setting the fire without advising anyone of the fire. Mr. Sutherland was arrested several days later.

He admitted to setting the fire and told investigators that, if released, he would set another fire. Mr. Sutherland’s Additional History of Fire Setting [ 22 ] In addition to his criminal convictions, Mr. Sutherland has set other fires that have not led to criminal charges. [ 23 ] Exhibits filed in these proceedings record Mr. Sutherland setting a total of 14 fires for which no criminal charges were pursued.

Records show he set six fires when he was a youth in a youth detention centre in 1991 (Exhibit 7, Tab B11, p. 9), setting a fire to a mattress while he was being held in RCMP cells in April 1995 (Exhibit 5, pp. 22, 56 & 72), setting fire to his mattress at Kent Institute on October 14, 1995 (Exhibit 8, Tab 2, p. 143) and October 17, 1995 (Exhibit 8, Tab 2, p. 156), setting fire to his mattress and bedding at Edmonton Institution on December 20, 1996 (Exhibit 8, Tab 2, p. 28), setting fire to his bed at the Regional Psychiatric Centre on January 6, 1997 (Exhibit 8, Tab 2, p. 26), setting fire to a mattress at Seven Oakes on August 26, 2002 (Exhibit 12), setting fire to his mattress at Vancouver Island Regional Correctional Centre on July 13, 2008 (Exhibit 4, Tab 1, p. 74), and setting fire to his mattress at the Pacific Institution Regional Treatment Centre on June 6, 2013 (Exhibit 8, Tab 2, p. 202).

The Expert Evidence [ 24 ] The Court appointed assessor for this application is Dr. Will Reimer. His report can be found at Exhibit 1 and his curriculum vitae at Exhibit 2. Dr. Reimer is a clinical psychologist with specialized training in forensic psychology. He was declared an expert able to give opinion evidence in the area of risk assessment and treatment of violent offenders. [ 25 ] Dr. Reimer interviewed Mr. Sutherland for three hours and conducted approximately five hours of testing with him. Mr. Sutherland was cooperative with the assessment. Dr.

Reimer also reviewed Exhibits 3 through 9 in preparation of his report. [ 26 ] Mr. Sutherland’s intellectual abilities were found to be in the mildly impaired range. His academic scores were consistent with this level of cognitive functioning. [ 27 ] Mr. Sutherland was found to meet the DSM-5 diagnostic criteria for mixed personality disorder, with antisocial, borderline, narcissistic and paranoid features. This personality disorder is described as severe and Dr. Reimer’s opinion is that it makes treatment of Mr. Sutherland very difficult. Mr.

Sutherland was also found to meet the diagnostic criteria for schizophrenia, substance use disorders, mild intellectual disability and exhibitionistic disorder. Mr. Sutherland was found not to meet the criteria for pyromania “due to his fire setting being instrumental and he does not appear to gain a sense of pleasure or have a fascination about the fire itself. He uses the fire setting as a means to an end.” [Exhibit 1, p. 7] [ 28 ] Dr. Reimer concluded that Mr. Sutherland does not intend to harm others when he sets fires but is indifferent to the impact of his actions on others. [ 29 ] Dr.

Reimer utilized a number of risk assessment tools in his assessment of Mr. Sutherland. He also reviewed past risk assessments. He concluded that Mr. Sutherland was a high risk to reoffend. [ 30 ] With respect to treatment, Dr. Reimer testified that Mr. Sutherland is very difficult to treat because of his limited cognitive abilities, his limited problem solving skills, his short term and concrete thinking, his multiple personality disorders, and his lack of motivation to change. [ 31 ] Dr. Reimer considered whether treatment of his schizophrenia might positively impact Mr.

Sutherland’s behavior and concluded that it would not, noting that he has offended both when psychotic and also when he was not showing signs of psychosis. THE LAW [ 32 ] The Crown takes the position that Mr. Sutherland should be declared a dangerous offender as he meets the criteria set out in s. 753 (a)(

i) and (ii) of the Criminal Code . 753.

(1) On application made under the 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 otherpersons on the basis of evidence establishing (

i) a pattern of repetitive behavior by the offender, of which the offence of which he or she has been convicted forms a part, showing afailure to restrain his or her behavior and a likelihood of causing death or injury to other persons, or inflicting severe psychologicaldamage on other persons, through failure in the future to restrain his or her behavior. (ii) a pattern of persistent aggressive behavior by the offender, of which the offence for which he or she has been convicted forms part,showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to otherpersons of his or her behaviour. [33] In R. v.

Lyons, (SCC), [1987] 2 SCR 309, the requirements of s. 753 were summarized at paragraph 338: First, the legislation applies only to persons convicted of a “serious personal injury offence” as defined in s. 687. These offences allrelate to conduct tending to cause severe physical danger or severe psychological injury to other persons. Significantly, the maximumpenalty for all these offences must be at least ten years’ imprisonment.

Secondly, it must be established to the satisfaction of the courtthat the offence for which the person has been convicted is not an isolated occurrence, but part of a failure to control sexual impulses. Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which thesection seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case of sexual offences,conduct causing injury, pain or other evil to other persons.

Is this offence a “Serious Personal Injury Offence”? [34] Serious personal injury offence is defined in s. 752 of the Criminal Code. 752(

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 psychologicaldamage upon another person, and for which the offender may be sentenced to imprisonment for ten years or more. [35] Arson, pursuant to s. 433(a), is an indictable offence for which an offender may be sentenced to imprisonment for life. [36] In R. v.

MacDonald, [1997] BCJ No 3147 (BCSC), Madame Justice Levine considered whether an arson which involved settingfire to an unoccupied trailer was a serious personal injury offence. Justice Levine heard evidence from a fire commissioner about therisk of injury to fire fighters on their way to, from and during the course of fighting fires. From her review of this evidence it appearssimilar to the evidence I heard from Captain Pala.

Justice Levine concluded that, on the evidence before her, “it is clear that a fireendangers or is likely to endanger the life or safety of another person, a fire fighter, even if the building burnt is unoccupied” and shedetermined that the arson in that case was, on that basis, a serious personal injury offence. [37] The likelihood of endangerment to the life or safety of another person is even greater in the predicate offence than inMacDonald, as the building where the predicate offence took place was an occupied building, and was occupied by a number ofvulnerable individuals.

The circumstances of this offence, together with the evidence of Brent Johnston and Captain Pala, make it clearthat Mr. Sutherland’s conduct in setting the fire at Seven Oakes endangered the life and safety of many other persons, specifically theother patients and the staff at Seven Oakes, as well as the fire fighters who responded to the fire. [38] Similar findings were reached by courts in the cases of R. v. Overton, 2010 NSPC 61 and R. v. Grabowski, 2006 BCSC 1124. In Overton, the offender set fire to her bed in a women’s shelter where she had been residing.

After she lit the fire, she left the residenceand went to a pay phone to call 911. The house burned down but no one was injured. There had been 12 residents and one staff memberpresent when the fire was set. Mr. Grabowski set a number of fires to occupied and unoccupied buildings. No one was seriously injuredalthough one individual was treated for smoke inhalation. Both were found to have committed serious personal injury offences. [39] The classification of this offence as a serious personal injury offence is not disputed by Mr. Sutherland and I conclude that itmeets this definition. DOES MR.

SUTHERLAND MEET THE CRITERIA UNDER S. 753(1)(a)(i)? Is there a pattern of repetitive behavior? [40] In R. v. Pike, 2010 BCCA 401, para. 26, the court endorsed the following passage from R. v. Neve, 1999 ABCA 206: In Neve (at paras 107-108) the Court set out the elements that must be proven to establish the prescribed patterns of behavior in ss.753(1)(a)(

i) and (ii): What does it take for the Crown to prove the required patterns of behavior under ss. 753(a)(i)and (ii)? While “pattern” is not defined inthe Code, what is defined in each of ss. 753(a)(

i) and (ii) are the various components instrumental in creating the pattern. If the Crownfails to prove one or more of the required elements, then the proscribed pattern has not been made out. Under s. 753(a)(i), the elementsare the following: 1. A pattern of repetitive behavior; 2. The predicate offence must form part of that pattern;

3. That pattern must show a failure by the offender to restrain his or her behavior in the past; and 4. That pattern must show a likelihood of death, injury or severe psychological damage to other persons through failure to restrainhis or her behavior in the future. [41] In R. v.

Dow, 1999 BCCA 177, at para. 25, the court defined a pattern as follows: I add that it is the very essence of a pattern that there be a number of significant relevant similarities between each example of the patternthat is being considered, but that, at the same time, there may be differences between each example, some of them quite distinctive, solong as the differences leave the key significant relevant elements of the pattern in place. That is, after all, what is meant by a pattern. We talk of a pattern in dress-making.

That means that each example is assembled from pieces that are cut in the same proportions andthat fact, in itself, is what constitutes the common element of the pattern. But the size of the pieces and of the assembled item of clothingthe fabric of which they are made, and the colour of the item of clothing may all be different without affecting the identity of the pattern. The same is true of patterns of decorative tiles, and of many other items. The aspects of the object which are relevant to a description ofthe pattern must all be similar in their essential characteristics.

But other aspects of the items, which are not essential to a description ofthe relevant pattern itself, may be markedly different from one example to another. [42] Mr. Sutherland has a total of seven convictions, including the predicate offence, for arson. No details are available about thehotel fire that gave rise to Mr. Sutherland’s first arson conviction but all other arson convictions involved Mr. Sutherland setting fire to abed and bedclothes, using some sort of paper, usually toilet paper, to initiate the fire. On all occasions, there were others present in theresidence or facility where the fires were set.

It is clear that these convictions demonstrate a pattern of repetitive behaviour. Thepredicate offence also involved Mr. Sutherland setting fire to his bed and bedding in his residence, where others were residing. Clearlythis offence forms part of the pattern of repetitive behavior seen in his prior offences. [43] I find that Mr. Sutherland’s conduct in setting fires to his bed creates a pattern of repetitive behavior and the predicate offence ispart of that pattern. This finding is not disputed by Mr.

Sutherland. [44] The evidence before me in this proceeding includes many other examples of fires set to his bed by Mr. Sutherland, other thanthose that founded convictions. Although these fires also demonstrate the same pattern of behaviour, I find that the pattern clearly existswithout any consideration of these additional fires. Does Mr. Sutherland’s pattern of behavior show a failure to restrain his behavior? [45] There is little dispute that the pattern of setting fires shows a failure by Mr. Sutherland to restrain his behavior. Dr. Reimertestified that Mr.

Sutherland is aware of societal norms and knows that fire setting is not acceptable behavior but does it because it getshim what he wants, usually a transfer to a different room or a different residential facility. Dr. Reimer testified that Mr. Sutherland has astrong sense of entitlement and believes that he can do what he wants to achieve the outcomes he wants. He further testified that,although Mr. Sutherland does not set out to hurt anyone, he is not concerned about the impacts of his behaviour on others, just aboutgetting what he wants. He has little if any concern for the impact of his actions on others.

He is concerned with getting what he wants. He stated that he doesnot think about the impact on others or the potential impact on others when he commits his acts. In the moment he is only concernedwith getting what he wants. It is unclear whether he even has the capacity to engage in empathic reasoning. [Exhibit 1, p. 8] [46] He also exhibits little remorse for his fire setting behaviours and told Dr. Reimer that setting fires works for him and he woulddo it again if it would help him to get what he wants. [47] It is clear, from all of the evidence, that Mr.

Sutherland has failed to restrain his behavior on every occasion in the past when hehas set fire to his bed. Dr. Reimer described Mr. Sutherland’s behavior as instrumental as opposed to simply impulsive. He testified thatMr. Sutherland did not just react in setting fires, he made an active choice to set a fire as a means to an end. [48] This element is conceded as proven by Mr. Sutherland. Is there a likelihood of death, injury or severe psychological damage to other persons? [49] Mr. Sutherland takes the position that this element of the statutory criteria for a dangerous offender finding has not been met.

He takes the position that his pattern of setting fires does not create likelihood of death, injury or severe psychological damage. Mr.Sutherland points to the fact that he has been continually offending, in a similar manner, since his teenage years, with no escalation in hisbehavior and no harm to anyone, except for some psychological impact and some smoke inhalation. Mr. Sutherland says that the type ofthreat he poses is not serious enough to warrant a dangerous offender finding. [50] The Crown takes the position that Mr.

Sutherland’s pattern of fire setting does create a likelihood that injury or death could becaused by his behavior, and notes that a certainty of harm is not required. The Crown makes reference to the evidence of Captain Palaand Mr. Johnston as to the risk of injury to others in the predicate offence. [51] The standard of proof with respect to the likelihood of future harm is proof beyond a reasonable doubt. That standard does notmean that the Crown must prove beyond a reasonable doubt that an offender will reoffend. In Lyons, the court adopted the followingpassage from R. v.

Knight (1975), (ON SC), 27 CCC (2d) 343 (OntHC), p. 356, on the application of this standard tothis element of a finding of dangerousness: I wish to make it clear that when I refer to the requisite standard of proof respecting likelihood I am not imposing on myself anobligation to find it proven beyond a reasonable doubt that certain events will happen in the future - this, in the nature of things would beimpossible in practically every case -- but I do refer to the quality and strength of the evidence of past and present facts together with theexpert opinion thereon, as an existing basis for finding present likelihood of future conduct.

[52] In R. v. Boutilier, 2015 BCSC 90, like the matter before me, defence counsel argued that the Crown had not proven likelihoodof death, injury or severe psychological damage. Mr. Boutilier’s pattern of offending involved robberies. In his first robbery, at age 18,Mr. Boutilier had used a functioning gun. In a subsequent series of robberies in 2001, he had used an unloaded rifle. In the predicateoffence, a robbery in 2010, he had used an imitation firearm. No one had ever been physically injured during Mr.

Boutilier’s robberies,although one of the victims in one of the robberies had been hospitalized as a result of mental health issues that had been aggravated bythe crime. The court, in finding that the “likelihood of death” element had been proven, noted the high risk of re-offending, the jeopardyto other’s physical safety and psychological well-being, and Mr. Boutilier’s reckless disregard for the safety of others. [53] In R. v.

Currie, (SCC), [1997] 2 SCR 260, the Court specifically addressed the issue of whether it is necessaryfor an offender to commit offences involving some particular level of violence and resulting physical harm for a dangerous offenderdesignation to be made.

The court expressly finds that this is not required: I cannot imagine that Parliament wanted the courts to wait for an obviously dangerous individual, regardless of the nature of his criminalrecord and notwithstanding the force of expert opinion as to his potential dangerousness, to commit a particularly violent and grievousoffence before he or she can be declared a dangerous offender. [para. 24] . . . Parliament has thus created a standard of preventive detention that measures an accused’s present condition according to past behaviorand patterns of conduct.

Under this statutory arrangement, dangerous offenders who have committed “serious personal injury offences”can be properly sentenced without having to wait for them to strike out in a particularly egregious way. [para. 26] [54] In MacDonald, the BCSC concluded that Mr. MacDonald’s behavior met the

definitions in s. 753(1)(a)(i) & (ii). Like Mr.Sutherland, Mr. MacDonald’s predicate offence was an arson. Including the predicate offence, Mr. MacDonald had four convictions forarson. His first convictions involved two fires set in garbage cans in the men’s washroom at a hotel and a restaurant. The third fire wasset in a hotel. The predicate offence was the burning of an unoccupied trailer.

Madame Justice Levine concluded: In and of itself, this [the four arson convictions] reveals a pattern of repetitive and persistent and aggressive behavior, of which thepresent offence forms a part, that shows a failure to restrain his behavior and a likelihood of causing death or injury to other persons anda substantial degree of indifference to the reasonably foreseeable consequences to other persons of his behavior. Three of the arsonincidents took place in crowded public places: a hotel and a restaurant.

The threat to the life, safety or physical or mental well-being ofothers in these circumstances is clear. [para. 28] [55] Past behaviour is an important predictor of future behavior. In this case, the fact that Mr. Sutherland has been unrelenting sinceat least 1991 in setting fires to his bed and bedding, regardless of his residential situation or his mental health, can lead only to theconclusion that it is almost certain he will set such fires in the future. Dr. Reimer testified that Mr. Sutherland expressly told him that hewould set fires in the future if it helped him get what he wanted. [56] Dr.

Reimer used various risk assessment tools in his assessment of Mr. Sutherland and concluded that Mr. Sutherland was avery high risk to reoffend violently. Dr. Reimer states: The current risk assessment is consistent with his previous risk assessments and places Mr. Sutherland categorically at a high risk tooffend in a violent, sexual and general manner. His categorical risk is in the high-risk range with all the risk assessment tools used. . . . It is rare to see a man who is such a high risk to offend in a range of offences who has such limited personal and community resources tomitigate his risk.

He is a very high risk to offend and does so whether in the community or incarcerated. [Exhibit 1, p. 5] and Mr. Sutherland is a high risk to reoffend. He scores high on all the risk assessment instruments and his dynamic factors do not mitigatehis risk and in fact support a high risk estimate. He has very limited protective factors and his community support system basicallyconsists of the mental health and correctional system. [Exhibit 1, p. 8] [57] In 2014, Dr. Dugbartey prepared a psychological report to the Court to assist in sentencing Mr. Sutherland for the 2013 SevenOaks arson. Dr. Dugbartey found that Mr.

Sutherland “must be considered an obdurate, pathological firesetter” and concluded that “hisreal risk for criminal recidivism places vulnerable people at such high risk for personal harm . . . “. [Exhibit 7, Tab B17] [58] Every fire carries a significant risk of harm to others, a risk that is mitigated, but even then still exists, only when Mr. Sutherlandis incarcerated. The fact that Mr.

Sutherland, if residing in the community, requires considerable residential support, increases thelikelihood of harm to others, as he would almost certainly be residing in a residence with others, and most likely with others who aresignificantly vulnerable, like the residents of Seven Oakes. The fact that to date no one has been seriously injured by his fire setting isnothing more than good fortune and cannot be relied on to avoid a finding that his conduct in fire-setting creates a likelihood of injury ordeath to others. Conclusion re s. 753(1)(a)(i) [59] I am satisfied, for the reasons above, that Mr.

Sutherland meets the criteria under s. 753(1)(a)(

i) and on the basis of thisconclusion I find him to be a dangerous offender. DOES MR. SUTHERLAND MEET THE CRITERIA UNDER S. 753(1)(a)(ii)? [60] Although not necessary, given my finding with respect to s. 753(1)(a)(i), s. 753(1)(a)(ii) provides another route to a finding of

dangerousness. This subsection requires a “pattern of persistent aggressive behavior” 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”. [ 61 ] As discussed in relation to s. 753(1)(a)(i), there is no doubt that Mr. Sutherland’s fire setting shows a pattern of behavior. [ 62 ] The definition of “aggression” in the Canadian Oxford Dictionary includes “an unprovoked attack” and “hostile or destructive tendency or behavior”. Fire setting appears to meet this definition. [ 63 ] Mr.

Sutherland’s pattern of repeated fire-setting in occupied buildings exhibits all of the signs of the required substantial degree of indifference. This conclusion is substantiated by the evidence of Dr. Reimer, who concludes that Mr. Sutherland “has little if any concern for the impact of his actions on others”. [Exhibit 1, p. 8] [ 64 ] Based on these findings, and supported by the conclusions of the court in MacDonald , I am satisfied that Mr. Sutherland also meets the criteria under s. 753(1)(a)(ii).

SENTENCE [ 65 ] The Criminal Code provides the following guidance in sentencing those found to be dangerous offenders: 753(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.

(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. [ 66 ] Dr. Reimer testified that Mr. Sutherland’s intellectual impairment, his personality disorders, and his resistance to change, all lead to the conclusion that Mr. Sutherland is virtually impossible to treat. [ 67 ] With respect to past treatment, Dr. Reimer had this to say: Mr. Sutherland reportedly completed the Bow Psychiatric Rehabilitation program, the Community Reintegration Program and also attended a Living Skills group at RPC.

He reportedly has demonstrated limited motivation with limited participation, and limited socialization with other patients. At the time of the assessment he stated that he does not have any idea what programming would be helpful for him. . . . He stated that he has never successfully completed any programs. He has been treated with individual treatment with a therapist. He worked on identifying his crime cycle. However, there is not indication that any work he has done has in any way had any lasting or significant impact on lessening his offending. [Exhibit 1, p. 35] [ 68 ] Dr.

Reimer was unable to think of any treatment that might be suitable for Mr. Sutherland. [ 69 ] With respect to risk management, Dr. Reimer concluded: Mr. Sutherland has been either on a probation order, incarcerated or under some type of mental health or correctional order since he was 13 years of age. He has not been amenable to community supervision and has shown little regard for authority. He does what he pleases regardless of whether he is under supervision or not and he incurs institutional charges when incarcerated.

He has had brief episodes when he has been cooperative with community supervision but they have been limited. He has been assessed as being very high needs in the past and he continues to be very high needs with regard to community supervision. He requires intensive supervision, which in the past has still not been sufficient in order to curtail his offending. [Exhibit 1, p. 6] and Mr. Sutherland has not been amenable to community supervision and has not benefitted from the same with regard to reducing his offending behavior.

He requires constant supervision to the degree that only institutionalization or incarceration appears to reduce the potential harm he can cause as a result of his acting out. He still commits infractions in the institution and has lit fires in the institution but with less potential harm than when he does so in the community. . . . He is a very difficult case and virtually impossible to supervise to the extent needed in the community in order to reduce or eliminate his risk to reoffend. Long term a secure forensic treatment facility may be the best option in order to manage his risk.

Community placements have not worked. Up to this point nothing that has been tried with him has worked to reduce his risk to reoffend. [Exhibit 1, p. 9] [ 70 ] Mr. Sutherland has, for almost all of the past 28 years, been on court orders, mental health orders, or incarcerated. Nothing has stopped him from setting fires. [ 71 ] On all of the evidence, I find that there are no lesser measures that would adequately protect the public from the risk posed by Mr. Sutherland. In all the circumstances an indeterminate sentence is mandated and that is the sentence I impose. R. v. Boutilier [ 72 ] In R. v.

Boutilier , 2014 BCSC 2187 , Mr. Justice Voith concluded that s. 753(1) infringes s. 7 of the Canadian Charter of Rights and Freedoms on the basis of overbreadth because the designation of an offender as a dangerous offender under that

section precludes

consideration of future treatment prospects in the determination of whether someone is a dangerous offender. In R. v. Boutilier , 2015 BCSC 901 , Mr. Justice Voith held that this violation could not be justified under s. 1 of the Charter and declared the

section void. This declaration of invalidity was suspended for one year. Justice Voith went on to find that Mr. Boutilier met the dangerous offender criteria and that there was no “reasonable expectation” that any sentence other than an indeterminate sentence would adequately protect the public.

He went on to conclude that “even were it possible to consider future treatment prospects as part of the designation stage under s. 751(1), an expression of hope [of successful treatment] would not alter my conclusion of a ‘likelihood’ of future harm” (para 210). [ 73 ] Counsel before me agree that this application is not impacted by the decision in Boutilier as it was heard within that one year period of suspension.

But, even if it were, I come to the same conclusion as Justice Voith in Boutilier , that is, consideration of future treatment prospects at the designation stage under s. 751(1) would not have changed my conclusion that Mr. Sutherland’s fire-setting behavior creates a likelihood of injury or death to others. C.J. Rogers Provincial Court Judge