R. v. Bourque Date:, 2012 BCPC 452

Citation: R. v. Bourque Date: 20121128 2012 BCPC 0452 File No: 225268-4-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KAYLA ALEXINA NELIS BOURQUE BAN ON PUBLICATION 486.4(2) CCC EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.O. MACLEAN Counsel for the Crown: B. Wolfe

Counsel for the Defendant: A. Bonfield Place of Hearing: Vancouver , B.C. Date of Hearing: November 28, 2012 Date of Judgment: November 28, 2012 [ 1 ] THE COURT: Ms. Bourque has pled guilty to Counts 1 through 3 on Information 225268. In Count 1, Ms. Bourque has pled guilty to wilfully causing unnecessary pain and suffering or injury to animals, contrary to s. 445.1(1) of the Criminal Code . In Count 2, she has pled guilty to wilfully and without lawful excuse killing animals, contrary to s. 445(1) (

a) of the Criminal Code . Both offences involved a dog and a cat which were the family pets of Ms. Bourque. Both occurred between September 12, 2009, and March 5, 2010. [ 2 ] Ms. Bourque has also pled guilty that on March 8, 2012, she possessed a knife for a purpose dangerous to the public peace or for the purpose of committing an offence, contrary to s. 88(2) of the Criminal Code . [ 3 ] The circumstances of this case and of Ms. Bourque's personal circumstances are unsettling, and determining an appropriate disposition has been very challenging. [ 4 ] In regards to antecedents, Ms.

Bourque is 22 years of age and will be 23 shortly. She was born in Romania and adopted from a Romanian orphanage at the age of eight months. Her adoptive parents also adopted a Romanian boy who is six months younger than Ms. Bourque. The family resided in Prince George. [ 5 ] Ms. Bourque experienced some developmental delays when she was young. There was stress in the family when Ms. Bourque was growing up. Her adoptive parents separated, and she remained with her mother. Her father has since died. She appears to have participated in organized activities as a youngster. However, Ms.

Bourque began to have difficulties in high school. She was expelled from one school after other students reported her being violent. [ 6 ] During high school, it appeared that Ms. Bourque began expressing her violent urges, and at one point, it was reported that she told a counsellor she had the urge to kill someone at the school. She was at one point admitted to a psychiatric ward at a regional hospital. [ 7 ] At high school Ms. Bourque did well academically, receiving A's and B's. After graduating from high school, she attended college, majoring in criminology and psychology.

She reported she did well at college. She then attended Simon Fraser University, enrolling in criminology and psychology. Again, she reported and it appears that she did well at university. [ 8 ] While at Simon Fraser, she participated in an archeological dig in Greece, and she has expressed a desire to continue some studies in that field. That appears to have been a positive experience for her. [ 9 ] She has had employment in the past. She was a newspaper carrier, and she worked at a Dairy Queen for a couple of years.

She receives a small pension of a couple of hundred dollars a month as a result of the death of her father. [ 10 ] While her mother remains supportive and will assist Ms. Bourque financially, she feels that she cannot have Ms. Bourque return to her home at this time. [ 11 ] Ms. Bourque has struggled over the years to establish friendships. She has had a fascination with gore and violence and she has visited a number of websites which focus on violence. Mr.

Bonfield has indicated that the drawings and photographs which she kept and which were seized were the result of a creative process of a young person. [ 12 ] The sentencing hearing commenced in October, and the sentence proposed was, for the most part, the product of a joint submission by the Crown and the defence. The Crown and the defence agree that Ms.

Bourque had been in custody at that time for a period of six months, which the Crown agreed was sufficient for the offences to which she pled guilty. [ 13 ] The Crown and the defence agreed a lengthy period of probation was appropriate, but they differed as to the terms. [ 14 ] At the initial sentencing hearing, the Crown reviewed the circumstances leading up to the swearing of the information here. The Crown provided material which had been found in a search of Ms. Bourque's residence at Simon Fraser University and on her computer.

A comprehensive statement of facts and circumstances was prepared and submitted by the Crown. [ 15 ] In addition to the foregoing, psychological reports were prepared in relation to Ms. Bourque. An updated report from Dr. Tomita, a forensic psychiatrist, dated September 10, 2012, was provided. A report from Dr. Bartel, a psychologist, dated October 10, 2012, was also provided. [ 16 ] The circumstances of the offences as outlined by the Crown are as follows. [ 17 ] Ms. Bourque was attending Simon Fraser University and living in a student residence on campus. Ms.

Bourque disclosed to another student that she had disemboweled, dismembered, and killed cats in the Prince George area, while she lived there. Ms. Bourque expressed a desire to obtain a gun, find and shoot a homeless person. Ms. Bourque said she always had her tools with her, such as a knife. [ 18 ] Ms. Bourque had said she wanted to kill somebody in the residence the previous year. Ms. Bourque told the student she enjoyed jails and was taking forensic classes in part so that she would be better able to get away with things in the future.

[ 19 ] Lastly, she told the other student she had been on Internet chat rooms involving serial killers and that she had been compiling information about serial killers since she was 14. That disclosure took place on March 6, 2012. [ 20 ] The student to whom Ms. Bourque had spoken contacted campus security who, in turn, involved the Burnaby RCMP. Constable Stride attended at the residence on March 8, 2012, and he took Ms. Bourque into custody under the provisions of the Mental Health Act .

She was taken to Burnaby General Hospital. [ 21 ] From that point forward, a number of mental health professionals were involved in assessing Ms. Bourque. Ms. Bourque's mother was also contacted. A number of Internet postings and emails were obtained which painted a very disturbing picture of Ms. Bourque and her obsession with violence and violent images. [ 22 ] Ms. Bourque remained in the hospital, and a family friend and an employee connected with the student residences went to the Simon Fraser residence to retrieve some clothing for Ms. Bourque.

While in the residence, they discovered a mask and a knife in a blue bag. Based on all of the information they had at the time, the police obtained a search warrant for Ms. Bourque's residence. Police found a number of items, including a blue nylon bag which contained a stainless steel kitchen knife with a 7 3/4-inch blade, a razor blade cutting instrument, three large garbage bags, 11 plastic zap straps, latex gloves, and a hypodermic needle capable of holding liquid. A mask was also located nearby. [ 23 ] Subsequently, a warrant was obtained to search Ms.

Bourque's computer which was at the family home in Prince George. Two video clips were found on the computer depicting the killing of the family dog. It was hanging by its neck. Ms. Bourque had narrated parts of the video as she eviscerated the dog. [ 24 ] Another video clip was recovered depicting Ms. Bourque causing unnecessary pain and suffering to the family cat. [ 25 ] The injuries to the dog and the cat are disturbing and depict significant cruelty. The infliction of those injuries and the ultimate killing of the animals must have involved a degree of planning and premeditation.

Again, it is clear the animals would have suffered significantly prior to their deaths, and Ms. Bourque appears to demonstrate no remorse or insight into the harm she caused. [ 26 ] There was other material found in Ms. Bourque's residence and on her computer which demonstrate her preoccupation with violence and the infliction of pain on others. Her drawings and statements are graphic, violent, and very disturbing. This is particularly so in view of the psychological assessments of Ms. Bourque. [ 27 ] In addition, pornography, which included children, was found on her computer.

The Crown did not proceed with those charges in relation to that material but seeks forfeiture and the destruction of that material. [ 28 ] No real issue was taken by the defence regarding the circumstances of the offences. [ 29 ] Ms. Bourque has a prior conviction. The circumstances of that offence are set out in the reports prepared at the time. The circumstances there were serious. A number of psychological reports were prepared of Ms. Bourque in relation to that offence. [ 30 ] A number of concerns similar to those raised in more recent reports were identified in those earlier reports.

It was reported that while Ms. Bourque was intelligent and articulate, she had a preoccupation with inflicting pain and harm on others. It was apparent that Ms. Bourque suffered from a number of personality disorders, and she was at risk of harming others and, in particular, vulnerable individuals. [ 31 ] The reports also document that Ms. Bourque then, as now, showed no empathy for others. Ms. Bourque then, as now, was diagnosed as a sexual sadist who is aroused at the thought of aggression and torture, particular towards vulnerable victims, including children. The doctors then concluded that Ms.

Bourque would likely require supervision for the rest of her life. [ 32 ] More recently, Ms. Bourque was assessed by Dr. Tomita. The report was commissioned by the defence. That assessment is, like the earlier ones, distressing. It is apparent that Dr. Tomita is of the opinion that Ms. Bourque suffers from a personality disorder not otherwise specified, with antisocial, psychopathic, and narcissistic traits. In addition, she has a number of paraphilic or abnormal sexual interests, including sexual sadism. [ 33 ] Dr. Tomita stated that Ms.

Bourque had completed a course of treatment with little impact on her sexual sadistic fantasies, urges, or behaviours. He comments that Ms. Bourque's case appears to him to be unique. However, Dr. Tomita is hopeful that "Ms. Bourque presents with a moderate level of treatability with the caveat that this be mandated by legal conditions." He is less optimistic if the course of treatment is voluntary. [ 34 ] Dr. Tomita is also of the opinion that "Ms.

Bourque's short-term risk while she is under legal supervision and engaged in some form of ongoing connection with treatment services is at the moderate to low range," but he is also of the opinion that the risk of violence will rise when supervision and treatment is completed. [ 35 ] At the initial sentencing hearing, there was not a clear plan for Ms. Bourque's release from custody. The probation service had not been contacted, and Ms. Bourque did not have a place to go as she could not return to her family home in Prince George. No pre- sentence report had been ordered, and as a result of Dr.

Tomita's opinion and the obvious concerns he identified in regards to Ms. Bourque and the circumstances generally, the Court ordered a pre-sentence report with a psychiatric component. The hearing was adjourned for that to be prepared. [ 36 ] Dr. LaTorre completed a very comprehensive report. It confirmed many of the opinions of previous assessors. Ms. Bourque, when describing the offences involving the animals, qualified or changed some of the information she had given to Dr. Tomita and Ms. Rusconi, the probation officer.

She did, however, describe in some detail how she committed the offences and that she felt no guilt, shame, or remorse in relation to the torturing and killing of the two animals.

[ 37 ] Dr. LaTorre provides a diagnosis for Ms. Bourque and identifies a number of disorders with which she suffers. Firstly, however, he agrees with other mental health professionals that she does not meet the criteria for a major psychotic psychiatric disorder. Dr. LaTorre is of the opinion that Ms. Bourque meets the criteria for a diagnosis of antisocial personality disorder. The essential feature of this diagnosis is a pervasive pattern of disregard for and violation of the rights of others. [ 38 ] Dr. LaTorre said Ms.

Bourque also demonstrates schizoid borderline and narcissistic traits in that she is largely detached from social relationships, has an unstable self-image and sense of self, and is interpersonally exploitive and lacks empathy. [ 39 ] Dr. LaTorre also explored a number of paraphilia in relation to Ms. Bourque. Some he found that she did not meet the necessary criteria; others were applicable to her diagnosis. He states Ms. Bourque now displays multiple paraphilias or sexual deviations. [ 40 ] Dr. LaTorre also conducted a risk assessment. In his opinion, Ms.

Bourque is at moderate-high to high risk of future violence. He says she is likely to target vulnerable individuals. He remarks that Ms. Bourque has been successful in not acting out on her violent urges since the killing of the animals, and in that regard, she self-disclosed. [ 41 ] Dr. LaTorre has set out a course of treatment and controls which he has implied will mitigate the risk. He recommends the probation officer be given sufficient authority to ensure Ms.

Bourque's attendance and participation in programs which would include programs offered through the Forensic Outpatient Clinic. [ 42 ] After receiving Dr. LaTorre's report and considering it in conjunction with the other reports regarding Ms. Bourque, Crown counsel was asked to inquire of Dr. LaTorre why Ms. Bourque would not be certified under the provisions of the Mental Health Act . The Court was advised that the Forensic Psychiatric Services Commission did not consider Ms. Bourque's condition as a mental disorder under the Mental Health Act as she was not diagnosed as psychotic. Apparently, Dr.

LaTorre had consulted with Dr. Riley regarding that opinion. [ 43 ] The Mental Health Act does not appear so restrictive. Ms. Bourque clearly has demonstrated a psychiatric or psychological disorder for which she is a moderate to high risk to cause harm to others. The doctors have suggested a course of treatment. While Ms. Bourque's condition may be a personality disorder, it appears that its manifestations would bring it within the applicable language of the Mental Health Act .

However, the Forensic Psychiatric Services Commission has the expertise in these areas, and the Court is obliged to defer to that expertise. [ 44 ] Ms. Rusconi, the probation officer, provided a very thorough and very helpful report. A number of her observations were consistent with what the doctors have said in their reports. [ 45 ] It is clear that Ms. Bourque is a very unique and troubling case. Ms. Rusconi appears to understand the gravity of the problem and the need that Ms. Bourque be subject to strict conditions and supervision. [ 46 ] Ms.

Rusconi recognizes the need to marshal resources and options for Ms. Bourque on her release, which include her acute need for housing and financial support along with possible options for structured supervision and high-intensity interventions. Ms. Rusconi recognizes the need for Ms. Bourque to be closely supervised after her release from custody and a need for a residential setting which is structured and in which Ms. Bourque will be supervised. [ 47 ] Ms. Rusconi said that she will need some time to organize all of the components of the release plan for Ms.

Bourque without which she has indicated she will not be able to effectively manage Ms. Bourque on her release. It is indeed fortunate that the probation service appears very committed to mitigating the risk of Ms. Bourque after her release and to ensuring that she receive the necessary counselling and treatment as may be required to assist her in the future. It is necessary that the probation services be provided with such resources as they deem necessary in order to manage Ms.

Bourque while she is on probation. [ 48 ] While the term of probation will be the maximum duration permitted by law, this may be a case which will require continued supervision after the expiration of the probation order. [ 49 ] As stated, the Crown and the defence agreed at the initial sentencing hearing that Ms. Bourque had served six months as of October 2012, and that was sufficient time in custody in regards to the offences to which she has pled guilty. [ 50 ] As a result of the need for further information and the preparation of a pre-sentence report, she has now served seven months.

However, in view of the information contained in the pre-sentence report and the need for the probation services to properly prepare for Ms. Bourque's release, the Crown has suggested a further two months in custody in addition to the time Ms. Bourque has served as being a fit sentence in all of the circumstances. [ 51 ] Mr.

Wolfe suggested she receive one month on each of Counts 1 and 2 and the record to reflect the six months she has spent in pre-trial custody, those sentences to run concurrent. [ 52 ] In regards to Count 3, the Crown submits a sentence of one month consecutive to the sentences on Counts 1 and 2 with the record to reflect one month of time served in pre-trial custody. The Crown submits that this sentence is appropriate in all of the circumstances and based on the case law they cited. It will also allow the probation services sufficient time to prepare for her release. [ 53 ] Mr.

Bonfield does not disagree that based on the information from the probation service, that some time may be required to make arrangements for Ms. Bourque's release. However, he submits that further time in custody should be less than that proposed by the Crown. [ 54 ] I have considered the cases cited by the Crown, and while all are distinguished from the case before me, they do indicate that the sentence proposed here is within the range proposed by the Crown. [ 55 ] In all of the circumstances, and particularly considering the gravity of the offences and the need to address the principles of

denunciation, deterrence, and protection of the public, the sentence proposed by the Crown is a fit sentence. When imposing the sentence, I have taken into account Ms. Bourque's guilty plea, her age and her potential for rehabilitation must also be considered. Ms. Bourque is young, and while her prognosis is guarded, it is hopeful that in a structured environment and with a structured treatment plan, there will be an improvement in her psychological and psychiatric condition.

While she receives that treatment, it is imperative that she be subjected to strict supervision and control. [ 56 ] In regards to sentence, for Counts 1 and 2 she will receive a sentence of one month with the record to reflect on each of the counts six months of time served. Those sentences will run concurrently. In regards to Count 3, Ms. Bourque is sentenced to one month in jail consecutive to the sentence on Counts 1 and 2 with the record to reflect one month of time served. [ 57 ] The sentences will be followed on all counts by a probation order for a period of three years.

A probation order of that duration is necessary, in view of all of the circumstances, to promote Ms. Bourque's rehabilitation, protection of the public, and to assist with the reintegration of Ms. Bourque into society. It was suggested and agreed by the Crown and the defence that in view of the comprehensive nature of the probation order, that it be reviewed from time to time and on a regular basis. [ 58 ] The terms of the probation order include those suggested by Ms.

Rusconi and are as follows: [ 59 ] You are to keep the peace and be of good behaviour. [ 60 ] You will be released into the custody of a person, which may be a peace officer, designated by your probation officer to transport you to your residence. [ 61 ] Forthwith upon your release, you are to report to the nearest Community Corrections office, and you are to report thereafter as and when directed, which may include daily in-person reporting, but reporting in person will not be less than once per week. [ 62 ] You are to report to a police officer at the high-risk offender unit of the Vancouver police department as directed by your probation officer. [ 63 ] You shall reside at a residence approved in advance by your probation officer, and you are not to change that address without the prior written permission of your probation officer. [ 64 ] You shall obey the rules and regulations of your residence. [ 65 ] You are not to have any person at your invitation at your residence between the hours of 6 p.m. and 6 a.m. each day seven days a week. [ 66 ] You are not to have any person reside at your residence unless that person has been advised in writing by your probation officer of the charges to which you have pled guilty and your history. [ 67 ] You shall be subject to a curfew, and as such, you are not to be outside of your residence between the hours of 6 p.m. and 6 a.m. daily seven days a week except for the purposes of obtaining emergency medical treatment.

If you leave your residence for that purpose, you shall report the next business day to your probation officer and advise the probation officer of the nature of the treatment you received or requested and where it was administered. [ 68 ] You shall present yourself at the door of your residence or on the telephone at the request of your probation officer or peace officer to ensure compliance with the curfew provisions of this order. [ 69 ] You are not to have any association with any person under the age of 18 unless you are in the company of an informed adult approved in advance by your probation officer. [ 70 ] You are not to attend any public school, parks, playgrounds or public swimming pools, or areas adjacent to the swimming pools, or any other location where it can reasonably be expected that persons under the age of 18 are likely to be present unless you are accompanied by an informed adult approved in advance by your probation officer. [ 71 ] You are not to possess any pornography of any kind. [ 72 ] You are not to possess any computer or telecommunication device or any electronic device capable of accessing the Internet.

You will allow your probation officer or a police officer acting on behalf of your probation officer access to your residence to ensure compliance with this term. [ 73 ] You are not to possess any computer software that is designated to eliminate evidence of Internet activity. [ 74 ] You may use a computer, including accessing the Internet, for the sole purpose of seeking employment but only at the offices of the Vancouver probation service at 275 West Cordova Street, Vancouver, British Columbia, and only while being supervised by a person approved by your probation officer. [ 75 ] You shall not access any social networking sites. [ 76 ] You are not to possess any cell phones except you may possess one registered in your name which does not have access to the Internet.

You are to provide the make of the cell phone and its serial number to your probation officer and provide your probation officer with your cell phone accounts on request to ensure compliance with this term. [ 77 ] You shall attend, participate in, and complete the B.C. Corrections Branch CORE program as directed by your probation officer. [ 78 ] At the direction of your probation officer, you shall attend the Forensic Outpatient Clinic at 300 - 307 West Broadway in

Vancouver, British Columbia, or elsewhere, to participate in psychiatric or psychological assessments, counselling, or educational programming as you are directed to take and to the satisfaction of your probation officer. [ 79 ] At the direction of your probation officer, you will attend from time to time your treating physician for the purposes of receiving such medical counselling and treatment as may be recommended except you shall not be required to submit to any treatment or medication to which you do not consent.

If you do not consent to any form of medical treatment or medication prescribed to you or recommended, you shall immediately advise your probation officer. [ 80 ] You shall provide your treating physician with a copy of this order and the name and address and phone number of your probation officer. [ 81 ] You shall instruct your treating physician that if you fail to take medication as prescribed by him or her, or fail to keep an appointment with him or her, he or she is to immediately advise your probation officer. [ 82 ] You shall attend and participate in personal counselling as directed by your probation officer. [ 83 ] You shall immediately advise your probation officer of any close, intimate or familiar relationships and refrain from continuing such a relationship until that person has been advised of your criminal record and background in the presence of your probation officer. [ 84 ] You shall not associate or have a relationship with anyone named by your probation officer which your probation officer has reasonably determined to be detrimental to your programming, counselling, or reintegration into the community.

If the probation officer decides and advises you the association or relationship constitutes a risk to yourself or others, you shall end that association or relationship forthwith. [ 85 ] You are not to engage in any area of study, employment, or volunteer work that would bring you into contact with any animals or any vulnerable person, which includes but is not limited to the elderly, a person under the age of 18, or persons with physical or mental disabilities. [ 86 ] You are to advise your probation officer forthwith upon receiving any offer of employment or offer to participate in volunteer work and cease any such employment or volunteer work at the request of your probation officer. [ 87 ] You are not to attend any college or university or enrol in any postsecondary courses without the prior approval of your probation officer. [ 88 ] You are not to possess any weapons as defined in the Criminal Code of Canada , including any firearms, imitation firearms, ammunition, crossbows, or explosive substances, or any related authorizations, licences, permits, or registration certificates in relation to those. [ 89 ] You are not to possess any knives or other bladed instruments except for the immediate preparation and consumption of food or in the actual course of lawful employment and only at the site of such employment. [ 90 ] You shall not possess any tool or device that can be used to restrain persons, including but not limited to duct tape, straps, rope, wire, or similar items, unless specifically required during the actual course of lawful employment and, again, only at the site of such employment. [ 91 ] You shall not have in your possession any item that allows you to mask your face or disguise your face or facial features. [ 92 ] You shall not have in your possession any hypodermic syringe or needles used for such syringes unless permitted under a current prescription given to you by a licensed medical professional. [ 93 ] You shall submit to having your photograph taken upon reasonable demand by a peace officer or a probation officer. [ 94 ] You are prohibited from owning, having custody or control of animals or birds, or residing in any premises where animals or birds are present.

A probation officer or peace officer acting on behalf of a probation officer may attend any place where you are residing to ensure compliance with this condition. [ 95 ] You shall not leave the province of British Columbia without the prior permission of the Court. [ 96 ] You shall surrender any travel documents in your possession, including but not limited to any passport, Nexus card, or enhanced driver's licence, to the Provincial Court Registry at 222 Main Street within 72 hours of your release from custody, and you shall not apply for any travel documents, including any passport, Nexus card, or enhanced driver's licence, during the term of this probation order without the prior written permission of your probation officer. [ 97 ] You shall not be found on any campus or property occupied by Simon Fraser University, including any adjacent parking lots or student residences. [ 98 ] You are not to have any contact, directly or indirectly, via Internet or otherwise, with ["redacted"].

If by chance you see her, you are to immediately turn and leave the area without word or gesture. You are not to be found within 50 metres of any place known to you to be the residence, place of employment, or educational facility attended by ["redacted"]. [DISCUSSION WITH COUNSEL] [ 99 ] THE COURT: I am satisfied that the public interest outweighs any privacy interests of Ms. Bourque, and I order that she provide a sample of her DNA before she is released from custody.

[ 100 ] I am satisfied, in view of all the circumstances, that a lifetime ban pursuant to s. 447.1 in this case is appropriate. I appreciate that Ms. Bourque may have had a relationship with the family pets at one point, but in all of the circumstances, I am ordering a lifetime ban under 447.1 of the Criminal Code . [ 101 ] There will be a five-year order under s. 110 of the Criminal Code . [ 102 ] The probation order will be reviewed three months after Ms. Bourque's release from custody. I am seized of that. (REASONS CONCLUDED)