R. v. Jarvie, 2020 BCPC 62

Citation: R. v. Jarvie 2020 BCPC 62 Date: 20200130 File No: 228117-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. SHAWN KENNETH JARVIE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. BOBLIN Counsel for the Crown: M. Stacey Counsel for the Defendant: E. Talic (agent for A. Robinson) Place of Hearing: Surrey , B.C. Date of Hearing: December 18, 2019; January 13, 2020 Date of Judgment: January 30, 2020 [ 1 ] On June 28, 2019, after a trial, I convicted Shawn Kenneth Jarvie of the aggravated assault of Troy Gaudon. Mr. Jarvie is before me today for sentencing.

[ 2 ] The circumstances of the offence are set out in my Reasons for Judgment, and I do not intend to repeat them here. [ 3 ] In

summary, on May 4, 2018, during a heated argument between Shawn Jarvie, Troy Gaudon, and Jarvie's friend and landlord, Michael Rheault, Mr. Jarvie deliberately doused the victim Mr. Gaudon with gasoline and set him on fire. Mr. Gaudon suffered serious burns to his face, neck, and upper body as a result. [ 4 ] At Mr. Jarvie's sentencing hearing on January 13, 2020, I had the benefit of a Pre-Sentence Report prepared by Probation Officer Debbie Holt, letters of reference from many of Mr. Jarvie's neighbours and friends, and the submissions of counsel. [ 5 ] Mr.

Jarvie's personal circumstances include the following. [ 6 ] He is 47 years old. His mother was young when he was born, and he was taken into Ministry care at birth. He lived in a series of foster homes until he was adopted by the Jarvie family when he was five years old. Mr. Jarvie did not have a particularly happy childhood. [ 7 ] His adoptive parents were reportedly strict and emotionally abusive. As a result, Mr. Jarvie developed no sense of belonging to the Jarvie family, and he has had no contact or communication with them since he was 18 years old. [ 8 ] Mr. Jarvie told Ms.

Holt that he started to associate with an anti-social crowd when he was 13 years old, which contributed to his decision to leave school in Grade 8 and find employment. [ 9 ] Mr. Jarvie also told Ms. Holt that he currently has no mental health issues and takes no medication, but that he was connected with the Surrey Mental Health Team when he was 15 or 16 years old, and was diagnosed and treated at that age for social anxiety disorder, mild schizophrenia, and depression. [ 10 ] Mr. Jarvie advised Ms.

Holt that he was abused by his treating psychiatrist, and although he disclosed that to his adoptive parents, they did not believe him and insisted that he continue to see that psychiatrist. No report was made to the authorities, and, unfortunately, but not surprisingly, Mr. Jarvie now mistrusts the mental health system. [ 11 ] Defence counsel advised that Mr. Jarvie had a significant history of mental health issues. He was institutionalized as a child several times and made several suicide attempts in his teens, twenties, and thirties.

He remained connected to the Surrey Mental Health Team, attended programming, and took prescribed medication until his mid-twenties, when he decided to manage his mental health on his own. He reported to Ms. Holt that he has been successful in doing so. [ 12 ] Mr. Jarvie is currently on Social Assistance as a person with a disability based on his mental health diagnoses, which he supplements by doing odd jobs. He has never been married and has no children. He has no addictions or difficulties with substance use. [ 13 ] According to his bail supervisor, Mr. Jarvie responded positively to community supervision.

He reported as directed on bail and abided by the conditions of his release order. [ 14 ] Mr. Jarvie has the support of his neighbours and friends, who provided letters of reference attesting to his good character. He is described as friendly, easy-going, very generous with his time and help, an asset to the community, and a trusted friend. [ 15 ]

Section 718 of the Criminal Code sets out a number of objectives that a sentencing judge should bear in mind in sentencing an offender. That

section provides that: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance 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 and the harm done to victims or to the community that is caused by 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 or to the community. [ 16 ] The authorities establish that deterrence and denunciation are significant factors on sentence in cases of aggravated assault, although rehabilitation remains a factor I should, and do, take into account. [ 17 ] As to the range of sentence, aggravated assault is a serious offence. Section 268(1) of the Criminal Code provides, in part, that everyone who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years. [ 18 ] Although sentencing is an inherently individualized exercise, s. 718.2 (

b) of the Criminal Code provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 19 ] There is no dispute between counsel that the range of sentence for aggravated assault established by the authorities, including R. v. Slizak , 2017 BCCA 279 , R. v. Randhawa , 2019 BCCA 429 , and R. v. Quash , 2019 YKCA 8 , is between 16 months to six years. [ 20 ] In R. v. Slizak , Harris, J.A. said, in part, in oral Reasons for Judgment at para. 9:

The Crown argues that the range of sentences for aggravated assault is between 16 months and six years: R. v. Nguyen, 2016 BCCA 408,at para. 47: The sentencing judge correctly described the range of sentences for aggravated assault as being between 16 months and six years: Craigat para. 10; R. v. Finlay, 2016 BCCA 299 at para. 48. In R. v.

Johnson, (1998), (BC CA), 131 C.C.C. (3d) 274 atpara. 10 (B.C.C.A.), Madam Justice Prowse said this in regard to where within that range a case will generally fall: Sentences at the lower end of the range tend to be imposed in “fight” situations in which the altercation escalates and results in injuries tothe victim. Sentences at the higher end of the range tend to be imposed in situations where the victims are attacked with a weapon,without provocation and without any opportunity to defend themselves. [21] There is no issue in law that ranges of sentences are suggestions or guidelines and not rules.

While a range of sentence is usefulas a guide, it should not be treated inflexibly, and the sentencing of every accused is, of necessity, an individualized exercise, which musthave due regard for the principles of sentencing in s. 718 of the Criminal Code, as well as the particular circumstances of the offence andthe offender. [22] In R. v. Slizak, Harris, J.A. also said, in part, at para. 17: The relevance of sentencing ranges is discussed extensively in Lacasse, in terms that are pertinent to this appeal.

For example, at para. 58the majority says: [58] There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is initself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot bedisregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purelymathematical calculation. It involves a variety of factors that are difficult to define with precision.

This is why it may happen that asentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is notdemonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specificcircumstances of each case. ... [23] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In determiningwhat constitutes a proportionate sentence, the court must have regard to aggravating and mitigating circumstances.

Section 718.2 of theCriminal Code provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigatingcircumstances relating to the offence or the offender. [24] In this case, Crown counsel recommends a period of incarceration between 18 and 24 months, followed by a period of probationfor 24 months, based on the range of sentence established by the authorities, and the aggravating and mitigating circumstances of thisoffence and this offender. [25] Citing the principle of restraint, defence counsel urges me to sentence Mr.

Jarvie to a period of incarceration at the bottom ofthe range, or 16 months, based on Mr. Jarvie's personal circumstances, including, but not limited to, his otherwise good character, theexistence of remorse, and the collateral consequences to Mr. Jarvie arising out of his release conditions. [26] The principle of restraint was discussed in R. v.

Batisse, 2009 ONCA 114, at paras. 30 to 35, from which I draw the followingprinciples: The principle of restraint... is an important consideration [when sentencing] a first offender... [first, the] principle requires that thesentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be asshort as possible and tailored to the individual circumstances of the accused...

Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of thesentence... [G]eneral deterrence cannot be the sole consideration... In serious cases and cases involving violence, rehabilitation alone is not the determinative factor -- general deterrence and denunciationare also significant factors to be considered. However... it is an error to focus almost exclusively on general deterrence and fail toconsider individual deterrence and rehabilitation, especially when sentencing a first offender.

Third, Parliament has codified the principle of restraint to limit the use of incarceration as a sentencing alternative, particularly forAboriginal offenders. Subsection 718.2(

d) of the Criminal Code provides that "an offender should not be deprived of liberty, if lessrestrictive sanctions may be appropriate in the circumstances". Subsection 718.2(

e) provides: ... 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. [27] In determining where Mr. Jarvie's sentence should fall within the range of sentence for aggravated assault established by theauthorities, I find that the following are aggravating factors. [28] Mr. Jarvie committed a very serious offence, which he intended to cause and did cause Mr. Gaudon serious injuries.

I agree withCrown counsel that there is no other reasonable inference to be drawn based on Mr. Jarvie's deliberate conduct. [29] Mr. Gaudon's injuries were not caused by accident, as Mr. Jarvie and some of his character references maintain, nor do theyarise out of a physical fight that escalated out of control. Mr. Jarvie was in no imminent danger of harm and he was not actingdefensively. [30] Mr. Jarvie's actions were not spontaneous, reflexive, or arise out of a momentary loss of control. Rather, Mr. Jarvie made a

conscious, considered decision to commit the offence, as evidenced by the fact that during an argument, where Mr. Gaudon was posing no physical threat, he, meaning Mr. Jarvie, went to the storage shed at the back of Mr. Rheault's property, picked up a water bottle that contained gasoline, returned to the front yard where Mr. Gaudon and Mr. Rheault were still arguing, and threw the gasoline on Mr. Gaudon, then lit him on fire with a lit cigarette. [ 31 ] Mr. Jarvie had ample time to think about the consequences of his intended actions and to reconsider them, but he did not. [ 32 ] Mr.

Gaudon had no warning and no opportunity to defend himself and, as a result of the assault, he suffered serious injuries. [ 33 ] At trial, I saw video footage that depicts Mr. Gaudon the moment after Mr. Jarvie doused him with gasoline and set him on fire. It shows Mr. Gaudon's frantic attempts to remove his shirt and put out the fire that had engulfed his head and upper body. I also saw several photographs of Mr.

Gaudon's burns taken immediately after the incident occurred, while he was being treated at his home by EHS. [ 34 ] At the sentencing hearing on January 13, 2020, Crown counsel filed additional photographs taken after Mr. Gaudon was released from the hospital, which show the degree of the burns to his face, neck, and upper body. There is no question, based on the photographs, that Mr. Gaudon's burns were extremely serious.

He remained in hospital for two weeks following the assault where, I am advised, his medical treatment included a skin graft to one of his biceps. [ 35 ] It is reasonable for me to infer from the video and photographic evidence, and I do infer, that Mr. Gaudon suffered extreme panic, distress, and probably fear at the time he was assaulted, as well as intense and ongoing physical pain afterward. [ 36 ] The mitigating factors I have taken into account on sentence are the following. [ 37 ] This is Mr. Jarvie's first offence. Mr. Jarvie is 47 years old, and he does not have a criminal record.

That is a significant achievement, in light of the challenges he has faced in his life, including: the complete lack of family support throughout his life; the impact on him of negative peer influences he chose as a young man; he is a survivor of sexual abuse by his treating psychiatrist when he was a youth, who was obviously a person with significant authority and influence on his life; and finally, his lifelong struggle with mental health issues. [ 38 ] But for this offence, Mr. Jarvie appears to be a person of good character.

Although he does not have the support of his adoptive family, he has the unwavering love and support of his friends and neighbours. He has lived a simple, pro-social life where he spends much of his time helping his friends and neighbours. [ 39 ] I am advised by defence counsel, and I accept, that Mr. Jarvie has remorse for his actions despite his lack of insight, insofar as he called 9-1-1 immediately after he assaulted Mr. Gaudon, and he regrets the injuries he caused. [ 40 ] Defence counsel urges me to consider, as a collateral consequence affecting the length of Mr. Jarvie's custodial sentence, that Mr.

Jarvie was homeless for a lengthy period of time following his arrest for this offence and his release from custody on conditions, which included a prohibition against his return to his residence, because it was on the same street as Mr. Gaudon's residence. [ 41 ] I do not agree that Mr. Jarvie was homeless for the period of time suggested. Rather, according to the submissions of both counsel, although Mr.

Jarvie may have lived on the street for a brief time while his release conditions prohibited him from returning to his home, he also stayed in a motel for a period of time with the financial help of his friends, in residential premises that were under renovation, and with friends in Richmond. [ 42 ] Although Mr. Jarvie could not return to his preferred residence and had to make do with premises that were not particularly comfortable, Mr. Jarvie was not homeless to the degree alleged. Furthermore, given the seriousness of the offence Mr.

Jarvie was alleged to have committed against his neighbour, at the time of his release on bail, the requirement that he not return to his home, which was in very close proximity to the complainant's home, was reasonable and is the sort of restriction that is commonly imposed in similar circumstances. [ 43 ] Mr. Jarvie's unfortunate living situation following his release on bail does not have a significant impact on the length of his sentence. [ 44 ] On the other hand, Mr.

Jarvie's arrest on August 3 rd , as a result of a mistake in the court's recording of an amendment to his release condition that was intended to allow him to return to his home that day, was a serious deprivation of his liberty that I take into account in determining the length of his sentence. [ 45 ] I agree with both Crown and defence counsel that, taking all of the circumstances into account, a fit sentence for Mr. Jarvie is one at the low end of the range of sentence for aggravated assault established by the case authorities. [ 46 ] Mr.

Jarvie has no criminal record and, but for the commission of this very serious offence, he is a person of good character and I am confident that he is unlikely to commit a similar or any criminal offence again. [ 47 ] In my view, however, a custodial sentence at the very bottom of the range, as recommended by defence counsel, is not appropriate, given the gravity of the offence Mr. Jarvie committed and his moral culpability. There are several factors which place this offence above the bottom end of the range, including the seriousness of the assault itself, the serious injuries to Mr.

Gaudon, the fact that the assault did not occur in the context of a consensual fight that escalated, and the fact that the assault was so sudden and unexpected that Mr. Gaudon was defenceless against it. [ 48 ] There is also an absence of mitigating factors in this case that would justify the sentence sought. Mr. Jarvie did not plead guilty, which is a significant mitigating factor on sentence in most cases. Furthermore, while I accept that Mr. Jarvie regrets and is remorseful for the injuries Mr. Gaudon suffered, he does not take full responsibility for the offence, in that he maintains that it was an accident.

[ 49 ] In the Pre-Sentence Report, at page 4, under the heading “Attitude and Understanding Regarding the Offence”, Ms. Holt reported, in part, that: Shawn told this writer that he does accept responsibility for his actions the day of the offence but insisted that he never had the intention of setting the victim on fire. Shawn said his actions that day were careless but he did not mean to harm the victim. When he yelled at the victim during the heated exchange they were engaged in, he also extended the arm in which he was holding the bottle of gasoline.

He didn't intend that gasoline would come out of the bottle and make contact with the victim. [ 50 ] I agree with defence counsel that the principle of restraint applies in this case; however, both the principle of restraint and the sentencing principles set out in s. 718.2 of the Criminal Code incorporate the concept of reasonableness. [ 51 ] The principle of restraint and s. 718.2(

d) of the Code require me to consider the minimum sentence that is "appropriate in the circumstances".

Section 718.2(

e) requires me to consider all available sanctions other than imprisonment that are "reasonable in the circumstances." [ 52 ] When I take the totality of the circumstances of the offence and the offender into account in this case, including the aggravating and mitigating factors, and apply all the relevant principles of sentencing, including the principle of restraint, in my view, the minimum sentence that is appropriate or reasonable in the circumstances is a period of incarceration for 18 months. [ 53 ] Mr. Jarvie, the sentence that I would have imposed is 18 months.

I will give you credit for the time that you have served in custody of 11 days. The sentence will be 17 months and 19 days. [ 54 ] Mr. Jarvie's custodial sentence will be followed by a period of probation for two years with the following conditions, which are not opposed by counsel for Mr.

Jarvie. [ 55 ] The statutory conditions are these: you must keep the peace and be of good behaviour; you must appear before the court when required to do so by the court; you must notify the court or the probation officer in advance of any change of name or address; and promptly notify the court or the probation officer of any change of employment or occupation. [ 56 ] You must have no contact or communication, directly or indirectly, with Troy Gaudon, Dawn Fox, or Kassandra Choiniere. [ 57 ] You must not go to or be within 100 metres of any residence, school or workplace of any of those three individuals, that would be Troy Gaudon, Dawn Fox or Kassandra Choiniere, that is known to you or becomes known to you. [ 58 ] You must report in person to a probation officer at #102, 14245 56th Avenue in Surrey, B.C., within two business days after your release from custody, unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by the probation officer. [ 59 ] You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer.

Without limiting the general nature of this condition, any intakes, assessments, counselling or programs may relate to conflict dispute resolution. [ 60 ] You must not possess, either personally or through another person, any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, anything that resembles a weapon or firearm, any weapon as defined in s. 2 of the Criminal Code , or any related authorizations, licences or registration certificates. [ 61 ] You must not possess any incendiary device, flammable product or explosive substance.

This prohibition includes, but is not limited to, lighters, matches, jerry cans, fire accelerants, and fireworks, except with the written permission of your probation officer. If you are granted permission, you must carry a copy of the permission when you possess any of these items outside your residence. [ 62 ] Finally, dealing with the ancillary orders, I will make the DNA order because this is a primary designated offence. That DNA sample will be taken from you while you are in jail, and you must submit to the taking of the sample. [ 63 ] In addition, I will prohibit Mr.

Jarvie from possessing weapons pursuant to s. 109 of the Criminal Code , which is also mandatory, for 10 years. (REASONS FOR SENTENCE CONCLUDED)