R. v. Christie Date:, 2016 BCPC 375

Citation: R. v. Christie Date: 20161109 2016 BCPC 375 File No: 165828-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMES EDWARD CHRISTIE BAN ON PUBLICATION 486.5(1) CCC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE MROZINSKI

Counsel for the Crown: P. Weir Counsel for the Defendant: G. Simair Place of Hearing: Victoria , B.C. Date of Hearing: November 9, 2016 Date of Judgment: November 9, 2016 [ 1 ] THE COURT: I want to begin by noting that there is a publication ban in place in this matter pursuant to s. 486.5(1) of the Criminal Code , which prohibits the publication of any information that could identify the victims in this case, and for that reason I am going to refer to them by their initials. [ 2 ] Mr.

Christie, you are here today, sir, for sentencing on three counts of assault which occurred while you were employed as an LPN at the Selkirk Seniors Village care home in Victoria. All of your victims were elderly patients suffering from advanced states of dementia. This case and this sentencing is about elder abuse. [ 3 ] In my reasons for your conviction, Mr. Christie, I outlined the assaults in some detail. They were awful. I noted that you struck at the private parts of two of the victims, causing each of them obvious and great pain.

You caused a third victim, R.P., to struggle and moan as you pressed your torso into her face, which you had previously covered with a blanket. These acts were intentional, cruel, and frankly sadistic in their nature. [ 4 ] I have said that the residents you assaulted were the most vulnerable of an otherwise vulnerable population. Elderly patients suffering from dementia, including Alzheimer's, are sometimes said to be indistinguishable from infants, in the sense that they are so entirely dependent upon their caregivers. In that regard, I would adopt Justice McKinnon's comments at paragraph 30 of R. v.

Foubert , [2009] O.J. No. 5024 , that just as one would not strike an infant child, one would not and should not strike at a defenceless elderly patient whose very state commands your care and comfort. [ 5 ] Mr. Christie, you are now 25 years of age and you come before this court on sentencing with no criminal record. At the material time, you were employed by Selkirk as an LPN, responsible for providing complex care for these patients. That position carried with it considerable responsibility. You were charged with the care and comfort of patients, including providing their medication.

It was and is a position that commands a great deal of trust. [ 6 ] Since being charged with these offences, Mr. Christie, your career as an LPN has ended. Given this conviction and the fact that we are not considering any sort of a discharge, you can expect that this line of work will never again be available to you. The conviction will have a significant effect on your future, but still you had not in the first instance been in the nursing profession for much time before these offences occurred. [ 7 ] Moreover, Mr.

Christie, you are resilient and there is no greater proof of your resiliency than you are now back in school, taking a business administration degree, and doing well. [ 8 ] Your counsel and your family in their support letters indicate that you hope to graduate in 2018. In their letter of support, your family states that any interruption to your education at this point would be devastating. Aside from making that statement, it is not clear to me in this sentencing how that would come to be. [ 9 ] In terms of your character, Mr.

Christie, a number of persons working in the care community have written letters on your behalf. To a person, they say that while working with you, they detected nothing of the kind of behaviour for which you have been convicted. They maintain they saw you as a good care worker and they wish you well in your future. [ 10 ] Mr.

Christie, you have the support of your family and some care workers, and you have a future ahead of you, despite these convictions and, in my view, despite whatever sentence I might impose today. [ 11 ] In this, as in every sentence, the court is called upon to consider the effect of the offending behaviour on the victims. None of the victims here can testify, some having passed away, while others are unable to communicate their thoughts and concerns.

Still, despite their inability - because of their advanced states of dementia - to precisely or clearly articulate the effects of these assaults, each of the victims made it quite clear through their body language and gesticulations just how painful and awful these assaults were. [ 12 ] The daughters of J.D., the resident whose groin you struck with such force it caused him to buckle, gave their impact statements at this sentencing hearing. They expressed deep sadness, anger, and even guilt knowing that their father, in such a vulnerable state, was abused in this way. They feel a deep sense of betrayal.

They thought, acting with the best of intentions that their father was getting the best care they could provide. They felt they had left him in a safe, caring environment, and it is imperative, Mr.

Christie, that people feel confident that when they entrust their beloved family members or friends to residential care, that those persons will be treated with the care and dignity and respect their lifetime of contribution to their families and their communities merits. [ 13 ] It is apparent from these victim impact statements that families are conflicted about their decision to place their loved ones in residential care.

When events like these assaults occur, it feeds into that sense of guilt which is unfortunate. [ 14 ] These families should know that they have done nothing wrong by placing their elderly parents in care and that, by and large, these facilities are safe, as are their loved ones. [ 15 ] These offences affect those working in care homes as well. It is important to note that the vast, vast majority of care workers

provide excellent care. They are owed our gratitude and our respect. These are difficult jobs made all the more so when someone among them abuses a patient. As caring people, they rightly find this upsetting and expect this kind of conduct to be addressed in no uncertain terms. [ 16 ] In this sentencing hearing, the Crown seeks a custodial sentence of up to nine months. You have been convicted of three counts of common assault, Mr. Christie, and the Crown seeks concurrent sentences of three months on each count. It also seeks a two-year probationary term with appropriate conditions. [ 17 ] Mr.

Simair, on your behalf, submits that an appropriate and fit sentence would be a lengthy CSO of approximately 12 to 18 months in duration, with a curfew condition for the first half and the imposition of 150 hours of community work service. Alternatively, Mr. Simair submits that if this court is minded to impose real jail time for these offences, a fit sentence would be 90 days to be served intermittently. In this way, Mr.

Christie, you would be able to continue with your post-secondary degree work and you would be spared the experience of a general custodial sentence. [ 18 ] In a sort of final alternative submission, Mr. Simair submits that a sentence in the range of six months would be appropriate, given the impact of these convictions on you at this time and with regard to your future prospects. [ 19 ] The purpose and principles of sentencing which I must take into account in each sentence, are set out in ss. 718 and 718.2 of the Criminal Code . [ 20 ]

Section 718 provides that the fundamental purpose of sentencing is to contribute, along with other crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

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

c) to separate [the offender] from society, where necessary; (

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in the offender and acknowledgment of the harm done to victims and the community. [ 21 ] How much emphasis a court places on each of these objectives varies according to the nature of the offence and the circumstances of the offender. However, for certain offences, the courts are required to emphasize certain sentencing objectives. [ 22 ] In this case, Mr. Christie, you are being sentenced for offences in which vulnerable, elderly persons were hurt by you.

You were only able to carry out these assaults because of your position of trust. [ 23 ] As an LPN, you were able to roam freely in the facility with little or no supervision. Your very position of trust enabled you to do that. [ 24 ] You were also in a position of some authority over other care aides. Again, this seemed to enable your offending behaviour.

These assaults constitute an abuse of that authority and an abuse of trust in an environment where persons in your position can affect the lives of elderly patients who can neither care for themselves nor defend themselves. [ 25 ] The very nature of the facility and of your role in the facility and in these offences means the sentencing objectives must be to deter you and others from committing these offences.

An objective of this sentence must also be to send a message of denunciation. [ 26 ] No sentence I will pass in this case will impact on your ability to engage in rehabilitation or to continue with your education in the future. [ 27 ] The issue in this sentencing hearing is not whether there will be a custodial sentence. There will be.

The question, firstly, is whether the sentence ought to be served by way of a conditional sentence order, and that in turn raises the question whether the principles of sentencing can be met by ordering that you serve your custodial sentence in the community by way of a CSO. [ 28 ] The second question, depending on how the first is answered, is length of sentence. [ 29 ] With respect to the first issue on sentencing, it is the case that a conditional sentence order is available for the offence of assault contrary to s. 266 of the Code . I agree with your counsel, Mr.

Simair, that the fact that this case and this sentencing is about elder abuse does not, for that reason, preclude the imposition of a CSO, in that there is no general rule in law precluding a CSO for that reason alone. Sentencing is an individual exercise and in every case sentencing judges must consider the individual offender and the individual offence in conjunction with the purposes and principles of sentencing. [ 30 ] There are three conditions or preconditions to the imposition of a conditional sentence order.

These include whether the sentence will be a provincial sentence or one that is two years or more; secondly, the court must be satisfied that you can serve the sentence safely in the community; finally, the court must be satisfied that the sentence of a CSO meets the purposes and principles of sentencing in this case. [ 31 ] It is this third ground that is at issue in this case, as I have said. [ 32 ] In considering this, I am mindful of the court's reasons in R. v. Proulx , [2000] 1 SCR 61 , 2000 SCC 5 . It is the case that a CSO

can send a message of deterrence and denunciation. However, there are instances where it will not. In that regard, I refer to paragraphs 105 and 106 of the case of Proulx as follows. Firstly: The stigma of a conditional sentence with house arrest should not be underestimated. I am mindful of that. Living in the community under strict conditions where fellow residents are well aware of the offender's criminal misconduct can provide ample denunciation in many cases.

In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison. The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender, the nature of the conditions imposed, and the community in which the sentence is to be served. As a general matter, the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be.

However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct. [ 33 ] The abuse of elders, particularly by a professional charged with their care, is an offence that causes a community to shudder. The vast majority of our community is, at one time or another, called upon to make decisions concerning the care of their parents or grandparents or elder aunts or uncles or other vulnerable family members.

Many, many of these persons will elect to place their loved ones in a care home, sometimes at great financial and personal sacrifice. [ 34 ] It is the knowing that their loved ones are cared for, are respected, and even possibly loved by their caregivers that gives the sons and daughters and sisters and brothers and friends and family members the strength to go on with their day-to-day business. People just cannot live in daily fear that their loved ones might be abused in their care homes.

The very idea tears at the fabric of our society. [ 35 ] I agree with the court in Foubert that persons who are entrusted with the care of these vulnerable elders must know that any abuse of trust or power will be met with significant consequences. Whether or not you, Mr. Christie, have learned your lesson, it is imperative that others understand this. General deterrence is, as other courts have held and I agree, an overwhelming imperative in sentencing for this kind of an offence. [ 36 ] I do not find that a CSO in this case would meet the sentencing objective of general deterrence.

The assaults in this case were intentional, cruel, even, as I said, sadistic. The victims suffered and their families continue to suffer. [ 37 ] The appropriate disposition for these offences must be a custodial sentence. In saying this, I am mindful of paragraph 107 of Proulx , and counsel's submission, that there are cases where a custodial sentence would not have a deterrent effect. It seems intuitive that an offender prone to impulsive behaviour, driven perhaps by a drug addiction, will perhaps be less deterred by a custodial sentence.

Still, our Court of Appeal has recently reminded us that we must assume custodial sentences can have a deterrent effect, both general and specific. [ 38 ] In any event, this was not

an act of impulse. These were acts carried out over time. They were prefaced by comments to the care aide present that these assaults could have the effect of moderating the patients' behaviour. The acts were crude and cruel. They did torment the victims. [ 39 ] As I have found, these assaults were intentional. Mr. Christie, you had, to paraphrase your counsel, lots of time to make a calculation, so to speak. [ 40 ] Your counsel asks also whether incarceration in this case is necessary to foster an atmosphere of general deterrence. Again, in the circumstances, I think it must.

I bear in mind the trust factor in this case and the very fact that it is your position of authority and trust that enabled you to commit these assaults. These assaults are, by their nature, difficult to discover. [ 41 ] Some of the cases I have been referred to demonstrate, as an example, that some of the assaults were discovered only after cameras were surreptitiously placed in a patient's or a resident's room. [ 42 ] Many of the cases cited to me, including Foubert , R. v. Lamsen, 2014 ONCJ 670 , R. v. Dumo , 2015 ABPC 219 , and R. v.

Kos- Rabcewicz-Zubkowski , 2010 ONCJ 780 , imposed custodial sentences for these kinds of offences. In some of these cases, the circumstances were far less egregious than I am faced with today. In other cases, such as R. v. Donovan , 2013 NSPC 83 , R. v. Jackson , [1993] N.B.J. No. 252 and R. v. Marino , 2014 ONSC 2641 , offenders were sentenced to probationary orders. [ 43 ] In Donovan , the offending behaviour constituted a one-time slap. In Jackson , the accused was found to have suffered other such significant consequences, the sentence was found fit.

In Marino , the accused received an 18-month probationary order for abusing his elderly mother. The circumstances are again not as egregious as in this case. [ 44 ] These cases and others referred to me demonstrate a range of responses in sentencing for the offence of elder abuse. Each case turns on its own unique set of facts. In this case, when I bear in mind the trust factor, the institutional setting, and the sustained and cruel nature of the assaults, I cannot, I find, conclude that a CSO would meet the principles of sentencing that govern this case.

The patients in these institutions are simply too vulnerable and persons like yourself, Mr. Christie, are simply too empowered and enabled to abuse them if you choose, that I find a CSO would not send a message of general deterrence or denunciation. [ 45 ] This is not a simple case of slapping a resident on a one-time basis in frustration, though that, too, is an assault. This was the exercise of an abuse of authority and the imposition of torment on helpless elderly patients for your own benefit.

Anyone contemplating utilising such a position of authority must know their conduct will be met with a significant judicial response. [ 46 ] For these reasons, I cannot accede to the submission that I should impose a CSO in this case.

[ 47 ] It then falls to this court to determine the length of sentence. In doing so, I must take into account aggravating and mitigating factors. Aggravating factors include that the offences occurred over time, that the offences in the circumstances constituted a breach of trust and an abuse of authority. This is an aggravating factor under s. 718.2 of the Code . The victims were literally defenceless and at your mercy, Mr.

Christie. [ 48 ] Mitigating factors include that you are young, that you have no criminal record, and that you have the support of your family and the community. [ 49 ] The aggravating factors far outweigh the mitigating factors on sentence in this case. Still, in imposing sentence, I must also bear in mind the principle of totality. The Crown seeks a sentence of nine months and Mr. Simair seeks on your behalf a sentence of 90 days. The maximum sentence for the offences for which you have been convicted are six months for each count.

Your conduct is at the mid to the far end of the range of those offences. [ 50 ] A sentence of 90 days would effectively see you sentenced to 30 days on each assault. That I find to be unfit in the circumstances. However, I find also that a custodial sentence of nine months, while within the range, is too long. You are here today as a first-time offender, you do have a future. I find the purpose of sentencing compels the imposition of real jail time, but it need not be nine months. [ 51 ] At this time, Mr. Christie, I am going to sentence you on these offences, and I will ask you to stand, sir. [ 52 ] Mr.

Christie, I am going to sentence you for these three offences to a period of custody totalling six months. The sentence will read as follows: [ 53 ] Mr. Clerk, for Count 2 of Information 165828, and that is the assault on J.V. on April 1, 2015, I sentence you to three months in custody. [ 54 ] With respect to Count 3, the assault on R.

P. on May 25, 2015, I sentence you to three months in custody to be served consecutively with the first sentence. [ 55 ] With respect to Count 4 of Information 165828, that is the assault on J.S., I sentence you to three months in custody to be served concurrently with the other sentences, for a total of six months in custody. [ 56 ] In addition -- [ 57 ] THE CLERK: That was Count 4, Your Honour. [ 58 ] THE COURT: Two, three, four, yes. [ 59 ] In addition, Mr.

Christie, I am going to place you on a period of probation and that will be for a period of 18 months after the expiration of your custodial sentence. [ 60 ] The probationary conditions will be as follows. [ 61 ] Firstly, the mandatory conditions: You must keep the peace and be of good behaviour.

You must attend at court if and when required to do so by the court, and you are also prohibited from changing your name, address, employment, or occupation during the period of probation without first notifying the court or the probation officer. [ 62 ] Within 48 hours of your release from custody, you will report to the probation office at 865 Broughton Street, or another probation office as may be approved of by your custodial supervisors, in person and thereafter as directed by the probation office and in the manner directed by the probation office.

You will advise that person of your residential address and phone number and not change either of those without first obtaining the approval of the probation officer. [ 63 ] There will be a no-go order and that will be with respect to the Selkirk Care Home in Victoria.

The address will be -- or I should say the Selkirk Seniors Village home in Victoria, the address of which will be provided for you in the probation order, and I know you know the address. [ 64 ] You will have no contact or communication, directly or indirectly, with Alberta Adby, Ryan Friese, or Danna King, and you will not attend at or be within two blocks of any place that you know to be the residence, school, or workplace of either Alberta Adby, Ryan Friese, or Danna King. [ 65 ] You will also not possess any weapons, as those are defined in s. 2 of the Criminal Code . [ 66 ] You will attend at, participate in, and complete any counselling as may be assessed and directed by your probation officer and you will complete that counselling to the satisfaction of your probation officer. [ 67 ] Finally, during the period of probation, you will not care for any patient or be in contact with vulnerable persons, unless you are in the company of a supervisor or manager who has knowledge of this order. [ 68 ] The victim impact surcharges in the amount of $300 are payable forthwith.

Mr. Christie is, I find, in default, and the sentence is one day in custody to be served concurrently with the sentence I have imposed. (REASONS FOR SENTENCE CONCLUDED)