Her Majesty the Queen - v. -, 2014 SKPC 38

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 038 Date: February 14, 2014 Information: 44072358, 44840797, 44696152 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Michael Passmore Appearing: Elizabeth Hiltz For the Crown Anthony Orlowski For the Accused SENTENCING DECISION C.C. TOTH , J [ 1 ] The accused, Michael Passmore, through his counsel, has pled guilty to the following charges: Information 44072358 On or about the 30 th day of March, A.D. 2012 at or near Regina, Saskatchewan did unlawfully assault Cst.

Power a peace officer engaged in the lawful execution of his duty contrary to section 270(1) (

a) of the Criminal Code . Information 44840797

On or about the 22 nd day of October, A.D. 2012, at or near Regina, Saskatchewan did steal pies, the property of Smitty’s Restaurant of a value not exceeding five thousand dollars, contrary to

section 334 (

b) of the Criminal Code . On or about the 22 nd day of October, A.D. 2012, at or near Regina, Saskatchewan did commit mischief by wilfully damaging property, to wit: windows, of a value not exceeding five thousand dollars, the property of Dairy Queen and Smitty’s Restaurant, contrary to section 430(4) of the Criminal Code . Information 44696152 On or about the 30 th day of September, A.D. 2013 at or near Regina, Saskatchewan did knowingly utter a threat to Kacee Weinberger to cause bodily harm to Kacee Weinberger, contrary to

section 264.1(1) of the Criminal Code .

SUMMARY OF FACTS Information 44072358 [ 2 ] On March 20, 2013, at approximately 4:33 p.m., Regina City Police were dispatched to 2070 Toronto Street, Regina, SK. The original call indicated that Tammy Passmore was calling Regina City Police to have her son, Michael Passmore, removed from the residence because he was intoxicated. Cst. Power and Cst. Muntain attended and Michael Passmore was located laying on the floor in the living room. When police arrived, his mother told police that he had been acting erratically and aggressively and was not really passed out.

Michael Passmore was instructed by the constables to stand up but he did not respond. He was assisted to his feet by police and twice fell to the floor. He was then assisted to his feet by police for a third time and, at that point, became aggressive toward them. He yelled “fuck you” and punched Cst. Power in the face with his right hand. He was taken to the floor by police and placed under arrest for assaulting a peace officer. He continued to be aggressive with police by yelling and swearing at them. He kicked at Cst. Muntain and was eventually restrained by police with leg restraints and a spit hood.

The attending police officers describe Mr. Passmore as being intoxicated by alcohol. They noted that he smelled strongly of beverage alcohol, had bloodshot and glossy eyes, and slurred and incoherent speech. After being transported to Regina Police Service he was observed in his cell yelling, screaming and pounding on the door. He was eventually released on an undertaking. Information 44840797 [ 3 ] On October 22, 2012, at approximately 2:46 a.m., Regina City Police were dispatched to the Dairy Queen at 4020 Albert Street, Regina, SK. It was reported that two young males had broken a window at the Dairy Queen.

Police attended and found the south side window of the Dairy Queen smashed. A backpack with a brick in it was found inside the building under the broken window. No one was in the area when police attended. A short time later, at approximately 3:54 a.m., Regina City Police were dispatched to an alarm at Smitty’s Restaurant, 3806 Albert Street. Two males were noted across the street from Smitty’s Restaurant. They were stopped and one male was identified as Michael Passmore, the second male was a 15 year old youth. Mr.

Passmore provided a warned statement to police admitting that he “stood six” for the youth while the youth smashed the window at Dairy Queen and that they left when he saw someone coming. In regard to the Smitty’s incident, Mr. Passmore told police that the youth smashed the window and he again waited and watched for him. Two pies were taken. Mr. Passmore is guilty of these offences on both his own statements as a party to the offence. [ 4 ] Mr. Passmore was held for custody court and was eventually released on an undertaking on November 7, 2012.

Information 44696152 [ 5 ] On September 30, 2013, Michael Passmore, following a suicide attempt, was a patient in the Psychiatric Unit at the Regina General Hospital. While he was there, he began acting out and throwing things in his room. When the nursing staff attended to his room, Michael Passmore became verbally threatening to the nursing staff, in particular, Kacee Weinberger. He stated to Ms. Weinberger, words to the effect, that, he would have his “gang cut her up”. When he was told threats would not be tolerated and the police may be

called, he responded “call the police I will have you cut up too and I love prison”. He also threatened that he would have his friends bring blades and knives onto the unit. During this time, Mr. Passmore also broke a clock that was hanging on the wall. Police noted on their arrival, that Mr. Passmore did not appear to be mentally stable and he was telling them that the more charges he gets, the better his chance to become part of a gang. [ 6 ] Mr. Passmore was held in custody and has been remanded since that date. Pleas were entered on January 24, 2014 in Regina Mental Health Disposition Court. [ 7 ] Mr.

Passmore has prior involvement in the Criminal Justice System and his criminal record is set out below: CRIMINAL RECORD 2011-02-24 1. Theft under Suspended Sentence Regina, SK s. 334(b) 1 year probation 2. Assault (2 charges) concurrent on each s. 266 3. Unauthorized use of credit card date s. 342(3) 2011-08-12 1. Fraudulently obtain 30 days time served food or lodging (credited 86 days) s. 364(1) concurrent on each 2. Fail to comply probation order (2 charges) 3. Fail to appear s. 145(5) (2 charges) 2011-09-19 1.

Robbery 9 months s. 344(b) (credit time served on remand - sentence to serve - 6 months) 1 year probation s. 109 Order - 10 years DNA 2. Fail to comply 9 months concurrent probation (credit for remand - s. 733.1(1) sentence to serve - 6 months)

1 year probation CIRCUMSTANCES OF THE ACCUSED [ 8 ] Mr. Passmore is 22 years of age, born August 24, 1991 in Edmonton, AB. Unfortunately his upbringing was less than ideal, given his mother’s problems. [ 9 ] Mr. Passmore is a First Nation’s youth, brought up by a single mother, Tammy Passmore. She herself has significant challenges which in part no doubt led to some of her son’s challenges. She was, according to records from Alberta Social Services, a drug user and alcoholic, and there were concerns regarding abuse to Michael from her various partners. Although Ms. Passmore has denied drinking during Mr.

Passmore’s gestation, one of Mr. Passmore’s diagnosis is fetal alcohol effect. [ 10 ] Mr. Passmore resided in a specialized contracted placement in Alberta, having been given “Persons with Developmental Disabilities” funding. He resided in a supervised group home and was able to attend school and even had some work placements.

He was being considered for further support as an adult, however, on his 18 th birth date his mother, Tammy Passmore, persuaded him to move to Saskatchewan. [ 11 ] When he came to Saskatchewan he resided briefly with his mother, however, that residence was no longer viable when both he and his mother attempted suicide. INVOLVEMENT WITH PROBATION SERVICES [ 12 ] Mr. Passmore became involved in the Justice system in 2011 and became a client of Adult Probation. Mr. Passmore’s current probation officer is Ms. Karla Struthers.

In the Bail Supervision Report of November 7, 2013 and her letter to Mental Health Court of December 17, 2013, and additional information she has provided to Crown and defence, she outlined some of the actions taken on behalf of Mr. Passmore through his involvement with Probation Services: In the spring of 2012, in order to seek support for Mr. Passmore, an application was made to the Community Living Service Division (CLSD), Ministry of Social Services. Although it was initially determined that he did not meet the eligibility criteria for CLSD services, this decision was overturned in December 2012.

Since that time, integrated meetings between Adult Probation, the Cognitive Disability Strategy, Saskatchewan Independent Living Centre and Community Living Service Division have started. At this time there are no supervised living placements or additional hours of service provision available for Mr. Passmore. Ms. Struthers reports that when she began working with Mr. Passmore in the summer of 2012, the Daily Living Skills Assessment (DLSA) was completed with Mr. Passmore’s mother and a DLSA Assessor.

The purpose of completing this assessment was to seek approval for funding from the Cognitive Disability Strategy. His probation officer reports that Mr. Passmore scored a “level four” on the assessment. As a result, he is eligible to receive approximately six hours per week of service provision through the Saskatchewan Independent Living Centre (SSILC). In July 2012, Regina Adult Probation attempted to re-apply to the Province of Alberta for support for Mr. Passmore. The idea behind this application was that Mr.

Passmore could return to Alberta where he had been living until he turn eighteen and came to Saskatchewan with his mother. His probation officer reports that some assessments were started but he was unable to be placed on a wait list in Alberta without a risk assessment being completed. The organization originally scheduled to complete the risk assessment cancelled and Mr. Passmore was never placed on a wait list. Ms. Struthers indicates that she has been informed that Mr. Passmore is not considered a resident of Alberta after having left for more that ninety (90) days.

It appears this is not a viable alternative. [ 13 ] In October, 2012, Mr. Passmore was arrested in relation to Information 44840797. He was held in custody and subsequently released on bail. Because of concerns about him returning to the family home, Mr. Passmore resided at the Coachman Inn in Regina. His probation officer notes that during his stay at the Coachman Inn, Mr. Passmore was not able to provide himself with basic necessities. He was unable to prepare simple meals for himself. He demonstrated difficulty opening food packages as he lacked the fine motor skills to do so.

Despite coaching, he was unable to properly use kitchen appliances, including a microwave oven. Mr. Passmore

was not able to open T.V. dinners or develop skills to heat and prepare meals safely and properly. Ms. Struthers advised that she and his prior worker from the Regina Community Clinic, FASD Clinic, assisted Mr. Passmore by going to the grocery store for him as he was unable to shop for himself. Once he received those groceries, however, he was unable to develop the skills to store or prepare the food. Ms. Struthers noted, for example, that he stored milk in a dresser drawer and dairy products on a couch and dry goods in the fridge. She also notes that Mr.

Passmore was unable to gauge water temperature to have a shower safely and eventually flooded his suite at the Coachman Inn as he forgot to turn off the water in the bathroom of his suite. [ 14 ] Despite purchasing meals considered easy to prepare, packaging and storage containers prevented Mr. Passmore from accessing regular meals. On one occasion Mr. Passmore was given knives by another tenant at the Coachman Inn and had attempted to open food packaging and cut his hand. Mr.

Passmore was unable to problem solve on his own to determine appropriate care for the injury but was seen at a clinic with assistance of the Regina Community Clinic. On another occasion Mr. Passmore was provided with groceries from a tenant including expired raw meat and dairy products. Mr. Passmore was not able to properly store the items or prepare them and had insisted he keep the items and consume them. There was concerns regarding his health as he wasn’t maintaining a regular/healthy diet. [ 15 ] In addition, there is no trustee for Mr. Passmore and no agency willing to manage his finances or money. When Mr.

Passmore receives money he frequently loses the money, gives it away or is taken advantage of and spends the money on people he meets. He requires assistance with daily living skills, grocery shopping, and laundry. To put things into perspective regarding the complexity of his needs, his previous FASD worker had indicated Mr. Passmore was unable to problem solve how to turn sheets over in his bed in order to cover himself when sleeping. [ 16 ] Finally there were safety concerns regarding Mr. Passmore’s ability to recognize dangerous situations within the community.

On several occasions he would let strangers into his suite. On one occasion he gave his play station gaming system to strangers who had promised him money in exchange for his gaming system. Mr. Passmore indicated he had got in a vehicle with these strangers who had promised to take him to a bank to get money for the gaming system. He indicated the strangers then drove Mr. Passmore to an unknown area and asked him to get out of the vehicle before taking his gaming system and leaving him behind without being paid. On another occasion while residing at the Coachman Inn, Mr.

Passmore was taken to the hospital by police after being found intoxicated. There was speculation regarding who had provided Mr. Passmore with alcohol and if he had been hit by a motor vehicle given he had sustained physical injuries. On another occasion Mr. Passmore had let a “drifter” stay in suite. [ 17 ] Throughout the time that Ms. Struthers has been working with Mr. Passmore, it is clear that she and others at Regina Probation Services have been working tirelessly to find suitable housing and community supports for Mr. Passmore. At this time, Ms. Struthers expresses concern for Mr.

Passmore as she is of the view that he is unable to live in an unsupervised environment. She notes concern that he may unintentionally harm himself or others in a residence (for example, by leaving a stove on). She advises that the Community Living Service Division (CLSD), Ministry of Social Services advised that he is on a wait list for housing. Ms. Struthers also advises that Mr. Passmore’s mentor from SSILC is also actively looking for a suitable residence for him. It appears that there will be no suitable supportive housing available to Mr. Passmore when he is released from custody.

PSYCHOLOGICAL AND PSYCHIATRIC REPORTS AND ASSESSMENTS [ 18 ] Report of Dr. Karen Todd, Senior Psychologist, who does assessments for both the Regina Mental Health Clinic and the Regina Correctional Facility interviewed and tested Mr. Passmore in a non custodial setting prior to his current remand. She noted him to be cooperative and engaged during her interaction with him. [ 19 ] Dr. Todd identified these problems suffered by Michael: 1. Cerebellar ataxic degeneration - a genetic disorder characterized by slowly progressive in coordination of gait and often associated with poor coordination. This prevents Mr.

Passmore from doing things like properly opening food packages. 2. Persuasive development disorder 3. Autism spectrum disorder 4. Asperger’s 5. Fetal alcohol effect

6. Tourette’s Syndrome 7. Cognitive dysfunction and delay 8. Learning disability, mild mental retardation 9. Unspecified early onset psychosis 10. Oppositional defiant disorder 11. ADHD with longstanding, aggressive impulsive behaviour 12. Frontal Lobe impairment, an acquired brain injury [ 20 ] She further indicated: Michael is unable to take medication on his own, budget money, plan meals, control his temper when in a disagreement, refrain from saying things that might embarrass or hurt others, or avoid situations that are likely to get him into trouble.

Without support and tailored interventions, Michael is at risk of further involvement with the criminal justice system and at significant risk to himself. Ideally he would be placed in a structured residential placement. [ 21 ] She concludes that: Michael needs to reside in a structured, supervised residence with staff familiar with working with complex and high needs individuals. There needs to be structure and purpose in his day..... Michael is at extreme risk of being unduly influenced by others... [ 22 ] Mr.

Passmore was subsequently charged with Information 44696152 (threatening the nurse on the psychiatric ward). He was remanded for a psychiatric assessment, and two reports were prepared. Report of Dr. R.J. Brown, Registered Psychologist, October 28, 2013 [ 23 ] The conclusion of Dr. Brown is that the accused is fit to instruct counsel. The conclusions of what community support would be required for Michael in order for him to avoid self-harm or avoiding further criminal justice involvement is not really identified beyond the comment that Dr.

Parson’s conclusion that Michael “would need to be managed in a long term mental health residential treatment facility” is a bit extreme. Dr. Brown does not comment on Michael’s need for a structured group home placement. However, Dr. Brown quotes extensively from two reports of Dr. Lloyd Flaro, Psychologist, from 2006 and 2008 which concluded: As a result of Mr. Passmore’s severe limitation neurocognitively, academically, functionally and adaptively, he would require lifelong interventions and services ... Mr.

Passmore is also very naïve and gullible necessitating placement in a sheltered group home where he is safe and protected from his own deficiencies and developmental disorders. Report of Dr. Kingeley Nwachukwu, Psychiatrist, October 29, 2013 [ 24 ] Dr. Nwachukwu also concludes Michael is fit, and also refers to reports of Dr. Flaro, as well as Child Welfare records from Alberta.

He concludes that Michael has a: ... background history of attention deficit hyperactivity disorder, polysubstance abuse, mild mental retardation with prominent behavioural problems, antisocial personality disorder, fetal alcohol spectrum disorder, problems with primary support group, and legal problems. He would benefit from active engagement with the mental health and relevant services, as well as compliance with treatment. Case Law Diminished Responsibility

[25]

Section 718.1 of the Criminal Code requires that a sentence must be proportionate to the gravity of the offence and the degreeof responsibility of the offender. [26] The significant mental health problems faced by Mr. Passmore do not reduce the gravity of the offence but diminish thedegree of responsibility of the offender (see R. v. Ayorech, 2012 ABCA 82). [27] Systemic failures to recognize and treat an offender’s mental health condition are mitigating factors in sentencing (R. v.Adams, 2013 MBQB 225, R v.

Ayorech, supra). [28] Denunciation and general deterrence should be given little if any weight where an offender is suffering from a mental healthdisorder because such an offender is not appropriate for making an example to others (R. v. Neeley (1991), 1991 ABCA 307 , 84Alta. L.R. (2d) 127 (Alta. C.A.), R. v. Rhyno, 2009 NSCA 108, R. v. Dickson, 2007 BCCA 561, 228 C.C.C. (3d) 450). [29] The disproportionate impact of incarceration on persons suffering from mental illness has been recognized as a mitigatingfactor in sentencing (R. v. Neeley, R. v.

Ayorech, supra). [30] There is a need to balance the interests of the public along with the mitigating effect of the offender’s condition. Policeofficers and health workers must be afforded protection from threats and violence. Given Mr. Passmore’s past history, notwithstandinghis diminished capacity, a custodial sentence is appropriate. I note that Mr. Passmore has already spent over four months in custody. SENTENCE [31] I must rhetorically ask who is Michael Passmore? Is he a criminal? Or is he a person with documented disabilities who simplycannot function outside of a group home environment? [32] If Mr.

Passmore is left to fend for himself with the limited services currently offered he will inevitably come to the attentionof police. Something entirely avoidable and tragic may well ensue. [33] The correction system is not designed or equipped or intended to be a default catchment basin for clientele with the disabilitiesof Mr. Passmore. [34] I do not accept that a suitable placement and support cannot be found. The need has been demonstrated and the decisions todate must be reconsidered. To do nothing is to impose on Mr. Passmore a far greater sentence than I could ever impose on him. [35] Mr.

Passmore, if given adequate support, will likely settle as he did for years in Alberta. If he is left without support, he will,through no real fault of his own, become trapped in a cycle of arrests and ever increasing custody dispositions. I find it hard tocontemplate that anyone with this level of disability and reduced culpability should not be afforded an opportunity to be placed in afacility that can properly address his complex needs. [36] Crown and defence have both proposed a short sentence followed by probation.

Given his diminished responsibility for hisactions, and time he has spent on remand, and the reality that he has no where to go, that is the only sentence that is fit. [37] I would sincerely hope that efforts will be made while Mr. Passmore is in custody to locate a suitable place for him.

[ 38 ] Mr. Passmore is sentenced to a further 30 days to be followed by 1 year probation. He is: 1. To keep the peace and be of good behaviour; 2. Report within 24 hours of his release from custody and at least weekly thereafter to a probation officer; 3. Attend all psychiatric and/or psychological assessments, treatment, programming or appointments as directed by your probation officer; Such assessments may include a full cognitive assessment and Acquired Brain Injury (ABI) Assessment; 4. Attend any appointments that may be arranged by your probation officer with community agencies to assist in securing housing.

Such agencies may include, but are not limited to, Community Living Service Division, Ministry of Social Services, Saskatchewan Independent Living Centre (SILC) or any other agency which may assist in securing suitable housing. Once suitable housing is secured, reside as directed by your probation officer; 5. Attend and participate in programming for cognitive development or vocational programming as arranged and directed by your probation officer; 6. Abstain absolutely from the possession or consumption of alcohol or non-prescription drugs. ___________________________ C.C. Toth, J