R. v. Cappon, 2018 BCPC 138

Citation: R. v. Cappon 2018 BCPC 138 Date: 20180523 File No: 215911-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. ALYSSA MARIA CAPPON REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: D. Simpkin Counsel for the Defendant: C. Sicotte Place of Hearing: Surrey , B.C. Date of Hearing: September 29, 2017; October 24, 2017; April 30, 2018 Date of Sentence: May 23, 2018

INTRODUCTION [ 1 ] Alyssa Maria Cappon is being sentenced on two sets of charges. Simply stated, both sets of charges have to do with kidnapping and torturing two individuals. The charges and statement of facts are set out below. [ 2 ] The first incident (‘The Langley Incident’) took place in March 2016, after which she was arrested and released back into the community. [ 3 ] In June, while back in the community on bail for the Langley charges, the second incident (‘The Maple Ridge Incident’) occurred. CHARGES A.

The March 2016 Langley Incident: Information – 215911 [ 4 ] The accused has only pled guilty to the unlawful confinement of David Chynoweth as set out below: Justin Keith KOOYMAN and Alyssa Maria CAPPON, on or about the 28 th day of March, 2016, at or near Langley, in the Province of British Columbia, without lawful authority, confined David Chynoweth, contrary to Section 279(2) of the Criminal Code . B. The June 2016 Maple ridge Incident: Information – 95981 [ 5 ] The accused has also pled guilty to the unlawful confinement of Michael Yanish as set out below.

Alyssa Maria CAPPON, Jason Carl LINDGREN and Dustyn John Michael WALD, from the 2 nd day of June, 2016 to the 4 th day of June, 2016, inclusive, at or near Maple Ridge, in the Province of British Columbia, without lawful authority, confined Michael Yanish, contrary to Section 279(2) of the Criminal Code . THE FACTS A. Facts – The March 2016 Langley Incident [ 6 ] The Crown summarized the facts as follows. On March 27, 2016 the accused and two masked individuals entered the home of the victim, Mr. Chynoweth. He was assaulted with weapons and taken out of his house.

He was placed in the trunk of his vehicle, a blue Cavalier. He was then transported to a cellar in a house; he was bound with duct tape and kept there overnight. At some point in time while being kept captive at that house, he believes a firearm was placed in his mouth. While it is uncertain as to who might have placed such an item in the accused’s mouth, it appears quite clear that the accused was ‘the main player’. [ 7 ] All of this was done in an attempt to get money from Mr. Chynoweth. As he did not have any money to give, the accused forced him to sign over the ownership papers for his Cavalier.

He was then placed in the trunk of the car and the accused drove to an insurance agent to make sure the transfer of ownership for the vehicle took place. As Mr. Chynoweth was confined in the trunk of his own vehicle, he managed to write notes on some paper towel and push them through an opening in the trunk. The notes read: “Call police held captive in Blue Cavalier”. He was taken out of the trunk and went into a Canadian Tire with the accused. Defence counsel points out that Mr. Chynoweth is told by the accused to ‘get lost for a few minutes’, and that is when Mr.

Chynoweth has someone call the police. [ 8 ] The police immediately attended and located the accused standing in a line, apparently unaware that the victim had left her immediate presence. [ 9 ] She was in a check-out line, waiting to buy a large pack of zap straps, a large lock, a roll of tape and some child proof locks. [ 10 ] The victim had physical injuries. He had scrapes, a black eye, and parts of his eyebrow were missing as a result of duct tape being ripped off his face. [ 11 ] The accused was released on a significant $5,000 bail.

While no deposit of cash was required, there were eight conditions for her release. Relevant for our purposes is the fact that she was bound by a court order to: keep the peace and be of good behavior , not be in possession of any weapons, and not be outside her residence between 10:00 PM and 7:00 AM. B. Facts – The June 2016 Maple Ridge Incident [ 12 ] The facts are agreed upon and set out in an ‘Agreed Statement of Facts’. I repeat them in full here, so as to completely describe the Maple Ridge incident.

AGREED STATEMENT OF FACTS for Alyssa CAPPON Pursuant to s. 724(1) of the Criminal Code of Canada , R.S.C., 1985,

Chapter C-46, and amendments thereto, the following facts are hereby admitted at the sentencing of this matter: GENERAL 1. The facts which comprise these offences occurred over the course of three days, commencing June 2nd, 2016 and concluding June 4th, 2016 (“OFFENCE DATES”); 2. All events occurred within the Province of British Columbia;

RESIDENCES 3. During the time frame when these events occurred: a. Michael Yannish [sic] (“the VICTIM”) and his girlfriend Agnieszka Rukasz (“NISH”) were renting an apartment located at 252-6758 188 th Street in Surrey (“SURREY APT”); b. the Accused, Alyssa Maria Cappon (“CAPPON”) was residing in a farmhouse at 23305 Old Yale Road in Langley (“FARMHOUSE”); and c. the co-Accused, Jason Carl Lindgren (‘LINDGREN”) and Dustyn John Michael Wald (“WALD”) were residing in a duplex rancher at #1- 21185 Dewdney Trunk Road in Maple Ridge (“HOUSE”); DAY #1 4.

On the morning of June 2, 2016, the VICTIM and NISH were visiting their friend, Carol, in Langley (“CAROL’S”), when the VICTIM received a text from CAPPON wanting to meet; 5. The VICTIM knew CAPPON as she had supplied him drugs in the past; 6. NISH knew CAPPON as she had supplied her drugs in the past and had also gone to high school with her a number of years earlier; 7. CAPPON offered to pick up the VICTIM and NISH from CAROL’S and give them a ride home to the SURREY APT; 8. In the morning, CAPPON arrived at CAROL’S in her Blue Dodge Dakota Truck (“the TRUCK”) to pick up the VICTIM and NISH; 9.

LINDGREN was in the passenger seat of the truck when CAPPON arrived at CAROL’S; 10. The VICTIM and NISH had never met LINDGREN before and were introduced to him as ‘Jay’; 11. The VICTIM and NISH got into the TRUCK expecting to be driven to their SURREY APT, but along the way, CAPPON advised that they had to make a quick pit stop, and she proceeded to drive them to her FARMHOUSE; 12. Upon arrival at the FARMHOUSE, a second car arrived with WALD and another male named ‘Troy’; 13. The VICTIM had never met WALD before, however, WALD was familiar with NISH having attended school together a number of years earlier; 14.

CAPPON talked to LINDGREN and WALD, and then remained outside while LINDGREN, equipped with a knife, dragged the VICTIM into the FARMHOUSE where he and WALD duct taped the VICTIM’s arms and legs and took his money, wallet, phone, drugs and keys; 15. The VICTIM described the knife which LINDGREN held as ‘Rambo-style’ knife; a big long knife with one jagged edge (“RAMBO KNIFE”); 16. The VICTIM was taken into the basement of the FARMHOUSE where he was questioned by CAPPON about the drug money he owed her; 17.

Over the course of the next number of hours, the VICTIM was confined in the basement of the FARMHOUSE and received: a. punches and kicks to the body from CAPPON, WALD & LINDGREN; b. numerous cuts/jabs with knives on his body from CAPPON, WALD and LINDGREN c. a sledgehammer to the knee and ankle by WALD; and d. a stab wound in the shoulder by WALD (“SHOULDER WOUND”); 18. The SHOULDER WOUND was significant enough to cause bleeding and the VICTIM was given crazy glue to try and seal it back together; 19.

While in the basement: a. the VICTIM heard LINDGREN and WALD discussing CAPPON and one of them stated: ‘I can’t believe we were going to rob this bitch. Turns out she’s pretty cool.’ b. CAPPON gave the VICTIM’S keys to WALD and ‘Troy’ and instructed them to go and take items from the SURREY APT; 20.

Video surveillance subsequently seized from the SURREY APT, confirms that: a. at approximately 11:09 hours, WALD and ‘Troy’ entered the lobby and used the elevator to go up to the VICTIM’S floor; b. at approximately 11:51 hours, WALD and ‘Troy’ enter the elevator from the VICTIM’S floor and return to the lobby, exiting

the building with bags and containers that they did not have upon initial entry to the building; 21. Later in the evening, CAPPON drove the VICTIM and NISH back to the SURREY APT; 22. The VICTIM noted that the SURREY APT had been ransacked and a number of the VICTIM’s items were missing, including: a. his baseball cap collection; b. his Versace sunglasses; c. a number of his watches and d. jewellery; 23. CAPPON helped pack up some clothes for NISH and then CAPPON and NISH left the VICTIM at the SURREY APT; 24.

Before leaving the SURREY APT with NISH, CAPPON instructed the VICTIM not to go anywhere, that they had NISH and that they would be back for him in the morning; 25. CAPPON returned with NISH to the FARMHOUSE where they spent the night; Day #2 26. Later in the morning of June 3 rd , 2016, CAPPON and NISH returned to the SURREY APT, but the VICTIM was not there, as he had gone out in search of drugs; 27. Once the VICTIM returned to the SURREY APT, CAPPON was furious, indicating she would have to tell LINDGREN that he had left, and then discussed how the VICTIM was going to pay back his drug debt to her ; 28.

CAPPON directed ‘Troy’ to drive the VICTIM around town to find things to steal to pay back his debt; 29. ‘Troy’ and the VICTIM left and made unsuccessful attempts to comply with CAPPON’s instruction; 30. Eventually, CAPPON instructed ‘Troy’ to take the VICTIM to WALD and LINDGREN’s HOUSE; 31. Later in the day, CAPPON and NISH used the TRUCK to move the VICTIM’s couches and a television from the SURREY APT to the HOUSE. Once CAPPON and NISH arrive at the HOUSE with the couches and television, others help to unload the items into the HOUSE; 32.

Prior to CAPPON’S arrival at the HOUSE that day, the VICTIM had been left alone by WALD and LINDGREN. At one point, LINDGREN had a discussion with the VICTIM about a potential grow operation they could rob; 33. Once CAPPON arrived at the HOUSE, CAPPON, WALD and LINDGREN had a conversation in the kitchen and following that conversation, the mood in the house changed; 34. The VICTIM was taken into LINDGREN’S room and while seated in a chair, CAPPON stabbed him in the left leg with a RAMBO KNIFE, as LINDGREN and WALD stood nearby, making sure he didn’t get up; 35.

The VICTIM’s leg started to bleed and in an attempt to stop the bleeding he: a. tried wrapping it with a towel; b. ripped off a sock and tied it around his leg; and c. eventually wrapped his leg with toilet paper and a garbage bag; 36. The VICTIM was later taken into the bathroom where WALD: a. punched him a number of times in the face; b. used pliers on his nose; and c. tried to pull off his fingernail with a pair of pliers; 37. The VICTIM was left to sleep on the bathroom floor; Day #3 38. On June 4, 2016, CAPPON, LINDGREN, WALD, NISH and the VICTIM woke up at the HOUSE; 39.

CAPPON wanted the VICTIM to open a Visa debit account and consequently, she drove herself, WALD, NISH and the VICTIM to the CIBC at 19130 Lougheed Highway in Pitt Meadows (“the BANK”); 40. CAPPON, WALD and NISH remained outside while the VICTIM went into the BANK; 41. Once out of sight of CAPPON and WALD, the VICTIM asked the teller to call the Police;

42. At approximately, 12:30 hours, the Police arrive at the BANK and took the VICTIM to the RCMP detachment; 43. When CAPPON, WALD and NISH saw the Police enter the BANK parking lot they initially hid and then eventually returned to the FARMHOUSE; 44. Meanwhile, the VICTIM was taken back to the RCMP detachment where he provides a statement and had photos taken of his injuries; 45.

Attached hereto and marked as Exhibit “A” is a photo book (“the PHOTO BOOK”), which includes at Tab A, the following photos of the injuries sustained by the VICTIM: #1 – cuts and bruises to the VICTIM’s right and left leg; #2 – knife cuts on right leg; #3 – sledge hammer injury to left knee; #4 – stab wound to left leg while wrapped in toilet paper and garbage bag; #5 – stab wound to left leg exposed; #6 – SHOULDER WOUND; #7 – facial injuries, including cuts to nose, left black eye, cut above right eye; and #8 – fingernail injury from pliers; 46.

At approximately 16:30 hours the RCMP attend at the HOUSE to arrest LINDGREN, however, he was not there; 47. At the time of these offences, LINDGREN was on the Electronic Monitoring Program (“EMP”) as part of his release on a

Section 752 Recognizance. Included in his release conditions were requirements that: a. he wear an electronic monitoring bracelet (“EMB”); b. that he reside at the HOUSE; c. that he abide by an area restriction, which prohibited him from entering within the area bounded by the Fraser River on the north, the Canada/USA border to the south, 176 th Street to the east and Highway 91 and Highway 99 to the west, except for employment, exercising access to his children and family visitation permitted by his bail supervisor; 48.

At approximately 19:11 hours, the EMP received an alert on the system that LINDGREN had entered his area restriction; 49. At approximately 19:18 hours the EMP received an alert that the EMB had been removed; 50. At approximately 23:37 hours the RCMP attend at the FARMHOUSE and arrest CAPPON and WALD; Search at FARMHOUSE 51. On June 5, 2016 a search warrant was executed at the FARMHOUSE.

Tab B of the PHOTO BOOK contains photos of the FARMHOUSE and items of interest that were observed, seized and analyzed by the RCMP and Forensic Identification Specialists including: #1 – FARMHOUSE and driveway; #2 – entrance to the basement of the FARMHOUSE #3 – stairway to the basement concrete room and entrance to the carpeted room; #4 – RAMBO KNIFE in concrete room (marker 15 in photo 3) which had: i. WALD’s DNA; and ii.

VICTIM’S DNA on the blade #5 – carpeted room in basement with exhibit markers #6 – sledgehammer in carpeted room (close up of marker 18 from photo #5) #7 – garage area beyond carpeted room #8 – close up of duct tape which had: i. CAPPON and LINDGREN’S fingerprints ii. VICTIM’S DNA

52. On June 5, 2016 a search warrant was executed on the TRUCK which was parked at the FARMHOUSE. Tab C of the PHOTO BOOK contains photos of the TRUCK including: Photo #1 – bed of the truck with CAPPON’S pink purse and a bag of clothing; #2 – close up of CAPPON’s purse and contents; 53. On June 5, 2016 a search warrant was executed on the HOUSE.

Tab D of the PHOTO BOOK contains photos of HOUSE and items of interest that were observed, seized and analyzed by the RCMP and Forensic Identification Specialists, including: Photo #1 – the VICTIM’s baseball cap collection displayed in the kitchen; #2 – the VICTIM’s wallet and watches found in the kitchen drawer; #3 – box of knives, ammunition and Gorilla glue in the kitchen cupboard, which had: LINDGREN’S DNA on the black sheath & camo handle knives, #4 – pliers in drawer under the bed in the bedroom which had the VICTIM’S DNA #5 – BRNO Model ZH20 12 gauge multi barrel shotgun found in the closet of the bedroom which had LINDGREN’ s DNA on the grip and barrel; and #6 – chair in the bedroom which had the VICTIM’s DNA 54.

On June 5, 2016 a consent search was executed on the SURREY APT where the fingerprints of CAPPON were located on a chess board found askew on an office chair in the main room; 55. On June 6, 2016, LINDGREN’s EMB was located on the side of the road by 96 th Avenue and Highway #15, in Surrey; 56. On July 6, 2016 LINDGREN was located and arrested for these offences; 57. Over the course of the OFFENCE DATES, all of the individuals involved were using non-prescription drugs . THE CROWN POSITION ON SENTENCE A. The Langley Incident [ 13 ] With respect to the Langley incident, the Crown seeks a 3-year jail sentence.

They acknowledge that the defendant has taken “exhaustive steps to rehabilitate herself” and has made “enormous strides”. Nonetheless, the Crown submits that denunciation and deterrence must be the guiding sentencing principles and emphasizes that the crimes are “almost barbaric in the level of violence used.” I agree with each of these submissions. [ 14 ] The Crown points out that the crime is not transitory. It took place over a period of time, where the victim was moved from one location to another. The motive for the crime was for profit. Further, that Ms.

Cappon seems to be not only the one and only benefactor from the crime, but also she appears to be the ‘ringleader’. [ 15 ] As for mitigating circumstances, the Crown once more acknowledges the significant rehabilitative steps that the accused has taken. They also submit that this is not an ‘early guilty plea’. In this case, the victim had to testify at a preliminary inquiry.

To be balanced with this submission is the defence submission that “while not particularly early, they were certainly well before any Supreme Court trials were conducted taking up at least two weeks of court time, and the victims having to testify yet again…even the five-day prelim scheduled before this court was reduced down to one witness who wasn’t even cross examined before the matter ended.” [ 16 ] The Crown submits that the Maple Ridge incident is a “barbaric offence with Ms. Cappon directing the other participants.” From the Crown’s perspective, the accused is the “operating mind”. I agree. B.

The Maple Ridge Incident [ 17 ] With respect to the Maple Ridge incident, I point out that the case is from another court house. It was transferred here and the sentencing Crown has received guiding instructions from the originating Crown to seek a sentence of 2 years jail. The Crown submits the sentences should be consecutive, thus submitting that essentially a global sentence of 5 years is warranted for these two crimes. [ 18 ] The Crown submits that this crime was very violent. It took place over three days.

The defendant stabbed the victim and she was one of the core perpetrators who was involved in the torturing of the victim. This stabbing is an additional aggravating factor. At one point, the perpetrators tried to pull out the victims fingernails with some pliers. [ 19 ] In

summary, the Crown describes the actions of the perpetrators, Ms. Cappon being one of them, as ‘medieval’. The victim was tortured for profit, and Ms. Cappon seems to be directing some of the movement of the individuals involved, and appears to be a full and active participant. [ 20 ] As far as mitigation, once more the Crown acknowledges that there is a guilty plea but points out that it is not an early guilty

plea. Ms. Cappon had been ordered to stand trial on this matter. THE DEFENCE POSITION ON SENTENCE [21] Initially the defence position was somewhat vague, or unclear. However, newly retained counsel made Ms. Cappon’s positionvery clear. The originally stated position of the defence was that the court could grant a significant credit to Ms. Cappon for the time shehas been on bail. It was originally agreed that a jail sentence is warranted when one considered the offence. However, it was implicitlyargued that the sentence could be substantially less than the one being sought by the Crown.

The defence position is now much morefocused. The defendant at the completion of the sentencing process argued that: the court should give credit for 22 days of actual time incustody in the amount of 33 days, that “the accused could get full credit for the 17½ months spent on house arrest bail (June 22, 2016 toDec 7, 2017)” resulting in a submission for a sentence of a “further 90 days in jail to be served intermittently and 3 years probation”. Atrisk of oversimplifying the defence position, the argument is that Ms. Cappon’s performance since the time of arrest is exceptional.

Anintermittent sentence would allow her to keep doing well in the community but would also reflect the grievous nature of the offences. THE LAW A. Statutory Framework [22] I am guided by Madame Justice Bennett’s useful

summary of the statutory framework as found in paragraph 15 of the R. v.Voong, 2015 BCCA 285 , [2015] B.C.J. No. 1335 decision by the British Columbia Court of Appeal. [15] The relevant Criminal Code provisions relating to the principles of sentencing, probation orders, and conditional sentences, alongwith the principles of sentencing found in the CDSA, all provide a framework for these appeals. These provisions are set out below forconvenience: Criminal Code Purpose and Principles of Sentencing 718.

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. … 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender… (

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

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. B. Crown Authorities [23] R. v. Lebrun, 2011 BCCA 42 is a case where the accused appealed a sentence of 4½ years imprisonment for unlawfulconfinement and 1½ years consecutive for the use of a firearm while committing unlawful confinement. In Lebrun, the victims wererestrained with duct tape, locked in a bathroom and threatened with a gun.

The accused was 43, had a dated criminal record, strongfamily supports and employment. The British Columbia Court of Appeal found that “the length of time that the victims were confined,the violence that was perpetrated upon them, as well as the threats to their lives were all factors that pointed to a longer sentence”, andconcluded that the sentence of 6 years was fit. I note that Lebrun was an early guilty plea. [24] I find Lebrun to be quite useful as the court, at paragraphs 8 to 45, survey other cases to do with unlawful confinement. Atparagraph 28, Justice Garson notes that in R. v.

N.P.D., 2002 BCCA 304, a 19-year-old with a serious related record was sentenced to 5½years after pleading guilty to a home invasion type offence. The accused had tied up the occupants of the house with zap straps, whileone intruder stood guard over the occupants with a gun. The total incident lasted about 15 minutes. The court concluded that the

appropriate range for home invasion type of offence is 5 to 8 years. [25] Other cases referred to were: R. v. Bernier, 2003 BCCA 134, where the accused broke into a home and struck the occupantwith a gun and stole some money and received 6 years. I acknowledge that Bernier provides significant guidance to trial judgesconcerning the use of ‘ranges’ in the sentencing process. [26] In R. v. Leggo (2003), 2003 BCCA 392 , 184 B.C.A.C. 150 the accused, armed with a wooden bat and imitationrevolver, kicked in a door, hit the occupant, tied up the victim with duct tape and kicked him. They took some drugs and cash.

Theaccused was 32, with a lengthy record, and received a sentence of 9 years and 10 months. [27] R. v. McCann, [2011] B.C.J. No. 2207 is another Crown authority. In McCann, the accused was convicted for waiting outside aresidence while his co-accused duct-taped the victim and assaulted him. The accused was found guilty of abetting the assaultivebehaviour and confinement, and received a sentence of 2 years less a day. I note, as does defence in their submission, that McCanninvolved convictions by a jury after a full trial. [28] R. v. Eakins, [2016] B.C.J.

No. 1026 is another British Columbia Court of Appeal case where the accused entered a home andtried to extort cash from the occupant. A television, money, and jewelry were taken. The accused was 39, pled guilty to robbery andunlawful confinement. She had a lengthy prior related record, but played a less extensive role in the robbery. She had taken some verypositive rehabilitative steps since the offence date. She received a 2-year sentence.

The judge balanced her positive antecedents with hersubstantial record, role in guarding, terrorizing, and threatening the victims, and the long lasting traumatic impact on the victims. Oncemore, I acknowledge the important submission by defence counsel that in that case, the two co-accused had extensive criminal records,which is very different from Ms. Cappon’s situation where she is before the court with no criminal record. C. Defence Authorities and Materials [29] The defence agrees that the law requires a jail sentence.

However, it is strongly submitted that the accused needs to get asubstantial amount of credit for the extraordinary rehabilitative steps she has taken. [30] R. v.

Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089 is relied upon as authority for the proposition found at paragraph58, where the court wrote: “There will always be situations that call for a sentence outside a particular range: although ensuring parity insentencing is in itself a desirable objective, the fact that each crime committed in unique circumstances by an offender with a uniqueprofile cannot be disregarded.” I accept that I am able to sentence outside what might be considered a range, as long as the sentenceproperly considers the principles and objectives of sentencing. [31] R. v. Tse, [2010] B.C.J.

No 1769 is offered as authority for the above proposition. I will not get into the details of the Tse case,except to say that I agree with the Honourable Justice Davies’ approach, as summarized in paragraph 14, referring to paragraphs 36 and37 in the case of R. v. Downes, (ON CA), [36] Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In theend, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge.

Thatfactor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in agiven case. [37] In

summary, credit for pre-trial bail conditions should be approached in the following manner: • Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor. • As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence. • The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an errorin principle. • The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge andthere is no formula that the judge is required to apply. • The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest;the stringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships,employment and activity. • Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply thejudge with information as to the impact of the conditions.

If there is a dispute as to the impact of the conditions, the onus is on theoffender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code. [32] In Tse, at paragraph 15, Justice Davies cites the BC approach to this issue: [15] The approach in Downes to the exercise of judicial discretion in determining whether to allow credit for time served on bailconditions has been considered and applied in British Columbia in R. v. Markovitch, 2008 BCSC 1545 . It was also consideredby our Court of Appeal in R. v. Cuthbert, 2007 BCCA 585 [Cuthbert], and more recently in R. v.

Nghiem, 2009 BCCA 170 [Nghiem]. [33] I agree with the defence submission that time on bail is mitigating and must be taken into account in the sentencing process. Ialso agree with the principle found in R. v. Hilderman, 2005 ABCA 249 , [2005] A.J. No. 977 from the Alberta Court of Appealat paragraph 20, where they write, “Any rehabilitation during pre-trial house arrest is excellent for society and an objective insentencing. That does not mean a sentencing judge cannot still impose the sentence he or she deems necessary to comply with all the

sentencing principles, including denunciation at the time of the sentencing.” [ 34 ] I accept that there is no mathematical formula as far as ‘reducing’ the length of any sentence. However, I acknowledge Ms. Cappon has been very successful in her recovery. She has done more than most. (

i) Support in the Community [ 35 ] The accused has significant supports. There were approximately 24 letters of support filed on her behalf. [ 36 ] Her father and mother are extremely supportive. They know what is needed for the accused’s recovery.

They believe that she has great potential to help others with her background. [ 37 ] Her sponsor says that she “can speak very highly of Alyssa and see she has integrity, honesty and a firm desire to help others and live a meaningful and purposeful life in regards to career, family and positive friendships and influences.” [ 38 ] Other letters describe the accused as extraordinary, having helped the lives of so many.

She is described as genuine, supportive and loving. [ 39 ] One writer describes that “I have never seen her be violent towards anyone and she has not in any way been a cause for concern for anyone’s safety. She is the kindest girl I know.” [ 40 ] A friend says that she witnessed the accused’s “compassion, empathy, and desire to help those around her.” [ 41 ] One supporter says that “as for her charges, I do not believe her to be a violent person and have never, even as a child, seen that in her.

I find it very difficult to believe any of those allegations against her.” [ 42 ] In short, she has friends and family that believe in her. It is equally true that the letters of support leave the distinct impression that the writers are aware of at least some of the details of her crimes. I appreciate the defence submission that their support, in spite of the allegations, shows how much support she really has. (ii) Rehabilitative Steps Taken while on Bail [ 43 ] The accused has done remarkably well on bail.

Within weeks of her arrest, she entered into the New Vision Sullivan House Society, a residential recovery program. The program facilitator from there said that she had great potential to maintain a sober lifestyle. As of November 7, 2016, it was confirmed that she was six months clean and sober.

She was described as “a highly motivated individual who strives to better herself in all aspects of her life.” The director of the recovery centre confirmed that her recovery has been extremely positive. [ 44 ] Within a few months of these charges the accused contacted Langley Community Services Society and sought the assistance of a clinical counsellor. (iii) Rehabilitative Potential [ 45 ] The accused is working on a degree in psychology with a high ‘A’ average, has completed a Counselling Certification Program, and has training in non-violent crisis intervention as well as basic counselling for addictions.

On her CV she indicates that her career objective is “To work in the addictions and mental health field providing support and counselling to people in need.” Listed first under the heading “Highlights of Qualifications” is “Extensive experience in conflict resolution and mediating disputes.” (iv) While on Bail [ 46 ] I note that she was originally released on the Langley charges in March 2016. While on that bail she committed the Surrey crimes. So, at least during that time period, she did terribly on bail.

Essentially, she committed further violent offences while on bail. [ 47 ] On June 22, 2016, she was released on bail again. She resided at New Visions Society for a substantial time period before moving back in with her family. During this time period she has done very well and completed significant counselling. [ 48 ] I acknowledge that she was in a car accident in 2016, and needs some further physiotherapy and assistance for some injuries she sustained to her leg. (

v) Private Pre-Sentencing Report [ 49 ] In this case, the accused volunteered to have a private report prepared. There has been reference to the document dated November 30, 2017 as a “psychological assessment”. However, I note the author identifies himself as a “Certified Trauma Specialist” and the document is labelled as “Pre-Sentencing”. Much of the information provided to the author was directly from the accused. The author who is a registered clinical counsellor prepared the report. Unfortunately, the report did not adequately address some concerns the court had.

I specifically was interested in having an understanding of how someone with the accused’s background and supports could commit such egregious acts against fellow human beings. I was concerned that without having complete and full information that I would not be able to ascertain her risk for re-offending. [ 50 ] Crown counsel contends that since much of the information in the report has not been corroborated, very little weight should be attached to much of its contents. I agree.

Nevertheless, it does contain some useful background information. [ 51 ] The report from pages 12 to 16 covers her early developmental states. She is described as being well behaved until approximately age 13. The writer opines that her father losing his temper at her when she was caught drinking alcohol caused PTSD symptoms. She was grounded for this incident and had to write a 100 page essay on “alcoholism”, which was graded by her mother,

who was a counsellor. When she was switched from schools, she ran away from home. During her time on the streets she says that she was witness to significant amounts of violence. The writer was asked not to raise this with Ms. Cappon’s parents, as she did not want to unnecessarily hurt the relationship with her parents that have taken so long to mend. [ 52 ] Between the ages of 16 to 18 she was in a supportive, clean and sober living environment.

Between 18 and 19 she completed a 12-step rehab program and self-reported that she was diagnosed with PTSD and Bi-Polar II Disorder. [ 53 ] From 19 to 23 she remained clean and sober and pursued her career in addictions. From 23 to 25 she was in a relationship with a man whom she believed manipulated her. [ 54 ] She told the author on page 16 that “following her arrest and completing the detox cycle in prison that she recognized the consequences of her previous self-destructive patterns, and that she was now ready for real and significant changes.

She reported feeling disgusted by what she had done and how she had hurt others.” [ 55 ] The author concluded that “[the accused] has made significant changes in her life because of the learning from this incident” and that…“she now has a deep comprehension of the inhumane conduct exhibited and allowed to occur, prior to her arrest.” With reference to “what has happened in the past”, the accused said it has created “a learning experience”. [ 56 ] The problem that I have with the report, as well intentioned as it was, is best expressed by the forensic psychiatrist who authored the report that I examine later in these Reasons.

At page 2 of that report, in referring to the private pre-sentencing report Dr. Riley writes: Mr. Block is a registered clinical counselor who would not typically be considered sufficiently qualified to provide an expert opinion to the Court with respect to matters of psychiatric diagnosis, recommendations for treatment, the assessment of psychopathy, or the assessment of and management of risk. (vi) The Psychiatric Assessment [ 57 ] There is a psychiatric assessment prepared by a forensic psychiatrist. The three questions as written by the Doctor that were considered are: 1. The effect of Ms.

Cappon’s mental health on her state of mind at the time of the offences. 2. Is she psychopathic? 3. Risk of future violence/offending. [ 58 ] The report recounts a basic version of events that “On both occasions the male victims were bound and confined, apparently due to unpaid debts owed to Ms. Cappon who had supplied them with drugs.” She told Dr.

Riley that her two co-accused at the time of the June 2016 offence were with her “for her protection while she was involved in dealing drugs.” More specifically, she advised the doctor that “she had been the victim of robbery on several occasions while she was dealing, including one occasion when she was threatened with a firearm. Ms. Cappon minimized the extent of her drug dealing....” [ 59 ] Her addictions history is confirmed and Dr. Riley writes: Ms. Cappon’s addiction disorder does not in itself explain why she committed the current offences.

These very likely resulted in the victims fearing for their lives and although Ms. Cappon appeared to be aware of the seriousness of her offences she was unable to explain why they had occurred, and that her own experience of being a victim of violence made it even more difficult for her to explain how she could have deliberately inflicted harm upon another person. As best she could recall Ms.

Cappon’s recall of her mental condition at the time of her offences does not indicate that she was experiencing any symptoms of a mental illness that could explain her behaviour. [ 60 ] Even though he did not observe any signs of a disorder, the Doctor concluded that “On balance, it seems likely that Ms.

Cappon has suffered from a mood disorder that falls within the scope of a bipolar disorder, but the extent to which this can be attributed to her drug use as opposed to an ongoing mental health disorder remains unclear.” [ 61 ] As for psychopathy, the test that is considered to be the “gold standard” for assessing for psychopathy was not an available assessment tool due to insufficient information. [ 62 ] It seems clear that if she stays away from substances that she is at low risk to reoffend. It was equally clear that “There was insufficient information to complete a comprehensive assessment of Ms.

Cappon’s personality…It also appears that besides the offending behaviour, Ms. Cappon appears to lack many indications of a personality disorder due to a lack of presence of any psychopathic traits.” (vii) The Pre-Sentence Report – Dated March 5, 2018 [ 63 ] The probation officer, Ms. Perry, has provided an excellent, detailed pre-sentence report. As a starting point, the report confirms that the accused is 27, comes from a stable home environment. Her parents have been married for 30 years. She has two brothers. All in all, the writer says she has a “very good childhood”. By Ms.

Cappon’s account, things dramatically changed when she became a teenager. Between the ages of 13 and 17, she became a drug addict. By the age of 17, she completed a recovery program, and after a brief stay with her parents, she bought her own condo. [ 64 ] Ms. Cappon’s father told the report writer that “she had a normal, healthy upbringing but that peer pressure and negative associates were problematic in her adolescent years.” [ 65 ] As for education, Ms. Cappon went back to school after dropping out of grade 10. She graduated high school, and earned her

credentials as an addictions counsellor from Vancouver Community College. She is currently working on getting her Bachelor of Arts in psychology. [ 66 ] 2014 was another turning point in Ms. Cappon’s life. The report indicates that “Ms. Cappon relapsed which led to her descent into active addiction and her criminal charges…she made the decision to start drinking alcohol and quit her job that day.

She expresses she had no intention of using drugs at the time, however, by the next day she was using crystal meth.” Until her incarceration she used methamphetamine and heroin. [ 67 ] The pre-sentence report, in terms of helping me understand how serious Ms. Cappon is regarding her recovery, is very positive. She has been on bail since June 2016 without issues. The author writes that “Ms. Cappon states that she was in the throws [sic] of addiction when she committed the offences.

She was surrounded solely by drug users, was living in “constant” chaos and was “so high I didn’t care.” She explains that when she is using she is “demonically ” possessed.” (viii) Miscellaneous Submissions of Defence [ 68 ] Mr. Sicotte ably argued his clients position. His passion and professionalism were apparent. I do not wish to repeat the many submissions made on Ms. Cappon’s behalf. However, there are a few comments that I would like to make. a.

The Degree of Confinement/Level of Competence [ 69 ] I understand length or duration of the confinement needs to be considered in assessing what an appropriate sentence might be. I also appreciate that this is only one feature of the analysis. [ 70 ] Defence counsel submits that there was certainly, at one stage, actual confinement of these two victims, but viewed as a whole, argues it was minimal. There is no doubt confinement was not minimal. One victim was taken from the bed he was sleeping in and locked in the trunk of a car. The other was tied down and beaten in a bathroom, amongst other things.

It is true that there are features to the confinement that are bizarre. For example, one victim was told essentially to ‘disappear for a few minutes’ while the accused continued with some shopping. Another victim was sent into a bank unescorted. [ 71 ] I agree that in both cases the accused was not very smart if they were trying to maintain control over the victims. If the submission is that incompetence is mitigating, I do not fully agree. Just because both victims were able to call the police due to the incompetence of the accused, does not lessen her moral blameworthiness.

However, I appreciate that there were breaks in the confinement. Perhaps the victims still ‘felt as if they were confined’. Perhaps at moments they did not feel as if they were confined. The law is clear that all confinement need not be purely as a result of violence. A perceived threat of violence can also make people feel confined. [ 72 ] As for ‘not knowing even how to put on zap straps properly’, I appreciate that the submission is meant to illustrate that Ms. Cappon is not some sort of hardened criminal with zap strap skills.

I pause to note, however, when arrested she has locks, duct tape and more zap straps with her that she is about to purchase. As well, she had other people with her who she brought along, for her assistance. b. Drug Culture [ 73 ] Defence points to one of the victims’ reluctance to call the police as an indicator that addicts make bad decisions and sometimes might expect to be involved in inappropriate behavior.

Or, to put it in terms of defence counsel’s submission regarding the life of a drug addict, “you’ll lie and defraud and steal from your acquaintances and family and friends to get more drugs, and your friends will do the exact same thing to you at the first opportunity.” At page 3 of defence counsel’s submissions he argues “The lifestyles of Ms.

Cappon, Michael Yannish (sic) and Agnieszka Rukasz were characterized by mutual bullying/selling/trading/borrowing of drugs whenever one of the parties had an abundance and the others didn’t.” On this point, it is not surprising that the first victim may have been a bit reluctant to call the police. [ 74 ] To be clear, even if I accept that all drug addicts subscribe to an unwritten rule as mentioned above, which I do not, Ms. Cappon is not being sentenced for bullying, selling, trading, or borrowing drugs.

By any sense of moral decency, whether affected by a drug dependency or not, we don’t take people from their beds and lock them in the trunk of a car or stab people in the leg with a knife. [ 75 ] There is a line. Most people know where that line is. Ms. Cappon chose to cross it. It was her decision to quit her job, start drinking and abuse drugs. This is not simply a ‘learning opportunity’ or a momentary lapse of judgement. Her behavior may have been fueled by the consumption of illicit substances, but it was not a ‘demonic possession’ that made her commit these acts of violence. c. Duress [ 76 ] Ms.

Cappon may have felt some pressure to find a way to get some money. I acknowledge that she may even have, at one point, feared for her own safety. Another way of looking at her actions is that she decided to deflect possible violence that she might suffer onto others. She was not the victim. She victimized others for her own benefit and gain. Although I accept that she is not trying to excuse her behavior, but provide some insight as to why she acted the way she did. d. Lack of Victim Information [ 77 ] There are no Victim Impact Statements filed.

It has been implicitly argued that this may be a choice of the victims. The reality is that we do not know why the victims chose not to participate in the sentencing process. Without their input, I do not have direct evidence that would allow me to find that they have been seriously physically or emotionally harmed. [ 78 ] On this topic, even Ms. Cappon’s letters of apology that have been drafted speak to the acknowledgement that her actions could have potentially life long rippling effects on these victims. When Ms.

Cappon addressed the court, she said she hoped the victims’ lives “were not affected perpetually”. She said she knows that “words don’t mean a lot” and that is why she is trying to not just use words, but

also actions to show her remorse. [ 79 ] I can only imagine the fear that Mr. Yanish felt when he was abducted from the bed he was sleeping in, blindfolded and locked in the trunk of his car. Or when he scribbled notes on pieces of paper towel that said “Help held captive in trunk of blue Cavalier call 911”. Even in the dark, cramped in a small space, and disoriented, he managed to slip them out of the trunk in hopes that someone might find the notes and call the police. [ 80 ] I cannot imagine what Mr.

Chynoweth felt when he was hit in the knee with a sledge hammer, beaten in a bathroom, had pliers used on his fingernails and nose, and, finally, stabbed in the leg by Ms. Cappon while he was held down or otherwise incapacitated by his captors. CONCLUSION [ 81 ] What is the appropriate sentence for each offence? The maximum sentence for both offences is 10 years for each offence, for a total of 20 years imprisonment. Denunciation, deterrence and rehabilitation are the main principles of sentencing that need to be addressed. As exceptional as Ms.

Cappon’s rehabilitative efforts have been since the time of arrest, I believe denunciation and deterrence play a strong role in sentencing offenders that commit the crime of unlawful confinement.

It is rare that a person released on bail for the unlawful confinement of one human being would commit an even more egregious confinement of another human being. [ 82 ] Society must be assured that whether you are addicted to drugs or not, unlawfully confining others and committing violence against them will not be tolerated in a civilized society. [ 83 ] In my view, balancing the competing principles of sentencing, I find the appropriate sentence for the first unlawful confinement is 4 years. It was prolonged, over an extended period of time.

Even though the victim was not in his own actual home at the time of the confinement, he was pulled from the very bed he was sleeping in. Ms. Cappon led two masked men to him. The fact that Ms. Cappon had a key to that residence, or stored some items there, did not make the event any less traumatic. He was blindfolded and put in the trunk of a car, and went through a terrifying experience.

The fact that he was eventually let out and given some of his freedom back, does not make the incident any less terrifying. [ 84 ] With respect to the second unlawful confinement, I find it particularly aggravating that she was on bail for the first unlawful confinement. I also find that the violence used on the second victim was more severe than the violence the first victim suffered. There were weapons used to inflict harm, including a sledge hammer and large knife. Another weapon of choice, a set of pliers, was used on the victim. His confinement was also over a long time period.

I find the appropriate sentence for this unlawful confinement is 5 years. [ 85 ] Should the sentences be consecutive or concurrent? The two crimes were distinct in time and committed on two separate individuals. I accept that the elements of each offence are largely identical, however, they were not part of a single endeavor . At this stage of the analysis, I find that they should be consecutive to each other. [ 86 ] While at this stage, I consider a 9-year sentence to be appropriate, even on a late guilty plea, I must now consider whether the sentence as a whole is unduly harsh or disproportionate.

Or, to put it another way, does the cumulative sentence exceed the overall culpability of the offender? A 9-year sentence is a significant sentence for a first time offender. [ 87 ] I also accept that Ms. Cappon is truly remorseful. She is young, intelligent, and full of potential. She has worked very hard to get to the point she is at in her recovery. She needs to be credited with her efforts. While I appreciate there is no mathematical formula, I find that she has done exceptionally well and should be credited 2 years.

Thus, taking into account all of her mitigating factors, I adjust the sentence down to 7 years imprisonment. I appreciate this ‘credit’ is high. [ 88 ] She has spent the equivalent of 33 days in custody and she is entitled to full credit for this time. While perhaps in the scheme of pre-trial custody, a month might not seem like a lot. I accept that this period in custody probably had a significant effect on Ms. Cappon. It was her first time in custody. [ 89 ] I am not convinced that a 7-year sentence is unduly harsh for these crimes. Ms. Cappon’s moral blameworthiness is very high.

It was not a momentary lapse of judgment that brings her before the court today. It is not one act of violence against one individual done in haste. She unlawfully confined two people, at two different time periods, and subjected them both to violence. [ 90 ] While I am saddened that she has been victimized in her life, she is not the victim in this case. While I appreciate she now wants to help those with addictions, where was this empathy in her dealings with these two victims? [ 91 ] On the mitigating side, I further remind myself that she is young and remorseful and has her whole life ahead of her.

She has the support of her family and has the ability to be a very productive member of our society. [ 92 ] In accordance with the principle of totality and proportionality, and the knowledge that a 7-year global sentence is a significant term of imprisonment, I will further lower the sentence down to a global sentence of 5 years, and give her credit for the 33 days pre-trial time in custody. I do this in recognition that the Crown has only sought 5 years imprisonment. That is 3 for the first charge and 2 for the second.

While this is by no means a joint submission, I must assume that experienced counsel have put their mind to other issues such as reliability of witnesses and other aspects of the public interest analysis. I also do not want to impose such a crushing sentence that would destroy the possibility of Ms.

Cappon continuing on with her rehabilitative efforts. [ 93 ] For the crime of unlawfully confining David Chynoweth on April 8, 2016, I sentence you to 3 years imprisonment. [ 94 ] For the crime of unlawfully confining Michael Yanish from June 2, 2016 to June 4, 2016, I sentence you to 2 years imprisonment, to be served consecutive to the first sentence. [ 95 ] The court record will show that you will be credited with 33 days pre-trial custody. By my estimate, the remaining period of

custody is 1,792 days. I will leave the actual calculations to Corrections. [ 96 ] All other ancillary orders including DNA and a 10-year firearm prohibition are granted. The Honourable Judge A. Wolf Provincial Court of British Columbia