R. v. Powell, 2018 BCPC 295

Citation: R. v. Powell 2018 BCPC 295 Date: 20180807 File No: 246620-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. RYAN PHILIP POWELL EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE MEYERS Counsel for the Crown: L. Krivel Counsel for the Defendant: S. Ross Place of Hearing: Vancouver , B.C. Date of Hearing: August 7, 2018 Date of Judgment: August 7, 2018 [ 1 ] THE COURT: Mr. Powell is here for sentencing on a charge of arson that occurred March 5, 2017, and the arson was the

result of a fire that he started in his own apartment building in a rooming house, I guess a rooming house that had approximately 50 residents in total. Fortunately no one was hurt, but there was, according to the Victim Impact Statement, a lot of property damage and fear to the other residents of the building. [ 2 ] This is a very difficult case for sentencing to weigh what is appropriate for society and Mr. Powell. Obviously arson is a hugely serious offence. The Crown and defence have given me a series of cases, and I'll just run through their names. R. v. Berg 2016 BCPC 379 ; R. v.

MacKendrick , M-a-c-K-e-n-d-r-i-c-k, 2007, BCJ 306 ; R. v. CSC , 2005 BCJ 2248 ; R. v. Cootes , 2001, B.C. Court of Appeal 398; R. v. Hammerling , 2017, BCJ 177 ; R. v. Kaufman , 2009 BCCA 165 ; R. v. Day , 2013 BCCA 172 ; R. v. Bogue , B-o-g-u-e, a decision 2017, BCPC 58 and R. v. Sharun , S-h-a-r-u-n, 2017 BCPC 367 . [ 3 ] Those cases all dealt with arson and accused persons with a mixture of mental illness, drugs or alcohol. [ 4 ] The sentencing range is very wide, going everything from suspended sentences up to four years, and also some conditional sentences when they were still applicable then.

They are no longer applicable now. [ 5 ] Crown counsel in this case has asked for a sentence of two years less a day plus Probation. Defence counsel has urged upon the Court to impose a suspended sentence and Probation, or a much lesser incarceration, if necessary. [ 6 ] The facts in this case, which make this case a very difficult one to decide on a proper sentence are as follows. The other factor that makes this a difficult case is the background of Mr. Powell. [ 7 ] I will deal with the facts briefly here. What happened here is Mr. Powell has a long history of mental illness and drug abuse.

The drug abuse started in his teenage years with alcohol and methamphetamines and crystal meth, occasional use of heroin thrown in there. [ 8 ] He has always had, beginning at a young age of early teens, mental health issues of anxiety, depression. More recently in the last few years the doctors diagnosed him with a variety of mental health problems, anxiety, depression, polysubstance abuse, drug induced psychosis, chronic delusional states, and also schizoaffective disorder, or schizophrenia, paranoid delusions.

I will get into some of that in a little more detail later. [ 9 ] So on the day in question, he was apparently either intent on committing suicide or intent on bringing attention to himself. I am not sure which it was for certain. He told the psychiatrist that it was to get people's attention, yet on the other hand, on the day in question, he had a belt tied up as a noose hanging from the ceiling.

He put a bunch of furniture to block the door, he took down the fire alarm in his room, he took down the smoke detector in his room, he wrote to his parents that he was going to commit suicide, and told them the method that he would be using. [ 10 ] In his to attempt suicide or to draw attention to himself, he lit about five fires, small fires in his room. The room caught on fire. The sprinkler came down on him and he ran out the window. [ 11 ] In the past he had had a number of suicide attempts, both by setting himself on fire and attempted hanging as well. He ran to a fire station close by.

The firefighters took him to the hospital. He was, under the Mental Health Act , admitted there and was kept there until the charges were laid on March 15th, that's about 10 days later. However, later on, he was brought back to the hospital under the Mental Health Act and stayed there until early April when he was released. [ 12 ] I think it is clear from listening to the facts of the Crown, and the PSR, and the psychiatric report, that he had no intention of hurting or causing harm to other people.

This was all about his black, black state that he was in that day. [ 13 ] I have to remember, of course, that there is not a plea, not guilty by reason of a mental disorder, but yet his moral culpability has to be carefully looked at in terms of what his mind was doing on that particular day. [ 14 ] I am dealing with a very sick man.

A man who has been seriously psychologically damaged since the early teens, and has been using opiates along with his mental health issues. [ 15 ] It is obvious from the psychiatry reports, and the PSR, and from his learned defence counsel, that the use of the drugs, in particular the crystal meth, has had an exacerbating effect on his mental health issues. [ 16 ] On the day in question, according to the PSR and the Psychiatric Report, that day and days prior to that he was receiving messages, delusionally, from Taylor Swift, from the Hell's Angels, the newspaper, and the radio, all communicating with him to commit suicide. [ 17 ] Prior to this time, he was delusional and thought that people were following him, that Taylor Swift was using his lyrics and music, talking to him.

These delusional effects were present before and during this day. They guided him and urged him to commit suicide. As I say, there's no question that Mr. Powell is and was a very sick person. [ 18 ] The reason I keep repeating his mental illness is that as I mentioned to Crown counsel and defence during their submissions, sending a man who is so desperately ill to jail for an attempt suicide that causes damages to other people, when he really did not think of it, at first blush is something that is counterintuitive, for a Judge.

That is to say, that the punishment in mostly all of the arson cases, be they involved in mental health issues or not, have always been to send the person to jail, except in a few cases where suspended sentences were imposed. [ 19 ] The Crown have attempted to differentiate those cases where a suspended sentence, or in the former days when a conditional sentence order could be given, could differentiate those cases from this case. As all of us know, no two cases are similar. No two individuals are similar.

That presents the Judge, myself, with the hardship of deciding what is in the best interest of the community and what is in the best interest of Mr. Powell's rehabilitation.

[ 20 ] On the one side, to his benefit, we have a guilty plea, and that is important. We have the psychiatrist and Probation Officer saying that he has acknowledged the wrongdoing and the wrong in what he did, and the moral culpability for what he did. [ 21 ] We also have on the positive side, in early June he enrolled, on his own, in a residential treatment centre called Together We Can, and he had been there since then. He has been there since June 13th. [ 22 ] That residential treatment centre for alcohol, and drug, and psychiatric care as well, is scheduled for a discharge August 29th of this year. Mr.

Ross says that it can be extended to a second stage at that same place that (second stage) could go on up to a year. The reason that has not been done is the uncertainty of what was going to happen with Mr. Powell today. Those are positives for him. [ 23 ] Mitigating factors are, of course, the severe mental health issues that he has and I cannot help but think that somebody who is drawn to the point of attempt suicide, both in the past and on this day, denotes somebody with a very severe mental health problem. [ 24 ] The Crown, on the other hand, have an interesting argument.

They say that he has, without success, been addicted to serious drugs since his early teens. He is now 31. He has been hospitalized at numerous hospitals and psychiatric wards over the years in Kelowna, in New West, in Burnaby, St. Paul's and so on. But even with all of the treatment at all of those hospitals, he has never been able to beat ether the mental illness problem or the very serious drug problem. [ 25 ] The Psychiatrist who interviewed him commented that he's still, as of June 6, 2018, using crystal meth and occasional heroin, and alcohol.

As well, he has also gone to numerous alcohol and drug treatment centres, two of which were paid for by his family and others where he graduated from but very shortly got right back into the use of crystal meth and/or heroin. [ 26 ] So the Crown argue that here is a man who has serious mental health issues, but in the community he has been unable to get a handle on those, notwithstanding he has had the opportunities and the support of his family, plus trying through either involuntary or voluntary committals under the Mental Health Act , to various psychiatric hospitals. [ 27 ] Crown urged that he cannot handle things on his own.

The drug and mental health issues are bigger than he is and that is nothing that is new to this Court. [ 28 ] Defence counsel urged that he can, under strict controls, be allowed in the community to look after his mental health and drug addiction problems. He says that under the Together We Can, that is a residential treatment centre, they will call if he breaches, if he uses drugs, because they do have regular drug testing, and if he breaches curfews, if he does not cooperate in the programming.

As long as he is there, he can be controlled. [ 29 ] The problem I have is in listening to the Crown outlining some of the background, is he has been in those type of facilities before, and even when he has not been thrown out or walked, at the end of the day he is not cured under control, or not managed. [ 30 ] The Crown also point out to me that it is interesting that this offence occurred on March 5, 2017, yet the entry into a drug rehab centre, Together We Can, does not happen until June 13th, which is approximately one month before we start the sentencing.

Not to be too cynical, but it does show a long time before any springing into action takes place. [ 31 ] What is further complicating the issue and works against Mr. Powell, is that while waiting for sentencing on these charges, or waiting for trial on these charges, there were two separate incidences where he was convicted. One was where he punched a woman in the face at a pet demonstration, and that apparently was unprovoked. She was wearing a mask. She was in some animal protest of one kind or another, and he punched her right in the face.

He was convicted of assault. [ 32 ] Another one, while out on bail, pending trial or sentencing on this, at a different time he was convicted of Mischief. He had an argument with a driver who had almost hit him in the crosswalk and he smashed the car with, I think it was his fist.

He explained that his best friend had died that day and the anxiety level obviously was high. [ 33 ] There was another instance while waiting on bail that he went to his Dad's birthday party and wrote some disturbing things on the family fridge. [ 34 ] So we have a situation where although he has no prior record before March of 2017, he committed these two serious offences while on bail for this case. [ 35 ] All of those instances, or those two offences at least, happened while under the supervision and treatment presumably as an out- patient, in the community, and while out on bail. [ 36 ] Will he be compliant in the Community?

Will rehabilitation work for him if he is on his own in the Community? Certainly the past experience would say, "No." His drug psychosis is the overriding concern here, according to the doctor, and even when he is on anti-psychosis drugs, he is still experiencing the voices, the delusion and the paranoia. [ 37 ] The drug usage has been very severe for the last six or eight years. He has had the conflicts with family. He has had many jobs that he has left due to conflicts with the people. He goes into rehab, gets out, but, falls back into the same patterns again.

So the rehab in the community, be it for mental health or drug addiction, has not been successful with him. [ 38 ] The Crown argues also that he was at least thoughtful prior to the suicide in that he emailed his landlord to cancel his rent. He wrote a note to his parents. He started five different fires and he barricaded the door. [ 39 ] I do not agree with Crown that that necessarily shows that he was premeditating in the legal type of sense.

He could be just preparing his suicide or attempted suicide without full mental facility the attempt or actual commission of suicide. [ 40 ] He has, only for a little while, been involved in the Together We Can Program only after. He has a long way to go if he is 31,

and started the mental health issues and addiction issues as a teenager. His past behaviour shows that he is going to need some very strict conditions on an in-custody basis, to be able to deal with these very severe problems which he has. [ 41 ] The doctors and his brother both say that he needs very strict supervision because otherwise he cannot do it on his own and that has been his history.

There is no question that if he can eliminate his alcohol, crystal meth and opiate addictions, that will certainly go a tremendously long way in preventing him from further destruction to himself, which has the added effect or consequence of potentially harming other people. [ 42 ] In terms of the mental health issues, there are the intense delusions. The depression, and anxiety that go with that.

However, with anti-psychotic medication and counselling, hopefully that can be under control again. [ 43 ] The situation is such that it is just too dangerous a risk to think that he can, on his own, overcome this significant mental health issue, as well as drug issue, on his own in the community. As based on the diagnosis, based on the past, based on the doctor, the Psychiatrist's opinion, the Pre-Sentence Report and his own personal history. [ 44 ] It is very difficult to take somebody who is so mentally ill and put him in jail.

But the only way to protect society and assure that he does get the intensive treatment that he needs before he is released again, is a period of incarceration. He, of course, would be followed by a period of Probation after that. [ 45 ] The question then is, what is the appropriate sentence to be imposed in this case? As I indicated, the Crown, from their point of view, the bottom line was 18 months; from the Defence, a suspended sentence. I cannot go with a suspended sentence at all, and the question is, do the facts, and background and the case law support a sentence of 2 years less a day from Mr.

Powell? [ 46 ] The moral blameworthiness is not eliminated due to the mental health issues, but it certainly does reduce his moral culpability. [ 47 ] In the circumstances it is my finding that the sentence that must be imposed on Mr. Powell is 15 months, and that will be followed by three years' Probation after that. [ 48 ] Within 48 hours of his release, he has to report to a Probation Officer at 275 East Cordova Street in Vancouver, in person, and thereafter as and when directed by the Probation Officer.

Take whatever counselling and complete it to the satisfaction of the Probation Officer, and the counselling is to include assessment and psychiatric counselling for both mental health and drug and alcohol addiction. [ 49 ] He is to provide the Probation Officer with his then residential address and phone number, not change either without the prior written approval of the Probation Officer. [ 50 ] He is to enter into a fulltime live-in drug treatment centre, if directed by the probation officer. Not to leave that residence unless and until the Probation Officer has authorized that in writing.

He is to obey all the rules and regulations of that residence. [ 51 ] He is to attend at the Forensic Psychiatrist Treatment Centre on West Broadway, at the direction and to the satisfaction of his probation officer. [ 52 ] Otherwise, keep the peace, be of good behaviour, come to court if and when required. [ 53 ] Ms. Krivel, any other probation conditions I should be putting in there? [ 54 ] MS. KRIVEL: Yes, Your Honour, there were. I had requested no contact with some individuals at the Franklin; David Armstrong -- they -- they were all in the bail order.

Greg Dorey, Spencer Evanston, Mario Laudisio and Lucas Texeira, and not to be found within a two-block radius of the 1600 block of Franklin. [ 55 ] THE COURT: All right. Those are all in, yes. [ 56 ] MR. KRIVEL: Not to possess any weapons, not to possess any materials that could start a fire, including matches, lighters, candles -- [ 57 ] THE COURT: Right. [ 58 ] MS. KRIVEL: -- or ignitable liquids such as gasoline, diesel -- [ 59 ] THE COURT: Thank you, that's in now. [ 60 ] MS.

KRIVEL: -- propane or lighter fuel. [ 61 ] THE COURT: I'm sorry, do you need those repeated? [ 62 ] THE CLERK: No, but all those conditions -- [ 63 ] THE COURT: Yes, all those conditions are in. [ 64 ] MS. KRIVEL: I wonder if there could be also a condition. I know this was dealt with to some degree, but if he could reside where -- where directed by the probation officer. [ 65 ] THE COURT: All right. I said that he has to give his residential address -- [ 66 ] MS. KRIVEL: Yes.

[ 67 ] THE COURT: -- and he must reside at a residence pre-approved by the Probation Officer, and not to change that residence unless he has the pre-approval in writing of his Probation Officer. [ 68 ] MS. KRIVEL: And also I would ask Your Honour, in light of the brother's comments about the Downtown Eastside and the readily available supply of drugs here, that there be a condition that he not attend in the Downtown Eastside, and if you're inclined to order that, then I could -- [ 69 ] THE COURT: Do the boundaries -- [ 70 ] MS. KRIVEL: -- suggest -- [ 71 ] THE COURT: -- counsel -- [ 72 ] MS.

KRIVEL: -- an area restriction, at least to keep him out of this area. [ 73 ] THE COURT: All right. Let me just ask Mr. Ross on that one. Mr. Ross? [ 74 ] MR. ROSS: Well, it's sort of -- might be a good idea, I guess, in general terms, except that the Strathcona Mental Health team where he continues to receive his treatment presumably will continue later on, is located in the Downtown Eastside. [ 75 ] THE COURT: So can I say not to go into the Downtown Eastside except to attend pre-arranged doctors, or mental health, or drug treatment? [ 76 ] MR.

ROSS: Yeah, I guess you could do that. [ 77 ] THE COURT: All right, and you will outline the area? [ 78 ] MS. KRIVEL: Yes, and perhaps we could do Powell on the north, Gore on the south, Clark on the east and -- [ 79 ] THE COURT: Abbott? [ 80 ] MS. KRIVEL: -- Abbott? [ 81 ] THE COURT: I am not sure. I have -- [ 82 ] MS. KRIVEL: On the west maybe -- maybe a little further west than that, sorry. [ 83 ] THE COURT: Mr. Registrar, do you have that in the PIC list, as they call it, they -- the --- [ 84 ] THE CLERK: No. [ 85 ] THE COURT: -- boundaries? [ 86 ] MS.

KRIVEL: What about Cambie on the west? [ 87 ] THE COURT: All right, put Cambie in. All right, we will put Cambie in there. Okay, anything else? [ 88 ] MS. KRIVEL: I believe the

section 109, firearms prohibition. [ 89 ] THE COURT: All right. That is a standalone though? [ 90 ] MS. KRIVEL: Yes. [ 91 ] THE COURT: All right. No -- [ 92 ] MS. KRIVEL: And -- [ 93 ] THE COURT: -- firearms under

section 109. For how many years is that? [ 94 ] MS. KRIVEL: I would suggest five years -- [ 95 ] THE COURT: Five years -- [ 96 ] MS. KRIVEL: -- at a minimum. [ 97 ] THE COURT: -- okay. [ 98 ] MS. KRIVEL: And an order for his DNA pursuant to

section 487.051. [ 99 ] THE COURT: All right. That is a standalone, and that is mandatory, I think, is it not? [ 100 ] MS. KRIVEL: Yes, and also -- [ 101 ] THE COURT: All right. [ 102 ] MS. KRIVEL: -- the Victim Fine Surcharge needs to be dealt with.

[ 103 ] THE COURT: Okay, and that is going to be waived. He is not going to have any money even two months after he gets out. [ 104 ] MS. KRIVEL: Or I wonder if rather than waiving it, I believe -- [ 105 ] THE COURT: One day concurrent. [ 106 ] MS. KRIVEL: -- there's a recent Court of Appeal case that suggests -- [ 107 ] THE COURT: All right. [ 108 ] MS. KRIVEL: -- one day. [ 109 ] THE COURT: One day concurrent. [ 110 ] MS. KRIVEL: That should be imposed in substitution. [ 111 ] THE COURT: Okay. [ 112 ] MS.

KRIVEL: And if I might just have one moment, I believe that that -- [ 113 ] THE COURT: What about -- [ 114 ] MS. KRIVEL: Yes. [ 115 ] THE COURT: -- being no alcohol or drugs. Should that be in, or is that inviting an almost automatic if he does not get through? [ 116 ] MR. ROSS: Well, he'll -- he needs to deal with the issues. He's been trying to deal with the issues, as you've heard. Your Honour has decided that he's going to serve a prison sentence to bring that home to him. [ 117 ] Generally, and I'm not speaking about Mr.

Powell particularly, I think that's a very difficult order for people to comply with, and so I'd ask you not to do it. [ 118 ] THE COURT: Anything from the Crown? [ 119 ] MS. KRIVEL: There's personal views on that. I mean, in my respectful submission, it would be nice if that worked, but really if this isn't going to come from him, then it's not going to come from everywhere and it seems that it needs -- [ 120 ] THE COURT: I think I need -- [ 121 ] MS.

KRIVEL: -- to just come -- [ 122 ] THE COURT: -- the court order in there to whatever hopefully deterrent effect that has, picking up drugs or alcohol again, I think it should be in there. No alcohol or drugs to be in his possession. [ 123 ] MS. KRIVEL: Except prescription -- [ 124 ] THE COURT: Oh, yes, except prescription drugs -- [ 125 ] MS. KRIVEL: -- drugs as properly prescribed by a medical doctor. [ 126 ] THE COURT: Except for prescriptions prescribed by a medical doctor in his name only. [ 127 ] Mr. Ross? [ 128 ] MR.

ROSS: There was just one other issue that I actually didn't address before, but probably should have. If you look at the Pre-Sentence Report you'll see that there was a conviction on the 30th of November for the assault. Actually, that incident occurred on the 5th of November and Mr. Powell was detained on that, and on this charge here of arson for a period of time until the 30 -- 30th where he got the one-day sentence. Judge Burgess was dealing with that, and I think applied 14 days to the assault which left, I believe, about 23 days -- sorry, 14 days, minus 25, so 11.

So he should have -- should have about 16 days of credit which should come off of -- [ 129 ] THE COURT: Is that enhanced credit, 16 days? [ 130 ] MR. ROSS: The 16 days would be the enhanced -- [ 131 ] THE COURT: All right, so -- [ 132 ] MR. ROSS: -- credit. [ 133 ] THE COURT: -- that will come off this. [ 134 ] MR. ROSS: Yes. [ 135 ] THE COURT: All right, and Ms. Krivel, are you agreed to that? [ 136 ] MS. KRIVEL: Yeah, I don't have any submissions --

[ 137 ] THE COURT: All right. [ 138 ] MS. KRIVEL: -- on that -- [ 139 ] THE COURT: So -- [ 140 ] MS. KRIVEL: -- thank you. [ 141 ] THE COURT: He gets an enhanced credit of, so that comes off the sentence that I have just imposed. His sentence then is, 15 months but he will serve 16 days less than 15 months. [ 142 ] MR. ROSS: Right, that's fine. [ 143 ] THE COURT: Okay, thank you. [ 144 ] Mr. Powell, I am sorry I have to do this. It is a hard decision to make, and it is harder for you to accept, but that is what I had to do. (REASONS FOR SENTENCE CONCLUDED)