R. v. Hirtreiter Date:, 2016 BCPC 469

Citation: R. v. Hirtreiter Date: 20161128 2016 BCPC 469 File No: 211916-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. LINDSEY SUSAN HIRTREITER ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. GAFFAR Counsel for the Crown: D. Simpkin Counsel for the Defendant: P. Stark Place of Hearing: Surrey , B.C. Date of Hearing: November 28, 2016 Date of Sentence: November 28, 2016

[ 1 ] THE COURT : In the early morning hours of February the 15th, 2015, a black Labrador suffered serious injuries and trauma, requiring significant medical and surgical care. Lindsey Susan Hirtreiter has pleaded guilty to causing the dog to be in distress. The Crown and the defence agree on the events leading up to the events on February 14 and 15, 2015. Both parties essentially seek the same sentence. [ 2 ] The law requires that I consider and balance the legal principles of sentencing with the personal circumstances of Ms. Hirtreiter in order to determine a fit sentence.

Both the Crown and the defence have acknowledged and referred to the public outcry and response to the harm caused to the dog, as well as the public and social media vilification of Ms. Hirtreiter. A petition and extensive social media commentary was part of a strong public response in the immediate and subsequent aftermath of the events. I pause to note counsel's submission to me of a moment ago, after hearing a morning of submissions, where these types of comments continue. [ 3 ] In court today, all persons have received the fullest information about what happened and why it happened.

In a democratic society, all members of the community and those who appear before this court are entitled to have this case decided on the basis of the fullest information possible. Up to this point, no one has received such information. A fair and impartial justice system is predicated on the court receiving this information and considering it in a fair and balanced manner. I am not permitted to view these events through the lens of an uncontrolled emotion or craft a sentence based on a strong desire for vengeance. The fair and reasonably informed member of the community requires I find a just solution.

Many have been harmed by these events. I must impose a sentence that strives to understand what happened, why it happened, the harm done, and how to prevent it from happening again. The fundamental purpose of sentencing is, amongst other things, to contribute for respect for the law and maintenance of a peaceful and safe society by imposing just sanctions that have certain objectives. [ 4 ] Ms. Hirtreiter was 24 years old when this occurred. She was the second person that day who tried to locate the dog's owners when the dog was found wandering around in the community.

She eventually took the dog home and continued to try and contact his owner. She was unsuccessful. Initially, the evening progressed uneventfully. Ms. Hirtreiter, her four-year-old daughter and the dog had no difficulties. Unfortunately, what started as

an act of kindness did not end in the same way. [ 5 ] Later in the evening, Ms. Hirtreiter consumed some cannabis and fended off the unwanted advances of a neighbour. Her stress level was augmented by the rat infestation in her home, her concern for her daughter's safety, her pending eviction from her home, and her underlying and increasing depression. She suffered a psychotic episode, experienced olfactory hallucinations and delusions. [ 6 ] She seriously injured the dog with a knife, forcing it to swallow several harmful objects, bound its mouth and neck, amongst other things.

Her child was present for some of these acts. These were bizarre and inexplicable acts; more inexplicable by the fact that they occurred in front of her child at some points. [ 7 ] Eventually the police attended. The dog underwent medical and surgical care. Ms. Hirtreiter was immediately certified under the Mental Health Act and remained on a psychiatric unit in hospital for a month. I have reviewed the veterinarian report, the psychiatric assessment, which included reference and discussion of the actual psychiatric medical records from the 15th of February until Ms.

Hirtreiter's discharge a month later, as well as the photographs of the items located inside the young dog. [ 8 ] The injuries caused by Ms. Hirtreiter to the young and helpless dog were severe. The young dog may never fully recover and continues to experience physical and mental issues. The harm and trauma caused to this helpless animal cannot be overstated. It was horrific. [ 9 ] The sentence that I must impose must reflect the community's denunciation or condemnation of this harm. This offence requires a sentence that strongly deters others from committing offences of this nature.

Causing distress to animals is a preventable but usually thoughtless act. A criminal record which can affect both travel and employment prospects, particularly for a younger person, with an extended supervised period in the community under strict conditions can provide strong deterrence for such acts. This is the type of sentence that both the Crown and the defence are proposing to me. [ 10 ] However, the circumstances in this case are unique. Ms. Hirtreiter's specific deterrence is clearly linked to her rehabilitative efforts. Ms. Hirtreiter was suffering from a psychotic episode.

It was the first time that she had ever experienced such a mental health event. She has not suffered one since and has taken great preventative steps for the future. She has also lost the immediate care of both her children as a result of these events. The immediate psychiatric medical treatment in February of 2015 and the subsequent thorough psychiatric assessment by Dr. Jeanette Smith, both provide independent evidence of this psychotic and mental health breakdown. This is not a situation of malingering. [ 11 ] As part of both her specific deterrence and rehabilitation, Ms.

Hirtreiter has engaged in a significant amount of counselling. She has engaged with the community and the therapeutic community to supervise her conduct. Although I would have wished for her to understand that the use of hallucinogenic drugs always run the risk of a psychotic or psychiatric episode, I would have wished that she had ceased using marihuana immediately upon her discharge. But, it has become clear to her within a few short months from her discharge that she must abstain absolutely from the consumption and possession of alcohol and drugs.

She is not going to be able to predict, if she continued to use those substances, when or if such an event could occur again. [ 12 ] I must consider reparations for harm done to the victims and the community in this particular circumstance. Nothing can replace the joy and youthfulness of that dog. He will never regain his same ability of functioning. The only suggestion that can be made is that there is a significant amount of community work service attached to any sentence so that Ms. Hirtreiter is in the community, facing the many obstacles she now faces, due to the public nature of her offence.

And, of course, there is going to be a victim fine surcharge that is imposed. In order to promote her sense of responsibility and to have Ms. Hirtreiter acknowledge the harm done, the community work service and a prohibition with regards to controlling, owning or working with animals is necessary. [ 13 ] The aggravating circumstances in this particular incident deals with the helpless nature of the dog and the severity of the injuries caused to the dog. The other aggravating nature or factor that I consider is the impact of these events on the Westaway family.

The mitigating circumstances that I am also required to consider include the immediate indication of a guilty plea and the discussions between counsel to achieve that result, the immediate acceptance of responsibility, and the tremendous remorse that has been expressed by Ms. Hirtreiter, which I accept as genuine and fulsome. As a mitigating factor, though somewhat attenuated, I accept the mental health circumstances at the time of these events as an attenuated mitigating factor.

It did occur through the voluntary consumption of cannabis; however, given that you have no criminal record and absolutely no other incidents recorded or reported in terms of such events, it would have been unforeseen to you. [ 14 ] In all of the circumstances, I have seriously considered whether the imposition of a custodial sentence would achieve all of these results or all of these factors that I must consider. I do not consider that a custodial sentence in these circumstances would meet all of the objectives of sentencing.

While a custodial sentence in the minds of the public may seem to be the only type of sentence that would satisfy the need and the emotion and the trauma that they have experienced, I am not permitted to impose a custodial sentence in those circumstances. I am only permitted to do so when it is necessary and appropriate in all of the circumstances of the case, including the personal circumstances of the person before me. [ 15 ] In these circumstances I have considered seriously the report of Dr.

Jeanette Smith and, in particular at paragraph 69, her clear statement: This account strongly suggests that when she was assaulting the dog she was misperceiving events probably due to olfactory and visual hallucinations involving the dog and was convinced that the dog was about to attack her daughter and herself. [ 16 ] A little later in the paragraph she writes: There is also no evidence from this account to suggest that she derived sadistic pleasure or satisfaction from her actions. [ 17 ] Ms. Hirtreiter, please stand.

Is there anything you wish to say before I impose sentence beyond what you have said in your letter of apology? [ 18 ] THE ACCUSED: That I’m very sorry for the circumstances of what happened on February 14th, 2015. I wish I could change the past. I wish I had mental help that was more accurate to what I needed at the time. And I'm extremely sorry to the family of Ryder. [ 19 ] THE COURT: Thank you.

Pursuant to s. 89 of the Offence Act I suspend the passing of sentence and impose a period of two years' probation with the following conditions: [ 20 ] You are to keep the peace and be of good behaviour and appear before the court as and when required to do so by a justice. [ 21 ] You are to provide your current residential address -- excuse me, I want to change that. You are to report in person to a probation officer, located at 102 - 14245 - 56th Avenue in Surrey, British Columbia by 3:00 p.m., November the 29th, 2016, and thereafter as and when directed.

That will be for the entire two-year period. [ 22 ] You shall provide your probation officer with your current residential address and telephone number and not change that address or telephone number without prior written notification to your probation officer. [ 23 ] You must not possess, nor consume any alcohol or any drugs as defined by s. 2 of the Controlled Drugs and Substances Act unless prescribed by a licensed physician. [ 24 ] You must attend for, participate and complete any counselling or counselling programs as directed by your probation officer, which may include your ongoing and current counselling programs. [ 25 ] You are to not have any contact directly or indirectly with Ryan Westaway or any persons known to you to be members of Ryan Westaway's immediate family. [ 26 ] You are to have no contact with Ryder or any other animal, pet or dog that you know to belong to the Westaway family. [ 27 ] You are to perform 50 hours of community work service at the direction of your probation officer. [ 28 ] You are not to possess, own or control any animals.

This may seem like one of the more onerous conditions for you, but in the interests of the principle of sentencing with regards to denunciation, as well as deterrence, as well as a recognition of the harm done to the Westaway family and the community, I am ordering that you are not to possess, own or control any animals. And in addition, pursuant to s. 24(3) of the Prevention of Cruelty to Animals Act of British Columbia, you are prohibited from owning or having custody or control of an animal for the rest of your life. [ 29 ] I am required to impose the victim fine surcharge. I am sorry, Ms.

Stark, I forget off the top of my head the time required to pay? [ 30 ] MS. STARK: We're asking for six months, please. [ 31 ] THE COURT: You have six months from today's date to pay the victim fine surcharge. [ 32 ] Anything further? [ 33 ] MR. SIMPKIN: No, Your Honour. The Crown directs a stay of proceedings to Count 1.

[ 34 ] THE COURT: All right, thank you. And, Madam Registrar, you should be aware that the record should reflect that the guilty plea was to Count 2, pursuant to s. 24(1) of the Prevention of Cruelty to Animals Act . [ 35 ] MS. STARK: Thank you, Your Honour. I thank my friend. [ 36 ] THE COURT: Thank you, Ms. Stark. Thank you, Mr. Simpkin. Thank you, Ms. Hirtreiter. Thank you, Mr. Westaway. [ 37 ] Mr. Simpkin and Ms. Stark, before you leave, I am ordering that the report of Jeanette Smith contained at tab 4 of the Crown's materials provided to me be sealed. [ 38 ] MR. SIMPKIN: Thank you, Your Honour. [ 39 ] MS. STARK: Thank you, Your Honour. (REASONS FOR SENTENCE CONCLUDED)