R v Favell, 2023 ABCJ 136

In the Alberta Court of Justice Citation: R v Favell, 2023 ABCJ 136 Date: 20230615 Docket: 211236773P1 Registry: Calgary Between: His Majesty the King - and - Anthony Gregory Favell Sentence Decision of the Honourable Justice J.J. Ogle INTRODUCTION: [ 1 ] Anthony Favell has entered guilty pleas before me to a considerable number of offences committed over a span of just under one year (March 2021-February 2022). [ 2 ] The guilty pleas were entered on the following offences: a.

Four separate offences of Possession of stolen automobiles valued at over $5000 - Offence dates March 9, 2021, December 22, 2021 & March 1, 2022. [Informations 554 (Count 1); 141(Count 1) and 744(Count 14); b. Failing to stop when pursued by police, and dangerous driving, in relation to the March 9, 2021 possession of stolen motor vehicle offence. [Information 554 (Counts 2 & 3); c. Arson (s 434 CC) – Offence Date October 17, 2021 [Information 218, Count 1]; d. Personation with intent to avoid arrest [s 403(1)(

d) CC] - Offence date December 17, 2021 [Information 773] e. Wilful damage (mischief) under $5000 to a motor vehicle window (s 430(1)(a)CC) - Offence date February 25, 2022 [Information 744, Count 31]; and f. Occupying a motor vehicle [which had been stolen] in which he knew there was a restricted or prohibited firearm (a 12 gauge

shotgun) and for which at the time the accused was prohibited from possession of any weapons as a condition of a prior release order- Offence date March 1, 2022 [Information 744, Counts 9 & 12] POSITION OF THE PARTIES: [ 3 ] For these offences the Crown is seeking a global sentence that will ensure the accused will serve three years in a penitentiary for these offences, after crediting the accused for the time he has spent in pre-trial custody, credited on a 1 ½ basis, as of todays date (June 15, 2023) the accused has served a total of 573 days of pre-sentence custody.

On an enhanced basis, this pre-sentence custody time amounts to (1.5 X 573) 859.5 days, which I round up to 860 days. Adding that credit to the 3 year (1095 days) penitentiary sentence the Crown is seeking would amount to a global sentence of (1095 plus 859) 1954 days, which converts to slightly over 65 months, or 5 years and 5 months global sentence. The Crown also seeks a number of orders as follows:

a) DNA orders for all the offences except the s 403(1)(

a) offence Wilful damage);

b) A firearms prohibition order pursuant to s 109(1)(a.1)(

d) and (2) on Count 9 of Information 744 for 10 years;

c) Restitution Orders in the amount of $30,447.67 to be allotted on the following basis: a. $444.67 to the Claimant Cory Brulotte; b. $30,000 to the Claimants Northbridge Insurance and Aviva Insurers, to be apportioned on a pro-rata basis in proportion to their respective claim amounts filed with this court. [ 4 ] The defence suggests a fit global sentence range of 24-36 months for this still young aboriginal offender, to be followed by a “significant period of probation with stringent conditions” of the kind suggested in the PSR and Gladue reports that have been filed in this matter.

Applying the pre-custody enhanced credit for the time the accused has spent in custody to date to the defence proposed range would result in a prison sentence today of time in custody plus probation at the 24 month low end, or approximately 7 ½ months imprisonment left to serve at the high end of 36 months, to be followed by “a significant period of probation”. AGGRAVATING FACTORS; [ 5 ] The accused has a significant prior criminal record (See Sentence exhibit 4).

It includes numerous prior convictions for theft or possession of property obtained by crime (usually motor vehicles), a prior conviction for Dangerous driving, as well as a conviction for Breaking and Entering and several administrative offences. That said, the accused acquired this record over a relatively short period of time (just over 6 months) in 2021.

There is no criminal record alleged prior to his first convictions on March 1, 2021. [ 6 ] All but one of the present offences were committed while the accused was on probation for the sentences imposed on him on March 1, 2021. [ 7 ] With respect to the Arson offence, the damage to the (apparently) commercial building in question was extensive, close to $2 Million. There is no apparent motive for the accused’s action in lighting this fire that would constitute any additional aggravating circumstance for this offence.

MITIGATING FACTORS: [ 8 ] The accused has entered guilty pleas to all of the offences before me, thus saving the considerable time, resources and witness attendances it would have required to prosecute these matters. In the particular circumstance of this case, this mitigating factor is significant. [ 9 ] By entering his guilty pleas, Mr. Favell has accepted responsibility for these offences. [ 10 ] Mr. Favell was still a relatively young offender (age 22) during the relatively short period of time he committed the bulk these offences before me. He is now age 23. SENTENCING PRINCIPLES: [ 11 ]

Section 718 CC sets out the fundamental principle of sentencing that “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. In considering the aspect of proportionality, the Court is guided by the principles listed in s 718.2 CC that states that a sentence should be increased or reduced “to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”. After listing various aggravating circumstances, none of which appear to apply in this case, the

section goes on to list the following factors that the court must also consider: s 718.2 (

b) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: ...

(

c) where consecutive sentences are imposed the combined sentence should not be unduly long or harsh (

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

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent to the harm done to the victim or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders . (underlining mine). CASELAW RE THE ARSON OFFENCE: [ 12 ] The most serious of the offences the accused faces is the offence of Arson contrary to s 434 CC. The maximum penalty for this offence is 14 years imprisonment.

There is no minimum sentence. [ 13 ] It is important to distinguish this offence from the more serious offence in s 433 CC (Arson with Disregard for Human Life), where the maximum penalty is life imprisonment, and this s 434 offence, where the maximum penalty is 14 years imprisonment. [ 14 ] I have received considerable assistance from the decision of my sister Judge D. Groves in the case of R v Purvis , 2023 ABPC 29 . There Justice Groves conducted a review of various sentencing decisions for arson offences, including decisions from our Court of Appeal.

Her review indicates a wide range of sentences, from a suspended sentence and probation where mental health factors of the accused were relevant (see R v Sharun (2017), BCPC 367) to jail sentences of 1 year for an aboriginal offender who set fire to a residence that also caused the death of an animal, a cat. This sentence that was upheld on appeal. (see R v Yellowknee , 2017 ABCA 60 ). [ 15 ] In R v Stuart , 2023 ABCJ 99 my sister Justice A.

Brown imposed a conditional sentence of 2 years less one day for a first time offender who lit a fire in his own apartment causing over $1 million in damages to the apartment building and the death of the accused’s cat. Stuart had no prior criminal record. [ 16 ] There are also some cases of a penitentiary sentence for this offence, where the loss was extensive and the offender’s moral culpability was high. GLADUE FACTORS: [ 17 ] The accused is an Aboriginal offender. As such, s 718.2(

e) requires that I properly consider the circumstances of Mr. Favell’s Aboriginal background in determining an appropriate sentence for the matters before me. [ 18 ] A pre-sentence report and a Gladue report have been prepared and filed in this matter. The very helpful Gladue report sets out a number of Gladue factors that are relevant and instructive in the difficult task of determining a proportionate sentence for these offences and this Aboriginal offender. From both the Gladue report and the Pre-sentence report, a sad picture of this offender’s background and upbringing emerges, as follows: a. Mr.

Favell was born in Salmon Arm, B.C. His parents are both non-Status aboriginals. It appears that neither attended residential schools. However, each of his parent’s mothers (i.e. the accused’s grandmothers) attended residential school, and Mr. Favell was told by both of them of their negative experiences in that environment. Mr. Favell reported that both his parents struggled with alcohol and drug use, and that he witnessed this as he was growing up. b.

He reported both parents were regularly in and out of jail through his childhood, resulting in him and his father going to live with an aunt Bernadine (who lived on the Shuswap First nation) when Mr. Favell was age 3 and his mother was in jail. His father passed away when Anthony was quite young and living with this aunt. c. Mr. Favell reported that while living with his aunt Bernadine from ages approximately 3-12, he was sexually abused by an older relative, and learned that his sister was also the victim of sexual abuse as a child. d.

He also reported that he witnessed domestic violence as a child, as his uncle was physically abusive to his Aunt Bernadine. He reported that he too was physically abused by this uncle at this residence. e. Mr. Favell also reported that the family lived in poverty while he was living with his Aunt Bernadine and her husband on the Shuswap Nation land, receiving little assistance from the Band. He recalls there being no power or heat in the residence for extended periods. f. Mr.

Favell’s sister reported to the probation report writer that both she and the accused Anthony Favell were in foster care for some periods as a result of physical abuse suffered by both of them during the time they lived with their Aunt Bernadine. g. Mr. Favell reported that as a result of his home life growing up he was “angry all the time”, angry toward his parents for the instability they displayed and the trauma he witnessed as a result. and says he barely knew his mother as a child as she was frequently in jail. h. Mr.

Favell reports being diagnosed with anxiety and depression as a teen, that he attempted suicide on two occasions as a teen, and that he is currently on anti-depression medication while incarcerated. i. Mr. Favell acknowledges abusing prescription medication in his teen years as well as methamphetamine and marijuana up until the time of his arrest on these maters.

j. Mr. Favell has never attended residential treatment for his current drug abuse issues, but presently expresses a desire to do so. k. Mr. Favell reports he dropped out of school in Grade 10, but returned in Grade 12, though he did not successfully graduate. l. His employment history can best be described as infrequent and sporadic, and he has candidly acknowledged that he has been supporting himself in his adult years by engaging in criminal activity.

He acknowledged to the author of the Gladue report that he is currently a member of a local gang and that the majority of his criminal convictions are related to his gang involvement. m. Both Mr. Favell and his mother advise that he has been diagnosed in the past with Attention Deficit Hyperactivity Disorder (ADHD). Bearing in mind his chaotic upbringing, such diagnosis is hardly surprising. n. Mr.

Favell’s mother acknowledged to the author of the Pre-Sentence Report that her own lifestyle had a negative impression on the accused, and that she taught the subject some of his criminal behaviour, including how to steal cars! [ 19 ] In the recent case of R v Rabbit , ( 2023 ABCA 170 ) the Alberta Court of Appeal was dealing with a defence appeal from a lengthy sentence for an aboriginal offender for a number of serious offences.

There the Court reiterated important principles for the sentencing of aboriginal offenders in the Canadian justice system. [ 20 ] At paragraph 47 of the decision in Rabbit , the Court stated at Para: 47: [47] To apply s 718.2(e), sentencing judges must try to understand what influenced an Indigenous offender to act in the way he did. It also includes assessing whether one’s instinctive reaction to that conduct would be the same, given the circumstances, if the offender were of a different race, culture, or background. This analysis involves empathy, imagination, and introspection, among other things.

It imposes on the sentencing judge the difficult task of imagining a different life, and honestly asking how a person – not the world’s strongest or most resilient person – might be affected by such an experience. [ 21 ] The above quote is particularly apt to my consideration of the very sad circumstances of Mr.

Favell’s life experiences as a child and young person. [ 22 ] Later, at Paras 54 and ff, the Court in Rabbit stated: [54] The error here parallels that found in R v Swampy , 2017 ABCA 134 , where the trial judge had stated: The Gladue Report provided relevant information on the background and circumstances of Mr. Swampy and his community. Taking into account the purpose and principles of sentencing and the evidence in this case, Mr.

Swampy’s circumstances as an Aboriginal person does not justify any major departure from a proportionate sentence. (emphasis added by the Court of Appeal) [55] This Court explained at paragraphs 25 and 26: … this analysis reveals an error in understanding the Gladue principles. As noted, the central purpose of the Gladue analysis is to achieve proportionality. The first principle that a sentence must be proportional to the gravity of the offence and degree of responsibility of the offender has “…long been the central tenet of the sentencing process”: Ipeelee at para 36.

The “constrained circumstances of Aboriginal offenders may diminish their moral culpability”, as explained in Ipeelee at para 73. Reduced moral culpability must also affect the proportionality analysis, since moral culpability is one component of the equation. It follows that where there is reduced moral culpability, there is a consequential reductive effect upon the ultimate determination of a fit and proper sentence: Ipeelee at para 87. It is an error to proceed on the basis that Gladue factors do or do not justify departure from a proportionate sentence, as the trial judge did.

Instead, application of the Gladue analysis achieves a proportionate sentence. [56] We underscore the point: the mandatory s 718.2(

e) analysis achieves a proportionate sentence. Proportionality reflects the gravity of the offence and a fair and informed understanding of the degree of responsibility of the Indigenous offender. [Emphasis in original] CONCLUSION & SENTENCE: [ 23 ] In my view the global sentence sought by the Crown in this matter of, effectively, almost 5 and ½ years imprisonment, is excessive for this still young Aboriginal offender.

I appreciate that the goal of the Crown was to obtain a net sentence (i.e. after a reduction for time in custody) that would place this offender in Federal Penitentiary system, in hopes that he would gain the benefit of any programming that might be available in that environment.

Yet, despite the commendable best efforts of the Crown, no information was provided to this court as to what, if any, programs in the Federal system, might be of particular benefit to this offender before me, or whether similar (or even more appropriate) programs are available if I impose a net sentence of imprisonment in a Provincial Institution, followed by probation. [ 24 ] In any event, such “reverse reasoning” or “results based” reasoning is a problematic approach to determining a fit sentence for this or any offender.

Such an approach risks arriving at a final sentence that fails to assure that the sentence complies with the fundamental principle set out in s 718.1, that a sentence “must be proportionate to the circumstances of the offence and the degree of responsibility of the offender”. [ 25 ] Mr. Favell is being sentenced for a large number of offences committed over a 1 year period (March 2021-March 2022). He has a related adult criminal record with respect to the motor vehicle related offences. He has no prior convictions for arson. He has no violent offences on his record.

He was a relatively young man during the time he committed this series of offences. He experienced a highly dysfunctional, chaotic, abusive and neglectful upbringing that has had a very significant detrimental effect on this still young

Aboriginal offender. [ 26 ] Although he received a sentence that included probation in the past, to which it appears he did not respond well, he now expresses a change of attitude toward probationary assistance, wishing now to deal with his addiction and related issues with residential treatment in an Indigenous-based program such as that offered by Sunrise healing Lodge in Calgary. [ 27 ] In my view an appropriate global sentence for the matters before me is at the upper range suggested by the defence, that is, a global sentence of 3 years imprisonment less credit for time served, to be followed by a period of probation. [ 28 ] A sentence in this range reflects the serious nature of the offence of arson before me, and the significant and prolific nature of the various other offences to which the accused has pled guilty as well as the accused’s significant criminal record accumulated over a very short period of time when he was still a young man.

However, it also recognizes and the tragic and sad circumstances of this still young Aboriginal offender’s background and upbringing. These circumstances of this Aboriginal offender have a direct bearing on his degree of responsibility for these offences. The addition of a probationary period that includes conditions designed to address past trauma, criminality, addictions, and life skills issues will hopefully assist Mr.

Favell. [ 29 ] In determining the sentences I would impose today without consideration of any pre-sentence custody credit, I will deal with each information’s charges in the chronological order they occurred, as follows:

A) Docket 554 (Offences committed March 9, 2021): Count 1- Possession Stolen motor vehicle valued over $5000 – 3 months imprisonment Count 2 – Fail to Stop for Police – 1 Month Consecutive Count 3 – Dangerous Driving -– 1 month concurrent

B) Docket 218 (Offence date December 17, 2021) Count 1 – Arson - 18 months consecutive

C) Docket 773 – Offence Date December 17, 2021 – Count 5 – Fraudulent Impersonation – 1 month concurrent

D) Docket 141 – Offence Date Dec 22, 2021 Count 1 – Possession of Stolen motor vehicle valued over $5000 – 4 months Consecutive.

F) Docket 744 – Offence Dates March 1, 2022 (Counts 9, 12, 14) and February 25, 2022 (Count 31): Count 9 – Occupant of motor vehicle knowing prohibited or restricted firearm, device or weapon inside, s 94(1) CC – (4 months consecutive) Count 12 – (Possession of a Firearm while prohibited by court order) – 1 month concurrent) Count 14 – Possession of Stolen motor vehicle valued over $5000 – 5 months consecutive) Count 31- Mischief/Damage to Property – 1 month consecutive [ 30 ] The above sentences total a global sentence of 36 months) imprisonment, before any credit for pre-sentence custody.

I credit the accused on a 1 ½ to 1 basis for the 573 actual days he has spent in pre-trial custody, which amounts to a total credit of 859.5 days pre- sentence custody credit. I round this up to 860 days, which is the equivalent of 28 months and 20 days.

The result is that the sentence I impose on these matters today is a global sentence of 7 months plus 10 days imprisonment . [ 31 ] This shall be followed by a period of probation for 18 months . [ 32 ] The terms of probation will include those outlined in the Pre-Sentence report, Exhibit 2, Page 11, Clauses 1 to 6 only, plus any other reasonable conditions proposed by counsel after reviewing these reasons for Sentence. [ 33 ] In addition I make the following ancillary orders: 1) Restitution orders pursuant to s 738 CC in the following amounts: a) $444.67 to the Claimant Cory Brulotte;

b) $30,000 to the Claimants Northbridge Insurance and Aviva Insurers, to be apportioned on a pro-rata basis in proportion to their respective claim amounts filed with this court. 2) DNA orders for all the offences except the s 403(1)(

a) offence Wilful damage); and 3) A firearms prohibition order pursuant to s109(1)(a.1)(

d) on Count 9 of Information 744, for a period of 10 years following Mr. Favell’s release from custody. [ 34 ] There will be no Victim Fine Surcharges. Heard on the 15 th day of June, 2023. Dated at the City of Calgary, Alberta this 15 th day of June, 2023. J.J. Ogle A Justice of the Alberta Court of Justice Appearances: Brian Holtby for the Crown Darren Mahoney for the Accused