R. v. Harper, 2020 BCPC 226

Citation: R. v. Harper 2020 BCPC 226 Date: 20201123 File No: 259834-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Division) REGINA v. TRENT JAYMES HARPER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. BAHEN Counsel for the Crown: D. Mulligan Counsel for the Defendant: Z. Myers Place of Hearing: Vancouver , B.C. Date of Hearing: November 2, 2020 Date of Judgment: November 23, 2020 INTRODUCTION

[ 1 ] These are my reasons for sentencing Mr. Harper for assault causing bodily harm to Fizul Mohammed on November 28, 2019. There was a guilty plea by Mr. Harper to this charge on November 2, 2020. Submissions on sentence were received from Crown and Defence on that date. The decision on sentence was adjourned to today’s date to allow the court to consider counsels’ submissions. In addition, an agreed statement of facts was prepared by counsel and filed on the date of the guilty plea. Also filed were two victim impact statements, and a Gladue report relating to the background of Mr. Harper. Counsel for Mr.

Harper also provided a letter from Christina Harper, who is the mother of Mr. Harper. [ 2 ] This offence involves an incident in the downtown eastside of Vancouver on the morning of November 28, 2019. Mr. Mohammed was fatally wounded during a confrontation in an alley near Main Street and East Hastings Street. He was stabbed by an assailant several times. He died later that morning before he could receive medical assistance. The cause of death was determined by a pathologist to be multiple sharp force injuries to his chest. [ 3 ] Another accused is charged with second degree murder as a result of this incident.

Mr. Harper was originally charged with manslaughter in the death of Mr. Mohammed. At a preliminary inquiry he was ordered to stand trial on the manslaughter charge. Crown Counsel subsequently decided to not proceed with the charge of manslaughter. In October 2020, Mr. Harper was charged with the offence of assault causing bodily harm relating to his role in the events of November 28, 2019. On this charge, the Crown has elected to proceed by

summary conviction. The maximum sentence for this offence is a term of imprisonment for a period of two years less one day. [ 4 ] At the sentencing hearing, Crown Counsel submitted the appropriate sentence would be a period of imprisonment for a period between six to twelve months, with a probation order following the jail sentence. The Crown did not oppose the imposition of a conditional sentence order, allowing Mr. Harper to serve a jail sentence in the community under terms of supervision. [ 5 ] Counsel for Mr.

Harper has submitted the appropriate sentence is a conditional discharge, with a lengthy period of probation. CIRCUMSTANCES OF THE OFFENCE [ 6 ] The Admissions of Fact, dated October 2, 2020, were filed as an exhibit at the sentencing hearing. The admissions provide a detailed

summary of the brief sequence of events in the alley, as well as the sequence of events immediately preceding the assault on Mr. Mohammed, and the aftermath of the assault. There were video recordings of these events from security cameras located on the exterior walls of buildings adjacent to the alley. The following are partial excerpts from the admissions describing Mr. Harper’s role in the offence: … [2] Much of what occurred in the lane was captured on surveillance video. At approximately 9:25 a.m., Mr. Harper and a second man, Mr. Hussain, entered the lane and stood near a dumpster. Mr.

Mohammed entered the lane at approximately 9:28 a.m. and jogged northbound. He slowed to a walk as he approached Mr. Hossain; [3.] Mr. Mohammed and Mr. Hussain appeared to greet each other. Mr. Mohammed touched the upper left arm of Mr. Hussain and pulled or guided him to the centre of the lane. The two men were face to face. It appears that each man had one hand touching the other near the upper arm or waist. There is no independent evidence about what was said. The men appeared to be in a standoff, but no assault or fight took place up to this point; [4.] As the men stood facing each other, Mr.

Harper approached Mr. Mohammed from behind and punched him in the back of the head with his right hand. Mr. Mohammed immediately fell to the ground. While he was falling, and while on the ground, Mr. Hussain stood over Mr. Mohammed and stabbed him several times. Mr. Hussain had an object in his right hand as he repeatedly swung at Mr. Mohammed’s upper torso. Within seconds, Mr. Mohammed stood up and ran away northbound in the alley; [5.] After punching Mr. Mohammed, Mr. Harper stepped back and stood to the side while the stabbing occurred.

There were several other bystanders in the alley – none of whom intervened or provided statements to the police; [6.]… Mr. Mohammed was pronounced deceased at St. Paul’s Hospital at 10:41 a.m. …; [7.] At the autopsy, Dr. Bilimoria noted that Mr. Mohammed had three stab wounds to his chest, a stab wound to his right upper arm and several less serious lacerations. He had a laceration on the back of his scalp that may have been caused by Mr. Harper’s punch or from hitting the pavement. The cause of Mr.

Mohammed’s death was multiple sharp force injuries; [8.] Investigators circulated an identification poster with images of the two suspects taken from the surveillance video. Several officers identified Mr. Hussain and Mr. Harper; and [9.] Mr. Harper was arrested on December 6, 2019. … At the time of his arrest, Mr. Harper had an injury to his right knuckle covered by a band aid.

During an interview, he said that he did not remember anything and that he suffered the injury during a consensual fight with “a white boy” a few days earlier. [ 7 ] Crown Counsel has submitted there are aggravating factors in the circumstances of the offence. These factors were described as follows in the Crown’s submissions on sentencing: • Mr. Harper approached Mr. Mohammed from behind while he was engaged with Mr. Hussain. Without any warning, Mr. Harper “sucker punched” Mr. Mohammed with enough force to cause Mr. Mohammed to immediately fall to the ground; • Mr.

Harper’s action escalated whatever was going on between Mr. Hussain and Mr. Mohammed into a fatal attack by Mr. Hussain;

• There is no evidence that Mr. Harper’s intention was to make it easier for Mr. Hussain to stab Mr. Mohammed. However, the immediate effect of the punch was to render Mr. Mohammed vulnerable to, and unable to defend himself from, the stabbing; • Mr. Harper made no effort to assist Mr. Mohammed during or immediately after the stabbing; and • Mr. Mohammed lost his life as a result of the stabbing he suffered immediately after Mr. Harper’s punch. [ 8 ] Both Crown and Defence counsel have submitted the bodily harm suffered by Mr. Mohammed as a result of the punch by Mr. Harper was the laceration on the back of Mr.

Mohammed’s head and described in the autopsy report. [ 9 ] In the aftermath of this offence, the family of Mr. Mohammed have suffered from a terrible loss. There are two victim impact statements filed by Crown Counsel and these address the consequences of the offence for his family members. Linda Atkinson is the maternal grandmother of Mr. Mohammed’s son, who is now 19 years old. Mr. Mohammed was 43 years old at the time of his death. He had struggled for years to overcome his addiction, and had been making a much larger contribution to his son’s life in recent months.

He was able to meet his son in 2018 after many years of separation. He began to have a larger role in his son’s life by spending time with him and other members of Ms. Atkinson’s family, including his son’s younger half-brother, starting in early 2019. Ms. Atkinson has expressed the intense trauma suffered by her and her two grandsons as a result of the violent and senseless attack on Mr. Mohammed. She was driving Mr.

Mohammed in her car to assist him on November 28, 2019 and she witnessed the physical injuries and suffering he endured in the minutes following the attack as she drove him to his home at his request. In her statement, Ms. Atkinson said: “We will never recover from the loss.” [ 10 ] Mr. Mohammed’s cousin Natasha Ali has provided a victim impact statement. She was very close to him during their childhood, since Mr. Mohammed, as a child, lived in her parents’ home part-time, and in her grandparents’ home as well. For much of his childhood, he was like a younger brother to her.

After years of separation she was able to see Mr. Mohammed’s social media information in September 2019, and planned to reunite with him in December 2019. In her statement, Ms. Ali expresses the grief, sadness and sense of guilt that have been overwhelming for her in the aftermath of Mr. Mohammed’s death. She has travelled across the country to be in Vancouver for the burial service, and for the preliminary inquiry held in July 2020. She has attended at the sentencing hearing in November 2020. In addition to her own grief, she is fearful regarding the trauma suffered by Mr. Mohammed’s three children.

She wants to support and protect his son who lives with Ms. Atkinson, and his two daughters, who are now teenagers and live with another family. They had only begun to reconnect with their father as he recovered from his addiction in 2019. Ms. Ali says she is determined to preserve her sense of faith, justice and security in her own life, so that she can continue to offer support to the children and family members of her cousin. CIRCUMSTANCES OF THE OFFENDER [ 11 ] Trent Harper is now 25 years old. He was born and raised in Vancouver. He has no prior criminal convictions.

His mother, Christina, is a member of the Onion Lake Cree Nation. Trent’s father is Vietnamese. He did not have a role in Trent’s life, and Trent has no connection to his father’s family. Christina’s father, Douglas Harper, and Christina’s mother, Mildred, provided Trent with a home in the Mt. Pleasant neighbourhood. They were primarily responsible for his care during his childhood. Trent’s mother, Christina, was only 20 years old when Trent was born. She was not in a long term relationship with Trent’s father. She was unable to care for Trent on her own.

Although Trent lived with his grandparents, he would sometimes spend time in his mother’s home in the area near Fraser and East Broadway in Vancouver. However, there was drug use and trafficking activity in her home when he was there. For the past 11 years, Christina has been living near Pemberton. She is with a long term partner and they have two younger children. Trent’s education was in Vancouver public schools. He was in alternative classes from grade 4. He was in a program for at risk youth at John Oliver Secondary School for grades 10 and 11.

He attended the Spectrum Learning Centre to obtain his Dogwood Diploma. [ 12 ] The author of the Gladue report has described the family history relating to the intergenerational effects of residential schools in British Columbia and Saskatchewan. The families of Mildred and Douglas had been required to attend residential schools. Within the Gladue report provided to the court, the author, Nancy R. Smith, has referred to the forced assimilation of Indigenous peoples in Canada.

This included the residential schools at Alert Bay, B.C., and at Lejac, B.C., where Douglas and Mildred’s parents were students. [ 13 ] In his current circumstances, Mr. Harper is living with his grandparents. He has been complying with the curfew terms in his release order since his release from custody in February. He had spent about 8 days in custody prior to his release. His grandparents describe him to the Gladue report author as a helpful, friendly young man who helps them with a number of their household chores during the pandemic.

He has some employment training opportunities with community organizations such as BladeRunners, and has completed online courses for job skills during the pandemic. In recent years, Mr. Harper’s uncle and his cousin have died. Both of these men were close relatives, who lived in the same building as Mr. Harper from 2015 to 2020. Mr. Harper’s cousin Tammy Harper has described to the Gladue report author the efforts she has made to provide indigenous cultural experience for Mr. Harper. She has taken him to a sweat lodge ceremony at a North Shore indigenous community.

She believes her nephew would benefit from other male role models in the indigenous community. [ 14 ] There is a

summary of factors at page 11 of the Gladue report which the author has noted are significant in Mr. Harper’s background and current circumstances, including: • Family and community fragmentation and dislocation. Trent has never been to the Onion Lake Cree Nation territory. He has been to the ‘Namgis First Nation territory and has fond memories of the ceremonies held in the big house. • Family history of substance abuse: Trent’s maternal grandparents, and his mother have experienced alcoholism and drug abuse.

Trent remembers his mother partying and seeing drugs around, and sometimes saw his grandparents under the influence of alcohol. His grandparents no longer drink alcohol and Trent has never used drugs and alcohol for any prolonged period. • Lack of a male father figure: Trent is close to his grandfather, but growing up he had no male father figure to provide a role model for him.

• Mental health issues: Trent suffers from anxiety, and at times, depression. • High rate of unemployment and further education: Trent has not long been in the employment realm in his life, but hislevel of employment has been low. Completing some post-secondary education would be beneficial for Trent and his life goals. • Experienced deaths of close family members: Trent has lost two close family members. He has not demonstrated healthygrief and loss practices.

He has never addressed this in counselling. • Loss of language: He knows no Cree words and was only able to say one Kwak’wala word [15] The Gladue report author concludes with a review of available resources for educational and vocational opportunities that maybenefit Mr. Harper in the future. POSITION OF THE CROWN AND THE DEFENCE [16] The Crown has submitted the primary sentencing considerations in this case are specific deterrence and rehabilitation. TheCrown also says there should be extensive supervisory conditions for a lengthy period of time, to monitor Mr.

Harper’s behaviour in thecommunity, remove him from the Downtown Eastside area of Vancouver where this offence occurred, and assist him to establish a pro-social lifestyle. [17] The Crown position also addresses the Defence submission on the option of a conditional discharge. This form of sentence wouldbe contrary to the public interest in the Crown’s submission. [18] The Defence asks the court to consider a conditional discharge, with a lengthy period of supervision under the terms of aprobation order.

In support of this sentencing position the Defence has emphasized the individualized nature of the sentencing process.The decision to plead guilty to this offence is an important mitigating factor noted by counsel for Mr. Harper. [19] The sentencing principles of restraint and the prospect for rehabilitation are sentencing principles with direct application to thesentencing of Mr.

Harper, as a first time offender with no prior convictions. [20] In addressing the other principles in sentencing, including deterrence and denunciation, the Defence says the public interest inthese goals can be met by the form of sentence proposed. In the circumstances of this offender, the Defence asks the court to consider abalancing of factors between denunciation and the realistic prospects for rehabilitation. [21] The Defence asks the court to consider the guidance offered by the Supreme Court of Canada in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, and in R. v.

Ipeelee, 2012 SCC 13, where the court found the sentencing of a First Nation offender shouldlead to a term of imprisonment where that form of sentence is found to be the only appropriate sentence and no other sanction orcombination of sanctions is appropriate to the offence and the offender.

This form of analysis is also applied in serious offences. [22] In the Defence submission, the decisions in Gladue and Ipeelee mandate an evaluation of the factors, as listed at page 11 of theGladue report in this case, to determine the context of case specific information relating to the offender, the offence, and the moralculpability of the offender. The factors in a Gladue report are not excuses or justifications for criminal offending, but should be assessedto evaluate the role these factors may have played in the offender’s conduct. ANALYSIS [23] The decision in R. v.

Fallofield, (1973) (BC CA), 13 C.C.C. (2d) 450, (B.C.C.A.) provides a framework foranalysis of the issue in this sentencing. The imposition of a conditional discharge can be considered by a court, where the dischargewould be in the best interests of the accused and not contrary to the public interest. A discharge is not limited to merely technical ortrivial categories of offences. The consideration of the public interest is an area of controversy in this case, as the Crown submits adischarge would be contrary to the public interest.

In Fallofield, the court referred to the public interest factor and said: “While it must begiven due weight it does not necessarily in and of its own preclude the judicious use of the discharge provisions.” [24] There are unusual factual elements in this case that are relevant to an assessment of the appropriate sentence. As reflected in thetwo victim impact statements, the harm from this incident was devastating. The offence of assault causing bodily harm cannot beentirely viewed in isolation from the fatal consequences of the attack that followed upon Mr.

Mohammed. [25] There is not any evidence of a shared purpose or intent in Mr. Harper’s actions to link his assault to an effort to facilitate the fatalattack. The offence of assault bodily harm is committed by one punch by Mr. Harper. This punch is the probable cause of a scalplaceration at the back of Mr. Mohammed’s head. The attack that followed was one that Mr. Mohammed was more vulnerable to suffer,and unable to defend against. But these are factors that have not been proven to be intended or reasonably foreseeable by Mr. Harper.There is no evidence to support a conclusion Mr.

Harper and the assailant who stabbed Mr. Mohammed were joined in a common orshared intention. [26] The sentences imposed for other offences committed by other first offenders are relevant when considering the appropriatesentence in this case. I have considered cases cited by counsel, including cases involving young First Nations offenders with no priorcriminal record, such as R. v. Sowden, [2011] O.J. No. 2130, where a conditional discharge was granted after a guilty plea to assaultcausing bodily harm. [27] I have also considered the decision of Madam Justice Gray in R. v. Sandy, 2013 BCSC 2388.

This was a stabbing offencecommitted by a young First Nations woman without any prior record. She was convicted after a trial. The stabbing occurred incircumstances which included provocation of Ms. Sandy by the victim, a factor that does not apply on the facts in Mr. Harper’s offence.A conditional discharge was imposed. The principle of rehabilitation was considered to be most significant in granting a conditionaldischarge in the circumstances of that case.

[ 28 ] Another sentencing decision involving a serious offence of assault causing bodily harm to a nurse working at Abbotsford hospital by the offender, a young Metis man who inexplicably assaulted the nurse when the offender was receiving treatment for anxiety. A post- offence psychiatric examination did not provide any medical explanation for the motives of the offender in this attack. The victim was profoundly injured and was disabled from returning to his work as a nurse. The court imposed a conditional discharge and referred to the earlier decision in R. v.

Tone , 2003 BCSC 880 in considering the public interest in cases where violence resulted in injury to the victim of the offence: S ee: R. v. Stard , 2016 BCPC 441 . [ 29 ] In Mr. Harper’s circumstances, I note he has pled guilty at an early opportunity to the charge of assault causing bodily harm. He acted without any justification in striking one blow with his fist to the back of Mr. Mohammed’s head. There had been no indications of any violence by anyone in the alley prior to this one punch. A fatal attack was inflicted by another offender immediately following this single blow. [ 30 ] Mr.

Harper has not been involved in any form of offending before or after this offence last November. He is young and has the potential to be rehabilitated with the assistance of family and community supports. There is not any evidence to support an inference that the blow struck by Mr. Harper was an effort to assist or facilitate the fatal attack. Mr. Harper’s actions in committing this offence spanned the period of a few seconds. [ 31 ] The Gladue report has provided a context to assess the offence committed by Mr. Harper and to infer the moral blameworthiness of his conduct.

His upbringing and family circumstances include identified factors that are significant in assessing the appropriate sentence for this offence and this offender. CONCLUSION [ 32 ] I have concluded the granting of a conditional discharge is in the best interests of Mr. Harper and is not contrary to the public interest. The assessment of the public interest is informed by the Gladue factors, as well as the absence of any prior record. In addition, I conclude there is a separation between the actions of Mr. Harper in striking Mr. Mohammed with a single blow, and the subsequent fatal attack.

The actions of the assailant who perpetrated the fatal attack cannot be linked by any inference supporting a deliberate, intentional role for Mr. Harper in the subsequent stabbing. [ 33 ] There will be a conditional discharge and a probation order for a period of two years.

The terms of the probation order will include the following: • 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 probation officer of any change of employment or occupation; • You must report in person to a probation officer at 275 East Cordova Street by 3 p.m. on November 24, 2020, and report thereafter as and when directed; • You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer; • You are to reside with your grandparents at [omitted for publication] Avenue, Vancouver, B.C., or with your mother Christina Harper at [omitted for publication] Road, Lillooet, B.C., or at such other place as may be directed by your probation officer, which with your consent, may include a residential treatment facility; • You are to obey the rules and regulations of your place of residence; • You are not to possess any weapons or firearms as defined in the Criminal Code ; • You are not to possess any knives except for preparing or consuming food or at your place of lawful employment; • You are not to have any contact with Shaikh Nursin Hussain, except through counsel or while in court; • You are not to have any contact directly or indirectly with Linda Atkinson; and • You are not to attend at any residence, workplace, or place of education of Linda Atkinson. [ 34 ] There will be an order requiring the provision of a DNA sample on the primary designated grounds.

The victim fine surcharge is waived on the basis of undue financial hardship related to barriers to employment during the pandemic. _____________________________ The Honourable Judge J. Bahen Provincial Court of British Columbia