R. v. Kirton Date:, 2015 BCPC 152

Citation: R. v. Kirton Date: 20150604 2015 BCPC 0152 File No: 225057 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. KENNETH KIRTON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: Andrew Cochrane Counsel for the Defendant: Victoria Desroches Place of Hearing: Vancouver , B.C. Dates of Hearing: June 3 & June 4, 2015 Date of Judgment: June 4, 2015

INTRODUCTION [1] In the early morning hours of March 4, 2012, Pearl Cecil (“Pearl”) was violently attacked in her apartment in East Vancouver.She sustained stab wounds to her head, face, neck and upper body. She also sustained a bite wound to her right hand. In addition she wasforced facedown into a pillow which nearly resulted in her being smothered to death. [2] Pearl remained in hospital for four days as result of her injuries.

As a result of this violent attack Pearl continues to suffer fromboth physical and emotional side effects. [3] On October 25, 2013, the Court found the accused, Kenneth Kirton (“the respondent”) guilty of the aggravated assault of Pearlas well as robbery of some money from Pearl. The respondent was found not guilty of assault with a weapon but guilty of the lesseroffense of assault simplicitir: (See R. v.

Kenneth Kirton, 2013 BCPC 293 , 2013 BCPC 0293) [4] At the request of Crown Counsel (“the applicant”) the Court was asked to register the conviction in relation to the aggravatedassault finding as the applicant sought a declaration of dangerousness against the respondent by operation of

section 753 of the CriminalCode of Canada (“the Code”). Aggravated assault is a primary designated offence as defined by

Section 752 of the Code. ISSUES [5] The issues at this hearing turn on whether or not the Court should make a finding that the respondent was a dangerous offenderand, if so, what would be the appropriate sentence to be imposed by operation of section 753 (4) of the Code which reads as follows: If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period; (

b) impose a sentence for the offence for which the offender has been convicted which must be a minimum punishment ofimprisonment for a term of two years and order that the offender be subject to long-term supervision for a period that does not exceed 10years; or (

c) impose a sentence for the offence for which the offender has been convicted. BACKGROUND [6] In March 2012, Pearl was 74 years of age. She was a first Nations elder and the mother of seven children. One of her children,Marie, was in a relationship with the respondent. [7] In 2012 the respondent was suffering from significant addiction issues including the use and abuse of controlled substances andalcohol.

The combination of controlled substances and alcohol had a significant negative impact on the respondent’s behavior. [8] While in the throes of his addictions the respondent went to Pearl’s apartment in the late evening hours of March 4, 2012, in thehopes of spending the night. Pearl allowed the respondent into her apartment. A bed was prepared for the respondent in the living room.Pearl also had a cot in the living room.

Both Pearl and the respondent lay in their respective beds and they had a general conversation. [9] After some period of time Pearl testified that the respondent violently attacked her with what she believed to be a screwdriver.As well, during the attack, the respondent pushed her face into a pillow. She was in fear that she was going to be smothered to death.During the altercation Pearl fell from her cot and the respondent fled her apartment. [10] Pearl then grabbed her telephone and fled from her apartment.

In the lobby of her apartment building Pearl was met by abuilding security guard who then contacted Emergency Health Services. [11] At his trial the respondent admitted to being in Pearl’s apartment but denied being the assailant. It was his story that at somepoint in the evening he went to the bathroom and decided to have a shower.

After the shower he heard some noise in the living room andwhen he came out of the bathroom he saw Pearl on the ground covered in blood. [12] Because of his prior criminal record, the respondent was fearful that he would be held responsible for Pearl’s injuries so fledfrom her apartment. He denied that he took any money. [13] In due course, the respondent surrendered to the police. [14] The Court did not accept the respondent’s evidence as reliable and credible.

Those findings, along with other evidence presentedin the trial, led to the findings of guilt. [15] A psychological assessment report was directed to be prepared pursuant to

section 752.1(1) of the Code. Dr. Lindsey Jack, aregistered psychologist, prepared a thorough and comprehensive psychological assessment report dated March 17, 2014, and filed withthe Court on March 18, 2014.

[ 16 ] A criminal record for the respondent was also filed with the Court at this hearing. In relation to the respondent’s criminal record, he was sentenced on June 18, 1987, in Winnipeg, Manitoba to 10 years for sexual assault with a weapon and a break and enter with the intent to commit sexual assault. There were other offences rolled into that sentencing hearing, but those sentences ran concurrent with the 10 year sentence. [ 17 ] On September 8, 2000, at Vancouver, the Respondent was sentenced to 30 days for an assault.

On June 28, 2001, also at Vancouver, the respondent was sentenced to either a suspended sentence or a short period of custody for an assault. [ 18 ] The criminal record for the respondent reflected other relatively minor offences which had no bearing on this hearing. [ 19 ] The respondent has remained in custody since his arrest in March 2012. LEGAL FRAMEWORK [ 20 ] Section 753 (1) (

a) of the Code reads as follows: On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (

a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

a) of the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint.

Section 753 of the Code establishes the elements that are required to be made before and accused can be declared a “dangerous offender”. If such a declaration is made then the Court has three options as noted in section 753 (4) . [ 21 ] The presumption of dangerousness set out in section 753 (4.1) was not pursued by the applicant. [ 22 ] It was submitted by the respondent that the applicant has not established beyond a reasonable doubt that there was either a pattern of repetitive behavior or a pattern of persistent aggressive behavior that would justify findings of dangerousness in relation to section 753 (1) (a)(

i) or(ii) of the Code . [ 23 ] The respondent conceded that the attack by the respondent on Pearl would be described as brutal which would trigger an examination of the respondent’s behavior by operation of section 753 (1) (a)(iii) of the Code . [ 24 ] With regard to sentences available for a dangerous offender the Court is required to consider section 753 (4.1) of the Code which reads as follows: The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. In relation to the meaning to be given to section 753 (4.1) this was discussed by Joyce, J. in R. v. Racher , 2011 BCSC 1313 at paragraphs 47 and 48 as follows: [47] Madam Justice Arnold-Bailey considered the meaning to be given to s. 753(4.1) in R. v. Walsh , Chilliwack Reg. No. 55701, May 24, 2011.

With regard to what is meant by reasonable expectation, Madam Justice Arnold-Bailey reviewed authorities in which that expression was used in other contexts and concluded: What I draw from the above authorities as to the meaning of the phrase "reasonable expectation" that a lesser measure will adequately protect the public in s. 753(4.1) is that it amounts to "a confident belief for good and sufficient reasons" to be derived from the quality and cogency of the evidence heard on the application. [48] I agree with that conclusion and apply it in this case.

ANALYSIS [ 25 ] The respondent testified at this hearing. Dr. Jack was also present and testified at this hearing. She was present when the respondent testified. [ 26 ] The respondent is now 48 years of age. He is of Aboriginal heritage. The respondent, unfortunately, had a chaotic upbringing in which violence, alcohol and drugs were largely featured. [ 27 ] At the time he was sentenced to the 10 year federal sentence he was 19 years old. The respondent was 30 years old when he was released. Dr.

Jack extensively reviewed in her assessment report circumstances surrounding the respondent’s sexual offences. [ 28 ] It is clear from the evidence before the Court that there was a distinction in the circumstances surrounding the sexual offending of the respondent and his attack on Pearl. [ 29 ] Dr. Jack described the respondent in her assessment report as, “pleasant and cooperative across interviews. Rapport was good. He attempted to answer all questions posed although evidenced some difficulties with memory including forgetting names, dates and chronology of events.” [ 30 ] Dr.

Jack did not observe any overt symptoms associated with psychosis. Dr. Jack was of the opinion that the respondent was “future oriented.” [ 31 ] Though the respondent was not truthful with the Court at his trial, he was truthful with Dr. Jack in relating what happened on March 4, 2012, at Pearl’s apartment. The respondent told Dr. Jack that he did not have a clear memory of events at Pearl’s apartment in large measure as a result of his addictions. [ 32 ] However, he recalled impulsively attacking Pearl and taking $40 from her purse which he used to buy some crack cocaine.

He then became paranoid, was physically shaking, so he bought some heroin to bring himself down. [ 33 ] Dr. Jack was unable to give an opinion in her assessment report as to why the respondent acted in such a violent manner. However, it would appear to be a positive feature of her assessment report in which she noted that the respondent did not blame his drug or alcohol addictions for his actions. He recognized that what he did was clearly wrong. [ 34 ] Dr. Jack also noted the significant time gap from 2001 until 2012.

While there were the two assaults in 2000 and 2001 respectively, those assaults, though of concern, would not be described as serious and, certainly, were not brutal in nature. [ 35 ] Dr. Jack was of the opinion that due to the respondent’s long association with drugs and alcohol that he would require significant community supervision to reduce risk. It was a central issue in Dr.

Jack’s assessment report, and also in her testimony, as to whether or not the respondent would comply with a comprehensive release plan. [ 36 ] The respondent testified that he was ready, willing and able to participate in a comprehensive treatment program both within an institutional setting and as part of a release plan. [ 37 ] The respondent testified that he has accepted full responsibility for his actions in relation to his attack on Pearl. The respondent appeared to be overwhelmed by the scope of Dr. Jack’s assessment report.

He has read and reread the assessment report and considers the assessment report to be his “Bible”. The respondent fully accepted all of the recommendations contained in the assessment report. [ 38 ] The respondent admitted that he was not truthful with the Court at his trial and that back at that time he was simply adopting a series of lies that had engulfed him. However, with Dr. Jack he felt that he needed to tell the truth and accordingly admitted his attack on Pearl. [ 39 ] Dr.

Jack testified that in her opinion it was an important clinical point that the respondent has accepted her report and accepted responsibility for his attack on Pearl. [ 40 ] Dr. Jack further testified that after the respondent was released from prison after doing his 10 year sentence that any reoffending would more likely have had a sexual component. This was not the case and the respondent was functioning effectively for almost 10 years before reoffending in 2012. [ 41 ] At pages 87 through 93 of Dr.

Jack’s assessment report she provided a comprehensive list of recommendations addressing risk management strategies, including correctional programs and external controls. [ 42 ] Corrections Canada now has a program model entitled Integrated Correctional Program Model (“ICPM”). This program is based in the risk needs responsivity and cognitive behavioral models. Participants develop self-management plans, and must be aware of their individual “program targets”. [ 43 ] In addition, as noted by Dr.

Jack at page 88 of her assessment report that: “The ICPM has several streams including the multi- target program and Aboriginal multi-target program for individuals convicted of violent offences. There also is a sexual offender ICPM program.” [ 44 ] Dr. Jack also noted at page 88 of her assessment report the following: “Given he has been in the community for many years without a new conviction for sexual offending, and given he has previously completed sexual offender programming it is most likely he will be referred to the multi-target program (as opposed to the sexual offender program stream).”

[ 45 ] Dr. Jack recommended that the respondent be engaged in the Aboriginal multi- target program. This program has a cultural component and is run by an Aboriginal Correctional Program Officer, and includes elder involvement, and access to other culturally relevant activities. Dr. Jack understood that this program included the ICPM component with the added feature of cultural and spiritual focus. [ 46 ] In her assessment report, Dr. Jack noted that the respondent must embrace abstinence from drugs and alcohol and that he must participate in counseling and maintenance programs in the longer term.

Consequently, Dr. Jack viewed external controls as important ongoing risk management tools. [ 47 ] Some of those external controls would include the provision of regular and random urinalysis, a stable residence with curfew, structure and accountability along with strategic community supervision by federal parole officers or other community supervision as may be available. DISPOSITION [ 48 ] As noted Dr. Jack provided the Court with a thorough and comprehensive assessment report. Her assessment report was impressive.

I accept her assessment report and her evidence given to the Court as reliable and trustworthy. [ 49 ] I accept the evidence of the respondent in his acceptance of responsibility for the attack on Pearl. From his evidence, it would appear that he now has gained insight in relation to his offending behaviour.

He is fully aware of the need to abstain from the consumption of alcohol and illicit drugs. [ 50 ] I accept the evidence of the respondent that he is prepared to embrace programs both within a correctional institution setting and as part of a release plan. [ 51 ] I find that the applicant has established beyond a reasonable doubt that the attack by the respondent on Pearl was of such a brutal nature compelling the conclusion that the respondent’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint by operation of section 753 (1)(a)(iii) of the Code .

Accordingly, the respondent is designated to be a dangerous offender. [ 52 ] I am also satisfied that there is a reasonable expectation that a lesser measure rather than an indeterminate sentence will adequately protect the public against the commission by the respondent of a future serious personal injury offense. [ 53 ] Pursuant to section 753 (4) (

b) of the Code I order that the respondent be sentenced to 12 years in a federal correctional institution, less enhanced time served of 1,776 days. [ 54 ] I am recommending that the respondent be classified to a federal correctional institution that can provide the ICPM and the high intensity Aboriginal multi-target program. [ 55 ] I am directing that a copy of Dr. Jack’s psychological assessment report be released to Correction Services of Canada. I am recommending that Correction Services of Canada incorporate the recommendations of Dr.

Jack in relation to a future release plan for the respondent. [ 56 ] I order that the respondent be designated as a long term offender and that he shall be subject to a 10 year long term supervision order. ____________________________ The Honourable Judge G. Rideout Provincial Court of British Columbia