R. v. Bogue Date:, 2017 BCPC 58

Citation: R. v. Bogue Date: 20170118 2017 BCPC 58 File No: 16847-1 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRENT ROBERT JOSEPH BOGUE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S.M. MERRICK Counsel for the Crown: M. West Counsel for the Defendant: B. Jessop Place of Hearing: Sechelt , B.C. Date of Hearing: May 31; June 1, 2; August 3, 16, 17, 31, 2016 September 14; November 17, 23, 2016

Date of Judgment: January 18, 2017 [ 1 ] THE COURT: Brent Robert Joseph Bogue has pled guilty to arson, contrary to s. 434 of the Criminal Code . [ 2 ] On December 2, 2014, Mr. Bogue, while in a drug-induced psychosis, set four separate fires to the house that he was renting in Sechelt. This was a significant fire, causing in excess of $315,000 worth of damage, including the destruction of Mr. Bogue's car, which blew up during the fire. The fire put Mr. Bogue's neighbours at risk.

Fortunately, no one was physically injured by the fire. [ 3 ] Crown counsel submits that an 18-month jail sentence, followed by three years of probation, is the appropriate sentence. Crown counsel submits that this sentence gives due consideration to the primary sentencing principles of deterrence, denunciation, and protection of the public. [ 4 ] Defence counsel submits that I should suspend the passing of sentence, and place Mr. Bogue on probation for three years. In the alternative, defence counsel submits that a 90-day intermittent jail sentence, followed by three years of probation, should be imposed.

Defence counsel submits that a lengthy jail sentence is inappropriate in this case due to Mr. Bogue's mental illness. [ 5 ] It is submitted that an 18-month jail sentence would be disproportionate to the degree of Mr. Bogue's responsibility. It is further submitted that the primary concern in the sentencing should shift from deterrence to treatment, as that is the best means of ensuring the protection of the public and that this offence will not be repeated.

General Sentencing Principles [ 6 ] One, sentencing is an individualized process in which the court must take into account not only the circumstances of the offence, but also the specific circumstances of the offender. Although the court must consider all the principles of sentencing set out in the Criminal Code , certain principles will receive more emphasis than others, depending on the nature of the offence committed. [ 7 ] Two, the fundamental purpose of sentencing is to contribute to the respect for the law and the maintenance of a just, peaceful, and safe society.

This is to be achieved by imposing sentences which have, inter alia , the objectives of separating offenders from society where necessary, denouncing unlawful conduct, general deterrence, rehabilitation, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims. [ 8 ] Three, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in some similar circumstances. [ 9 ] Four, a sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender. [ 10 ] Five, the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 11 ] Six, an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and all available sanctions, other than imprisonment, that are reasonable in the circumstances, should be considered for all offenders (see s. 718 , 718.1 and 718.2 of the Criminal Code ).

Aggravating Factors [ 12 ] One, there was a degree of planning. Mr. Bogue went to a gas station, filled jerry cans with gasoline, and then used that gasoline to set four separate fires in the residence. Mr. Bogue also propped open a fire door in the residence, thereby allowing the fire to spread. [ 13 ] Two, the fire occurred in a residential neighbourhood. It put Mr. Bogue's neighbours at significant risk. [ 14 ] Three, the fire caused extensive damage. [ 15 ] Four, while on bail for this offence, and again during a state of psychosis, Mr. Bogue set another fire at a fire hall in Vancouver.

Mitigating Factors [ 16 ] One, Mr. Bogue pled guilty to this offence, takes full responsibility for his actions, is embarrassed, ashamed, and remorseful. [ 17 ] Two, Mr. Bogue has no prior record. [ 18 ] Three, Mr. Bogue, although not under the influence of drugs when he committed this offence, was suffering from a drug- induced psychosis when he set fire to the house. [ 19 ] Four, Mr. Bogue has made significant efforts towards rehabilitation, including an eight-week treatment program. He is described by his psychiatrist as a model patient. Mr.

Bogue is in full remission of the substance-induced psychosis and his substance

abuse. [20] Five, Mr. Bogue's psychiatrist is of the view that Mr. Bogue's risk to reoffend is extremely low. [21] Six, Mr. Bogue has the support of his family and treatment team, and has numerous letters of reference. [22] Seven, Mr. Bogue faces significant civil liability as a result of his actions. [23] Eight, Mr. Bogue's actions were not motivated by vengeance or malice. The Range of Sentence [24] Based on the authorities provided to me, the range of sentence for arson is between nine months and three years, and wherepermitted, such sentences are normally followed by a lengthy period of probation (see R. v.

MacKendrick, [2007] B.C.J. No. 306; 2007BCPC 35 at paragraph 43). Is a Suspended Sentence Appropriate? [25] The wide discretion granted to me as a sentencing judge has its limits. It is fettered in part by the case law that has set down arange of sentence for this offence. [26] That said, the range of sentence is a guideline. A sentence outside of the range can be imposed as long as it is in accordancewith the principles and objectives of sentencing (see R. v. Nasogaluak, 2010 SCC 6 , at paragraph 44). The Proportionality Principle [27] I am satisfied that Mr.

Bogue's mental health problems played a central role in the commission of this offence. Deterrence andpunishment assume less importance in cases of mentally ill offenders (see R. v. Hynes (1991), (NL CA), 89 Nfld. &P.E.I.R. 316 (C.A.)). [28] In R. v. Robinson (1974), (ON CA), 19 C.C.C. (2nd) 193 (Ont. C.A.), the Court emphasized that in caseswhere offenders commit crimes while they are out of touch with reality due to mental illness, specific deterrence is meaningless to them.

Further, general deterrence is unlikely to be achieved either, since people with mental illnesses that contribute to the commission of acrime will not usually be deterred by the punishment of others. [29] As well, severe punishment is less appropriate in cases of persons with such mental illnesses since it would be disproportionateto the degree of responsibility of the offender.

This decreased emphasis on punishment and deterrence in these circumstances isconsistent with the proportionality principle in s. 718.1 of the Criminal Code. [30] Thus, the mental illness of an offender will often be considered a mitigating factor in sentencing, even though it is not of the sortthat it would establish a verdict of not criminally responsible on account of mental disorder at the time of the commission of the offence. [31] The focus in sentencing such offenders may properly therefore be placed on mechanisms that will promote rehabilitation andtreatment, rather than on punishment (see R. v.

Peters, 2000 NFCA 55 , paragraphs 18 and 19). [32] As noted in Ruby on Sentencing, 8th edition, page 305 at paragraph 5.279, it is clear that a sentence can be reduced onpsychiatric grounds in two instances -- one, where the mental illness has contributed to or caused the commission of the offence, or two,where the effect of imprisonment or any other penalty would be disproportionately severe because of the offender's mental illness. Insome cases, both factors are relevant. [33] In order to impose a noncustodial sentence for this offence, there must be circumstances beyond the norm to justify it.

Theremust be something that would lead me to conclude that Mr. Bogue has truly turned his life around, and that the protection of the public isbetter served by a non-custodial sentence. [34] However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded a conditionalsentence is not available. Therefore, it will be rare where the standard of exceptional circumstances have been met (see R. v. Voong,2015 BCCA 285 at paragraph 59). [35] I accept that Mr. Bogue was under a drug-induced psychosis when he committed this offence. Mr. Bogue has no prior record.

He has taken significant and objectively identifiable steps towards rehabilitation. He is gainfully employed. He accepts fullresponsibility for his actions. He is embarrassed, ashamed, and remorseful. He has expressed empathy for the homeowner and is awarethat he is expected to pay restitution. He is described as a model patient, whose risk to reoffend has been assessed as extremely low. [36] I am therefore satisfied that exceptional circumstances are present in this case. Conclusion [37] A sentence of 18 months could be an appropriate sentence in this case.

I am satisfied that there are exceptional circumstances.

I am also satisfied that, due to Mr. Bogue's mental illness, the primary sentencing consideration should shift from deterrence to treatment, as that is the best means of protecting the public and ensuring that this offence is not repeated. [ 38 ] Therefore, despite the seriousness of this offence and the aggravating factors, it is my judgment that a suspended sentence is appropriate. [ 39 ] Mr.

Bogue, would you please stand. [ 40 ] I hereby suspend the passing of sentence and place you on probation for a period of three years, with the following conditions. [ 41 ] Precedent 200 -- you shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court.

You shall notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 42 ] Precedent 201 -- you shall immediately report in person to the probation officer at the probation office at 203-5710 Teredo Street, Sechelt, B.C., and after that you shall report as and when directed by the probation officer, meaning that if you wish to transfer to a different location, you should let probation know and they will transfer it to an office closer to where you live. [ 43 ] Precedent 202 -- when first reporting to the probation officer, you shall inform him or her of your present residential address and phone number, and you shall not change your address or phone number at any time without first providing written notice to your probation officer. [ 44 ] Precedent 227 -- you shall attend, participate in and successfully complete any assessment, counselling or program as directed by the probation officer.

Without limiting the general nature of this condition, such assessment, counselling or program may relate to psychiatric and psychological health, and you shall comply with all rules and regulations of any such assessment, counseling or program. [ 45 ] Precedent 228 -- you will take reasonable steps to maintain yourself in such a condition that your condition will not likely cause you to conduct yourself in a manner dangerous to yourself or anyone else, and that it is not likely you will commit further offences. [ 46 ] At the direction of the probation officer, you will attend from time to time upon your doctor for the purpose of receiving such medical counselling and treatment as may be recommended, except that you shall not be required to submit to any treatment or medications to which you do not consent. [ 47 ] If you do not consent to any form of medical treatment or medication prescribed or recommended, you shall notify the probation officer. [ 48 ] You shall provide your treating physician with a copy of this order, and the name, address and telephone number of the probation officer.

You shall instruct your treating physician that if you fail to take medication as prescribed by him or her, or fail to keep appointments with her or him, she or he is to so advise your probation officer immediately. [ 49 ] I am further ordering, as a condition, and there is no precedent, Madam Clerk -- you will attend as directed by your probation officer to either the Forensic Psychiatric Outpatient Clinic or elsewhere as directed for the purposes of receiving medical counselling and treatment as may be recommended, except that you will not be required to submit to any treatment or medication that you do not consent. [ 50 ] Precedent 215 -- you shall not possess or consume any alcohol or any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. [ 51 ] I will now hear from either counsel with respect to any further submissions with respect to the probation order or any order for a standalone restitution order.

Is there anything further from the Crown? [ 52 ] MS. WEST: Your Honour, with respect to the probation order, I would not have any further submissions with respect to conditions. The Crown is seeking a DNA order. [ 53 ] THE COURT: Yes. [ 54 ] MS. WEST: And I also had requested that there be a standalone restitution order pursuant to s. 38 -- [ 55 ] THE COURT: 738. [ 56 ] MS. WEST: -- 738. Thank you. [ 57 ] THE COURT: Yes, that was my note. I just wanted to confirm that. [ 58 ] MS. WEST: And the amount, yes, $314,665.84, and that is payable to the BCAA Insurance Corporation. [ 59 ] THE COURT: Thank you. [ 60 ] MS.

WEST: And I would submit that the order should indicate that restitution is payable immediately so that the BCAA could commence any form of payment. [ 61 ] THE COURT: Yes, I agree. [ 62 ] MR. JESSOP: I have no further submissions, Your Honour. I will leave that in Your Honour's hands. [ 63 ] THE COURT: Okay. Thank you.

[ 64 ] Then with respect -- I apologize, I forgot to double check that arson, I am assuming, is a primary designated offence. [ 65 ] MS.

WEST: I believe it is a primary designated offence, yes. [ 66 ] THE COURT: According to my chart, I will just double check -- it appears -- not that it changes my decision, but that it is a secondary designated offence. [ 67 ] Yes, it appears -- it appears that it is a secondary offence, so, Madam Clerk, precedent 250(b) -- pursuant to s. 487.051(3)(b), I make an order in Form 5.04 authorizing the taking of the number of bodily substances by any peace officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration, from Brent Robert Joseph Bogue. [ 68 ] And you are living -- it is North Vancouver, is that correct? [ 69 ] THE ACCUSED: Yeah. [ 70 ] THE COURT: Madam Clerk, can you check with the North Van Registry to find out the specific days for DNA taking in North Vancouver? [ 71 ] Okay, so what my order is going to read is, there are specific days.

That information will be provided to you, but my order will read, precedent 250(c), Madam Clerk -- pursuant to s. 487.051(4), I further make an order in Form 5.041 that Brent Robert Joseph Bogue attend on or before February 10, 2017, at the RCMP detachment located in North Vancouver -- the address will be provided -- and submit to the taking of the samples, and the registry will advise you on which days between now and then you are permitted to attend to provide the sample. [ 72 ] Pursuant to s. 738 of the Criminal Code , there will be a restitution order in favour of the BCAA Insurance Corporation, payable immediately, in the sum of $314,665.84. [ 73 ] And there is -- I just need to confirm, is it counsel's position that the circumstances of this offence do not qualify for a mandatory s. 109 order?

I guess there was -- [ 74 ] MS. WEST: I don't think it does. This was not

an act of vengeance -- [ 75 ] THE COURT: Yes. [ 76 ] MS. WEST: -- against the homeowners. [ 77 ] THE COURT: That was my leaning, but I did -- I did want to clarify that. [ 78 ] MS. WEST: Yes. In certain circumstances I would submit that an arson can be

an act of violence. [ 79 ] THE COURT: Yes, I agree with that as well. I just -- my leaning was what you are submitting, but I did wish to clarify that. [ 80 ] So I think, unless there is anything further, that would conclude this matter. [ 81 ] MS. WEST: Yes. [ 82 ] MR. JESSOP: Thank you. I think there may be a victim fine surcharge, Your Honour. [ 83 ] THE COURT: Oh, right, yes. Thank you. [ 84 ] MR. JESSOP: Perhaps if you just give Mr. Bogue 30 days to pay that victim fine surcharge. [ 85 ] THE CLERK: [inaudible]. [ 86 ] THE COURT: Okay. Thank you. [ 87 ] So it is an indictable offence.

The victim fine surcharge is $200. Thank you for reminding me. [ 88 ] Today is the 18th. So you have until Monday, February 20, 2017 to pay the victim fine surcharge. [ 89 ] MR. JESSOP: Thank you, Your Honour. [ 90 ] MS. WEST: Thank you. The Honourable Judge S.M. Merrick Provincial Court of British Columbia