R. v. Chaignon, 2021 BCPC 312

Citation: R. v. Chaignon 2021 BCPC 312 Date: 20211122 File No: 178738-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. AARON CHAIGNON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. V. SACCA Counsel for the Crown: N. Melling Counsel for the Defendant: N. Brooks Place of Hearing: Victoria , B.C. Date of Hearing: October 29, 2021 Date of Judgment: November 22, 2021 A Corrigendum was released by the Court on December 21, 2021. The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] On August 2, 2021, after a two day trial, I found Mr.

Chaignon guilty of assault causing bodily harm to Constable Jenny Lesquesne. The circumstances of the offence were detailed in my Oral Reasons for Judgement but can be summarized as follows. Circumstances of the Offence

[ 2 ] On October 27, 2019, police were called to a supportive housing residence as staff had requested help with a resident who was behaving erratically and dangerously. The resident had a history of violence and was believed to be in a mental health crisis. Staff did not feel safe conducting a wellness check and called police for assistance. The resident in question was Mr. Chaignon. [ 3 ] Constable Lesquesne and her partner attended. They met other officers at the residence. They could hear yelling and the sounds of upheaval coming from Mr. Chaignon’s unit.

The officers determined it was appropriate to apprehend Mr. Chaignon under s. 28 of the Mental Health Act as they had reason to believe he was suffering from a mental health illness and was likely to harm himself or others if not treated. [ 4 ] The officers spoke with staff, gathered information and best determined how to deal with the situation to ensure the safety of Mr. Chaignon, residence staff and residents, as well as the officers. Every officer was assigned a task. Constable Lesquesne was tasked with applying handcuffs to Mr.

Chaignon once they gained entry into his unit. [ 5 ] The officers entered the building and went up a narrow flight of stairs leading to Mr. Chaignon’s unit. They stood on a small landing outside of his door barely fitting the five officers in attendance. They could hear yelling, banging and crashing noises from inside. The police identified themselves and heard Mr. Chaignon yell that if they came in he would “f’ing kill you”. [ 6 ] One of the officers, trained in diffusing high-risk situations, communicated with Mr. Chaignon through the door of his unit. He explained to Mr.

Chaignon that he was being apprehended under the Mental Health Act and that he would be taken to the hospital. He was able to calm him down to the point where Mr. Chaignon indicated he would comply if the police entered. They requested that he lie face down on the floor, he agreed, and police entered seeing a shadow under the door they believed to be Mr. Chaignon. [ 7 ] After entering, Constable Lesquesne knelt down and partially leaned on Mr. Chaignon with her bodyweight while handcuffing him, being standard policing technique.

She rubbed his back and assured him that everything would be alright to comfort and console him. He was compliant and lying still. As she shifted her weight off Mr. Chaignon to stand up, he rolled to his side and donkey kicked backwards kicking Constable Lesquesne in the face. Her head and neck snapped back loudly and she crumpled to the ground. [ 8 ] Constable Lesquesne initially thought her nose had been broken and that her teeth had been knocked out. She was bleeding, dizzy and numb. Her partner pulled her out of the scene and to safety where she could be attended to medically. Mr.

Chaignon continued to flail and kick his legs at the remaining officers and a taser was eventually deployed to subdue him. Circumstances of the Offender [ 9 ] Mr. Chaignon is a 24 year old male who has been diagnosed with autism spectrum disorder, ADHD, generalized anxiety, and borderline personality traits. He has a history of mental health issues along with medication non-compliance, a level of mental handicap, and high functioning autism.

He has behavioural challenges and becomes readily violent due to poor coping mechanisms. [ 10 ] He has a loving and supportive family including his mother and father who have stood by him including throughout these proceedings. He has consistently lived with his parents except for the period when he lived at a supportive housing residence being the location of the within assault. For the past year, he has lived in a trailer purchased by his parents parked in a remote RV site where he is isolated from society. He has had no further criminal charges since this assault.

Crown Position on Sentencing [ 11 ] The Crown seeks a custodial sentence in the range of 12 to 18 months followed by 12 months of community supervision. In addition, two ancillary orders are sought being a DNA order and a s. 109 firearms prohibition for life. Defense Position on Sentencing [ 12 ] The Defence suggests a conditional sentence order in the range of 18 months, including a period of house arrest, followed by 12 months of community supervision.

Psychological Assessment and Presentence Report [ 13 ] A Pre-Sentence Report was prepared on November 29, 2018, in respect of a different offence involving a number of charges including an assault on a peace officer. An updated report was not provided. At the time of the report, Mr. Chaignon was 21 and living with his parents. His relationship with them was described as often strained. It was noted that he had a history of physical confrontations with his parents resulting in police attendances. Mr. Chaignon demonstrated a pattern of being combative with police for several years. [ 14 ] Mr.

Chaignon was found to have a limited understanding of his assaultive and violent behavior. He tended to deflect when questioned about his assaultive behavior not showing a clear understanding or acceptance of his role in the prior assaults. [ 15 ] A Forensic Psychiatric Assessment was prepared on November 28, 2018. Mr. Chaignon had previously attended Forensic Psychiatric Hospital and had reported being diagnosed with Borderline Personality Disorder, Attention Deficit Hyperactive Disorder, Major Depressive Disorder, and Autism.

He reported violent confrontations with the guards at Forensic Psychiatric Hospital. [ 16 ] Mr. Chaignon described himself as being in an “autistic rage” when the prior assault against a police officer had occurred and stated that “in that state that I was in I could have done anything…” [ 17 ] Dr. Lopes found Mr. Chaignon to have a considerable history of mental health issues along with medication non-compliance, a level of mental handicap, and high functioning autism. He was described as readily becoming violent due to poor coping mechanisms.

His risk for aggressive behavior was exacerbated by the presence of a number of features such as agitation, a limited capacity for empathy, and impulsivity, all of which have been found to be associated with increased potential for violence. Based upon all of the available information, Dr. Lopes found Mr. Chaignon to present a very high risk for future violence. [ 18 ] It was after the writing of these reports that the within assault against Constable Lesquesne occurred. Letters of Support [ 19 ] Mr. Chaignon’s father wrote a letter of support for his son. He described Mr.

Chaignon’s increasingly aggressive behavior in the past ten years and the support he and his spouse have provided their son. The Chaignon’s have been able to buy Mr. Chaignon a trailer and he has been living in a remote RV park essentially isolated from society without violent incident. He suggests that a custodial sentence will undo all of the positive gains that Mr. Chaignon has made over the past year. [ 20 ] Ms. Chaignon wrote a letter of support. She described Mr. Chaignon as much improved since moving into his trailer and having his own space. She described him as presenting as more stable and happy. Ms.

Chaignon acknowledged her son’s violent responses to perceived threats and suggested they were seeking a private counsellor who could coach their son in handling himself during stressors. [ 21 ] What was clear from both letters was the enormity of love and support that Mr. Chaignon has from his parents. Victim Impact Statements [ 22 ] Victim Impact Statements were submitted from Constable Jenny Lesquesne, her spouse Constable Eric Lesquesne and their children aged 10 and 6. All of the statements received were heartfelt, moving and provided insight into the suffering caused by Mr. Chaignon’s assault on Ms.

Lesquesne. [ 23 ] Constable Lesquesne’s 10 year old daughter described feeling that two years after the assault she still feels as though she could cry herself to sleep some days. That things are never going to get better. That the world she thought was kind and amazing has changed forever in her eyes. [ 24 ] Constable Eric Lesquesne explained that his children hug him a little together when he goes to sleep and ask his police dogs to keep their dad safe when he goes to work.

That his spouse has been unable to remember conversations, read bedtime stories to their children, use a computer, drive at night, trust people and is no longer able to see the good in the world. [ 25 ] Constable Jenny Lesquesne explained that everything in her life is different because of the assault. She has a diagnosis of mild neurocognitive disorder due to a traumatic brain injury. She has lost the ability to see things up close, to read her children stories. She has PTSD and major depressive disorder. She lost her sense of identity and the necessary self-assuredness to feel safe outside of her home.

She lost the policing career that she worked so hard to achieve. In short, she lost a part of her very essence. Primary Principles of Sentencing [ 26 ] The primary objectives of sentencing in this case are denunciation, specific and general deterrence. [ 27 ] Other sentencing principles apply including the principles of restraint and parity.

The principle of restraint is that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate and reasonable in the circumstances. [ 28 ] The principle of parity is that sentences should be similar for similar offences committed by similar offenders in similar circumstances however uniformity in sentences is secondary to a fit sentence and a uniform approach to sentencing. [ 29 ] As noted by the Supreme Court of Canada in the recent case of R. v.

Parranto, 2021 SCC 46 : “sentencing judges retain discretion to individualize their approach to sentencing for this offence, committed by this offender, harming this victim, in this community.” Sentencing Range Case Law Referred to by the Crown [ 30 ] The Crown provided me with a number of cases involving assaults on police officers. While none were exactly analogous to this case, they certainly provided guidance as to a sentencing range, being a custodial sentence of 1 to 3 years, where the Crown proceeds summarily. [ 31 ] In the matter of R. v.

Lamar, 2017 BCCA 228 , the Court of Appeal overturned sentences of 2 year conditional sentence orders and substituted custodial sentences of 15 and 18 months on two offenders. The offenders were stopped by an officer working alone at a roadblock on a rural road. The driver was asked, and refused, to provide a breath sample. They fled and a chase ensued. There was a struggle and one of the accused got on the officer’s chest and began punching him.

The officer tried to retrieve his gun and the other offender stomped on the officer’s head and shoulder leaving him on the roadside unconscious. [ 32 ] The court recognized that police officers hold positions for the protection of the public and are exposed to frequent and significant dangers in the course of their work. [27]…By s. 718.02 it is announced to the world what we may have long recognized, that offences against police officers are considered particularly egregious offences against the community itself.

[33] The Court found that the “principles of deterrence and denunciation are the primary considerations in sentencing for offencesinvolving violent assaults on police officers, and that a substantial term of imprisonment is necessary in all but the most unusualcircumstances to reflect those principles.” [34] Lamar can be distinguished as the assault was even more vicious and sustained than the assault against Constable Lesquesne andwas further aggravated by the fact that the offenders left the officer unconscious on the roadside.

However, the offenders in Lamar hadno prior criminal records, had considerable community supports, had pled guilty and had shown remorse. Despite these mitigatingfactors, the Court of Appeal imposed lengthy custodial sentences overturning the conditional sentence orders. [35] The case of R. v. Patton, 2011 ABCA 199, involved an assault on a police officer wherein in the process of putting handcuffs onthe offender’s friend, the offender kicked the officer in the side of the head causing severe injury.

The officer had to attend a brain injuryclinic, had eight months of physiotherapy and was able to return to work after 16 months. The Alberta Court of Appeal upheld a globalcustodial sentence of 36 months after deducting 12 months as a result of a guilty plea finding the kick to be “cowardly” and the officer tobe a position of extreme vulnerability. [36] As in this case, in Patton the offender was a young man, however, unlike Mr. Chaignon, he had no prior criminal record and hadpled guilty. [37] I was referred to R. v.

Schur, 2015 BCSC 1406, wherein an offender broke into a residence and in the course of being handcuffedsprayed a police officer with pepper spray. Another individual struck the officer from behind. The officer was off work for one monthwith damage to his eyes from the spray. [38] The court referred to R. v. McArthur, (2004), (ON CA), 182 C.C.C. (3d) 230 (Ont. C.A.): “…Violent attacks upon police officers who are doing their duty are attacks on the rule of law and on the safety and well-being of thecommunity as a whole.

Sentences imposed for those attacks must reflect the vulnerability of the police officers, society’s dependence onthe police, and society’s determination to avoid a policing mentality which invites easy resort to violence in the execution of the policefunctioning.” [39] The offender in Schur had a significant related record for property offences albeit not violent offences. He had long-standingissues with substance abuse. He had letters of support filed on his behalf and expressed a strong desire in treatment and rehabilitation.The court imposed a 14 month custodial sentence.

Case Law Referred to by the Defense [40] The defense referred to the case of R. v. Lance, 2018 BCSC 1883 wherein the offender charged at a police officer tackling him tothe ground, punching him in the face and biting his wrist. The officer suffered emotional distress. [41] The court acknowledged that the appropriate range of sentence for violent assaults on police officers to be one to five yearsimprisonment. Moreover, only where an accused’s mitigating circumstances are of such “significant heft” will a non-custodial sentencebe appropriate citing R. v.

Leclerc, 2017 BCCA 228. [42] In Lance, the offender’s mitigating factors included the lack of a criminal record, the support of family, his rehabilitation effortssince the offence, the recent death of his mother and the existence of community supports. The court found these mitigating factorssufficient to justify sentencing below the otherwise normal custodial range. A suspended sentence was imposed. [43] The case of Lance is distinguishable as Mr. Chaignon is not a first offender. He has a criminal history of recent and relevantassaults against police officers. The last two occurring while Mr.

Chaignon was on probation. He has not demonstrated any efforts thathe has made at rehabilitation since this offence and I do not find his circumstances to have “significant heft” as set out in Lance andLeclerc. Moreover, the assault on Constable Lesquesne was a vicious kick to the face causing life-altering injuries including a braininjury. [44] The defence referred to R. v. Scofield, 2019 BCCA 3 wherein the court considered the imposition of a conditional sentence orderin a case of sexual interference.

Of relevance was the consideration of the offender’s moral culpability in light of his intellectualimpairment resulting in his diminished cognitive functioning. The court affirmed that an offender’s moral blameworthiness may bereduced where there is a connection between a mental condition and the offence. [45] The defence sought to distinguish the cases relied upon by the Crown as this case involved a police response to non-criminalactivity, specifically, a mental health wellness check rather than a response to criminal activity. I do not find this factor to be a relevantdistinction.

What is most important in my view is the interaction between the offender and the police officer resulting in the assault notthe initial reason for the police response. Mitigating Factors [46] Mr. Chaignon is a youthful offender and still has a positive chance at rehabilitation and reformation. He has strong familysupports as evidenced by the letters of his parents and referred to in both the Presentence Report. Both of these factors are recognized asmitigating factors to consider in sentencing. [47] The court has recognized that mental illness is a factor to be taken into account in sentencing.

I do not consider it to be amitigating factor in this case however it does affect Mr. Chaignon’s degree of moral culpability or blameworthiness and is a relevantconsideration in determining the appropriate range of sentence. Statutory Aggravating Factors

[ 48 ] The consequence to the victim is always a relevant factor. Both the degree of force, harm, and fear experienced by the victim informs the seriousness of the offence and culpability of the offender. However,

section s. 718.2(a)(iii) specifically provides that it is aggravating if an offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation. [ 49 ] In this case, Constable Lesquesne has suffered immeasurably. She has lost the ability to work on her chosen career as a police officer. She has suffered a traumatic brain injury and suffers from PTSD and major depressive disorder. The impact of the assault upon her is most certainly serious and significant. Aggravating Factors Criminal Record [ 50 ] Mr.

Chaignon has a limited criminal record however the past convictions are both recent and relevant. Specifically: a. Mr. Chaignon was convicted of willfully resisting or obstructing a peace officer in February of 2017. The offence occurred in November 2016. Mr. Chaignon was granted a conditional discharge and placed on probation for a period of 1 year; b. During his period of probation, in December 2017, Mr. Chaignon was convicted of assaulting an intimate partner by punching her and biting a police officer in the course of being arrested.

In March 2018, he was granted a suspended sentence and placed on probation for 18 months; c. Four months into this next period of probation, on July 11, 2018, Mr. Chaignon was leaving the hospital after being brought there by his mother. She called the police after he fled into the nearby bushes. Police attended and believed he was attempting to run into oncoming traffic. They tackled him to the ground for his own safety. During the incident, Mr. Chaignon attempted to remove the gun from the holster of an officer.

His head hit an officer’s face, he bit an officer’s calf and kicked another officer in the head and chest. He threatened to kill the police and after being transferred to the hospital he threatened to kill the police, their wives, and rape their children. He also threatened nursing staff. d. On July 12, 2018, while in cells at the Courtenay courthouse, he charged at two court sheriff officers attempting to punch them after an emotionally heated telephone call with his mother; e. On July 13, 2018, he threatened to rape a female police officer and spat at her; and f. Mr.

Chaignon was given a custodial sentence in February 2019 of between 50 to 87 days for each count and placed on probation for 2 years. Eight months later, the within assault against Constable Lesquesne occurred. Escalating Behaviour [ 51 ] Mr. Chaignon’s criminal history shows a pattern of assaultive and abusive behavior against law enforcement officers. His behavior has escalated from biting, to hitting, punching, kicking and attempting to remove an officer’s gun, to kicking Constable Lesquesne in the head. [ 52 ] The escalation in the seriousness of Mr. Chaignon’s criminal activity is an aggravating factor.

Committing an Offence while on Probation [ 53 ] Committing an offence while on probation is an aggravating factor. In this case, Mr. Chaignon, was approximately 8 months into his two year term of probation when he committed this offence. Reduced Moral Culpability [ 54 ] I have also considered Mr. Chaignon’s mental illness and cognitive impairment and am guided by the principles outlined in Scofield that an offender’s moral blameworthiness may be reduced where there is a connection between a mental condition and an offence. [ 55 ] Mr.

Chaignon is diagnosed as a high functioning autistic person with borderline personality disorder. He is at high risk for violence and has shown little insight into his violent behavior against those in a position of authority as detailed in both the forensic report, psychological assessment and pre-sentence report. He has a recent and relevant criminal record. [ 56 ] It is undeniable that Mr. Chaignon’s mental illness and cognitive impairment reduce his moral culpability.

I therefore find this to be a factor I can correctly consider in determining the appropriate range of custodial sentence to be imposed however I do not find it to be of sufficient “significant heft” to impose a non-custodial sentence. The principles of specific deterrence, general deterrence and denunciation require a custodial sentence in the circumstances considering this offender, this victim and this community. [ 57 ] The Crown has suggested a custodial sentence in the range of 12 to 18 months. Our appeal court has clearly indicated the appropriate custodial range to be 1 to 5 years.

But for the reduced moral culpability of Mr. Chaignon, I would find the appropriate sentence to be in a range higher than that suggested by the Crown. [ 58 ] Mr. Chaignon, please stand up sir. I am sentencing you to 15 months in custody followed by a 12 month probation order on the terms suggested by the Crown.

[ 59 ] In addition, I am imposing two ancillary orders being a DNA Order and a s. 109 firearms prohibition for life. _____________________________ The Honourable Judge K.V. Sacca Provincial Court of British Columbia CORRIGENDUM - Released December 21, 2021 In the Reasons for Sentence dated November 22, 2021, the following changes have been made: Paragraph 16 should read: Mr.

Chaignon described himself as being in an “autistic rage” when the prior assault against a police officer had occurred and stated that “in that state that I was in I could have done anything…” Paragraph 33 should read: The Court found that the “principles of deterrence and denunciation are the primary considerations in sentencing for offences involving violent assaults on police officers, and that a substantial term of imprisonment is necessary in all but the most unusual circumstances to reflect those principles.” Paragraph 50(

c) should read: a. Four months into this next period of probation, on July 11, 2018, Mr. Chaignon was leaving the hospital after being brought there by his mother. She called the police after he fled into the nearby bushes. Police attended and believed he was attempting to run into oncoming traffic. They tackled him to the ground for his own safety. During the incident, Mr. Chaignon attempted to remove the gun from the holster of an officer. His head hit an officer’s face, he bit an officer’s calf and kicked another officer in the head and chest.

He threatened to kill the police and after being transferred to the hospital he threatened to kill the police, their wives, and rape their children. He also threatened nursing staff. _____________________________ The Honourable Judge K.V. Sacca Provincial Court of British Columbia