R. v. Anderson Date:, 2015 BCPC 210

Citation: R. v. Anderson Date: 20150619 2015 BCPC 0210 File No: 228622-3-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. ROBERT JOHN ANDERSON EXCERPTS FROM PROCEEDINGS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE F. HOWARD Counsel for the Crown: J. Dow Counsel for the Defendant: L. Rudovica Place of Hearing: Vancouver , B.C. Date of Hearing: June 19, 2015

Date of Judgment: June 19, 2015 [ 1 ] THE COURT: The accused has pled guilty to the following offences: New Westminster, December 21, 2012 Count 1: break and enter at the business premises of Armani Exchange.

Vancouver, January 3, 2013 Count 3: break and enter at a business, #1 Autobody Count 7: dangerous driving Port Coquitlam, January 6, 2013 Count 10: break and enter at the business premises of Qua Spa Count 12: driving while disqualified by reason of a driving prohibition imposed by court order under s. 259(4) of the Code Count 14: dangerous driving THE OFFENCES New Westminster, December 21, 2012 [ 2 ] The first break and enter at the Armani store (Count 1) occurred at about 5:30 a.m. on December 21, 2012. A Ford F350 crashed through the front doors into the store.

The truck was loaded up with $11,596 worth of product that was stolen from the store and the truck then fled the scene. $67,000 worth of damage was done to the store premises by the truck. The surveillance video captured three persons participating in the break and enter: two males, one of whom was the accused, and a female. [ 3 ] Defence counsel disputes the Crown's suggestion that the accused was the person who drove the F350 into the store. She has alleged that such a suggestion is not supported by the Crown particulars describing the event.

Moreover, through his counsel, the accused has asserted that he was not driving the F350 when it crashed into the store. Through his counsel, he has also denied that he ever formed any common intention with his accomplices, neither of whom he has identified, to drive the truck into the storefront. He does acknowledge that he went into the store once the window was broken and stole merchandise from the store. To this limited extent, he participated in the break and enter.

Accordingly, it is the defence position that this accused should not be held liable for the damage done to the store by the F350. [ 4 ] Crown counsel has specifically rejected the allegation that the accused was not a party to the breaking down of the door of the store. The video shows three parties at the scene. It was 5:30 a.m. The accused entered the store and participated in the theft of product from the store.

The only reasonable inference to be drawn from these known facts is that the suspects arrived at the store together in the F350, and that they were all parties to the criminal acts that occurred in relation to the Armani store, including the breaking down of the doors to the store using the F350 as a battering ram. [ 5 ] In my view, the accused's attempts to minimize his culpability in relation to the $67,000 worth of damage to the store is dependent upon facts known only to him, facts that are not consistent with the evidence.

The onus is upon the accused to establish, on a balance of probabilities, that he was not a knowing or willing party to the use of the F350 as a battering ram. He did not call evidence on this issue: see s. 724(3) (

b) of the Criminal Code . In the result, I cannot and do not give any weight to his claim that he was not a party to the damage that was caused to the front of the Armani store by the F350. Vancouver, January 3, 2013 [ 6 ] The second break and enter at the #1 Autobody shop (count 3) occurred two weeks later at approximately 9:00 p.m. on January 3, 2013. Video captured the accused backing an F350 up to the shop. He exited the truck and broke a window, so as to gain entry into the shop. In the meantime, two police officers drove by and observed the F350 backed into the parking stall.

It was unusual, since it was late at night and all of the shops attached to this parking lot were closed. The police did a U-turn, drove into the lot, and parked their car nose to nose with the F350, just five feet away. The driver of the police vehicle stayed in the car. His passenger, a second police officer, began to walk over to the F350. The accused rushed out of the shop and jumped into the driver's seat of the truck, ignoring police commands that he not do so.

There was a female passenger in the truck. [ 7 ] There is video coverage lasting some four minutes, capturing the accused's unrelenting and violent efforts to escape the police. He first rammed the police vehicle nose to nose. He repeatedly backed up and then rammed his truck forward into the police car again and again in an effort to push it out of his way.

At one point, he drove into the driver's side door of the police vehicle, T-bone style, while the police officer was still sitting in the driver's seat. [ 8 ] While the accused was busy manoeuvering his vehicle out of the parking stall, the second police officer was at the driver's door of the F350. This officer managed to smash the driver's window of the F350 and tried to strike at the accused through the window with his flashlight. He attempted to extract the accused from the truck without success. The accused ignored the commands of the police officer outside his window to stop.

He endangered that officer's life by manoeuvering his truck back and forth next to the officer, until he was able to successfully push the police vehicle out of the way. Once he had pushed the police vehicle away, he fled the scene.

[ 9 ] There was no reported loss in relation to this break and enter. The only damage appears to have been the broken window through which the accused gained access to the shop. [ 10 ] The F350 was later found abandoned in Burnaby. The truck turned out to be a stolen vehicle. The accused's blood was located in the truck. [ 11 ] The dangerous driving by the accused during this incident is captured by the guilty plea to Count 7 of the information.

Port Coquitlam, January 6, 2013 [ 12 ] Three days later, at 3:00 a.m. on January 6, 2013, the police drove by Qua Spa in Port Coquitlam, and observed a break and enter in progress. They observed a smashed window and a Ford F150 parked in front of the store. As the police approached the F150, the accused fled from the store, jumped into the F150 and sped away with the police in pursuit. Again, there was a female passenger. [ 13 ] During the pursuit, the police engaged all their emergency equipment in an attempt to tell the accused to pull over. He did not.

As he sped away from the police, the accused engaged in a number of dangerous manoeuvers, including driving without lights. At one point, the police laid down a spike belt in an effort to stop the F150. The accused avoided the belt by jumping his vehicle over the median into oncoming traffic. There were a number of police vehicles in pursuit. One of those vehicles drove up beside the accused's truck. The accused attempted to use his truck to push this police car off the road. [ 14 ] Eventually the chase ended when a number of police vehicles were used to pin the F150 down.

The police disabled the tires of the F150. They demanded that the accused get out of the vehicle. The accused ignored these commands. He persisted in his efforts to get away, pushing down on the accelerator of his vehicle. The truck did not immediately go anywhere, but the tires were spinning, kicking up sparks, and creating grooves in the highway surface. The accused actually managed to break free and drive down the road for a short distance with no rubbers on his tires. Again, he drove at unsafe speeds and into oncoming lanes. Eventually his truck was once again pinned down by police vehicles.

The accused was taken into custody, but not without a fight. The police used a Taser device a number of times to try and remove him from the vehicle; that did not work. The woman was pulled from the passenger's seat. A police dog was sent into the vehicle to extract the accused. The police were eventually able to remove him from the vehicle, although he physically struggled with the police during these efforts. [ 15 ] The vehicle used in this January 6, 2013 event was also stolen. Again, there was no reported loss in relation to the break and enter.

The only damage appears to have been the broken window in the front door through which the accused gained access to the store. [ 16 ] The events of January 6, 2013, are captured by the guilty pleas to Count 10, the break and enter, Count 12, driving while disqualified, and Count 14, dangerous driving. THE CIMINAL RECORD OF THE ACUSED [ 17 ] The accused's criminal record spans a 30-year period.

He has some 57 criminal convictions, including convictions for some very serious offences that include robbery, attempt robbery, multiple convictions for assault, assault PC, assault causing bodily harm, uttering threats, and many, many property-related offences. [ 18 ] The following entries in the record are of significance in this proceeding: July 15, 2005 : PSP over and dangerous driving causing bodily harm, and failing to stop at the scene of an accident. The total effective sentence was five years in jail plus an eight-year driving prohibition.

A sentence of four and a half years was assigned to the dangerous driving causing bodily harm and the PSP counts. Those offences are strikingly similar to the ones before me. The accused was in possession of a stolen vehicle. When the police tried to stop him, the accused tried to escape in the vehicle. There was a pursuit during which the accused smashed into police vehicles. September 8, 2008 : Dangerous driving, mischief, and driving while disqualified. Total effective sentence was three years' jail plus a further eight-year driving prohibition.

These offences again involved the accused using a vehicle to vent his anger at another individual by T-boning the latter's vehicle on purpose. I pause to note that the two eight-year driving prohibitions imposed in relation to the 2005 and 2008 offences were both still in effect at the time the accused committed the two dangerous driving offences that are before me. June 26, 2012 : Break and enter and a PSP. Effective sentence was two years jail. THE ACCUSED [ 19 ] The accused is 51 years of age. He was born in B.C. He had three siblings.

He was raised in a fishing camp run by his parents in the north coastal region of the province. His early childhood was dysfunctional, characterized by physical discipline and verbal abuse at the hands of an alcoholic father. The family moved to Vancouver when he was 13. His parents eventually separated. Thereafter he lived primarily with his father. I gather there was not much in the way of 'parenting' in the home. [ 20 ] The accused did not thrive at school. He quit in Grade 8 in order to go to work.

In his mid-teens, he moved to Northern B.C., where he worked at a fishing plant and with his father as a commercial fisher. In the mid-nineties he began to work as a longshoreman as well. His employment record has been interrupted by numerous periods of incarceration. He has managed to complete his GED while incarcerated, and has reportedly taken some university-level courses in writing and journalism while incarcerated. [ 21 ] I have a Psychological Assessment prepared by Dr. Bartel dated May 21, 2015. Dr.

Bartel is a registered psychologist with extensive experience in clinical forensic pathology, including the preparation of pre-sentence reports of adults through the Forensic Psychiatric Services Commission. He has regularly conducted dangerous offender/long-term offender assessments and has been

qualified in the Provincial and Supreme Courts as an expert witness on matters pertaining to forensic psychology and risk for both sexual and violent offending. His report in this case is based on a two-and-a-half-hour interview with the accused. [ 22 ] The accused has experienced a number of traumatic events in his life which are described in Dr. Bartel's report. His first period of incarceration was at Oakalla when he was a young man of 18. During his time there, he was sexually assaulted over a period of a month by a high-ranking correctional officer. Dr.

Bartel notes that during this period of time, the accused was "terrified". "He felt he had no recourse or means of stopping [the assaults]." [ 23 ] In addition, the accused's mother died of lung cancer when he was a young adult. His sister was bludgeoned to death in 2001 by an abusive boyfriend. His grandmother was killed by a commuter train approximately 10 years ago. His father died in 2011, which was yet another unsettling event for him. [ 24 ] I pause here to note that the accused has just recently settled a civil suit against the above-noted Oakalla corrections officer and that jail.

The accused was just one of a number of such plaintiffs. During the sentencing submissions that occurred in February 2015, the accused's then counsel, D.G., erroneously referred to the civil action as if it involved a current complaint regarding the accused's treatment while at the North Fraser Pretrial Centre. For clarity's sake, the civil action that has just recently been settled was in fact the civil action that the accused had regarding events at the Oakalla prison. There is, in fact, a more recent action pending against the North Fraser Pretrial Centre. It has not yet been settled.

One of the complaints involved camera surveillance by women guards of the segregation prisoners while they were in the showers. I am advised that complaints regarding this practice have already triggered a change in the procedures in place at the pretrial centre. [ 25 ] The accused's perspective on the offences before the court can be found in Dr. Bartel's report: Mr. Anderson states that the index offences of 2012 [that should be 2012 and 2013] are part of a pattern of behaviours that occur regularly when he is out in the community.

He describes a pattern of behaviour where, after a period of functioning relatively well in the community, he will relapse back into substance abuse. He states that in this instance, he relapsed back into using crystal methamphetamine along with his girlfriend. He states that he is unsure why he decided to engage in a crime spree in this instance, but states that each time he leaves jail, he is worse at managing his risk.

He guesses that he has become institutionalized by spending upwards of 30 years of his life incarcerated. ( Emphasis added ) [ 26 ] When asked by the doctor about his faults, the accused was "somewhat at a loss", apart from stating that he has spent 30 years in prison and is unsure why he "keeps on doing wrong shit". [ 27 ] Dr.

Bartel reviewed the accused's criminal record and noted at page 3 that, following his first federal sentence in 1987, the accused had "subsequently engaged in a pattern of chronic criminal offending that has persisted through his adult life until the present time." He also noted: He has spent much of his adult life in custody, either as a result of serving his sentences or awaiting trial on remand. He has also reportedly spent much of his previous remand time (i.e., prior to being incarcerated on the present index offences) in segregation. The Segregation Issue [1] One of the issues addressed in Dr.

Bartel's report is the accused's current custodial status at the North Fraser Pretrial Centre and the impact that this has had on him. The accused has been in segregation cells continuously for approximately two years now. It is common ground that the accused is in segregation for his own safety and that this is not for reasons of his own making. There is a reference in the assessment as to the reason behind the segregation and, out of a concern for the accused's safety, I have ordered the report to be sealed and not to be opened, except by further order of the court.

I have also received paperwork from the North Fraser Pretrial Centre confirming the risk that exists for the accused were he not to be in segregation: see Exhibits 5, 6, and 7. Exhibit 7, a letter from the Provincial Director, Stephanie MacPherson, has also been sealed. In that letter, she indicates that there are no alternative placement options and that the accused is classified as follows: "Involuntary Separate Confinement -- Long term, now and in the foreseeable future." [ 28 ] The nature of the accused's life in segregation is described more fully at page 4 of Dr. Bartel's report.

To summarize: He is in an 11-foot by 10-foot by 8-foot room with a sink, toilet, small television, metal desk, and metal cabinet. He spends 20 hours each day alone. He is forbidden from talking or communicating with other inmates, hence, "he has little opportunity for social engagement, apart from the time spent in the company of correctional officers." [ 29 ] He is permitted to use a computer for one hour each day. He exercises alone, but exercise equipment is not permitted on the unit. He uses buckets of water as weights.

He is subject to 24-hour surveillance, even in the shower, where there are surveillance cameras. His ability to sleep is "compromised" by the loud slamming of metal doors, an event that occurs every half hour, night and day, when the guards enter the cells as they are required to do. Because he can have no direct contact with other inmates, he has been precluded from participating in any of the institutional programs or treatment programs.

All treatment programs are group based. [ 30 ] Defence counsel has filed an affidavit of Jennifer Metcalfe, executive director of Prison Legal Services ("PLS"), which is operated by a non-profit organization, the West Coast Prison Justice Society. The mandate of PLS is to advocate on behalf of prisoners in B.C. Attached to the affidavit is Exhibit A. Exhibit A is a position paper presented by PLS to a roundtable meeting on safety issues within B.C. Corrections.

Section 1 of the paper, pages 2 to 8, contains a critical review of the use of segregation and solitary confinement in the prison system, the deleterious effects of such experience upon prisoners, and concludes with a number of recommendations. The document is, in essence, an argument against the practice of segregation and isolation, especially when used on a long-term basis. Suffice it to say that there is a good case to be made for the proposition that long-term segregation in solitary

confinement imposes severe mental pain suffering "that is likely to psychologically destabilize a prisoner to the point where the prisoner is no longer capable of improving his behaviour. In other words, the practice may well be incompatible with the desired goal of rehabilitation within the prison." [ 31 ] As to the effects of segregation on this accused, Dr. Bartel notes: With regard to his most recent period of custody, reports indicate that Mr. Anderson has been placed in segregation for over two years without reprieve. The effects of a long-term segregation of this duration are not well understood.

Certainly research shows that shorter periods of segregation have often been associated with a host of negative psychological consequences, including anxiety, panic, insomnia, paranoia, aggression, and depression. With Mr. Anderson, he appears to have experienced several negative outcomes directly as a result of long-term segregation, including anxiety, panic, and insomnia. Furthermore, with further segregation, he is at risk of developing additional problems related to depression and paranoia. Indeed, he is already noticing some mild depression and paranoid thinking, albeit subclinical at this time.

The Psychological Assessment [ 32 ] At pages 6 to 7 of his report, Dr. Bartel referred to an assessment of the accused that had been done by Dr. Levy in 2005. He noted Dr. Levy's conclusions: . . . Results of Dr. Levy's assessment indicated that at that time Mr. Anderson presented as an impulsive, sensation-seeking individual who was fairly reckless and irresponsible throughout his life. A significant substance abuse problem was noted. It was also noted that he became noticeably more emotionally unstable after his sister's death in 2001. Although Dr. Levy observed that Mr.

Anderson had experienced a number of traumas over the course of his life, he did not present with Posttraumatic Stress Disorder (he reportedly did present with some PTSD symptoms, however). Diagnostically, Mr. Anderson was viewed as having attention deficit hyperactivity disorder or ADHD. His risk for violence was deemed to be high, and according to Dr. Levy, Mr. Anderson reportedly scored in the high range on the Psychopathy Checklist-Revised. [ 33 ] Dr. Bartel set out his own conclusions at pages 7 to 9 of the report. Key portions are set out below: . . .

Results of the present assessment found no evidence of a major mental illness, either in the form of major depression, anxiety, or psychotic disorder. Mr. Anderson does present, however, with some significant mental health problems and issues Diagnostically the most salient concern is the presence of an Adjustment Disorder with Anxiety.... In this case, Mr.

Anderson has been experiencing an array of anxiety-related symptoms, including excessive worry, disturbing dreams, daily panic reactions (i.e., racing heart, perspiration, racing thoughts, concentration problems, and sleep problems all of which are primarily in response to being placed long-term in segregation and the resulting lack of stimulation and social engagement . ( Emphasis added ) The diagnosis of Posttraumatic Stress Disorder was also considered, however, his symptom profile does not meet the diagnostic criteria for the disorder. Although Mr.

Anderson has experienced numerous traumatic events in his life, he does not appear to have ever experienced a full-blown Posttraumatic Stress reaction to these. Additional diagnostic concerns centre on the presence of multiple substance abuse disorders. Mr. Anderson endorses a history of substance abuse problems specifically related to alcohol, cocaine, and more recently Crystal Meth. With each of these substances, Mr.

Anderson has exhibited signs and symptoms of dependence or addiction as he has failed to abstain despite desires to quit and has continued using these substances despite the obvious negative effects and consequences that have resulted from their use. Finally, Mr. Anderson presents with an Attention Deficit Hyperactivity Disorder with features of inattention/concentration problems, hyperactivity, restlessness, and impulsivity. . . . there is ample evidence to suggest the presence of a long-term, longstanding antisocial personality disorder.

Antisocial personality disorder describes a pattern of disregard for, and violation of, the rights of others, which in this case is evidenced by repeated criminality, irresponsibility, impulsivity, aggressiveness, reckless disregard for the safety of others, and lack of remorse. Mr. Anderson's antisocial traits have been present all through his life, dating back to late childhood.

He is also thrill-seeking and experiences little empathy regarding the negative effects of his behaviour on others or himself. Thus, he is prone to act on his own immediate desires, thoughts, and impulses with little forethought or regard for the possible negative consequences. Although he does experience some degree of guilt and is generally non-violent, he can quickly and impulsively act out aggressively if it is in his immediate interests. He will also be more prone to act out impulsively when under the influence of drugs or alcohol. . . .

At this point, his ability to function independently in the community is very compromised and he has essentially become institutionalized. . . . Mr. Anderson appears to have been increasingly engaging in reckless and dangerous behaviour over the past 10 years at least. The present index offence is an example of this as he engaged in behaviours with potentially fatal consequences to himself and others (i.e., dangerous and erratic driving despite police pursuit and the presence of multiple innocent parties). . . .

His pattern of reckless behaviour appears to be quite chronic. (Emphasis added) The Accused's Plans for the Future [ 34 ] Upon his release from custody, the accused expects to move to Prince Rupert, B.C., to take up employment in the commercial fishing business, an enterprise which his family was engaged in for many years. I have a letter from Robert Richards of B.C. Packers confirming that he has employment available for the accused as a first mate on the Motor Vessel SONSY. Mr. Richards confirms that the accused has worked on and off for B.C.

Packers since he was 16 years old. [ 35 ] It is also the accused's plan to enrol in counselling programs upon his release from custody. These would be programs that would assist him in dealing with his addiction and other psychological issues that he is currently trying to cope with. He has taken steps to make this happen. I have a letter from Dr. Stirling of the Barber Stirling Counselling and Consulting Service in Prince Rupert, confirming that she is prepared to take the accused on as a client upon his arrival in Prince Rupert.

I have a letter from Tammy Luciow, a licensed social worker working in private practice, who confirms her willingness to provide the accused with counselling services when he relocates to Prince Rupert. I also have a letter from Dr. Graham, who is based in Victoria, B.C. She, too, confirms that she is prepared to see the accused as a client.

The accused expects to pay for these counselling services using the settlement funds that he has now received from the Oakalla sexual assault lawsuit. [ 36 ] As to housing, in February 2015, when I first heard sentencing submissions from the accused's then counsel, D.G., I was advised that the accused's common-law partner had secured accommodation for them both in Prince Rupert. This past Monday, June 15, 2015, I received an unsolicited letter sent by Ms. Boak, the accused's common-law partner. In her letter, she advised: Since January 5, 2013, I have completely changed my life for the better.

I have a stable home at 5933 - 177B Street in Surrey, B.C., waiting for Robert to come home to. The idea that the accused will be living in Surrey with his partner, which is the suggestion in this letter, is quite inconsistent with the earlier assertion that he will be living and working and receiving counselling up in Prince Rupert. Indeed, if he goes to live with this woman in Surrey, then all of these counselling letters from Prince Rupert are relatively meaningless. Now, it may be that Ms.

Boak is confused about her situation with the accused, but at the very least what her letter does indicate is that there is not any housing arranged for the accused up in Prince Rupert at this point in time. SENTENCING POSITIONS [ 37 ] The Crown's original sentence position on February 6, 2015, was that the appropriate global sentence was nine years' imprisonment, less credit for time served. [ 38 ] At that time, the parties were of the view that the accused was entitled to a two-for-one credit for time served.

The sentencing hearing was adjourned for further submissions to February 27th, March 4th, and then to May 27, 2015. In the interim, crown counsel realized that the sentence that he originally proposed was an illegal one. The accused was never entitled to double credit. The best he could get was credit for 1.5 times the actual custodial period that he had already served. [ 39 ] Using the erroneous two-for-one multiplier, the Crown calculated that as of May 27, 2015, the accused was entitled to a credit of four years and eight months, leaving a balance of four years and four months to be served.

This number included an upward adjustment in the credit for time served (from February 6 to May 26, 2015) and a downward adjustment in the amount of new jail time that ought to be imposed. This would result in an effective sentence of 9 years imprisonment. [ 40 ] Crown counsel has recognized that if he maintains his position that a global sentence of nine years is appropriate, a reduction in the credit for time served to a "1.5 to 1" ratio would result in a longer sentence for the accused going forward.

Accordingly, he has attempted to craft a sentence proposal that would adhere to the original proposal of "new time" of four years and four months, so as to ensure that the accused is not prejudiced by the erroneous assumption that he was entitled to two-for-one credit. This is, in my view, a very fair position for the Crown to be taking. It is not necessarily a position that I can take, given that my task is to ensure that an appropriate sentence is imposed in this case, one that is proportionate to the gravity of the offences and the culpability of the accused for those offences.

[ 41 ] At any rate, as of May 27, 2015, the Crown made adjustments to his position that have effectively lowered the global sentence proposed by the Crown to eight years. Going forward, the new time to be served by the accused as of that date would still be four years and four months. This latter number must again be adjusted for the additional time served by the accused from May 27 to yesterday, June 18, 2015, that is an additional 23 days X 1.5.

The total credit given to the accused under the Crown's proposal must be increased by 35 days and the time left to be served (4 years and 4 months) must be reduced by 35 days. [ 42 ] I turn now to the defence position on sentencing. In February 2015, the position advanced by the accused's then lawyer, D.G., was time served plus one day in jail.

In effect, using the "2 for 1" credit formula, the defence was asking for a global sentence of four years and four months for all of the offences to which the accused had pled guilty, this being equivalent to the credit the accused was entitled to for the time that he had spent in custody pending disposition. [ 43 ] On June 8, 2015, the accused's new counsel, Ms. Rudovica, proposed a global sentence for all offences of five years in jail. As of June 8, the accused had spent almost two years and five months in custody.

Using the "1.5 to 1" multiplier, under defence counsel's position, the accused was entitled to a credit of three years and seven and a half months. The balance to be served on the five-year sentence would be one year and four and a half months. So the proposed sentence from defence was, as of this date, time served plus one year, four and a half months' jail, to be followed by a three-year probation order.

The advantage of the probation order, as noted by defence counsel, was that it would allow us to monitor the accused's conduct in the community for three further years, and it would allow us to actively provide him with the rehabilitative services that he needs.

ANALYSIS [ 44 ] The fundamental principle of sentencing is set out in s. 718.1 of the Criminal Code : A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 45 ] The offences committed by this accused were very serious indeed, especially the dangerous driving offences that imperilled the lives of police officers and other innocent citizens using the highways. The accused is fully culpable for his criminal actions. There is nothing in the circumstances before me that would mitigate that culpability to any degree.

Aggravating Circumstances [ 46 ] The aggravating circumstances relating to Count 1 include the value of the goods stolen, in excess of $11,500, and the highly destructive manner in which the break and enter was committed.

The amount of damage done to the business premise was in the range of $67,000. [ 47 ] The aggravating circumstances relating to Counts 3 and 7, that is the break and enter and dangerous driving offences, include the fact that the accused was driving a stolen F350 while prohibited from driving, coupled with the extreme danger faced by the police as the accused manoeuvered his vehicle back and forth, without any apparent concern for the safety of the police officer who was at his driver's door window, or the safety of the police officer who was sitting in the driver's seat while the accused drove his vehicle into the driver's door.

The accused was obviously determined to escape from the police and, in his efforts to do so, he endangered the lives of both of these officers. [ 48 ] The break and enter was far less aggravating than the one that occurred on December 21, 2012. There is no reported loss to the store owner. No doubt that is only because the accused was caught in the act before he could steal anything. [ 49 ] The aggravating circumstances relating to Counts 10, 12, and 14, that is the break and enter, driving while prohibited, and dangerous driving offences, include the fact that the accused was driving yet another stolen vehicle.

Again, the dangerous driving was at the extreme top end of the scale. The police pursuit was quite a terrifying event for all concerned. The lives of police officers and other unsuspecting civilians using the roadways in the vicinity of the police chase were all in grave danger.

The offences were further aggravated by the accused's unrelenting refusal to stop for the police, his determination to escape apprehension, and his violent resistance to the arrest, even after his truck was finally stopped. [ 50 ] The break and enter again was much less serious than the one that occurred in December 2012, and there was no reported loss to the store owner. Again, the fact that there was no loss is not to the accused's credit. Had the police not caught him in the act, I expect the result would have been much different. [ 51 ] The accused's criminal record is yet another aggravating circumstance.

It is an unrelenting record dating back to 1982. It includes a number of serious offences that have netted the accused serious jail time. There is one recent break and enter conviction from June 26, 2012. He received a total sentence of two years. After credit for time served, he received an additional six months in jail.

Within a couple of months of this release, likely in October or November of 2012, the accused was right back into his criminal activities, commencing with the break and enter on December 21, 2012. [ 52 ] Of obvious concern are the two prior convictions for dangerous driving, one in 2005 and one in 2008, for which he received sentences of 4.5 and three years' jail respectively. The eight-year driving prohibitions that were imposed on both occasions obviously had no impact upon the accused.

He wilfully ignored those prohibitions during the January 2013 offences that are before me, and I again note that the circumstances surrounding the 2005 conviction for dangerous driving are strikingly similar to the ones before me: a stolen vehicle, a police pursuit, and ramming of police vehicles. Mitigating Circumstances [ 53 ] The guilty pleas entered by the accused to all of these charges are mitigating to a limited extent. These are not what one would normally call early guilty pleas. However, the end result is that we were saved the expense and effort of what would have been a very

lengthy trial. [ 54 ] The personal circumstances of the accused, including the various traumatic experiences that he has gone through, both in and out of jail, are also important considerations here. However, the most important factor to be considered is what I think is best described as a collateral consequence that accompanied the arrest and detention of the accused. I am, of course, referring to the fact that, through no fault of his own, the accused has been confined in a segregation cell now for nearly two years. With the filing of Dr.

Bartel's report, I now have a much clearer understanding of the accused's segregation status and the effect that it is having on him. [ 55 ] In the case of this accused, his segregation experience is more akin to confinement in an isolation cell. For two years, he has been allowed no physical or verbal contact with other prisoners. The only people with whom he can socialize are those prison guards who are willing to talk to him. He spends 20 hours each day alone in his cell. He cannot participate in any of the rehabilitative or treatment programs within the pre-trial centre.

They are group-oriented programs and he is not allowed to meet with or chat with other prisoners. [ 56 ] The segregation placement was originally expected to be short-term, but it has become a long-term situation, a fact that has been confirmed by the Director, and I quote, "involuntary separate confinement, long-term, now and in the foreseeable future". In other words, the accused's jail sentence going forward will be a segregation sentence for the foreseeable future. [ 57 ] It is not hard to imagine how lonely, depressing, and dehumanizing the accused's situation has become.

I take no issue with the suggestion that his status as a segregation prisoner is having a devastating psychological effect upon him. The following words from Dr. Bartel bear repeating: With Mr. Anderson, he appears to have experienced several negative outcomes directly as a result of long term segregation, including anxiety, panic, and insomnia. Furthermore, with further segregation he is at risk of developing additional problems relating to depression and paranoia. Indeed, he is already noticing some mild depression and paranoid thinking, albeit subclinical at this time.

Obviously further time in segregation for this accused will be counterproductive when it comes to the issue of rehabilitation. I accept that fact. [ 58 ] The other fact that has to be acknowledged in this case is the real risk that the accused presents to the community when he is not in jail, and this is a fact that is confirmed, as well, through the report of Dr. Bartel. [ 59 ] I now turn to a consideration of the appropriate sentences to be imposed. The offences before me are very serious indeed. Taken as a whole, they demonstrate that the accused represents a continuing danger to the community.

Previous jail sentences that he has served have failed to motivate him to control his behaviour in the community. [ 60 ] After reviewing the circumstances of the offences, the personal circumstances of the accused, and the report of Dr. Bartel, I am in agreement with the proposition that, at this point in time, the need to protect the community from the dangerous criminal activities of this accused is of primary concern at this sentencing hearing.

To achieve this end, there must be a jail sentence that removes the accused from the community for a significant period of time. [ 61 ] This sentence should not be so harsh as to destroy any hope that the accused may have of rejoining society and becoming a law-abiding member of the community. I recognize that the accused's criminal record is a discouraging one. Given that history and the speed with which the accused reverted to serious crime following his last release from custody in late 2012, there is good reason to be very hesitant about the prospects for his rehabilitation.

Still, this accused does have plans for his rehabilitation that should not be lightly dismissed, and the sentence should not be so oppressive as to crush the accused's belief that he can indeed change. [ 62 ] The difficulty in the present case is that the two key sentencing objectives, protection of society and rehabilitation of the accused, are very much at odds with one another. As long as the accused is held in segregation while confined to a prison, the prospects for his rehabilitation continue to fade. Still, after reviewing the offences, the personal circumstances of the accused, and the report of Dr.

Bartel, I have come to the conclusion that protection of the public must be given priority in this case. The following words of Dr. Bartel bear repeating. They suggest that there is indeed a very high risk that the accused will re-offend once back in the community: Mr.

Anderson has exhibited signs and symptoms of dependence or addiction as he has failed to abstain despite desires to quit and has continued using these substances despite the obvious negative effects and consequences that have resulted from their use. . . . there is ample evidence to suggest the presence of a long-term antisocial personality disorder . . . evidenced by repeated criminality, irresponsibility, impulsivity, aggressiveness, reckless disregard for the safety of others, and lack of remorse. . . .

At this point, his ability to function independently in the community is very compromised and he has essentially become institutionalized. . . . Mr. Anderson appears to have been increasingly engaged in reckless and dangerous behaviour over the past 10 years . . . his pattern of reckless behaviour appears to be quite chronic.

[ 63 ] I am mindful of the fact that the pre-trial detention of the accused has been uniquely harsh, through no fault of his own, and the jail sentence that I impose will likely continue to be an extremely harsh one. For this reason, I accept that the sentence that I impose should be as low as is appropriate, bearing in mind the gravity of the offences and the accused's criminal record. [ 64 ] Defence counsel has proposed effective concurrent sentences of five years on all offences.

This proposition is premised on the argument that the accused was involved in a spree; hence the sentences that I impose should all be concurrent. In my view, a five-year global sentence for all of these offences would be disproportionately low in relation to the gravity of the offences and the risk that the accused presents in terms of future offending conduct.

There is also a pressing need to denounce the violent criminal conduct engaged in by this accused, which would not be satisfied by the sentence proposed by the defence. [ 65 ] Had this offender committed just one dangerous driving offence and no break and enter offences, given his current record and the horrendous driving conduct that was involved in the current offences, I would have sentenced him to the maximum of five years in jail for just that one offence.

It is difficult for me to imagine how the sentence for two such dangerous driving charges and three break and enters could be adequately addressed by a single term of five-years' imprisonment. [ 66 ] The Crown has proposed an effective global sentence of eight years in jail. In my view, the sentence could well be higher than this and still be within the range. Crown counsel has also conceded, in his written submission, Exhibit 8, that "a seven-year sentence is in the range of sentence available to the accused." I am far less confident about this suggestion. [ 67 ] My own conclusions are as follows.

I will begin with the first break and enter offence on December 21, 2012. The maximum sentence for break and enter into a business is 10 years' imprisonment. The last entry in the accused's criminal record is for a break and enter for which he received an effective sentence of two years.

In my view, the appropriate sentence for the December 21, 2012 break and enter, a particularly violent and costly crime, with property damage of $67,000 and property theft of $11,000 plus, would normally be in the range of three to four years' jail for this particular offender, taking into account his record for property related offences. [ 68 ] As for the two dangerous driving offences committed on January 3 and 6, 2013, I think we are all in agreement in this case that these are the most serious crimes before me. The maximum sentence for this type of offence is five years in jail.

The accused was sentenced to four and a half years for the same offence in 2005 and three years for the same offence in 2008. This record, together with the particularly violent and egregious nature of the driving conduct engaged in by the accused on each occasion in January 2013 has led me to the conclusion that the maximum sentence of five years imprisonment must be imposed on both counts of dangerous driving. [ 69 ] The break and enters that accompanied these two dangerous driving offences are less egregious than the December 2012 break and enter.

They should receive sentences of 18 months' imprisonment, concurrent with the dangerous driving offences committed on the same dates. [ 70 ] The maximum sentence for driving while disqualified, contrary to s. 249 of the Criminal Code , is five years. The accused was driving contrary to two eight-year driving prohibitions, and I am of the view that the maximum sentence of five years should also be imposed for this offence. [ 71 ] It is apparent that consecutive sentences for the three events covering these six offences committed December 21, 2012, January 3, and January 6, 2013 would be excessively harsh.

On the other hand, concurrent sentences of five years in jail for all three events would not be sufficiently proportionate to the gravity of the accused's criminal conduct considered as a whole. [ 72 ] Leaving the segregation issue aside for a moment and taking into account the totality principle, I am satisfied that a global sentence in the range of eight to 10 years would be an appropriate and just sanction for this offender and all of these offences. [ 73 ] I turn now to the segregation issue.

The accused's two-year confinement in segregation while awaiting disposition of this matter is a situation that is likely to continue following the imposition of the sentence, and this must be taken into account in determining an appropriate global sentence. Dr. Bartel's report has been most helpful in illuminating the extraordinarily harsh and inhumane nature of the circumstances in which the accused has had to live during his time in custody to date. Sadly, there is no immediate relief in sight.

A downward adjustment in the length of sentence is warranted in these circumstances. [ 74 ] Taking this factor into account, I am satisfied that the global sentence in this case should be seven years' imprisonment. In my view, this is a sentence that is below the range, but it is a just and appropriate one, given the unique circumstances that the accused finds himself in. [ 75 ] Credit must, of course, be given for the time that the accused has already served. Not including today, the accused has been in custody for 895 days which is equivalent to two years and 165 days.

Using the 1.5 multiplier, he is entitled to credit for time served of 1,343 days or three years and 248 days. If the global sentence is to be seven years, the number of days yet to be served is three years and 117 days. CONCLUSIONS [ 76 ] So, what should the sentences be and how should they be structured?

Also, how should the 'dead time' be apportioned, and should the sentences be concurrent or consecutive? [ 77 ] The sentences will be imposed in the following manner: Count 1 Break and Enter at the Armani Exchange Time served plus 115 days in jail The record will reflect time served 410 days, time credited 615 days.

Total effective sentence: Two years in jail Count 7 Dangerous Driving Count 12 Driving while Disqualified, and Count 14 Dangerous Driving The following sentences are to be concurrent with one another, but consecutive to the sentence imposed on Count 1. The credit for time served is to be concurrent on each offence, as well, but consecutive to the time served credit given in Count 1 Time served plus three years and two days in jail The record will reflect time served 485 days, time credited one year and 363 days.

Total effective sentence: Five years in jail Count 3 Break and Enter at #1 Autobody 18 months' jail, concurrent with the sentence on Count 7 Count 10 Break and Enter at Qua Spa 18 months' jail concurrent with the sentences imposed on Counts 12 and 14 [ 78 ] The total time credited is three years and 248 days. The total new time that is to be served going forward is three years and 117 days, for a total effective sentence of seven years. [ 79 ] Before concluding, I would like to formally adopt the recommendations set out by Dr. Bartel on the final page of his report. They are as follows: Recommendations 1. . . .

I am very concerned, however, about the prospect of Mr. Anderson continuing to reside in segregation cells and the negative effect of long term segregation on his psychological functioning both over the short-term and the long term. If at all possible, arrangements should be made for Mr. Anderson to have regular privileges and opportunities for social engagement with others should he remain in custody. This would also allow for him to participate in institutional programming, something that he is precluded from at this time. 2. Upon his eventual release in the community, Mr.

Anderson will require close supervision and monitoring with a host of court ordered sanctions or prohibitions, including the use of alcohol or illicit substances. Given his repeated failures while in the community, he would benefit from a well-planned reintegration plan that includes arrangements for housing, employment, and treatment services. [ 80 ] I will just pause right here to note that, given the nature of the sentence, there is no follow-up probation order that can be imposed.

Supervision and monitoring of the accused in the community would have to be accomplished through the parole provisions and parole terms. 3. With regard to treatment needs, Mr. Anderson would benefit from participation in residential substance abuse treatment followed by outpatient or community substance abuse treatment for follow-up and support. 4. Should Mr. Anderson develop chronic mental health problems or have his Adjustment Disorder persist, referral to mental health services will be recommended.

Once released into the community, he can be referred to the community clinics of Forensic Psychiatric Services in order that he can receive possible psychiatric treatment and counselling. [ 81 ] There are going to be ancillary orders. [ 82 ] The maximum driving prohibition that can be imposed under s. 259(2)(

c) of the Code is "three years, plus any period to which the offender is sentenced to imprisonment". Pursuant to s. 259(2.1), the court can order that multiple driving prohibition orders be served consecutively. In this case, I am imposing a 3 year driving prohibition on Count 7 and a 3 year driving prohibition on Count 14. I am directing that these prohibitions be served consecutively. Thus, the total prohibition period, effective today, is 6 years, plus the 3 years and 117 day jail sentence just imposed. [ 83 ] I also order the accused to provide a sample of his DNA for entry into the national DNA databank.

This order is attached to each of the break and enter counts. [ 84 ] THE COURT: All right. -- and if that document could be marked as the next exhibit.

[ 85 ] THE CLERK: Certainly, Your Honour, that is Exhibit 9. EXHIBIT 9 (on Sentence): Letter to Judge Howard from S. Boak, dated June 2, 2015 [ 86 ] THE COURT: Any further questions? [ 87 ] MS. RUDOVICA: No, Your Honour. [ 88 ] THE COURT: Any questions, Mr. Anderson? [ 89 ] MR. DOW: The remaining counts on the information that have not been addressed are stayed. [ 90 ] THE COURT: Thank you. [ 91 ] MR. DOW: There is a victim fine surcharge. This is -- old enough that you may be able to -- waive the victim fine surcharge. [ 92 ] THE COURT: He is not going to be available to pay the victim surcharges.

The only thing I could do would be to ask him to pay it out of his own victim compensation fund, and I am not going to do that; so, "exempt on the surcharges". (REASONS FOR SENTENCE CONCLUDED)