R. v. J.A.R. Date:, 2015 BCPC 408

Citation: R. v. J.A.R. Date: 20151021 2015 BCPC 0408 File No: 36645-1-K Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.A.R. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: A. Flanders Counsel for the Defendant: J. Arndt Place of Hearing: Port Alberni , B.C. Date of Hearing: October 21, 2015 Date of Judgment: October 21, 2015

Introduction [ 1 ] THE COURT (Orally): J.A.R. has been charged with an offence of assault against the complainant, K.R. Initially, the allegation was that this was assault causing bodily harm. However, pursuant to s. 606(4), an amended plea has been entered to assault simpliciter in connection with this matter alleged to have occurred on the 11th of April 2015, and between that date and the 13th of April 2015, at or near Port Alberni, British Columbia. He is before me for sentencing. Facts Circumstances of the Offence [ 2 ] Crown has outlined a series of circumstances relating to this particular offence.

Some issue is taken with respect to the characterization of the circumstances by Crown. However, given the fact that J.A.R. (the "Offender") has entered a plea of guilty, the material elements of the assault offence are admitted. [ 3 ] The circumstances that appear to be common in this matter are that the Offender, J.A.R., and the victim, K.R., (the "Victim") are married and have a three-year-old child. At the time of the offence, both of them were in their family home located on the Offender's family farm.

The Offender and the Victim were drinking and possibly consuming other drugs when a dispute arose between them. The result of the dispute was that there was a physical altercation between the two parties. [ 4 ] It is alleged that the Offender was lying on a couch and was attacked by the Victim. That issue is not settled.

I understand charges have been laid against the Victim, and that matter is set for trial. [ 5 ] In any event, it is not disputed that as a result of the altercation that occurred between the Offender and the Victim that the Offender had two black eyes, and it is indicated in a statement that he provided to the police that he, in the course of the physical altercation, broke the nose of the Victim.

That appears to be corroborated by photographic evidence that has been admitted into evidence in the sentencing hearing. [ 6 ] There is a suggestion, although it is not necessarily confirmed in any of the statements that were provided by the Victim to the police, that the injuries sustained by the Victim were in part as a result of a kicking motion made by the Offender towards the Victim which contacted her, and possibly that was the cause of the injuries that she sustained. [ 7 ] This is not the first time that the Offender and the Victim have been engaged in a domestic dispute that has accelerated to a physical altercation.

The Offender has a prior conviction for assault simpliciter contrary to s. 266 of the Criminal Code which was dealt with on February 13, 2014. For that particular offence, he received a sentence of one-year probation, and that year of probation was attached to a suspended sentence. The actual offence date for that incident was the 18th of September 2013. Circumstances of the Offender [ 8 ] There is a fair amount of background information before me about the Offender. That is in the form of two reports.

The first is a Presentence Report which has been prepared by Karen Hogan, who is a probation officer with the Port Alberni Community Corrections Office. The report was completed on October the 13th, 2015. The second report is a report prepared by Dr. Scott Prior, a psychiatrist, with the Forensic Psychiatric Services Commission. The Forensic Assessment report was completed on October the 4th, 2015. Both reports are detailed, they are comprehensive, and they provide a significant amount of useful information for the court. [ 9 ] The Presentence Report indicates that the Offender is age 46.

He self-reported to the probation officer about a difficult childhood. He indicated that he was part of a large family which worked long and hard hours on the family farm. He describes himself as having had his needs neglected and overlooked by his parents. He self-reported being sexually victimized by farm staff as a child. He also asserted that that was not taken seriously by his parents and he received no validation for those allegations.

The Offender's brother confirmed much of the details provided to the probation officer about the challenging background that the Offender endured. [ 10 ] He did attend school and completed grade 12. He then attended and received a diploma in Agriculture. He did so somewhat under duress, feeling that his skills and interests were not met by that particular program. [ 11 ] He had few relationships until he met the Victim. As I understand it, they were in a relationship and were married for a period of eight years. The result of the relationship was their child, approximately three-years-old.

The three-year-old child is in the care of the Ministry of Children and Family Development at the present time. It is the Offender's wish to take all necessary steps in order to regain the custody of that child. [ 12 ] The Presentence Report indicates that the Offender admits the offence, but, in the words of the probation officer [as read in]: ... but minimizes his offending behaviour and places blame on K.R. He tends to focus on the abuse he has suffered throughout their relationships and sees himself as the victim.

Victim empathy is not apparent. [ 13 ] The Presentence Report made reference to the Offender's mental health issues and that the Offender reported to the probation officer that he did not have a problem with alcohol, but did admit that alcohol was a factor in the current offence and for the past conviction of assault against the Victim. The Offender did admit to a longstanding use of marihuana on a daily basis.

However, the Presentence Report makes it clear that significant steps are being taken by the Offender in order to eliminate the use of both alcohol and marihuana. [ 14 ] The report, generally, is a positive report. It speaks of the numerous steps taken by the Offender in terms of rehabilitation. Since July of 2015, he has completed two programs. Those programs are the Respectful Relationships Program and the Relationship

Violence Treatment Program. The Presentence Report confirms that the Offender's overall compliance was good. It is noted that there was one exception to that; it was an apparent contact of the Victim which is referred to in the report and also mentioned by defence counsel in submissions. [ 15 ] A useful

summary of the conclusion of the presentence report is found on page 5 and read as follows [as read in]: At present, the subject appears motivated to address his own trauma through counselling. He expresses his plan to cooperate with any assessment and treatment, and he accepts that he may need some assistance given the present offence.

As stated previously, he voices resistance to any medications that may treat him for schizophrenia as he does not believe this is a valid diagnosis. [ 16 ] The report under the heading of "Attitude and Understanding Regarding the Offence" once again mentions the minimization of his behaviour and the blaming of the events on the Victim and her misuse of alcohol and her violence towards him.

However, a useful piece of information is provided in the following sentence: He shows flickers of insight in that he admits that being back before the court for a second assault on K.R. shows that there is something wrong with him and he wants to know for himself if he is a menace to society or not. [ 17 ] The Forensic Assessment Report details the results of an interview of the Offender which I understand to have lasted approximately two hours, conducted by Dr. Prior. Preceding the interview, the author of the report, Dr.

Prior, had the opportunity of reviewing records from the Offender's previous contact with the Forensic Psychiatric Services which occurred from approximately May 2014 to February 2015. [ 18 ] There was a conclusion reached by the treating mental health professionals, a Dr. Breitman and a Ms. Jonene Bryan, that the Offender may have been suffering at that time from some psychosis. He was described at that time as presenting with disorganized behaviour and thinking that was most likely attributed to a chronic psychosis such as schizophrenia. But Dr.

Breitman did not rule out the possibility that substances were involved in the etiology of the psychosis and, in particular, cited cannabis as a possible problem. [ 19 ] The Forensic Assessment Report, under a heading "Treatment History", provides a recounting by the Offender of his concerns about his mental health and steps that were taken by him regarding those concerns. Also, it provides his self-assessment of some of the issues with which he was dealing. In that self-assessment, he disagreed with any diagnosis that he was suffering either from schizophrenia or other similar types of mental illness.

He did admit to describing what he called "inner tension." He also said he had been treated as a youth for attention deficit hyperactivity disorder. [ 20 ] The report makes significant reference to the Offender's use of cannabis and that use on a daily basis or regular basis extended for over a period of some 30 years.

The suggestion in the report is that the Offender was using marihuana as part of a self-medication regime, although I gather from the report that it is the Offender's desire to obtain necessary approval for medical marihuana use. [ 21 ] There is one provision in the report which describes the level of anger that the Offender has dealt with over the years or, in some instances, failed to deal with. The report places it in the following terms [as read in]: J.A.R. also endorsed periodic difficulties with anger.

He stated that a typical trigger for anger would be "things that are in my way." When asked what this meant, he laughed and stated, "People who do not think." That said, J.A.R. could not describe any particular functional difficulty due to his anger. He stated that the last time his anger likely caused problems for him was during a weekend party in his teenage years. He went on to describe that he took exception as he witnessed a bully picking on a classmate and then took matters into his own hands and had a fight with this person. [ 22 ] The report makes it clear that when attempts were made by Dr.

Prior to explore some of the background surrounding this offence, that the response received by the author of the report from the Offender was somewhat vague. There was a significant amount of detail contained in the report about the complaints of the Offender against the Victim during their life together. [ 23 ] As a result of the assessment, a number of steps were taken by Dr. Prior to determine the mental status of the Offender. As a result of the assessment, the conclusion reached was that the Offender did not present with any firm evidence of an active mental illness.

There was a confirmation that there were symptoms of what are described as "grandiosity" and a tendency to abstraction and vagueness which, in the view of Dr. Prior, were consistent with cognitive symptoms typical of an illness such as schizophrenia. [ 24 ] However, Dr. Prior also concludes as follows: Apart from some difficulties in his thought content and a tendency to be vague and impressionistic, there was no clear evidence of a formal thought disorder. Certainly J.A.R. did not endorse any difficulties with his thought boundaries.

He did have somewhat impoverished affect, but apart from that, there was no evidence of any negative symptoms. J.A.R. otherwise seemed to enjoy good function as he has continued employment on the family farm. [ 25 ] The further conclusion reached by Dr. Prior are stated in the following terms: All things considered, J.A.R. likely has suffered from a primary psychosis such as schizophrenia. It is the nature of this illness to be somewhat phasic in that symptoms can occur or be exacerbated by various stresses in life including substance use.

J.A.R. also endorsed some trauma-based symptomology in terms of his tendency to startle easily and react with anger. That said, there was insufficient evidence for a formal diagnosis of a condition such as posttraumatic disorder. [ 26 ] The diagnosis is also framed in the following terms: In all likelihood, J.A.R. likely has experienced psychosis on a continuum. In many ways, he did present with clinical evidence typical of a schizoid or schizotypal type personality. These types of personalities are characterized by a lack of interest in relationships and somewhat eccentric thinking.

In addition, people (of) these types of personalities are prone to episodes of psychosis typically when

stressed or when induced by substance. This seemed to be the most likely clinical explanation for J.A.R.'s long-term presentation. [ 27 ] Assessment was done as to the risk that J.A.R. posed for future behaviour of this sort and Dr. Prior noted as follows: All things considered, J.A.R. did not seem to be in imminent risk for repeating his offence or committing another violent offence, although J.A.R. did display some concerning risk factors, namely, his tendency to attribute the causes for the violence in his relationship to his spouse.

At the same time, he disavowed any wish, plan, or intent to approach his spouse. Historically, most of J.A.R.’s legal difficulties have occurred in the context of that one specific relationship. As such, provided J.A.R. stays away from his estranged spouse, there is no reason to believe that he has had elevated short-term risk of reoffending. Scenarios that might increase his risk would be any need to deal with or contact his spouse, and this might indeed be the case if custody of his three-year-old child was ever an issue.

In addition, other scenarios that might increase risk would be any attempt on behalf of his estranged wife to contact or otherwise deal with J.A.R. especially if he is not prepared to do so in the moment.

Scenarios that would lead to reduced risk would be continued non- involvement with his spouse, accessing appropriate legal resources to deal with custody issues, and J.A.R.'s continued gainful employment on his farm and enjoyment of support with his family. [ 28 ] Both the Presentence Report and the Forensic Assessment provide suggestions for a number of conditions that would benefit J.A.R. while in the community. Position of Crown on Sentencing [ 29 ] Crown asserts that a fit sentence in this matter would be a three-month conditional sentence order followed by a period of probation.

The basis for Crown's position is the prior offence against the same victim. Crown also points out that the offence against the Victim in this case, being a spouse, amounts to a statutory aggravating factor set out under s. 718.2(a)(ii). [ 30 ] The Crown's position is that both general and specific deterrence are the prime considerations when dealing with spousal assaults of this nature. Crown is of the view that the victim-blaming which is referred to and described in the Presentence Report and in the Forensic Assessment indicates that there is a lack of insight on the part of the Offender in this case.

Thus a brief conditional sentence order followed by a period of probation for one year would both provide the necessary level of denunciation and deterrence and also provide protection for the Victim, the community and rehabilitation of the Offender. [ 31 ] Crown does acknowledge that as a mitigating factor that there has been a plea of guilty in this matter.

However, Crown takes the position that this mitigating factor may be slightly diminished as to its relevance by the victim-blaming which has been previously referred to and is characterized and described in both the Presentence Report and in the Forensic Assessment. Position of the Offender [ 32 ] Counsel for the defence disagrees with the notion of a conditional sentence order.

They seek a suspended sentence with what is described as a lengthy period of probation of between a year and 18 months. [ 33 ] Submissions were made as to some of the circumstances that surrounded this particular altercation between the Offender and the Victim. The suggestion is made that it was precipitated by the Victim in this case. There is no doubt, according to defence, that there is a highly dysfunctional and concerning relationship between the Offender and the Victim.

However, the position taken by defence is that it is clear from the Forensic Assessment Report and from other sources, including the Presentence Report, that the relationship between the Offender and the Victim is now at an end with little prospect that they will be seeking any kind of reconciliation. [ 34 ] Some emphasis is placed on the challenging background of J.A.R. growing up in a somewhat oppressed home. He has taken steps, as noted in the Presentence Report, to rehabilitate himself.

He is highly motivated to succeed in meeting the expectations of the Ministry of Children and Family Development in order to regain custody of the child. Accordingly, in the view of defence, no custodial time or even jail time being served in the community is necessary in order to protect the community, provide adequate denunciation and deterrence, or to protect the Victim in this case. Analysis [ 35 ]

Section 718 of the Criminal Code sets out the purpose and principles of sentencing.

The sentence is intended to denounce unlawful conduct and harm done to victims or to the community, to deter an offender and other persons from committing offences, to separate offenders from society where necessary, to assist in rehabilitating offenders, to provide reparations for harm done to victims or to the community, and to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community. [ 36 ] There is a principle of sentencing mentioned specifically under s. 718.2(d): ... an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances ... [ 37 ] The reports do raise a concern about J.A.R.’s insight into this particular offence.

However, I think that the concerns that have been expressed both in the Presentence Report and the Forensic Psychiatric Services Commission report have to be viewed in the context of the type of relationship in which the Offender and the Victim were engaged. [ 38 ] Clearly, it is a poisoned relationship with significant problems on both sides, as evidenced by the fact that both have been charged as a result of the incident between them and the offences that either took place or are alleged to have taken place between the 11th of April and the 13th of April, 2015.

It is disturbing that the offence before me and the alleged offence of the Victim took place while a child of tender years was present. [ 39 ] The information before me clearly demonstrates that the Offender has a stable job. He has taken necessary steps in order to rehabilitate himself and to deal with anger issues. I agree with defence submission that he is highly motivated to take all appropriate

steps to deal with his mental health issues, specifically counselling, that have been recommended to him both by the Ministry of Children and Family as well as by other resource organizations. [ 40 ] Crown has suggested that consideration should be given to some form of a modified Rogers order. That is opposed by the defence. I can say that Rogers orders have a specific and appropriate use where there may be individuals who have a significant psychological issue. At this point the reports are somewhat inconclusive on that issue.

I am of the view that further examination and assessment should be completed, but I am not of the view at this point that a Rogers order would be an appropriate and necessary order to be made. But clearly, the Offender is going to have to take all steps necessary in order to deal with his mental health issues if he is to regain the confidence of the Ministry of Children and Family and thereby to gain custody of his child. Conclusions [ 41 ] The appropriate disposition in this matter will be a suspended sentence. That is available under s. 731(1) (

a) of the Criminal Code . I am not of the view that a conditional sentence order will be of a significant benefit having regard to all of the principles of sentencing. However, I am of the view that accompanying the suspended sentence should be a lengthy probation order with fairly detailed terms. The probation order will be for a period of two years. [ 42 ] I am going to get J.A.R. to please stand. [ 43 ] J.A.R., I am not singling you out. I say this to everyone who is before me when I am imposing court-ordered conditions on them; court-ordered conditions are things you must do.

They cannot be treated in the nature of a suggestion. If you do that, you stand to face further charges for breaching. You have had one experience already where apparently you were in contact with the victim contrary to court orders. In the future that could cause you significant problems and result in Crown pursuing quite vigorously charges against you. So anything that I impose upon you as conditions are things that you must comply with.

Do you understand that? [ 44 ] THE ACCUSED: I understand. [ 45 ] THE COURT: Do you also understand that a suspended sentence is something in the nature of a sword hanging over your head? If you were to breach one of the conditions that are contained in the probation order, it is available to Crown to bring you back and to have an actual sentence imposed upon you? Do you understand that? [ 46 ] THE ACCUSED: Yes. [ 47 ] THE COURT: All right. [ 48 ] The terms of the probation order are going to be as follows. [ 49 ] Starting with number 200: you shall keep the peace and be of good behaviour.

You shall appear before the court when required to do so by the court.

You shall notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 50 ] As part of the mandatory conditions, I am going to impose a provision, that you shall have no communication or contact directly or indirectly with the victim K.R. [ 51 ] You shall report no later than 12:00 noon tomorrow in person to the probation office at -- I believe it is 3019 4th Avenue, Port Alberni, British Columbia, and after that, you shall report as directed. [ 52 ] Number 205: when first reporting to the probation officer, you shall inform him or her of your residential address and telephone number. [ 53 ] Number 206: you shall not change your address or telephone number without first obtaining the written consent of your probation officer. [ 54 ] Number 223: you shall not attend at or be 25 metres of any place which you know to be the residence, school, or workplace of K.R. [ 55 ] Number 227: you shall not possess or consume any alcohol or any controlled substance as defined in s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. [ 56 ] Number 231: you shall not enter any liquor store, beer and wine store, bar, pub, lounge, or nightclub. [ 57 ] Number 232: you shall not possess any pipes, syringes, or other drug paraphernalia. [ 58 ] Number 236: you shall not possess any weapon as defined in s. 2 of the Criminal Code . [ 59 ] I am going to pause for a moment.

Mr. Arndt, is he a gun holder? [ 60 ] MR. ARNDT: No, Your Honour -- [ 61 ] THE COURT: All right, thank you. [ 62 ] MR. ARNDT: -- and he does not have any, either. [ 63 ] THE COURT: He -- I am sorry?

[ 64 ] MR. ARNDT: He does not have any, either. [ 65 ] THE COURT: Thank you. [ 66 ] Number 238: no knives, you shall not possess any knife outside your residence except for the purpose of preparing or eating food or for purposes directly and immediately related to your employment. [ 67 ] Number 251: you shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by the probation officer, which may include (

a) anger management; (

b) alcohol or drug abuse; (

c) spousal abuse prevention; (

d) forensic assessment, counselling, or treatment through the Forensic Psychiatric Centre, Victoria, British Columbia, or such other facility so designated by your probation officer, and you shall comply with all rules and regulations of any such assessment, counselling, or program. [SUBMISSIONS RE PROBATION ORDER CONDITIONS] [ 68 ] THE COURT: Okay, all right.

Then I am going to impose a further condition that you shall report any attempts you make to contact K.R. and report any attempts she has made to contact you to your probation officer forthwith. [ 69 ] A further condition is that you -- that you shall inform your probation officer if you are about to or have entered into any new relationship and provide details of such relationship and the name of that person to your probation officer, if so requested. [ 70 ] MR. FLANDERS: Perhaps that should read "romantic relationship," just for clarity, Your Honour.

I am just concerned -- [ 71 ] THE COURT: "Romantic" -- I will accept "romantic". Is that -- [ 72 ] MR. ARNDT: That is fine. [ 73 ] THE COURT: All right. We will make that romantic relationship. I see the concern. [ 74 ] Then I am going to the no-contact provision. I am going to make one exception as requested -- [ 75 ] THE CLERK: Is this going to be a new condition or a change? [ 76 ] THE COURT: No, I will add it as an exception to 219. Do you have 219? [ 77 ] MR. FLANDERS: It is the no-contact. [ 78 ] THE COURT: It is the no-contact -- no contact, no communication, do you have that there? [ 79 ] THE CLERK: Okay.

So as it stands now it says, "You shall have no communication or contact with the victim, K.R.” [ 80 ] THE COURT: Yes, directly or directly -- it should say directly or indirectly with…, and then her name and there will be the exception terms, "Except as follows" -- [ 81 ] THE CLERK: Okay. [ 82 ] THE COURT: -- "through legal counsel." Does that -- that -- [ 83 ] MR. ARNDT: Yes. [ 84 ] THE COURT: -- will cover it off? [ 85 ] MR. ARNDT: Except indirectly through legal counsel. [ 86 ] THE COURT: All right, "Except indirectly through legal counsel." That is fine? [ 87 ] MR.

ARNDT: Yes. [ 88 ] THE COURT: Thank you. [ 89 ] THE CLERK: "Except indirectly through"? [ 90 ] THE COURT: Indirectly through legal counsel. Anything further? [ 91 ] MR. FLANDERS: No. [ 92 ] THE COURT: All right, victim fine surcharge, two months to pay? [ 93 ] MR. ARNDT: Yes, thank you, Your Honour. [ 94 ] THE COURT: All right. Anything further. Oh, Crown was seeking the DNA order. Any issue with that? [ 95 ] MR. ARNDT: No. [ 96 ] THE COURT: There will be a DNA order, then. When does he have to report -- what day is it in Port Alberni? Is it -- he is to report by when?

I will say within -- he is to report within the next two weeks --

[ 97 ] MR. ARNDT: Yes. [ 98 ] THE COURT: -- in order to provide a DNA sample at the local detachment of the Royal Canadian Mounted Police, and I will impose a s. 110 prohibition on the items set out in that

section for a period of five years. Those will be the orders. Anything further? [ 99 ] MR. FLANDERS: No. [ 100 ] THE COURT: All right. Again, J.A.R., understand all of what I have said, those are the musts, not the maybes. You understand that? [ 101 ] THE ACCUSED: I do. [ 102 ] THE COURT: Good, thank you, and we do not want to ever see you back here again. I am sure you do not want to be back here, either. [REASONS FOR SENTENCE CONCLUDED]