R. v. Weaver Date:, 2016 BCPC 178

Citation: R. v. Weaver Date: 20160519 2016 BCPC 0178 File No: 202239-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. JAMES BURTON WEAVER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.I.S. SUTHERLAND Counsel for the Crown: W.L. Sayson, Q.C., N. Melling Counsel for the Defendant: D.H. Albert Place of Hearing: Surrey , B.C. Dates of Hearing: December 2, 3, 4, 5, 9, 2014; May 14, 2015; February 12, April 27, 2016

Date of Judgment: May 19, 2016 Introduction [ 1 ] On the afternoon of January 27, 2014, the accused, Mr. Weaver, drove an SUV into a police cruiser containing Cst. Sauve, that was parked in the parking lot of an RCMP substation in the Newton district of Surrey. The force of the collision moved Cst. Sauve’s vehicle into the police cruiser parked beside it, pinning Cst. McFarlane between the cruisers. Both Cst. Sauve and Cst. McFarlane were injured. [ 2 ] Mr. Weaver was charged with two counts of Criminal Negligence Causing Bodily Harm and two of Assault With A Weapon, being the vehicle he was driving.

In the middle of trial he invited the court to convict him of all counts and convictions were entered. He is now before me for sentencing. Issues [ 3 ] The Crown and defence are in agreement that Mr. Weaver should receive a lengthy jail sentence and driving prohibition. Where they differ is the precise length of jail sentence and driving prohibition. [ 4 ] Crown counsel submits a cumulative jail sentence in the 4-5 year range is appropriate along with three years’ probation and an 8-10 year driving prohibition. Mr. Weaver argues for 3½ -4 years jail and a 5-6 year driving prohibition.

Counsel are agreed that time Mr. Weaver has already spent in custody ought to be deducted. When enhanced credit for pre-sentence custody is given, the amount is 23 days shy of 3½ years. [ 5 ] To resolve the issues, the purposes and principles of sentencing contained in sections 718 - 718.2 of the Criminal Code need to be applied to the unique circumstances of the offences and the offender, Mr. Weaver. [ 6 ] I will start with a description of the circumstances of the offences. Background I.

Motor Vehicle Accident [ 7 ] The RCMP Newton Substation is part of a commercial shopping district containing a Save-On-Foods, Tim Horton’s coffee shop, strip mall, and the RCMP Substation, among other entities. The shopping district shares a large paved area for parking with lanes, parking stalls, medians and curbs delineating routes of travel and parking lots for the various commercial entities. [ 8 ] In the early afternoon, Mr. Weaver entered the parking area near the Save-On-Foods, driving a Ford Explorer SUV. He remained in the general area for approximately the next hour and 12 minutes.

During that time he went through the Tim Horton’s drive- through, parked for various lengths of time, and circled the parking area three times. After the last circle he parked for 35 minutes. He then performed one last lap around the parking area. When he was facing the police cars parked at the RCMP Substation he quickly accelerated and deliberately veered into a parked police cruiser that Cst. Sauve had just entered. The force of the collision pinned Cst. McFarlane between Cst. Sauve’s vehicle and the police cruiser he was getting into. Both police cruisers were extensively damaged. II .

Victim Impact [ 9 ] Cst. Sauve struck her head on her vehicle windshield and frame. She suffered a torn labrum, and bruising to her legs. Perhaps the most severe trauma for her was psychologically. In her Victim Impact Statement she describes her life being forever changed. She thought she was going to die. She currently lives in fear, she is hyper-vigilant, and currently suffers from anger, anxiety, sadness, and stress that affects her every day and in every aspect of her life. She continues to struggle with feeling safe at work.

It has taken her a long time and hard work to get to the stage of healing where she is today, but she continues to have tremendous struggles and face obstacles. [ 10 ] Cst. McFarlane physically suffered soft tissue injuries, severe bruising, and cuts to his hands. He missed over a month of work and missed out on numerous training opportunities due to his injuries. He suffers flashbacks, emotional trauma, and has had to change his lifestyle due to ongoing pain, and the emotional, financial, and professional consequences he has suffered. [ 11 ] The local policing community was affected by the offence as well.

The area where the Newton substation is located is part of a community. A number of officers work out of that substation. They have families and people who care about them. The office was located in an area where pedestrians and business owners frequented. There was a collegiality among local citizens and the police.

After the incident, as described by one officer, "the area was not the friendly area it used to be." This is as a result of the officers having to be hyper-vigilant as a result of this incident. [ 12 ] It was mentioned in the Victim Impact Statement filed on behalf of the policing community that it was felt this was an attack, not on Constables Sauve and McFarlane individually, but on the RCMP itself - an organization made up of people who have chosen to make a difference to serve their community. Consequently, Mr. Weaver's actions were an attack on that organization and community. Mr.

Weaver's actions reinforced the insecurity that officers feel by putting themselves in harm’s way to protect the citizens of the communities in which they serve. The incident to the police and community was an example that anyone in the public can be a threat and that threat can be present at any time. III. The Accused’s Mental State [ 13 ] At the time of the incident, Mr. Weaver was suffering from a methamphetamine induced psychosis.

The Background of the Accused [ 14 ] Mr. Weaver is 49 years of age. [ 15 ] He is a registered member of the Swan River First Nation through his mother’s lineage. He has limited knowledge and connection to his First Nation heritage and is largely disconnected from his Aboriginal community but motivated to connect. He is an intergenerational survivor or the Indian Residential school system. A legacy of substance abuse has been carried forward through generations of his family. [ 16 ] Mr. Weaver did not have the advantages of a stable family structure in his formative years.

He grew up with his mother and three of his sisters in an unstable environment marked by neglect and his mother’s alcohol abuse. He left home around the age of 13 and lived homeless on the streets of the Lower Mainland of British Columbia for years while under an addiction to hard drugs. [ 17 ] The following is a description of Mr. Weaver’s history with drugs taken from the Gladue Report prepared for sentencing. At page 6: James provided a significant history of polysubstance abuse and characterized himself as a binge-user with limited ability to exercise control of his intake when engaged.

He indicated that his use of alcohol and other substances has consistently interfered with most aspects of his life and been a fundamental component of his offence cycle. James acknowledged that a large part of his life has been centered on substance use,… [ 18 ] At age 30, Mr. Weaver entered a residential recovery program for his addiction. He got a job, entered into a six-year relationship, had two, now adult, children with whom he is currently estranged, and had some stability in his life.

He relapsed, ending his marriage and returning to his life of homelessness and drugs for the next ten years. [ 19 ] Approximately four years before the present offences, he commenced another stint in residential drug rehabilitation. He obtained housing, a job in construction, and remained off drugs and alcohol for approximately 4 years. A combination of stressors he could not handle led to another relapse to alcohol about six months, and cocaine and crystal methamphetamine about two months, before the current offences.

The offences took place about a week after he returned to daily crystal methamphetamine use. [ 20 ] Upon his release from custody, Mr. Weaver has the opportunity to receive counselling with Surrey Mental Health and Addictions, and be reconnected with addictions support. He is motivated to take advantage of rehabilitative opportunities available to him. Indeed, his success at maintaining sobriety in the past has coincided with his attendance at treatment and receiving support in the community. [ 21 ] Mr.

Weaver has a grade 10 education and has attended courses at Vancouver Community College for addiction counselling. He has worked intermittently. From 2012 until just prior to the offences before the court he was working in the construction industry. He can return to that job after serving his sentence. He also collects disability benefits as a result of his addiction and other health problems. [ 22 ] Mr. Weaver has a lengthy criminal record that starts in 1986 and contains over 35 convictions.

Thirteen are property related, 8 drug related, 5 breaches of court orders, 4 violent offences, and one conviction each for Dangerous Driving, Escape Lawful Custody, and Unlawfully at Large. All but two of Mr. Weaver’s convictions occurred over a decade ago. His last conviction was a breach of probation in 2010. The last entry on his driving record is over two decades ago. [ 23 ] According to the Gladue Report, Mr. Weaver attributes his criminal record to: …substance use, poor decision-making, and a lack of involvement with pro social supports.

He indicated that when working on a full- time basis and engaged with community supports, he did not use drugs or alcohol. (p. 6) [ 24 ] The gaps in Mr. Weaver’s criminal record support the relationship between his alcohol and drug abuse and offending. The Objectives of Sentencing [ 25 ] In reaching an appropriate sentence for Mr. Weaver, I have considered the purpose, principles, and objectives of sentencing contained in ss. 718 to 718.2 of the Criminal Code . The fundamental principle of proportionality must always be paramount. In achieving a proportionate sentence to the gravity of the offence and Mr.

Weaver’s degree of responsibility for its commission, some sentencing objectives require particular emphasis. [ 26 ] General and specific deterrence, denunciation, rehabilitation, acknowledgment of harm done to the victims and the community, particularly the policing community, require emphasis. [ 27 ]

Section 718.2 (

e) of the Criminal Code directs that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.” Mr. Weaver’s aboriginal background must also be factored into the determination of an appropriate sentence. Analysis [ 28 ] A number of cases were provided to the court to establish a sentencing range for Mr. Weaver’s crimes.

Although they involved an offender using a vehicle to assault or endanger the lives of police, the cases, not surprisingly, differed from the present case in material ways. It is difficult to determine from the case law, with any precision, a range of sentence applicable to the unique

circumstances of Mr. Weaver’s case other than jail in a federal penitentiary is a starting point. The quantum of the sentence is largelyinfluenced by the aggravating and mitigating factors present. [29] There are several aggravating features to Mr. Weaver’s crimes. [30] The conduct was severe. It differs from many of the cases though in that it was momentary and brief. [31] The injuries to Cst. Sauve, and Cst. McFarlane were significant and lasting. The offences shook the local policing community. [32] Mr. Weaver has a criminal record as described above.

Despite the number of convictions, only one is driving related and itoccurred over 23 years earlier. He was not bound by any court orders at the time of the offences. [33] Mr. Weaver voluntarily ingested drugs that he knew or ought to have known would place him in an unpredictable, irrational,and potentially dangerous mental state. This factor requires further background. [34] Dr. Tomita concluded that Mr. Weaver was suffering from a drug induced psychotic episode when he drove into Cst. Sauve andCst. McFarlane. Mr. Weaver had previous cocaine and methamphetamine induced psychotic episodes in the past.

He had been admittedto hospital at least five times during such episodes. The psychotic episodes involved paranoid and persecutory delusions andhallucinatory voices. In 1994 he needed physical restraints at one hospital. In 2009 he was in a one and a half hour stand-off with policewhile attempting suicide at a SkyTrain station. Mr. Weaver was aware of these episodes and the adverse effects of his drug use when hevoluntarily ingested methamphetamine in the week leading up to the present offences. [35] Mr. Weaver told Dr. Tomita that he used crystal methamphetamine every day that week.

He said as the week progressed hecould feel himself losing control, and becoming paranoid and psychotic. In the moments before the offence he was fully psychotic withsuicidal thoughts. He does not remember driving into Cst. Sauve and Cst. McFarlane. [36] On behalf of Mr. Weaver, it has been submitted that his drug ingestion should not be considered aggravating because he hadnever had a psychotic experience like the one leading to the offences. Consequently, he could not have foreseen this result. I accept thatMr.

Weaver may not have known he would drive into police officers or other people for that matter when he kept ingesting crystalmethamphetamine during the week. But, as mentioned, he must have known that he would be in an unpredictable, irrational, andpotentially dangerous mental state, or at the very least was reckless in that regard. Either way, the sentence must pose a deterrent to Mr.Weaver and others from voluntarily ingesting drugs that may cause them to place the public at risk: R. v. Green, 2001 BCCA 672, [2001] B.C.J. No. 2434; R. v. A.B., [2003] B.C.J. No. 3120; R. v. Brisson, 2009 BCSC 1606 , [2009] B.C.J.

No.2322. [37] The victims of Mr. Weaver’s crimes were police officers. The aggravated nature of assaults on police officers is wellestablished. In R. v. Forrest, [1986] O.J. No. 330 (Ont. C.A.), Zuber J.A. stated: Police officers, in the performance of their duties, are the representatives of the whole community and an attack upon them is an attackupon the structure of a civilized society. Further, police officers, in the performance of their duties, are often in a position of specialvulnerability and are entitled to such protection as the law can give. [38] In R. v. Bergsteinson, [1983] B.C.J.

No. 1314, (B.C.C.A.), Seaton J.A. stated: I think that all attacks on peace officers are serious, in the sense that the peace officer cannot protect the community if he himself is notprotected. I think this is an offence that has to be treated very seriously. [39] However, in the unique circumstances of this case, the degree to which this aggravating factor increases Mr. Weaver’s sentenceis tempered. [40] Mr. Weaver did not intend to target the police, or actually target the police, in his mind. According to Dr. Tomita’s report, atthe material time, Mr.

Weaver may not have recognized them as police officers as opposed to evil members of a dark force. What he didwas react to his delusional and irrational thoughts which were removed from an accurate perception of reality. I accept that Mr. Weaverdid not target Cst. Sauve and Cst. McFarlane because, and with a rational awareness, that they were police officers.

This of course doesnot absolve him of the offence or erase the fact they were police officers, but it does make the circumstances less aggravating. [41] Despite the diminished weight to this aggravating factor, the sentence nevertheless must provide a general deterrent to thepublic from committing offences against police officers whatever their inculpatory mental state at the time and acknowledge the harmdone to the victims and the policing community. [42] In mitigation, according to Dr. Tomita, Mr. Weaver’s decision to drive into Cst. Sauve and Cst.

McFarlane was likely a sudden,unpremeditated, decision. [43] Another mitigating feature is that Mr. Weaver invited the court to convict him for the offences. Technically it is not a guiltyplea but his invitation has the same effect. In terms of the weight to attach to his guilty plea, some context into the timing of hisinvitation is required. [44] Mr. Weaver had no memory of committing the offences. He did not challenge the actus reus of the offences, rather the issuewas whether he had the mens rea. It was part way through trial that Dr. Tomita assessed Mr. Weaver. As a result of Dr.

Tomita’sopinion, counsel for Mr. Weaver concluded Mr. Weaver did not have a defence he previously believed may exist. It was then the

invitation to convict was made. [ 45 ] I accept that the issue was somewhat murky and that it took a while to get the assessment of Dr. Tomita. Further, that Mr. Weaver did not waste any time in inviting the court to enter convictions once he had the results of the assessment. This saved the taxpayers additional costs and the use of additional court resources. It also represented Mr. Weaver’s willingness to take responsibility for his actions at this juncture. However, the mitigating effect of Mr.

Weaver’s invitation is somewhat lessened given the public still shouldered the expense and use of court resources for part of the trial, and Cst. Sauve, and Cst. McFarlane were not spared the inconvenience and emotional trauma of testifying. [ 46 ] Mr. Weaver has expressed remorse for his actions and their consequences to the officers involved. [ 47 ] There is reason for optimism for Mr. Weaver’s rehabilitation. He has demonstrated in the past that he can live productively, in a law abiding manner, free of drugs, for considerable lengths of time.

He understands the deleterious effect of drug consumption on his life and is motivated and willing to participate in any interventions to ensure he stays clean of drugs. He has professional and emotional support available to him to assist in this regard. That support is critical. Despite Dr. Tomita believing Mr. Weaver has good potential for rehabilitation, he also cautioned: The risk of another drug-induced psychotic episode is high and this would be accompanied by a high risk of harm to self and others given the outcome of the psychotic episode at the material time and in 2009.

The mainstay of treatment and for risk reduction would be for Mr. Weaver to maintain involvement with treatment and recovery resources over the long term. [ 48 ] Mr. Weaver’s aboriginal background is neither aggravating nor mitigating but relates to the principle of restraint contained in s. 718.2 (

e) of the Criminal Code and the individualization of the sentence to his personal circumstances. The Gladue report prepared for Mr. Weaver chronicles the systemic and disadvantaged background that has shaped his circumstances and accompanied him throughout his life. He was left without a functioning moral compass to guide his actions throughout his youth and adulthood. I have considered that background in reaching an appropriate sentence although I have only referred to certain aspects of it above.

Conclusion [ 49 ] Applying the principles and objectives of sentencing outlined in s. 718 - 718.2 of the Criminal Code to the unique circumstances of the offences and Mr. Weaver’s background, I conclude the appropriate sentence for Mr. Weaver’s offences is 4 years jail on all counts to be served concurrently, less the credited time he has already spent in custody, being 3 years and 171 days. Consequently, his sentence is 194 days jail. Probation [ 50 ] Mr. Weaver will be placed on probation on all counts for a period of 3 years with the following conditions: 1. Keep the peace and be of good behavior; 2.

Appear before the court when required to do so by the court; 3. Notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; 4. Report to a probation officer at #102, 14245, 56 th Avenue in Surrey, BC, within 48 hours of your release from custody, and thereafter as and when directed by your probation officer; 5.

Attend, participate, and successfully complete to the satisfaction of your probation officer such counselling as directed by your probation officer which may include, but not limited to, substance abuse, and alcohol abuse counselling; 6. Abstain absolutely from the possession and consumption of alcohol and drugs as defined in the Controlled Drugs and Substances Act, unless you hold a medical prescription issued by a medical practitioner licensed to practice medicine in the province of British Columbia. Driving Prohibition [ 51 ] The length of driving prohibition, must factor in that the vehicle Mr.

Weaver was driving was used as a weapon in committing the offences. Indeed it was central to the offences. The consequences of his driving were severe. Fortunately, through fate they were not worse. Balanced against these considerations is his modest driving record with the exception of his dated Dangerous Driving conviction in 1990, and the short duration of his offending driving in the incident before the court. I also consider Mr. Weaver’s

prospects for rehabilitation to be relevant as he presents a high risk of endangering the public through another drug induced psychotic episode if he were to relapse. As in this case, a vehicle could be the instrument of that endangerment. Protection of the public is an important consideration. At the same time he will need to have opportunities to lead a productive life that includes employment, education, and addiction support to prevent a relapse. Creating too many obstacles for too long could undermine his rehabilitation. [ 52 ] As part of Mr. Weaver’s sentence on Counts 1 and 2, pursuant to s. 259(2) of the Criminal Code , and s. 98(2)(

c) of the Motor Vehicle Act, you are prohibited from driving a motor vehicle for a period of 6 years following your release from custody. Weapons Prohibition - S. 110 [ 53 ] As part of Mr. Weaver’s sentence on Counts 3 and 4, pursuant to s. 110 of the Criminal Code , you are prohibited from owning or possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for a period of 10 years.

DNA [ 54 ] For Counts 1 and 2, being Primary Designated Offences, pursuant to s. 487.051(1) of the Criminal Code you shall provide a sample of your DNA. Victim Fine Surcharges - S. 737(2)(b)(ii) [ 55 ] Each count carries a $200 Victim Fine Surcharge. The total Mr. Weaver would have to pay within two months of his release from custody would be $800. His counsel argues this would create a hardship to him. [ 56 ] Mr. Weaver is impecunious and when released will be focusing on his rehabilitation. However, he does have employment available to him when he is released.

It is not clear when that employment would start, or whether Mr. Weaver’s rehabilitative efforts, supports, and employment can all be accommodated shortly after his release from custody. I will order that Mr. Weaver pay the Victim Fine Surcharges forthwith. Counsel for Mr. Weaver has indicated he is unable to do so, and consequently, I will find him in default. He shall serve his default jail time concurrent with the sentence he is serving on Counts 1-4.

Release of Reports [ 57 ] Pursuant to s. 743.2 of the Criminal Code , I direct that these reasons, the Pre-Sentence Report, Gladue Report, Forensic Psychiatric Assessment, and Victim Impact Statements be forwarded to Correctional Services of Canada. The Honourable Judge J.I.S. Sutherland Provincial Court of British Columbia