R. v. Dybhavn, 2021 BCPC 77

Citation: R. v. Dybhavn 2021 BCPC 77 Date: 20210323 File No: 30377-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RONALD ROBERT DYBHAVN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: T.E. Barnett Counsel for the Defendant: E.M. Murphy Place of Hearing: Prince Rupert , B.C. Date of Hearing: March 23, 2021 Date of Judgment: March 23, 2021 [ 1 ] THE COURT: These are my reasons on sentencing. Introduction [ 2 ] After I conducted a s. 606(1.1) Criminal Code plea inquiry with Ronald Robert Dybhavn this morning, he pled guilty before me to the single count in Prince Rupert Court Information 30377-1:

Ronald Robert DYBHAVN, on or about the 10th day of November, 2019, at or near Prince Rupert, in the Province of British Columbia, did resist or wilfully obstruct Constable Pressenger, a peace officer in the execution of his or her duty, contrary to

Section 129 (

a) of the Criminal Code . [ 3 ] The prosecution has asked me to impose a conditional discharge with eight months of probation, including four terms: 1. that Mr. Dybhavn report to a probation officer; 2. that Mr. Dybhavn reside as directed; 3. that Mr. Dybhavn have no contact with his brother, Jon Dybhavn, if either of them have been drinking alcohol in the previous 24 hours; and 4. that Mr. Dybhavn attend for counselling in relation to alcohol. [ 4 ] Ms. Murphy, counsel for Mr. Dybhavn, has requested that the Court consider an absolute discharge in this matter.

The Facts [ 5 ] On November 10, 2019, the RCMP received a report of two males fighting and/or causing a disturbance. Police attended and came upon Mr. Dybhavn and his younger brother, Jonathan. As the police began to interact with the two brothers, Mr. Dybhavn became confrontational and made a number of verbal, for lack of a better term, threats towards the police officers. A physical struggle ensued. Near the end of physical struggle, Mr. Dybhavn was spun around and had his back towards the police officers. As Constable Pressenger moved in to handcuff him, Mr.

Dybhavn turned towards the police officer and attempted to punch the police officer. [ 6 ] Constable Pressenger was able to control Mr. Dybhavn and subsequently took Mr. Dybhavn to the ground. Mr. Dybhavn then continued to struggle, such that the police officers felt that it was appropriate for one of them to use their Taser electroshock weapon on Mr. Dybhavn. One of the police officers then deployed their Taser on Mr. Dybhavn. The Taser shocked Mr. Dybhavn, impairing his physical function to a level that allowed the police officers to safely approach and handled Mr.

Dybhavn in an unresisting and safe manner. [ 7 ] Police then placed Mr. Dybhavn in the back of the police car where he continued to make what one would consider to be threats towards the police officers, saying things such as, "I want to kill you," "I want to kill police," "I will shoot you," and, "I will kill you." At some point, Mr. Dybhavn also said, "Fuck you" to the police, perhaps on multiple occasions. I note, and I believe this is very significant, that when Mr. Dybhavn was taken to the ground, his head hit the ground with such force that Mr.

Dybhavn started to bleed from the head. [ 8 ] The police were so concerned with Mr. Dybhavn, who they assumed to be intoxicated by alcohol and who was outraged at being arrested, that they took him to the hospital in Prince Rupert for a

section 28 Mental Health Act assessment. Following this incident, Mr. Dybhavn spent five days in detox and I am told he has not consumed alcohol since. That was some 16 months ago. [ 9 ] Those are the facts. Victim Impact Statement [ 10 ] The prosecutor did not provide the Court with a victim impact statement by Constable Pressenger. Personal Circumstances of Mr. Dybhavn [ 11 ] Mr. Dybhavn is 47 years of age. He is a Caucasian man born and raised here in Prince Rupert, British Columbia. Mr. Dybhavn does not have a criminal record. [ 12 ] Prior to his interaction with the police on November 10, 2019, Mr.

Dybhavn was suffering from a brain injury, the result of an injury suffered in a motor vehicle accident that occurred in August of 1996, when he was 22 years of age. Prior to the motor vehicle accident, Mr. Dybhavn was by all accounts a fun-loving and contributing member of society. Apparently, Mr. Dybhavn was a passenger in a Jeep, along with a number of his friends, when the motor vehicle accident happened. While everybody else walked away from the motor vehicle accident without injury, Mr. Dybhavn suffered a traumatic head injury, a brain injury. Mr.

Dybhavn was medevac'd to Vancouver and he spent nine days in an induced coma, having neurosurgery twice. As part of his recovery, Mr. Dybhavn spent time at the GF Strong Rehabilitation Centre learning how to walk again, how to get back his gross motor skills, and what he needed to do so that he could get out of rehab and back into society. [ 13 ] Ms. Murphy has told me -- and Mr. Dybhavn’s sister, who gave evidence during this sentencing, confirmed -- that a specialist doctor warned Mr. Dybhavn and his family 25 years ago that one of the side effects of his head trauma injury might be extreme anger.

For almost 20 years, there were no side effects of Mr. Dybhavn’s head trauma, other than short-term memory issues, but now alcohol consumption by Mr. Dybhavn has begun to trigger extreme anger. That certainly seems to have been the case on November 10, 2019. [ 14 ] Ms. Murphy and Mr. Dybhavn’s sister also told me that during the course of the past 25 years, Mr. Dybhavn found love, was married, moved to Victoria, and then, unfortunately, watched as his wife got cancer and passed away. [ 15 ] Mr. Dybhavn has recently sold his home in Victoria and now lives here in Prince Rupert with his parents.

He is the third of four children. Mental Health [ 16 ] I am troubled, as I have been in other cases, by the apparent lack of mental health evaluation and therapy available to members of

our society. In Mr. Dybhavn’s case, as set out in Exhibit Number 1, a letter from Vancouver Coastal Health, Mr. Dybhavn has not been able to access rehabilitation through the BC Neuropsychiatry Program because Mr. Dybhavn uses marijuana. I am also somewhat surprised, given that marijuana is now a legal substance in Canada and that for more than a decade prior to it becoming a legal substance one could get a medical exemption to the Controlled Drugs and Substances Act , that Vancouver Coastal Health would take the position that due to Mr.

Dybhavn's usage of marijuana he is not be allowed to participate in the BC Neuropsychiatry Program. Frankly, that is shocking. There may be good reasons that the BC Neuropsychiatry Program has for not wanting Mr. Dybhavn to participate in the Neuropsychiatry Program, but I simply do not know what they are. Therefore, on its face, it appears as though here is an individual that needs help and he has been rejected. [ 17 ] Furthermore, Mr. Dybhavn has not been able to access rehabilitation and help through any other program.

He continues to struggle to find a rehab facility that will accept him, since he is manifesting extreme anger. Mr. Dybhavn and society need Mr. Dybhavn to be able to access rehabilitation and programing, which in turn would clearly benefit and assist Mr. Dybhavn in returning to his status as a contributing member of society. Rehabilitation and programing would also assist Mr.

Dybhavn with staying out of the criminal justice system. [ 18 ] All too often, we here at the Provincial Court level see individuals, as noted by the prosecutor, who appear before the court because of mental health issues, alcohol, and other substance abuse issues. It is truly tragic that our government and our society have not been able to figure out how to keep people like Mr. Dybhavn out of the criminal justice system.

The criminal justice system has become one of the first and major tools used by society to deal with people suffering from mental health issues, when, perhaps, they should be in a different forum. Analysis [ 19 ] An offence punishable by less than 14 years incarceration, which is the situation in Mr.

Dybhavn's case, means that a discharge is available if it is in the best interests of the accused and not contrary to the public interest. [ 20 ] Section 730(1) of the Criminal Code says that: Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2). …

(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence except that (

a) the offender may appeal from the determination of guilt as if it were a conviction in respect of the offence; (

b) the Attorney General and, in the case of

summary conviction proceedings, the informant or the informant’s agent may appeal from the decision of the court not to convict the offender of the offence as if that decision were a judgment or verdict of acquittal of the offence or a dismissal of the information against the offender; and (

c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence. [ 21 ] The prosecutor has a practical solution, a conditional discharge with eight months of probation. The goal being to allow Mr. Dybhavn to get counselling for alcohol. The difficulty, from everything that I have been told today, is I am not sure alcohol counselling is the type of counselling Mr. Dybhavn needs. [ 22 ] While I accept that alcohol counselling is part of what he needs, Mr. Dybhavn also requires some mental health assistance, including a more intense rehabilitation-type program.

Such a course of action is, frankly, beyond what B.C. Community Corrections is currently able to offer people on probation here in Prince Rupert, especially in the midst of the COVID-19 pandemic. [ 23 ] That is not to say that a period of probation with alcohol counselling would not be of assistance. Mr. Dybhavn's sister admitted as much on the stand. But -- and this is really the question for me today in deciding whether there should be an absolute discharge or a conditional discharge -- would sentencing Mr.

Dybhavn now, some 16 months after the offence took place, to a period of probation if I find he is a good candidate for a discharge, be contrary to his interest? [ 24 ] Another way of looking at the issue is given Mr. Dybhavn’s short-term memory issues and the fact that the larger underlying problem seems to be his brain injury from when he was 22 years of age -- alcohol just being the trigger for the extreme anger -- would a conditional discharge place Mr. Dybhavn into a situation where he might have further conflict with the criminal justice system? How?

The result of arrest by police officers for a public nuisance offence while he is on probation and charges being approved against him by a member of the B.C. Prosecution Service Office other than Mr. Barnett, who may not be familiar with Mr. Dybhavn's personal situation. [ 25 ] A discharge is not a conviction, but rather the offence is discharged either absolutely or conditionally. A judge cannot combine a discharge with a fine or with a jail term. The result is that there is no criminal record if I absolutely discharge Mr. Dybhavn. If I grant Mr.

Dybhavn a conditional discharge, once he successfully completes the probation, he will not have a criminal record. [ 26 ] I note, however, that it is wrong to assume that it is always in the best interests of an offender to have a discharge. This requirement has been interpreted as requiring that: 1. specific deterrence is of no concern; and

2. the offender is of good character. [ 27 ] I am of the opinion in this case that specific deterrence is not a concern from what Ms. Murphy and Mr. Dybhavn’s sister have told me. In addition, the prosecution has not alleged a criminal record. Therefore, it seems to me that but for the events of November 10, 2019, Mr. Dybhavn is of good character. [ 28 ] In determining if it is in Mr. Dybhavn’s best interests to give him a discharge, I need to conclude that the criminal record would be disproportionate to the offence such that Mr.

Dybhavn would not be able to pursue his chosen profession, his education would be affected, or, as suggested by Ms. Murphy, his rehabilitation may be affected, especially if he has to leave the country to go and get some assistance. [ 29 ] A discharge does not have to be in the public interest, it simply must not be contrary to the public interest. It is not necessary for Mr. Dybhavn to prove that a discharge would be in the public interest.

Public interest means a consideration of the principle of general deterrence with attention paid to the gravity of the offence, its incidence in the community, public attitudes towards it, and public confidence in the effective enforcement of the criminal law. Secondary factors include the frequency and prevalence of the offence in the community, the public attitudes to the offence, the amount of planning of the offence, the dollar value of any loss as a result of the offence, whether there was personal gain from the offence, and the effect on the public confidence in the administration of the law.

Sentence Imposed [ 30 ] In all the circumstances of Mr. Dybhavn's case, I am in agreement with both the prosecutor and Ms. Murphy that a discharge is appropriate and, accordingly, I will be granting a discharge in this case. [ 31 ] I turn to whether it should be an absolute discharge or a conditional discharge. Absolute discharges are usually granted in the case of less serious offences or where the personal circumstances of the offender are exceptional.

I view an intoxicated person getting into a physical confrontation with a police officer to the point where a Taser has to be deployed, to take the offence out of the category of less serious offences, especially when the offence includes threats directed to the police officers to cause serious bodily harm or death. [ 32 ] However, I consider Mr. Dybhavn's circumstances to be exceptional. Given: 1. Mr. Dybhavn’s history since he was 22 years of age, 2. the steps Mr.

Dybhavn has taken in his life to try and make himself a better person and a contributing member of society, and 3. the failure of British Columbia's mental health system to assist Mr. Dybhavn with what are obviously consequences from the brain injury he suffered at 22 years of age, I find that exceptional circumstances exist in Mr. Dybhavn's case. As such, an absolute discharge is available to him. [ 33 ] That leaves me, then, with only one other matter to consider and weigh. [ 34 ] Do I accede to the prosecution's request and impose a conditional discharge with eight months probation to assist Mr.

Dybhavn with the alcohol usage which has been problematic and, quite frankly, triggered the anger that resulted in his arrest and his interaction with the police on November 10, 2019? Alternatively, do I, as Ms. Murphy has urged upon me, absolutely discharge Mr. Dybhavn to allow him to continue along with his family, who I fully accept love him and want the best for him, to try to get him into a program, a type of rehabilitation, to figure out what is going on.

To solve his ongoing issues before he has another angry outburst leading to another interaction with police. [ 35 ] These cases are not easy because there sometimes are no obvious or guaranteed right answers. When I look at the totality of everything in this particular case, including: 1. my conclusion that what Mr. Dybhavn really needs to do is address the continuing effects of the brain injury he suffered at the age of 22, 2. Mr. Dybhavn’s alcohol consumption in the past five years leading to extreme anger, 3. Mr. Dybhavn having not consumed alcohol since November 10, 2019, 4. Mr.

Dybhavn suffering with short-term memory issues as a result of his brain injury, and 5. sixteen months having passed incident free since the offence date, in all the circumstances, I am satisfied that this is one of those rare and appropriate cases for me to give an absolute discharge and, accordingly, there will be an absolute discharge. [ 36 ] Mr. Dybhavn, I wish you all the best moving forward. I should tell you, as well, do not be under any illusion. If you are unable to find the help you need, you need to talk to your family, you need to stay close to them, and you need to avoid alcohol.

I had not met you before today. I may never see you again as long as either of us live, but I do know from everything that has been told to me today that you need to avoid alcohol because it is a trigger. Therefore, as you go through this journey called life, I hope you are able to find the help you need, sir, and I hope you are able to, when you do feel the extreme anger coming on, speak to your family or your other loved ones and not find yourself back before the court. Thank you very much. (REASONS FOR SENTENCE CONCLUDED)