R. v. R. C. S. Date:, 2013 BCPC 362

Citation: R. v. R. C. S. Date: 20131018 2013 BCPC 0362 File No: 199481-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R. C. S. EXCERPTS FROM PROCEEDINGS OF THE HONOURABLE JUDGE A.E. ROUNTHWAITE Counsel for the Crown: J. Gahunia; M. Duyler Counsel for the Defendant: C. Arnason Place of Hearing: Surrey , B.C. Date of Hearing: October 17, 2013

Date of Judgment: October 18, 2013 [ 1 ] I must sentence 34 year old RCS for the offence of threatening under s. 264.1 (

a) of the Criminal Code . The Crown has proceeded by indictment, so the maximum sentence available is five years in jail. Ms. RCS acknowledges that a jail sentence is required. The issue is the length of jail term that is appropriate for this offender and this offence. The Crown submits that a three year prison sentence is required to meet the principles of sentencing; the defence says six to eight months in jail would be sufficient. [ 2 ] The circumstances of the offence are as follows. On April 10, 2013, Ms.

RCS used a gesture to threaten Probation Officer Elena Henricksson, who was her supervisor on a Conditional Sentence Order. During a meeting in the probation office, Ms. RCS was upset and angry with Ms. Henricksson. She grabbed a pen, stood up, leaned towards Ms. Henricksson over the desk separating them, and holding the pen like a knife with its top portion in her closed fist and the point extending downwards towards Ms. Henricksson, moved her hand down towards her while yelling “you fucking cunt”. [ 3 ] Ms. Hendricksson responded by pushing a panic button, ducking and pushing herself away from the wall.

Another Probation Officer who responded to the alarm found Ms. Hendricksson standing against the back wall of her office looking frightened. Ms. RCS left the office yelling and swearing. [ 4 ] This action occurred during a conditional sentence supervision meeting when Ms. RCS grew increasingly angry and frustrated because she resented Ms. Henricksson’s supervision and Ms. Henricksson would not agree to her demands. Ms. RCS yelled and swore at Ms. Henricksson throughout the meeting. As Ms. RCS’s voice and body language indicated her anger was escalating, Ms.

Henricksson decided to end the meeting and began to prepare an appointment slip. Ms. RCS is a considerably larger woman than Ms. Henricksson. She stood quickly and made a stabbing motion while yelling the obscene insult as Ms. Henricksson was filling out the slip. In these circumstances, I concluded that Ms. RCS’s action constituted a threat to cause bodily harm to Ms. Hendricksson by stabbing her. [ 5 ] Ms. Henricksson completed a Victim Impact Statement explaining the significant emotional impact the offence has had on her.

As a Senior Probation Officer with more than 20 years experience who supervises high risk violent and sexual offenders, she deals with aggressive clients daily but has never before been so emotionally impacted by an incident. Because she was the acting Local Manager at the time of the offence, she felt she couldn’t express her emotions at work, but she was afraid to leave the office unescorted or go for a walk until Ms. RCS was arrested. A few days later she suffered physical pain from stress, broke down, left work and went home to cry.

She has had problems sleeping and concentrating as she continues to relive the incident; she has been jumpy and moody at work and at home; and she has contacted her Employment Family Assistance Program for counseling. [ 6 ] Ms. RCS’s background as she has described it to probation officers and psychologist Dr. Karen Whittemore, is very sad. She is a member of the Cote First Nation, part of the Cree-Saulteaux First Nation. She believes her grandparents and father spent time in residential schools.

I take judicial notice of Canada’s history of colonialism, displacement, and residential schools and how that history continues to influence low educational attainment, high unemployment, substance abuse and suicide, and high levels of incarceration for Aboriginals. These systemic factors have had devastating effects on Ms. RCS. The experience of her grandparents and father in residential schools may have been a significant factor in her parents’ alcoholism and the family’s violent lifestyle including physical abuse of Ms.

RCS and her nine siblings. [ 7 ] She lived on a reserve until age 10 and then moved to Yorkton, Edmonton and Regina with her parents. As a child she saw and experienced neglect, violence, alcohol, gasoline and drug abuse, and emotional, physical, and sexual abuse. Her family taught her to fight and steal and to resent and distrust people in authority like police and probation officers. After inhaling gasoline as a young child she began to drink alcohol daily as a pre-teen and continued binge drinking until her incarceration in 2006, with the exception of one year in 2001/2002.

Since childhood she has steadily abused a wide variety of drugs, culminating in heavy use of crack, crystal methamphetamine and marijuana from her release from custody in 2011 to January 2013, although she says that beginning in January she used only marijuana, and has not used any drugs since her arrest in April. [ 8 ] Ms. RCS was first incarcerated at the age of 13 and spent much of her teens and frequent periods thereafter in jail. She only attended school to Grade 3 or 4 but completed Grades 10 and 11 in custody.

She has a limited work history due in large part to her time spent in custody, but she has also experienced racism when seeking employment and housing and in her day to day life. Nevertheless she volunteered for an art collective in Edmonton for 3½ years and has been able to sell her artwork. She has diabetes and receives a disability pension. [ 9 ] She has 45 convictions in her combined youth and adult criminal record, including aggravated assault, break and enter and aggravated assault, assault with a weapon, three assaults of peace officers and five common assaults.

She received jail sentences for all but the first assault, with the longest sentence being four years in 2007 for the break and enter and aggravated assault. Her record also contains convictions for breaching court orders and failing to appear, and multiple property offences. The only gap in her record occurred while she served the four year sentence, but she continued to behave aggressively and unmanageably while in custody. [ 10 ] Ms. RCS was diagnosed with bipolar disorder in 2002 and an antidepressant, antipsychotic and mood stabilizer were prescribed.

In 2009 a psychiatric report questioned the diagnosis as being difficult to confirm because of Ms. RCS’s long polysubstance abuse. She was also diagnosed with mixed personality disorder with borderline and antisocial personality traits. She has received treatment for borderline personality disorder while in custody but continues to struggle to apply the coping skills taught. [ 11 ] Dr. Whittemore stated: Past assessments have concluded that Ms. RCS is a chronic violent recidivist and poses a high risk to others, particularly her intimate partners.

She has been deemed to be extremely difficult to manage both in the community and in custody. In most, if not all, facilities in which she has served custodial time, Ms. RCS has exhibited significant behavioural problems, and has received several convictions for institutional infractions. Over the years, she has repeatedly been involved in fights, has been destructive to property, and has engaged in predatory acts of violence and intimidation, and has consistently been non-compliant to direction. In 2009, she was transferred from one

institution to another because she had “impacted the environment within the secure unit to such an extent that she [was] no longer manageable within the population.” Within a short time of arriving at the new institution, Ms. RCS resumed her pattern of violent and destructive behaviour, and was consistently segregated until her release in 2011. Following Ms. RCS’s admission to ACCW in April of this year, she has been maintained either in segregation or under special handling protocols due to her unpredictable violent behaviour, suicide attempts, and general non-compliance to remediation and direction.

Most recently (since mid-July), institution staff report, Ms. RCS’s behaviour has improved somewhat, and security precautions taken regarding her management have been reduced. [ 12 ] Ms. RCS’s behaviour while in custody awaiting trial and sentencing in this matter as outlined in a letter from the deputy Warden and an email from Probation Officer Stacey Nash, was consistent with that described by Dr.

Wittemore: she has repeatedly been disrespectful to staff, involved in physical altercations, refused insulin, damaged property, covered her cell windows and camera, and the majority of her time has been spent in segregation. However, her behaviour improved from July 30 to September 10 and from September 20 to October 6, and she has participated in programs and attended voluntary appointments with an alcohol and drug counsellor every two weeks. [ 13 ] Ms. RCS’s responses to psychological tests were consistent with her history and diagnoses.

They suggest that she is chronically angry and prone to physical displays of anger that are destructive to other people and property. Being estranged from family and lacking friends, she has little social support, although she has had the support of Mary Fayant, a First Nations elder she met in a program in the federal institution, and Sarah Rizun, a member of the Human Rights in Action collective, wrote a letter to the Court indicating her support for Ms. RCS. I note also that Linda Mitchell, a former landlord, had no issues with her. [ 14 ] Dr. Wittemore concluded that Ms.

RCS poses a relatively high risk to reoffend violently and to have a poor prognosis for treatment. Ms. RCS acknowledges major difficulties in her functioning and perceives that she needs help to deal with these problems.

In court she spoke eloquently about her desire to change and how she has been working every day to change her attitude and improve her behaviour, although she has been unable in the past to follow through with such good intentions sufficiently to avoid reoffending. [ 15 ] The aggravating factors in this case are the fact that the victim is a probation officer, a justice system employee; the serious emotional impact the offence had on the victim; Ms. RCS’s long and violent criminal record; and the fact that she was bound by bail, s. 810.2, and conditional sentence orders at the time of the offence.

As Justice Davies said in R. v. Armstrong, 2003 BCSC 1057 , “Unlike police officers and prison guards, bail supervisors and probation officers are unarmed and defenceless in their dealings with sometimes hardened criminals. An attack upon one of them is an attack upon a civilized approach to rehabilitation.” [ 16 ] The mitigating factors are Ms. RCS’s experience as an Aboriginal and terrible childhood, and the mental health and addiction challenges she faces. Although she has demonstrated some insight into her behaviour and expressed some remorse for her conduct with Ms.

Henricksson, she has also minimized the offence and blamed the victim so remorse is not a significant mitigating factor. But it should be noted that Ms. RCS has gifts and strengths. She is an artist and writer, who works at both those arts, and has had success with her art. [ 17 ] The Crown argues that Ms. RCS should be sentenced to three years in a federal prison to achieve denunciation and deterrence, protect the public by separating Ms.

RCS from society, and rehabilitate her because federal institutions have more intense treatment programs with more sessions, and more programs designed for Aboriginals, than provincial institutions. Despite being referred to many community based resources, Ms. RCS has only been able to complete treatment programs while in custody, not while in the community. [ 18 ] The defence submits that a three year sentence is excessive for this offence, particularly since it is her first conviction for threatening, and that Ms.

RCS’s unique circumstances as an Aboriginal shed light on the blameworthiness of her conduct. [ 19 ] Crown Counsel cited the cases of R. v. Armstrong and R. v. Teneycke 1998 BCJ No. 1816 . Armstrong wrote threatening letters to corrections staff and in a planned attack beat a bail supervisor and a probation officer with a baseball bat. He was sentenced to jail for 8 years concurrent for the assaults and 3 years concurrent for uttering threats. He had one previous conviction for threatening. With a criminal record containing some extremely serious offences.

Teneycke received four years consecutive for telling another inmate he was going to kill or have killed the probation officer preparing a presentence report on him while he was awaiting sentencing on charges including threatening. [ 20 ] Neither case is very similar to this one, where Ms.

RCS failed to control her anger and frustration and acted in a threatening manner, but they do show that Courts have found long jail sentences necessary to protect workers in the justice system and severely denounce offences against them. [ 21 ] The most significant sentencing principles in this case are denunciation, general and specific deterrence, protection of the public, and rehabilitation. Because of the risk for violence posed by Ms. RCS and her poor prognosis for treatment, alternative and restorative sanctions are not appropriate.

A jail sentence is required to denounce offences against probation officers and deter others from committing such offences. It is also required to deter Ms. RCS from threatening and to protect the public by separating her from society. In her case, jail may also assist in rehabilitation because she has only been able to complete treatment programs in jail, and because she has been drug-free since being arrested for this offence. [ 22 ] This is a case where Ms. RCS’s Aboriginal status cannot reduce the length of a fit and proper jail sentence because of the risk of violence she poses.

But I believe a three year sentence would be disproportionate for this offence, even in the aggravating circumstances of being perpetrated on a probation officer who suffered a significant emotional impact by a person with a bad record for violent offences and a history of unmanageable, aggressive behaviour in custody. This offence was impulsive rather than premeditated; and it was a threatening rather than an assaultive action. [ 23 ] I accept that federal prisons offer better programmes for Ms.

RCS, but I cannot justify imposing a longer sentence than would otherwise be appropriate in order to provide her with those programmes. In spite of Ms. Duyler’s very thorough submissions, I believe that a federal sentence would be excessive for this type of threatening offence even when the Crown has proceeded by indictment. [ 24 ] Moreover, a probation order cannot be combined with a sentence exceeding two years. The Crown submitted that probation is

not appropriate because of Ms. RCS’s problems with authority and difficulty complying, but in 2011 the Crown successfully sought to have her placed on a s. 810.2 order to decrease the risk she would commit a serious personal injury offence, and while her management has been problematic and she has committed four offences since then, they do not appear to have been serious personal injury offences. I therefore consider that supervision in the community has served some purpose.

In addition, the psychologist made recommendations for supervision in the community. [ 25 ] I conclude that a sentence of 18 months in jail less 88 days time served, to be served consecutively to any sentence she is now serving, is sufficiently long to meet the principles of sentencing. Although Ms. RCS has spent much of the time awaiting trial in segregation, this was caused by her own behaviour and she is therefore not entitled to more than 1:1 credit for time served. [ 26 ] I make a DNA order under s. 487.051 and a ten year firearm prohibition under s. 110. Neither order was opposed by the defence.

I will also place Ms. RCS on probation for a period of two years with extensive conditions. The Honourable Judge A.E. Rounthwaite Provincial Court of British Columbia