R. v. Stewart, 2022 BCPC 340

Citation: R. v. Stewart 2022 BCPC 340 Date: 20221014 File No: 184214-1, 23449-1 Registry: Victoria Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA 184214-1 REX v. SIMONE MAYA ST. LOUIS-ANDERSON and ELIZABETH HELEN STEWART IN THE PROVINCIAL COURT OF BRITISH COLUMBIA 23449-1 REX v. DEREK HUGH MENARD and ELIZABETH HELEN STEWART ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. BARRETT Counsel for the Crown: J. Gold Counsel for the Accused Stewart: F. Mahon Place of Hearing: Victoria, B.C.

Date of Hearing: September 23, 2022 Date of Sentence: October 14, 2022 [ 1 ] THE COURT: Elizabeth Stewart pleaded guilty to one count of mischief contrary to s. 430(1)(

c) of the Code , and one count of intimidation contrary to s. 423(1)(

g) of the Code , as a result of blocking and obstructing a road and highway on April 4, 2022, and April 20, 2022, respectively. [ 2 ] On April 4, 2022, Ms. Stewart was involved in blocking the southbound lane of Douglas Street in Victoria, BC, and on April 20, 2022, with obstructing the northbound lanes of the Trans Canada Highway at or near Langford, BC. On both occasions she was participating in protests associated with the Save Old Growth group. [ 3 ] Crown seeks a global sentence of 21 days in custody. Defence seeks a time served disposition followed by 18 months probation on proposed terms.

Time served in this case would equate to about three days in custody. [ 4 ] My task is to determine what sentence is fit and appropriate for Ms. Stewart for these offences. [ 5 ] The first offence took place on April 4, 2022. On that date police received a call at around 8 a.m. advising them that about 10 people were laying on Douglas Street where it intersected with Finlayson Street in Victoria, BC and were refusing to get up.

Police were informed that it was a Save Old Growth demonstration. [ 6 ] When police arrived on scene they spoke with a protestor, Paula, who identified herself as a spokesperson for the group. Police told Paula that they would give the protestors 10 minutes to leave the roadway, failing which they would be arrested. After 10 minutes Paula returned and told police that the three people sitting in the roadway, one of which was Ms. Stewart, refused to leave the intersection and they were aware that they would be arrested as a result. [ 7 ] Police then spoke with Ms. Stewart directly.

They told her that she was committing mischief and they asked her to stop. Ms. Stewart responded no. Police again warned Ms. Stewart that if she continued to refuse to leave she would be arrested and could be charged with one or more criminal offences. She was also told that if she was found guilty, she could receive penalties including community service, a fine or jail time. Ms. Stewart indicated that she understood and continued to refuse to leave. Police arrested Ms.

Stewart, physically removed her from the roadway, transported her to police cells and later released her without conditions. [ 8 ] The incident on April 4 lasted about 45 minutes in total, from the time of the initial call to police to the time Ms. Stewart was released from police cells. On this occasion traffic was delayed about 22 minutes. [ 9 ] The second offence occurred on April 20, 2022. At about 3:14 p.m. on that date police were informed that a group of protestors had blocked the northbound lanes of the Trans Canada Highway near the Westshore Parkway in Langford, BC.

When they arrived on scene, they observed about four to five people situated in the northbound lanes of the Trans Canada Highway and northbound traffic had backed up for several hundred metres. This, too, was a Save Old Growth demonstration. [ 10 ] Two of the protestors, one of which was Ms. Stewart, were seated on the asphalt of one of the northbound lanes on either side of a large concrete-filled industrial type metal barrel. Each had one arm extended into and secured within a metal pipe running through the centre of the barrel.

Other protestors were standing in the roadway holding signs or filming the event. [ 11 ] Crown stated that the type of maneuver used by Ms. Stewart and the other protestors is commonly known as a “sleeping dragon”. I understand that Ms. Stewart and the other protestor were able to disengage themselves from each other and from the barrel if they chose to but it was impossible for others to reach into the tube and disconnect them. [ 12 ] Police warned the protestors that if they did not leave they would be arrested for mischief. All protestors agreed to leave except for Ms.

Stewart and the other protestor attached to the barrel. Police asked Ms. Stewart and the other protestor to voluntarily detach themselves from each other and the barrel, but they refused to do so. As a result, the two of them were arrested for mischief. [ 13 ] Police continued to try to reason with Ms. Stewart and the other protestor in an effort to have them voluntarily disengage from the barrel so they could remove the obstacle from the highway and end the blockade. Those attempts were not successful. Police attempted to disconnect them from the barrel but were unable to do so.

Police considered moving the barrel from the highway with Ms. Stewart and the other protestor attached but considered it unsafe to do so. [ 14 ] As a result, police found it necessary to request the assistance of the RCMP Obstacle Removal Team, a designated team of officers located in Duncan, BC, in order to remove the protestors and the obstacle from the highway. The Obstacle Removal Team attended, chiseled away at the concrete-filled barrel and ultimately removed Ms. Stewart and the other protestor from the barrel and then the obstacle from the highway.

It took police more than three hours to complete this task. [ 15 ] At about 7 p.m. that evening Ms. Stewart and the other protestor were transported to the Westshore RCMP detachment where they were held in police cells until the next day. Ms. Stewart was released after a bail hearing the next morning on court ordered conditions. [ 16 ] The incident on April 20 resulted in about a four hour blockade or partial blockade of the northbound lanes of the Trans Canada Highway.

A video of the incident revealed some motorists impacted by the protest getting out of their vehicles and shouting and swearing at the protestors. They were obviously irate and angry by the traffic backlog and the delay caused by the protestors. Some motorists also attempted to remove the protestors from the roadway on their own before police arrived.

[ 17 ] After police attended on scene, they were able to divert some northbound traffic by using one of the southbound lanes. Notwithstanding, there is no doubt that traffic was significantly delayed during this incident and many people were inconvenienced, as acknowledged by Ms. Mahon in her written submissions. [ 18 ] At the time of the initial offence on April 4, 2022, Ms. Stewart was on a form of release in relation to an incident that had occurred in September 2021 at Fairy Creek. I am not privy to any details of that incident. At the time of the second offence Ms.

Stewart was also on a form of release relating to the April 4 incident, although I do not believe she was subject to any conditions relating to that release. [ 19 ] Ms. Stewart is 23 years old and is in her last year of her Bachelor of Fine Arts degree, specializing in fiction writing, at the University of Victoria. Several letters of support for Ms. Stewart were provided to me by Ms. Mahon and filed with the court as an exhibit within the proceeding. By all accounts Ms. Stewart is an intelligent young woman and described in one of the letters I reviewed as exceptionally intelligent. Ms.

Stewart has received scholarships over the years in recognition of her excellent academic achievements and she has maintained a high average in her academic studies while at UVic. [ 20 ] Ms. Stewart is very articulate. She has received recognition for some of her writings to date. She was very articulate when addressing the court at the sentencing hearing and prepared a very thoughtful and heartfelt statement to explain what brought her to commit these offences and the reasons why she involved herself in the protests. [ 21 ] Based on what I have learned about Ms.

Stewart, I understand she has experienced some personal struggles during her young life for which she has sought out and received some professional support. Notwithstanding these struggles, however, she has achieved a lot of success in her life, as I have already mentioned. [ 22 ] Ms. Stewart is seen as a compassionate and empathetic person, willing and able to help those around her who are in need, and at times standing up for them when necessary. She appears to have a strong work ethic that has contributed to her successes, as well. [ 23 ] Ms.

Stewart is in a serious relationship and provides significant support to her partner, who has some medical needs. She expressed concern about how her partner would be cared for if she was incarcerated for any period of time. [ 24 ] Ms. Stewart does not have a criminal record and has never been before the court before. But for these offences, she has led a pro- social lifestyle. She has unlimited possibilities ahead of her, based on her past achievements and current successes. She wants to complete her university education and continue writing, and hopes that she will be able to do so in the future. [ 25 ] Ms.

Stewart, in her address to the court, expressed strong feelings of uncertainty about, and fear for, her future and that of the world, generally, in light of the devastating impact of climate change. At the time of these incidents she felt that nothing was being done to address those concerns and she was at a loss as to what to do or how to respond. As a result, she participated in the protest activities and the criminal acts, as mentioned. Ms. Stewart has also stated that she now realizes that committing these offences was wrong and she is sorry.

She does not intend to repeat this type of behaviour in the future. [ 26 ] After her arrest on April 20, Ms. Stewart was held in police cells overnight and released the following day on a release order with conditions. She has successfully complied with her release conditions without incident since that date. [ 27 ] The Criminal Code contains specific provisions that a court must consider when sentencing an offender. Those are sections 718 to 718.2 of the Code . [ 28 ]

Section 718 states that: The fundamental purpose of sentencing is to protect society and to contribute, along with 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 . . . objectives [enumerated within that section] [ 29 ] Of those objectives, I find the following to be relevant when sentencing Ms. Stewart. (

a) Denunciation; that is, to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) Deterrence: that is to deter both the offender and other persons from committing offences. (

c) Reparation: that is, to provide reparations for the harm done to victims or to the community. [ 30 ]

Section 718.1 identifies the fundamental principle of sentencing as proportionality. That is: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 31 ] Other sentencing principles are set out in s. 718.2 of the Code. The relevant principles to consider in this case are: (

a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (

b) Sentences should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; this is the principle of parity; (

c) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

d) All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal

offenders. These two principles codify the principle of restraint. [ 32 ] While parity is a specific sentencing principle, as I have mentioned, it is also well-accepted and understood by our courts that sentencing an offender is a very individualized process. My task is to ensure, after considering the sentencing provisions of the Code , that the sentence I impose on Ms. Stewart is just, proportionate and fit for her specifically, based on the circumstances of each of the offences she has committed. [ 33 ] Each counsel has recommended a specific sentence to the court for Ms. Stewart, for these offences.

I have considered those within the context of what sentencing options are available to me under the Code for these types of offences and in these circumstances. [ 34 ] Under the Code , the sentencing options range from a discharge, either absolute or conditional, at the low end to a traditional custodial sentence at the high end.

Within this range there are several other options such as a fine, a suspended sentence, and a conditional sentence order, which is a form of custodial sentence that permits the offender to serve their sentence within the community rather than in a traditional institution. [ 35 ] If a discharge is imposed an offender may avoid a criminal conviction and therefore a criminal record for the offence.

All other sentencing options require the registration of a conviction against the offender, resulting in the offender receiving a criminal record for the offence. [ 36 ] In this case, the sentences proposed by counsel are somewhat at the higher end of the range of sentences available as counsel are both proposing a period of custody as either the entire sentence to be imposed, or an element of the sentence to be imposed.

I do recognize as well, however, that the duration of the custodial term proposed is very much at the lower end of what is actually permitted. [ 37 ] If I find it appropriate to impose a custodial sentence in the range proposed by Crown, I must consider whether Ms. Stewart can serve her custodial sentence within the community under the terms of a conditional sentence order pursuant to s. 742.1 of the Code .

I do recognize, however, that Crown is not supportive of such an order, noting that in his view it would not meet the sentencing objectives of general deterrence and denunciation in this case. [ 38 ] Out of the sentencing objectives noted above, the paramount objectives I must meet are denunciation and deterrence, both specific and general. Ms. Stewart's sentence must be sufficient to convey society's disapproval of protestors engaging in criminal activity while participating in protests and demonstrations. [ 39 ] When it comes to deterrence, I accept Ms. Mahon's submission that Ms.

Stewart has already been specifically deterred from repeating this type of behaviour in the future. Her experience going through the process of being arrested and spending time in custody, albeit only briefly, has effectively deterred her from reoffending again. Ms. Stewart's compliance with her release conditions appear, in my view, to demonstrate this. [ 40 ] Therefore, my focus needs to be on general deterrence; that is, ensuring that Ms.

Stewart's sentence sends a clear message to those who are considering similar criminal conduct that, if found guilty, they will receive a serious penalty from the courts. [ 41 ] These are not victimless crimes. They do cause harm and can create a serious risk of harm to protestors and civilians alike. [ 42 ] Judge Bakan in her 2022 decision R. v. Schortinghuis spoke about the harmful consequences flowing from the various blockades that were of concern to her in her case. In paragraphs 10 and 11 of her decision she states: [10] We normally talk about the effect on the complainant.

While there was no individual complainant in this case, hundreds of persons driving during rush hour in the Lower Mainland area were blocked from reaching work, medical appointments, dropping children at school and daycare. Numerous people were stuck in the tunnel or on a bridge when there is no means of turning around. These effects of being stuck in this manner pose a risk of trauma, especially to persons with anxiety, children, and those who are missing crucial medical appointments, including persons from Vancouver Island who may be . . . [seeking] medical specialists in the Lower Mainland.

The blockade caused more carbon fuel to be sent into the atmosphere as cars were idling or were diverted and had to take longer routes. Police, fire, and paramedic resources were diverted to deal with the traffic . . . [backlog]. [11] In all three protests, vehicle occupants left their vehicles to express their anger. It is extremely fortunate no acts of violence occurred, and that was likely only due to the fact that the police arrived fairly soon. I note that the pandemic and other social issues are causing increasing levels of stress in the community.

People are having difficulty making ends meet and the healthcare system, including paramedics and police, are under great strain. It is only a matter of time until a protestor, vehicle occupant, police, fire, or paramedic personnel are injured during these protests. Mr.

Schortinghuis put people at risk, including himself, by refusing to climb down the ladder in the Massey Tunnel matter. [ 43 ] In this case, and particularly with respect to the April 20 incident, Crown noted irate and angry motorists were observed exiting their vehicles and yelling and swearing at the protestors, vocalizing their disapproval of their actions. Some motorists actually tried, before police arrived, to physically remove Ms. Stewart and the other protestor from the concrete-filled barrel without success.

It appears that emotions were beginning to escalate and motorists were starting to take action into their own hands in an effort to end the blockade by the time police arrived. As stated by Judge Bakan, when situations like this arise, it elevates the risk of violence to both protestors and citizens alike, and therefore enhances the potential harm resulting from these types of actions. [ 44 ] There was some evidence, as well, that children were present and impacted by the blockade.

Some children were outside their vehicles, thereby raising a concern about their physical safety in the midst of so many vehicles and irate and impatient drivers. [ 45 ] Traffic was significantly backed up and delayed as a result of the blockade, particularly on the Trans Canada Highway. A significant number of citizens, as a result, were impacted by the protestors' actions, and those of Ms. Stewart and the other protestor specifically.

Motorists attempting to travel north on the highway were, in essence, stopped and trapped with nowhere to go until police arrived and were able to divert them by using a southbound lane.

[ 46 ] There was also the additional harmful impact on the environment from the carbon fuel emissions from the idling vehicles held up by the blockade in this case. The prolonged nature of the blockade increased that harm. [ 47 ] I accept, as Ms. Mahon submitted, that there is no actual evidence that on either April 4 or April 20, 2022, emergency vehicles were delayed or any individual missed a significant medical appointment because of Ms. Stewart's actions or the protests, generally.

I am not sure, given the volume of people that were impacted by this event, that we would actually find out about any actual incidents unless they were specifically reported to police. [ 48 ] But regardless, having accepted that, and while accepting that there is no specific evidence of those aggravating factors present in this case, I am of the view that that is simply good fortune or happenstance rather than by design.

These are very real and foreseeable potential consequences from blocking a roadway or a heavily used and relied upon highway that serves as the primary mode of accessing a major centre like Victoria. If realized, the harm that can flow from those types of consequences can be quite serious. [ 49 ] In Schortinghuis Judge Bakan considered a number of case authorities, one of which was the decision of Judge Dhillon in R. v. Baldwin-Pinch, Healy, et al made on March 16, 2022.

In that case Judge Dhillon was tasked with sentencing two people for mischief that occurred during a protest organized by Extinction Rebellion over two days in October 2021 in the Vancouver area. [ 50 ] Judge Bakan referenced Judge Dhillon's comments that acknowledged an individual's "right to engage in dissent and protest to bring about societal change" and that civil disobedience has been used in the past to bring effect to positive changes.

However, Judge Dhillon also stressed that there are legal limits on that right. [ 51 ] Judge Bakan in paragraph 35 of her decision further referenced Judge Dhillon's comments and stated as follows: She goes on to state in paragraphs 18 to 20 that the law recognizes there is a legal right to engage in dissent and protest to bring about societal change, and s. 2 of the Charter enshrines the fundamental freedoms of thought, belief, opinion, and expression and protects the freedom of peaceful assembly.

The law does not permit protestors to cause substantial impairment of other citizens and their right to use and enjoy public property, and she stated that was [at] the heart of the issue before the Court before her, and it is before me today. In paragraph 20, she states: … where a protest devolves to civil disobedience which adversely impairs or impacts other citizens and their right of lawful and peaceful movement and their use and enjoyment of public property, there must be accountability under the criminal justice system. [ 52 ] These comments apply similarly to the circumstances of this case.

A citizen's right to participate in protests and demonstrations does not permit those citizens to also commit criminal offences when doing so. [ 53 ] For these offences, I find that Ms. Stewart's culpability is high. On April 4, 2022, she became aware from police that she was committing an offence by continuing to sit in the roadway when refusing to leave. She was warned that she could be charged with a criminal offence and face consequences in court if she did not voluntarily get up and leave the intersection.

She continued to refuse to leave and was subsequently charged. [ 54 ] On April 20 she was clearly aware of what consequences could flow from her actions. She took deliberate additional steps to hinder the ability of police to remove her from the highway through the sleeping dragon maneuver used. She again refused to voluntarily remove herself from the barrel and the highway when asked and caused the expenditure of significant police resources to be incurred to forcefully remove her and the obstacle she was attached to from the highway. Significant time at the expense of the public was wasted in order to do so.

The use of this maneuver resulted in increased harm to the public as a result. [ 55 ] The use of the sleeping dragon maneuver on April 20, 2022, was clearly an aggravating circumstance in relation to that incident. Other aggravating circumstances present in this case include:

a) Ms. Stewart was on a form of release in relation to an incident at Fairy Creek when she committed the first offence on April 4, 2022, and on April 20, 2022, she was on an additional form of release in relation to the April 4 incident.

b) On both April 4 and April 20 Ms. Stewart was warned by police that if she did not leave the roadway she would be charged with a criminal offence. In both cases she refused to voluntarily leave and decided to continue to commit the offence notwithstanding the warning. She failed to take advantage of the opportunity to discontinue a criminal act when that was provided to her.

c) On April 20 Ms. Stewart would have been fully aware that by sitting in the middle of the highway lane and refusing to leave when asked by police she was committing a criminal act and would be charged. By that point she had had that warning and that experience effectively on two separate occasions.

d) The prolonged length of the blockade on April 20 as well as the chosen location of that blockade that is, a heavily used and significant thoroughfare for those travelling into and out of the Victoria area, are both aggravating factors relating to that event. The location as well as the length of the blockade resulted in a significant number of citizens being affected by the event.

e) As I have mentioned, the deliberate actions of Ms. Stewart and the other protestor attached to the concrete-filled barrel caused police to expend significant resources in order to end the blockade. Significant public funds were expended to resolve that incident in a peaceful way that did not harm either Ms. Stewart or the other protestor. [ 56 ] There are many mitigating circumstances present in this case, as well. Those include:

a) Ms. Stewart is a young woman. She is only 23 years of age and has no prior criminal record.

b) She has pleaded guilty to these two offences, thereby acknowledging her responsibility for them. Her pleas have also saved the need for Crown to prosecute these offences and prove them at trial. She has saved the State that expense, as well as the need for citizens

who were affected by the blockade from attending court to testify.

c) I am satisfied Ms. Stewart is genuinely remorseful for her criminal acts.

d) Ms. Stewart is a very intelligent and articulate young woman who has much to offer to her community. She has realistic and attainable goals of finishing her university education and continuing with her writing.

e) But for these incidents, Ms. Stewart has led a pro-social lifestyle and there is little doubt that she will continue living such a lifestyle moving forward.

f) Notwithstanding these offences, Ms. Stewart appears to have respect for the law and the legal process. She has complied with her release conditions without incident. This, in my view, is a significant mitigating factor in this case.

g) Ms. Stewart has strong support within her communities and is also viewed as a strong support for others. Ms. Stewart is a well- loved, well thought of and respected young woman.

h) Ms. Stewart is involved in a committed relationship, and she is a caregiver to her partner. Her partner relies on Ms. Stewart to assist her in meeting her day-to-day needs. [ 57 ] When deciding what sentence to impose, I must take into consideration all of the aggravating and mitigating circumstances I have mentioned in order to ensure that any sentence I impose is just, proportionate and meets the sentencing purpose, objectives and principles outlined above. [ 58 ] I have considered two cases that were provided to me by counsel. I have already mentioned Judge Bakan's case of R. v. Schortinghuis.

The other case is the BC Court of Appeal's 1991 decision R. v. B.J.R. Ms. Mahon relies on the Court of Appeal's decision in B.J.R. to support the proposition that a time served disposition can effectively meet the sentencing goals of specific and general deterrence. [ 59 ] While the facts in the B.J.R. case differ greatly from this one, it does support the proposition Ms. Mahon suggests. In that case a youth spent 40 days in pretrial custody.

The BC Court of Appeal determined that the objectives of deterrence and denunciation could be met by the fact that the youth had spent that time in custody prior to his sentencing. [ 60 ] On page 5 of its decision the Court of Appeal stated: But when one has in mind the fact that such time in custody as was spent by this appellant is regarded, in the colloquial term, as dead time and is the equivalent of something considerably more, a sentence of the time served would meet that element of general deterrence which would be appropriate for an offence of the nature with which we are concerned. [ 61 ] In Schortinghuis Judge Bakan also took into account the amount of time that Mr.

Schortinghuis spent in pretrial custody when determining his sentence for three counts of mischief and two counts of breaching an undertaking, all arising from Save Old Growth protests involving the obstruction of traffic in the Lower Mainland. He had spent the equivalent of 21 days in pretrial custody before Judge Bakan sentenced him. [ 62 ] The facts in that case have similarities to the one before me. Mr. Schortinghuis, as well as other protestors, were involved with obstructing traffic on three separate dates.

On April 4, 2022, he and other protestors blocked three of the southbound lanes on the Ironworkers Bridge. On April 27, 2022, he and other protestors blocked traffic from proceeding in both directions on Grandview Highway and on June 13, 2022, he and other protestors blocked all southbound traffic at the Massey Tunnel. [ 63 ] On June 13, 2022, Mr. Schortinghuis was positioned at the top of a ten foot ladder placed over the dividing line of the lanes in the tunnel. At the time of this incident, Mr.

Schortinghuis was subject to two separate police undertakings that prohibited him from impeding any traffic or pedestrians on any roadway or highway. Mr. Schortinghuis, like Ms. Stewart, was warned by police that if he did not stop blocking the roadway he would be charged with mischief. On June 13, 2022, police asked him to voluntarily come down from the ladder he was on, but he refused and police had to use other means to forcefully remove him. [ 64 ] Unlike Ms. Stewart, Mr.

Schortinghuis was charged with two counts of breaching his undertaking and ended up serving about two and a half weeks in custody because he was detained at a bail hearing. Mr. Schortinghuis, like Ms. Stewart, had no criminal record and had never been in jail before. [ 65 ] Unlike Ms. Stewart, Mr. Schortinghuis had some mental health and other challenges. Judge Bakan found Mr. Schortinghuis to be an "unsophisticated person" with some challenges, including intellectual ones, who was "helped significantly by his mother".

Additionally, she concluded that he was "a person whose personal attributes are easily preyed on by organizations such as the one he was protesting on behalf of.” [ 66 ] Judge Bakan considered the time Mr. Schortinghuis spent in pretrial custody to be a significant factor when determining a fit and appropriate sentence for him. She accepted that his period of pretrial custody acted as both a specific and general deterrent for him. In paragraph 65 of her decision she stated: Crown has submitted that a jail sentence would serve as a general and specific deterrent. In terms of specific deterrence, Mr.

Schortinghuis has already been incarcerated. I find this fact serves as both a specific and general deterrent as the public are aware that people will be denied bail if they breach conditions; and they are in a reverse onus and will likely stay in jail until their trial or until they plead guilty. [ 67 ] She went on to state in paragraph 55 of her decision:

In terms of deterrence, Mr. Schortinghuis has been in pretrial custody. As previously stated, this is harder time and credit is granted to reflect this. Pretrial time is even harder during COVID restrictions, which are still ongoing in the jails. When accused go back and forth between court and jail, they are placed on COVID protocols. They are usually isolated. They cannot have visitors.

They do not, from what I hear, have easy access to phone or counsel. [ 68 ] I am satisfied that based on both of these decisions, pretrial custody can, at times, meet the sentencing objectives of both specific and general deterrence. [ 69 ] The real question is whether the pretrial custody Ms. Stewart served in this case meets both of those objectives. [ 70 ] I have already found that Ms. Stewart's experience of spending overnight in police cells has actually specifically deterred her from reoffending. So the objective of specific deterrence has been met.

It is more difficult to find, however, that the equivalent of three days of pretrial custody is sufficient to meet the objective of general deterrence in this case. [ 71 ] Ms. Stewart's experience in custody was significantly different from that of Mr. Schortinghuis, based on both the actual time each spent in pretrial custody and the conditions under which that time was spent. I do not accept that in this case the equivalent of three days in pretrial custody is sufficient to generally deter the public from similarly offending. [ 72 ] However, Ms.

Mahon's sentencing proposal is not limited to simply a time served disposition. She submits that in addition to the pretrial custody, Ms. Stewart should be subject to a probation order for a period of 18 months on terms that would prevent her from reoffending. It is the totality of the proposed sentence and the consequences of that sentence that I must consider when assessing if all sentencing objectives are met. [ 73 ] I find that Crown's proposed sentence of 21 days in custody, reduced by Ms.

Stewart's pretrial credit of three days, recognizes the aggravating circumstances in this case, particularly those relating to the incident on April 20, 2022. However, it does not, in my view, adequately consider or account for the mitigating circumstances that are present. [ 74 ] Balancing all of those, I find that a 21 day custodial sentence is excessive for Ms. Stewart for these offences, particularly in light of Ms.

Stewart's expression of regret and remorse and her compliance with her release conditions since the April 20 incident. [ 75 ] I also find that in these circumstances a simple custodial sentence does not adequately address the objective of reparation. In my view, it is important that Ms. Stewart pay back the community in some way for the harm that she has caused to the public.

This objective is best met through conditions imposed in a probation order. [ 76 ] While I do find that a time served disposition in this case equates to a relatively low custodial sentence for these offences, particularly the offence on April 20, 2022, I am satisfied that it does send, together with the combination of an 18 month probation order, an adequate message to the public generally that courts will impose custodial sentences for these types of offences, if appropriate in the circumstances, and significant sentences.

I find in this case that the imposition of an 18 month probation order together with the time served disposition actually enhances the deterrent effect of the sentence. [ 77 ] While a probation order is typically a tool used to assist with rehabilitation of an offender, it can also serve to act to meet the objectives of denunciation and deterrence if terms are crafted appropriately and can also better meet the sentencing objective of reparation, as I have mentioned. [ 78 ] Having considered the circumstances of these offences, Ms.

Stewart's personal circumstances, the sentencing provisions in the Code , the submissions of counsel and the case authorities provided to me, I am satisfied that a time served disposition followed by an 18 month probation order on terms I will describe below is a fit and appropriate sentence for Ms. Stewart. [ 79 ] By imposing this sentence, Ms. Stewart will have a conviction registered and a criminal record for the two offences. A criminal record has the potential of impacting an individual's ability to find employment and travel internationally.

Her sentence will reflect that she has served a period of time in traditional jail for these offences, and she will be monitored or supervised within the community for 18 months beginning today. The conditions I will be imposing will limit her freedom in the community as her ability to be on roadways will be restricted and she will have to take active steps through the completion of community work service hours to pay back the community. [ 80 ] In light of Ms. Stewart's statement to the court, her compliance with her release conditions and her remorse for her actions, I am confident that Ms.

Stewart will not likely be before the court again for similar types of offending. As a result, I do find, as I have indicated, that the time served disposition followed by the 18 month probation order is fit and appropriate for her. [ 81 ] Therefore Ms. Stewart, I am asking you to please stand and I will deliver your sentence. [ 82 ] Ms. Stewart, for each of the offences you will be sentenced to a one day plus time served disposition followed by an 18 month probation order. I understand you spent two days in custody. That gives you a credit for three days of custody, and that will be reflected on your record.

The one day is satisfied by your attendance in court today. [ 83 ] The 18 months on the probation order will include the following terms. Those terms are as follows. [ 84 ] 2001: These are the compulsory conditions. You must keep the peace and be of good behaviour. That means stay out of trouble, do not commit any crimes.

You must appear before the court when required to do so by the court, and you must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or the officer of any change in employment or occupation. [ 85 ] You must not be on any roadway unless you are in or on a moving conveyance travelling lawfully thereon. A conveyance is a vehicle.

[ 86 ] THE ACCUSED: Okay. [ 87 ] THE COURT: You have to report on this order to a probation officer. I would like to ask you, do you have a current date scheduled for reporting? No? You are on a non-reporting release order? [ 88 ] CNSL. F. MAHON: That is correct, Your Honour, thank you. [ 89 ] THE COURT: Okay, thank you. All right. [ 90 ] 2101: You must report in person to a probation officer. That person is located at 836 Courtney Street, so across the street from the courthouse, in Victoria, BC.

I am going to say that you have to report no later than 3 p.m. today, initially, and thereafter as and when directed by your probation officer.

I will add, as well, that you are to report in the manner directed by your probation officer, so your probation officer will have the discretion to have you report by telephone as opposed to in person if they deem that appropriate. [ 91 ] 2106: Your reporting on the order will end when you have satisfied your probation officer that you have completed all of your community work service that I am going to require that you perform on this order, and your probation officer has specifically told you that you no longer need to report. [ 92 ] 2202: When you first report to the probation officer, provide them with the address or location where you live and regularly sleep, and your phone number if you have one, and you are not to change any of that information without first notifying the probation officer in advance of any change. [ 93 ] Lastly, 2509: You must complete 50 hours of community work under the direction of your probation officer, and I am going to say that your community work service must be completed no later than 12 months from today's date, so you do not have the full 18 months to do that. [ 94 ] In arriving at that figure, I have taken into consideration the fact that you are attending full-time school, that you are likely working as well.

If not, you might be working. That you have obligations at home, and that you might be participating in other types of activities, but in my view it is substantial enough to send a message that you need to pay back the community and repair, by doing those community work service hours, the harm that was caused by these events. [ 95 ] Those are the terms of your probation order. Mr. Gold, is there anything further that you would want me to consider? [ 96 ] CNSL. J. GOLD: Not from the Crown, Your Honour, and I direct a stay of proceedings on the two outstanding counts. [ 97 ] THE COURT: All right, thank you. Ms.

Mahon. [ 98 ] CNSL. F. MAHON: No, thank you, Your Honour. [ 99 ] THE COURT: All right, thank you. Now, that is your sentence. On each count there will be the same sentence, it will be served concurrently or at the same time, so that effectively is your sentence, the time served and 18 months probation. [ 100 ] In addition to that, Ms. Stewart, there is a financial penalty that automatically flows, and that is the victim fine surcharge. That is about $100 on each count.

That is a financial obligation that you will also end up paying as part of the consequences of being guilty of a criminal offence. [ 101 ] Is there time required to pay those? Ms. Mahon? [ 102 ] CNSL. F. MAHON: I would ask for six months to pay, in light of the fact that Ms. Stewart's in school right now and not working, as far as I understand. [ 103 ] THE COURT: Right. Will six months be sufficient to pay $200? [ 104 ] THE ACCUSED: Yeah. [ 105 ] THE COURT: Or odd? Okay. So you will be, then, given six months to pay the victim fine surcharges. [ 106 ] Now Ms.

Stewart, you have heard me read out the sentence and particularly the probation order. Did you hear me read the conditions to you clearly? [ 107 ] THE ACCUSED: Yeah. [ 108 ] THE COURT: Do you understand those conditions? [ 109 ] THE ACCUSED: Yeah. [ 110 ] THE COURT: All right. You understand that if you do not follow your probation order you can be arrested, you can be brought into custody.

There is always a risk you run that if you are not complying with your court order you can be detained or kept in jail at a bail hearing, and also you can be charged with another criminal offence, and that is a breach of the probation order. Do you understand all of that? [ 111 ] THE ACCUSED: Yes. [ 112 ] THE COURT: Okay. All right, thank you very much. I am going to waive the need, then, for you to sign the probation order before you go. All right?

[ 113 ] THE ACCUSED: Thank you. [ 114 ] THE COURT: Okay, thank you. (JUDGMENT CONCLUDED)