R. v. Cameron Date:, 2013 BCPC 283

Citation: R. v. Cameron Date: 20130705 2013 BCPC 0283 File No: 189548-5-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KYLE ALEXANDER CAMERON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: F. Shiu Counsel for the Defendant: D. Gable Place of Hearing: Surrey , B.C. Dates of Hearing: January 14, 15, 16, 17, 21, 22, 23, April 5, 11, June 24, 2013 Date of Judgment: July 5, 2013 [ 1 ] THE COURT : On April 23rd of 2013, following a trial, I convicted Kyle Alexander Cameron of the aggravated assault on

July 6th, 2011 of Dilshad Mohammed. On June 24th of this year, I heard submissions from counsel in respect to sentence, and Mr. Cameron is before the court today to have sentence imposed. [ 2 ] The maximum sentence for this offence is 14 years imprisonment. The Crown seeks a penitentiary sentence in the six-to-eight- year range. [ 3 ] The Crown alleges the offence was motivated by bias, prejudice or hate and that s. 718.2 (a)(

i) of the Criminal Code applies. That

section states: A court that imposes a sentence shall also take into consideration the following;

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate, based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor. [ 4 ] Mr. Gable, on behalf of Mr. Cameron, proposes a sentence in the provincial range; that is, two years less a day or below. He says the evidence at trial does not support a finding that the crime was motivated by prejudice, bias or hate. [ 5 ] The circumstances are set out in my reasons on conviction. I am going to summarize those for today's purposes as follows. [ 6 ] Mr.

Cameron was jointly charged with his brother, Chad Cameron, and two friends, Reo Anderson and Allan Beaulieu. Mr. Beaulieu was not before the court at trial. I acquitted Chad Cameron and Reo Anderson. I concluded that, despite strong suspicions, the evidence did not prove their involvement beyond a reasonable doubt. None of the accused gave evidence themselves, nor did they call other evidence.

Statements to police by Kyle Cameron and Reo Anderson were in evidence on the Crown's case. [ 7 ] It appears a group gathered on the evening of July 5th, 2011 at the Cameron house on 101st Avenue in Surrey, which is one house to the east of 137A Street. Alcohol and marihuana were consumed. Mr. Cameron was part of that group. [ 8 ] Sometime before about 1:30 a.m. on July 6th, Mr. Mohammed parked his car on the east side of 137A Street. He encountered Trisha MacDonald in that immediate area. Ms. MacDonald was a witness called by the Crown. Mr. Mohammed offered her a ride.

As they approached his parked car, a group of five or six males came out of the laneway immediately north of Mr. Mohammed's vehicle. That lane backs onto the Cameron property. The group of males were drinking and carrying beer cans. They were loud. They approached Mr. Mohammed and they swarmed around him. They began calling him names, including racial names such as "rag-head" and "shit-skin." Mr. Mohammed had not said or done anything to attract their attention. All of the males in the group began to push and shove Mr. Mohammed. He was struck several times and fell to the ground.

He had no chance to defend himself. On the ground, he was kicked and punched. All of the males who came and were part of the group from the lane participated in the kicking and punching of Mr. Mohammed. It appears, first one and then a second member of the group broke away and spoke with Ms. MacDonald. Although I was not able to make a finding as to specifically who these people were, the descriptions of clothing and features are not consistent with Kyle Cameron. [ 9 ] The Crown also called two witnesses who lived in an apartment building overlooking the scene of this attack.

The evidence of those witnesses confirms the participation of all of the males in the beating of Mr. Mohammed. It appears Mr. Mohammed became unconscious while on the ground. One of the group took him by his ankles. He appeared to be unresponsive. He was dragged by the ankles a short distance into the lane and then into the bushes at the end of the lane. The attack lasted just a matter of minutes.

It is difficult to say precisely the length of this attack because the witnesses were traumatized by the events they were observing. [ 10 ] One of the witnesses in the apartment was on the phone to the police as events proceeded and police responded rapidly. As the first police car arrived, proceeding south on 137A Street and approaching the laneway, officers observed a group of males gathered together on 137A Street adjacent to the lane entrance. As the police car pulled up, they scattered. One officer arrested Mr. Anderson and then discovered and attended to Mr. Mohammed lying in the lane.

Another officer chased three males up the lane but was unsuccessful in apprehending any of them. Those three ran into the rear of the Cameron property. [ 11 ] A search of the area led to the arrest several minutes later of Kyle Cameron. He was lying on the front lawn of his home, pretending to be asleep. He was under the influence of alcohol. Subsequently, Mr. Cameron gave a statement to police. Initially he claimed to have no recollection of the events or any involvement; however, as the interview proceeded, he admitted involvement, although claiming to have a very limited memory of the events.

It was sufficient, I concluded, to establish his participation in the assault beyond a reasonable doubt. [ 12 ] Mr. Mohammed has suffered significantly as a result of this assault. Admissions set out in Exhibit 5 at trial state that Mr. Mohammed suffered a significantly displaced nasal fracture, a right orbital floor fracture, a right frontal scalp haematoma, and a traumatic brain injury. He gave brief evidence at trial. Appropriately, counsel did not cross-examine him. He had no recollection of the events.

I observed him to be very laboured as he walked, and his speech was limited and laboured. [ 13 ] A Victim Impact Statement was prepared by his sister and filed at the sentencing. That statement discloses that Mr. Mohammed suffered a stroke in 2010, which interrupted what had been a productive working life as a trucker, supporting his wife and two teenage children. He was unable to work for a time, but was due to return to work later in July of 2011.

However, his injuries and disabilities are such now, following this assault, that he is essentially unemployable at this time and requires continuing care and therapy. He is now divorced and unable to enjoy his children during his parenting visits. He is unable to get around in the community or take on daily chores. His right side is particularly weak and he has limited effective use of the hand on that side. His mobility and speech have been reduced and he requires speech therapy and physiotherapy. His eyesight has diminished and he suffers pain in his hips, legs and arms, as well as headaches.

He has suffered emotionally. He sleeps poorly and he has nightmares. His financial circumstances are precarious.

[14] Although Mr. Gable alludes to the pre-assault stroke and perhaps some residual disability arising from that, no medical reportshave been filed. Based on the information before me, Mr. Mohammed has suffered severe injuries as a result of this attack, whichovertook his recovery from a stroke and his imminent return to work. It now appears his injuries and disabilities will continue for thelong term, and perhaps will be life long.

They have affected every aspect of his life. [15] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safesociety by imposing just sanctions, addressing one more of the following objectives: to denounce unlawful conduct, to deter this offenderand others from committing grave offences like this, to separate this offender, if necessary, to assist this offender in rehabilitation, toprovide reparation for harm done to victims and to the community, to promote a sense of responsibility in the offender andacknowledgment of harm done to the victim and to the community.

I must impose a sentence which is proportionate to the gravity of theoffence and the degree of responsibility of the offender. I must take account of aggravating and mitigating factors. [16] I have referred already to the Crown's position that this offence was motivated by hate. If proven, I must treat that asaggravating, pursuant to the

section of the Criminal Code I quoted a moment ago. I must consider similar sentences imposed in similarcircumstances. If an offender is to be imprisoned, the term of that imprisonment must be no longer than required to address theserelevant sentencing principles. Thus the imposition of a fit sentence requires the consideration of a complex of issues in light of theparticular facts of the case and the particular circumstances of this offender, Mr. Cameron. [17] In this analysis, and particularly important in a serious case of violence such as this, is an assessment of Mr. Cameron's moralblameworthiness.

In the words of the Supreme Court of Canada in a well known case called R. v. C.A.M., I must draw on all of thelegitimate principles of sentencing to determine a just and appropriate sentence which reflects the gravity of the offence and the moralblameworthiness of the offender. (R. v. M (C.A.), (SCC), [1996] 1 SCR 500 at para. 82) [18] In a case called R. v.

H.J.H. in the Supreme Court in this province in 2002, Madam Justice Stromberg-Stein of the SupremeCourt imposed an eight-year sentence for aggravated assault by an offender who, as part of a group, attacked the victim because heappeared to be wearing the colours of a rival gang. The accused in that case was just 20 years old and had a prior record, includingassault, and was on bail for aggravated assault at the time. Certain features of that offence are not present here. The court in that casecommented on the relevant sentencing objectives.

I find those comments useful as guidance in the balancing process which I mustconduct in this case. Paragraph 15 of that decision states the following: The accused is a youthful offender and his rehabilitation is of concern and importance for the lifelong protection of the public. Wererehabilitation the only factor I had to consider, the sentence suggested by his counsel would merit consideration. However, rehabilitationis only one factor I must consider and not the overriding factor in this case.

The paramount principles of sentencing in this case aredenunciation and deterrence, both general and specific, to protect the public. (R. v. H.J.H. 2002 BCSC 1772 , 2002 BCJ 2844BCSC) Then Madam Justice Stromberg Stein referred to a judgment in the Court of Appeal in 2002 in which Madam Justice Newberry stated: With respect to general deterrence, its effect in many instances is uncertain since the public does not learn about the vast majority ofsentences that are imposed by the courts every day.

In this instance, however, where the accused are members of a group, howeverloosely organized, their colleagues are likely to hear of the sentences meted out to them and, one hopes, to govern themselvesaccordingly. Then she continued by saying: With respect to denunciation, I believe the sentencing judge was right to take into account the perceptions of the local community whichhas certainly been victimized by young criminals in the last few years. (R. v. H.J.H., BCJ 2658 (BCCA)) [19] Mr. Cameron is 26 years of age. He was 24 at the time of this offence.

Prior to the offence date he had a single conviction fordriving with an excessive blood-alcohol level, that sentence imposed in 2006. He received a $750 fine and a one-year drivingprohibition, suggesting the circumstances were not remarkable. [20] Since the offence respecting Mr. Mohammed, he committed the offence of possession of a dangerous weapon and has beensentenced and has completed an effective 48-day sentence. He received a one-day sentence for breaching the recognizance imposed onthe offence before me, arising out of those circumstances; that is, the weapons offence.

He has been on a detention order since then. Counsel has agreed that he is entitled to seven months of credit for pre-sentence custody after the sentence for the weapons offence istaken into account. [21] Mr. Cameron had a limited relationship with his own father. His mother was then in a long relationship with a man whobecame a father figure for Mr. Cameron. That individual died in April of this year. Mr. Cameron is close to his two older brothers. Hehas lived with his mother until his detention on this charge. He completed Grade 11 and then went to work as a roofer. He has workedsteadily.

His most recent employment is confirmed by an employer who comments on his reliability as a worker. [22] He had developed, prior to his incarceration, a substantial alcohol, marihuana and cocaine habit. He consumed these drugsevery weekend. He routinely became intoxicated and has blacked out on occasion. He acknowledged an anger problem and said that heused to lose his temper, but believes he now manages his emotions better. [23] Through counsel and the interview for the Pre-Sentence Report, Mr. Cameron asserts that his time in custody has been eye-opening for him.

He says he will comply with any direction the court may make.

[24] Mr. Cameron is still relatively young. Although he may be maturing in his understanding of the seriousness of the offence andhis current custodial status may be contributing to this, the Pre-Sentence Report suggests there is still considerable insight to beacquired. He was consuming drugs and alcohol up to the night of his arrest on October 13, 2012 on the weapons offence. At that time,he was before the court on this offence. The Pre-Sentence Report writer concluded he minimizes his alcohol and drug consumptionissues. [25] I conclude that Mr.

Cameron receives little guidance from his mother, who, based on the pre-sentence report, also minimizeshis use of these substances and the impact of his associates on his conduct in the community. Although he says he controls his temperbetter now, he has no real strategy to assist him in that regard. His routine consumption of excessive amounts of drugs and alcohol whenin the community provides no confidence that Mr. Cameron is able to control his anger in circumstances which occur when he isimpaired. I repeat that he was intoxicated on the night he participated in the attack on Mr.

Mohammed and was under the influence whenarrested on the weapons offence in October of 2012. [26] Mr. Cameron has acknowledged his participation in the attack on Mr. Mohammed, although his recollection is limited. He hasexpressed his willingness to participate in substance-abuse programs. As he stands before the court, he expresses his determination toabstain. He has undertaken some programming, as available, based on his custodial status.

He is clean and sober and I accept, in thatstate, his expression of determination on these issues is honestly stated, and these factors that I have referred to are to his credit. [27] That, in my view, is a step in the process; however, specific deterrence remains an issue requiring further attention.

His patternof substance abuse, his anger management and the need to distance himself from negative influences will require significant commitmenton his part while he serves the sentence that I impose, because he is likely to come under substantial pressure in these areas once he isreleased. [28] I am going to first address the Crown's allegation that this offence was motivated by bias, prejudice or hate, based on race,national or ethnic origin, language, colour or religion. The evidence relied on by the Crown is from Ms. MacDonald. She said that sheheard the attackers call Mr.

Mohammed a "rag-head" and "shit-skin." There is no specific evidence called by the Crown to place theseexpressions in the context of any of the enumerated heads of bias, prejudice or hate listed in the

section I referred to, or another similarcategory. Ms. MacDonald viewed them as racial. The defence does not contest those expressions, on their face, amount to racial slurs. [29] I accept, on this hearing, that those words are offensive and that they are capable of forming the basis of such a finding. Theissue to be resolved here is whether that limited evidence is sufficient to establish the offence was motivated by bias, prejudice or hate onthe part of Mr. Cameron. The evidence establishes the words were spoken. Ms. MacDonald's evidence suggests more than one personused those expressions.

I have reviewed my notes. I cannot find any other direct examination or cross-examination which wouldestablish with some reliability at what point the words were spoken or how often they were spoken. There is no evidence from any ofthe other witnesses referencing this issue. [30] Although Ms. MacDonald said the attackers used those expressions, I cannot confidently conclude each attacker spoke themand therefore I am not prepared to find that Mr. Cameron had to have said those words himself.

Swarming and beating offences canoccur in circumstances in which it is difficult to say what the motivation behind the attack is. For me to conclude that Mr. Cameron wasmotivated by bias, prejudice or hate to commit this offence, I would have to conclude his motivation is established by words spoken,which I cannot ascribe to him, but which nevertheless drove him on to the attack of Mr. Mohammed. Those words may have motivatedsome in the group, they may have motivated those who spoke them, but I cannot say who those people were and specifically, I cannotsay Mr. Cameron has been shown to have been so influenced.

I note that he was intoxicated at the time and I note further that there is noevidence or other information presented on this hearing, or in the pre-sentence report, which would support an orientation toward anyform of bias, prejudice or hate. I do not know what motivated Mr. Cameron to participate in this senseless attack. In order to treat thisfactor as aggravating it must, I believe, be brought home to Mr. Cameron that the evidence as a whole does not support such a finding. [31] In R. v. Armstrong, 2003 BCSC 1057, Justice Davies reviewed a number of decisions.

He concluded the range for sentence onaggravated assault generally extended from five to ten years. He noted the sentences imposed reflected the senselessness of the attack,the viciousness of an attack, and the severity of the injuries suffered. He found premeditation was a significant factor increasing thelength of sentences. [32] In R. v. Rasanen, (BC CA), [1997] BCJ 1260, the Court of Appeal upheld a six-year sentence in which theoffender administered a brutal beating which left the victim with brain damage, speech impairment and partial paralysis.

The attack waspremeditated, the offender was young and his rehabilitative prospects were good. His remorse was evident at a late stage. But for hisyouth and rehabilitative prospects, the sentence would have been longer. [33] R. v. Woodward, 2011 BCCA 251 in the Court of Appeal in this province where a six-year sentence was upheld for aggravatedassault. The court found the accused was motivated by bias, prejudice or hate against gay people. Of course I have not found bias,prejudice or hate to be present in Mr. Cameron's case.

In Woodward, that, however, was a significant aggravating feature and wasapplied appropriately, in the view of the Court of Appeal. The victim in that case suffered catastrophic brain injury. [34] The Crown also referred to R. v. Kim, 2010 BCCA 590. The Court of Appeal upheld a 13-year global sentence in respect offour counts of aggravated assault in which a box-cutter was used on four homeless individuals on four different occasions. Thesentencing court considered seven years on each count appropriate, but applied the totality principle to reach a global 13-year sentence.

The offender was 45 years of age at the time, there were mental-health concerns, and he did not have family or other support in thecommunity. His moral culpability was high. [35] R. v. Wallen 2003 BCSC 809 in the Supreme Court in 2003 is a notorious case. The offender attacked a Korean exchangestudent as she ran in Stanley Park, choked her to unconsciousness and left her in a vegetative state, requiring full-time care. He had nocriminal record and no motive was established. Possible psychiatric issues were present.

A nine-year sentence was imposed and thecourt noted the savage and cruel nature of the attack. [36] Mr. Gable, on behalf of Mr. Cameron, has provided authorities suggesting a lower range should apply. Most helpful in this

assessment is the recent Court of Appeal decision in R. v. Lajimodiere , 2013 BCCA 174 . In that case, the offender and the victim were friends. Alcohol was consumed. The victim was assaulted, although the trial judge was unable to determine the precise mechanism. The victim suffered a spinal fracture, causing him to become paraplegic, and he suffered reduced cognitive function. The offender had a lengthy record, including convictions for assault. He was an alcoholic, he was of Metis heritage, and he was entitled to Gladue considerations.

Following conviction, the trial judge concluded the range was a year or two either side of six years. He gave credit for one year of pre-sentence custody and imposed four additional years, for an effective sentence of five years. [ 37 ] The court in that case considered the decision in R. v. Biln 1999 BCCA 369 in which the Chief Justice at the time stated the global range for aggravated assault to be between two and six years, depending on the degree of violence. In Biln , a 50-year-old, with no record, was sentenced to three years for a beating which caused serious brain injury.

That sentence was upheld. [ 38 ] R. v. Grassick 2012 BCCA 42 was also referred to in Lajimodiere . In that case, the Court of Appeal reduced a three-year sentence to two years less a day, considering the offender's circumstances and the less serious circumstances of the offence itself, relative to Biln . [ 39 ] Lajimodiere was 57. He was aboriginal, with a difficult background. He was remorseful; he took steps to get help. The court noted the case is serious, but not the most serious. The court noted there are few cases in which the offender has a background such as that of Mr. Lajimodiere.

The Court of Appeal concluded the effective five-year sentence imposed at trial was near the top of the usual range described in Biln and was excessive, and imposed an effective three-year sentence. [ 40 ] Sentences above or below the range referred to in Biln may be imposed based on the particular circumstances of the case. The Court of Appeal has addressed that issue in R. v. Bernier , 2003 BCCA 134 . [ 41 ] Mr. Gable has provided several additional cases in the provincial range. He has referred to R. v. Skinner 2013 BCCA 27 in which a nine-month sentence was upheld for aggravated assault; R. v.

Papp , 2013 BCSC 786 in which a 12-month conditional sentence order was imposed in the Supreme Court. Mr. Justice Schultes imposed a two-year-less-one-day sentence in R. v. Roach , 2012 BCSC 2035 on a joint submission, and R. v. Tschritter , 2012 BCSC 1992 , in which Mr. Justice Joyce imposed a 14-month sentence, with probation following conviction. I am not going to recite all of the circumstances in those cases, but they are less serious in terms of the injuries suffered by the victim.

I do not view a sentence in the provincial range as an adequate statement of the denunciation and deterrence in the particular circumstances of Mr. Cameron. [ 42 ] Mr. Cameron has committed a serious criminal offence. That offence is aggravated because it was such a random act of violence against a man simply going about his business in the neighbourhood. He had done nothing to draw the attention of Mr. Cameron and his friends. They overwhelmed him and he was completely defenceless. He was at the mercy of aggressive young men fuelled by alcohol and perhaps other substances.

He was vastly outnumbered and completely at the mercy of his attackers. There is no glory or bravado to be enjoyed by attacking and beating someone in this circumstance. It is the act of cowards. This is the kind of random violence that neighbourhoods and communities should rightly expect courts to address through sentences which denounce those acts in the strongest terms and deliver a deterrent message. [ 43 ] Mr. Cameron is relatively young. He had no prior record at the time of these events, other than the impaired driving conviction. He has expressed his remorse over his involvement.

He expresses a determination to address underlying issues. He may be gathering insight, but considering his arrest in October of 2012, his specific deterrence remains uncertain. He participated in an attack which has had catastrophic and probably lifelong effect on Mr. Mohammed. An attack like this unsettles neighbourhoods. Residents who are entitled to feel secure in their neighbourhood and on their neighbourhood streets lose that sense of security in the face of attacks like this. In these circumstances, Mr. Cameron's level of moral blameworthiness is high. [ 44 ] Mr.

Cameron, if you could stand, please? [ 45 ] For the aggravated assault of Dilshad Mohammed on July 6th, 2011, in my view, a fit sentence is five years incarceration. I give credit for seven months pre-sentence custody. I impose a further sentence of four years and five months. [ 46 ] There will be a firearms prohibition order under s. 109 of the Criminal Code for ten years. [ 47 ] I order you supply a sample of your DNA to the National DNA Databank, that to be provided during the course of your incarceration. [ 48 ] The victim fine surcharge is waived. (REASONS FOR SENTENCE CONCLUDED)