R. v. T.J.B.G. Date:, 2017 BCPC 97

Citation: R. v. T.J.B.G. Date: 20170327 2017 BCPC 97 File Nos: 170094-3-KB 171841-1-K Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. T.J.B.G. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. QUANTZ Counsel for the Crown: L. Wheeler Counsel for the Defendant: J. Watt Place of Hearing: Victoria , B.C. Date of Hearing: March 27, 2017

Date of Judgment: March 27, 2017 [ 1 ] THE COURT: T.J.B.G. is before me for sentencing today for three offences. The first is for breach of his probation order by failing to report on or about the 23rd of January, 2017. This was approximately four days after his release from custody on a previous matter.

The remaining two offences occurred approximately one week later on the 31st of January, when he breached his probation order by violating an area restriction concerning his girlfriend, and after the police were called, for assaulting two police officers. [ 2 ] It is not necessary to review the circumstances of these offences, other than emphasize that his assaultive behaviour towards the police officers, while very serious, was entirely consistent with a person suffering from a severe mental illness. [ 3 ] The accused has spent 56 days in custody on these new charges, and as a consequence is entitled to credit for 84 days pretrial custody.

Counsel are appropriately agreed that a further period of straight jail is not warranted for these offences. [ 4 ] The question before me is the nature of the community disposition which is required.

The Crown submits that a relatively brief conditional sentence order combined with probation may be appropriate, and the defence proposes that the most appropriate disposition is further probation. [ 5 ] Quite properly, the focus of both Crown and defence is on the need for treatment and the nature of the order required to protect the public by ensuring T.J.B.G.’s good behaviour in the community. [ 6 ] This brings me to the circumstances of T.J.B.G. In outlining his medical history, I am relying exclusively on the very helpful psychiatric assessment by Dr.

Miller, a highly-regarded forensic psychiatrist employed by the Forensic Psychiatric Services Commission. [ 7 ] The accused is 29 years of age. He was born in Manitoba and has supportive parents who do not live in this province. He completed his Grade 12 and has worked in the construction industry. For the first approximately 20 years of his life, he had no involvement in the criminal justice system. [ 8 ] His first conviction was in 2009 for a drug offence in North Vancouver, and he was placed on probation for a period of one year. [ 9 ] In 2010, he was admitted to hospital in Vancouver with paranoid delusions.

He was subsequently treated at a later date at the Royal Jubilee Hospital in Victoria with several types of antipsychotic medication. [ 10 ] His girlfriend reports, through Crown counsel, that when T.J.B.G. is on his medication, he is a very caring, supportive person. He continues to enjoy her affection and support, even though she does not wish contact with him in his current mental state. [ 11 ] In April 2013, T.J.B.G. was convicted of assaulting his girlfriend and placed on probation for 18 months.

In November of that year, he was convicted of two breaches of his undertaking and sentenced to one day in jail for each matter. [ 12 ] In April 2014, he was sentenced for two breaches of court orders and August 2014 for another assault on his girlfriend, for which he received short periods of incarceration and an 18-month probation order. [ 13 ] The next year, in 2015, he was treated by Dr. Breitman of Forensic Psychiatric Services with antipsychotic medications by depot injection or slow-release.

He was also certified under the Mental Health Act and cared for in the community under extended leave. [ 14 ] Later in that year, his case was reviewed by the B.C. Review Panel which concluded, on June 10th, that he had a longstanding history of schizophrenia with treatment over 11 years. They also confirmed that T.J.B.G. did not agree with his diagnosis and was resistant to taking his antipsychotic medication. The Review Panel found that the offender was not an appropriate candidate to be a voluntary patient and continued his certification. [ 15 ] Notwithstanding these conclusions, Dr.

Miller advises that his certificate was allowed to lapse. Dr. Miller reports that T.J.B.G. was subsequently re-hospitalized on an unspecified date at the Royal Jubilee in Victoria, where his care was assumed by the Victoria Mental Health Clinic. [ 16 ] T.J.B.G. was next seen by a mental health worker for an intake assessment at the Forensic Psychiatric Clinic in August of 2016. He was observed to be displaying bizarre behaviour, suffering from delusions, and highly suspicious of the police. It was also noted that he had poor insight into his illness and was non-compliant with the taking of his medication.

At that time, he was considered to be at risk for further decomposition and "the plans for follow-up were that he should continue seeing his psychiatrist at the Victoria Mental Health Clinic." The next appointment at the Victoria Mental Health Clinic was booked for later in August of 2016. [ 17 ] However, on the 26 th of August 2016, he was sentenced for two assaults on his girlfriend, which occurred in May and April, and four breaches of court orders for matters that occurred between April and August of that year.

Again, the court imposed short jail sentences and probation. [ 18 ] On November 4, and 18, 2016, he was sentenced for obstructing a peace officer and three more breaches of probation for matters that had occurred in September and October. Again, he received short jail sentences. [ 19 ] In November of 2016, T.J.B.G. was involved in a breach of his probation order and an assault of a peace officer. He was detained on these charges and a presentence report with a psychiatric component was ordered.

Unfortunately, as he could only appropriately be detained for a limited period given the nature of the offences, these reports could not be completed in time, so on

January 19, 2017, I sentenced him without the benefit of a psychiatric history and he was given credit for 60 days pretrial custody and released on an 18-month probation order with numerous conditions, including an area restriction. Most importantly, there was a requirement that he attend, participate in, and successfully complete any assessment, counselling, or program as directed by his probation officer, including forensic assessment, counselling, or treatment through the Forensic Psychiatric Centre.

The last condition was the extent to which a court can order a person to maintain their mental health, which is what we refer to as a Rogers order. [ 20 ] Notwithstanding his long history of chronic schizophrenia, his lack of insight into his illness, and his non-compliance with the taking of the medication necessary to maintain his health, and further non-compliance with court orders, there is no record of T.J.B.G. being certified again under the Mental Health Act to ensure that he received the treatment necessary to maintain his health. [ 21 ] While spending time in custody for these offences, T.J.B.G. was visited by Dr.

Breitman of Forensic Services, but I emphasize he was receiving no treatment when seen by Dr. Miller. [ 22 ] This leads me to Dr. Miller's assessment of T.J.B.G.’s current mental condition, and I quote [as read in]: T.J.B.G. is a man with chronic and persistent mental illness. His illness is most likely that of Schizophrenia. He does not show evidence at this time of active hallucinations. He is insightless into his illness. T.J.B.G. has a history of assaultive behaviour. He has a history of mental disorder.

It appears probable that his past problems with assaultive behaviour have been precipitated by his mental illness. He has a history of breach of court conditions. He has a history of non-compliance with treatment. He is in my opinion actively mentally disordered although not hallucinating or delusional. He has little insight into his illness. He is not currently taking any treatment. There appears to be no community plan at this time. He has no supports in the community.

If T.J.B.G. were to be released from custody and discharged to the community without treatment then in my opinion there would be substantial risk of further offending behaviour. In my opinion, T.J.B.G.'s risk of offending behaviour could be reduced by providing him treatment for his mental disorder, by providing him with long-term follow-up for his mental disorder, by providing him with housing. T.J.B.G. does not accept the need for treatment. T.J.B.G. appears unlikely to engage on a voluntary basis with Mental Health Services and to accept treatment.

Recommendations In my opinion, there is a need for his required protection and also the protection of the public because of his chronic, untreated mental disorder. I will be signing a Form 4 under the Mental Health Act today [which was March 16], which I will send to the Health Care Department of the Vancouver Island Regional Correctional Centre recommending that T.J.B.G. be transferred to hospital for treatment. T.J.B.G. would, in my opinion, require that he be stabilized and restarted on medication and then followed in the community under the extensive care provisions of the Mental Health Act .

I think it is unlikely that T.J.B.G. is going to be an easy patient to follow. He is currently homeless. My recommendation would be that he be assessed for acceptance by an Assertive Community Treatment team. This may take some months to decide. In the interim, if he is admitted to hospital and after he is discharged, I would recommend that he is followed by the Forensic Psychiatric Clinic. I would recommend that he is required to take steps to maintain his mental health.

I would recommend that he is closely supervised by his probation officer, and I would recommend that his sentence be reviewed by the court if he does not agree to its provisions. [ 23 ] It appears it was the court's ordering of the forensic assessment which triggered Dr. Miller to complete the Form 4 and I commend him for doing so. While I do not have the actual form that Dr. Miller completed, I note the following words which are contained on the required form and must have reflected Dr.

Miller's opinion: In my opinion, this person: has a disorder of the mind that requires treatment and which seriously impairs [his] ability to react appropriately to his . . . environment or to associate with others . . . In my opinion, this person: (

a) requires treatment in or through a designated facility; and (

b) requires care, supervision and control in or through a designated facility to prevent his . . . substantial mental or physical deterioration or for the protection of the person or for the protection of others; and (

c) cannot suitably be admitted as a voluntary patient. [ 24 ] As Dr. Miller has completed a Form 4 medical certificate, there is now authority to take him to a mental health facility where he can be detained for up to 48 hours for examination and treatment. [ 25 ] As is often the case, it is the police, in this case the Victoria City Police, who filled the breach and are here to take T.J.B.G. to the facility at the conclusion of the court proceedings. [ 26 ] This period of 48 hours may be extended if the director of the facility receives a second medical certificate of a similar nature

from another doctor within this 48-hour period. [ 27 ] Notwithstanding this process, the legislature of this province has stated in s. 18 of the Mental Health Act that the director of the mental health facility must not admit the person to that facility if suitable accommodation is not available for care or treatment or if, in the opinion of the director, the person could not be cured for or treated appropriately in that facility. [ 28 ] If two Form 4s are received, and if the director accepts him, the patient must be released after one month, unless that detention is reviewed and further extensions are made.

These further periods of detention may be reviewed by the Review Panel I referred to earlier. [ 29 ] I accept the opinion of Dr. Miller in all regards, including that the offender suffers "from chronic and persistent mental illness, most likely that of schizophrenia." [ 30 ] I am also satisfied that it is this illness which drives his criminal behaviour, and if released without treatment and long-term supervision to ensure he complies with the treatment, he will continue to reoffend and put himself and other innocent persons, including the police, at risk.

Neither the offender nor the public will be protected by a short-term stay in a mental health facility after administering antipsychotic medications, if he is simply released back into the community without an ongoing requirement and program for ensuring his continued treatment. [ 31 ] This was essentially the conclusion of the Review Panel in 2015, and subsequent events have proven he is not an appropriate candidate for voluntary treatment. [ 32 ] I agree with counsel that the custodial time in prison cannot be extended without exceeding a sentence that is proportionate to the gravity of the offences and the offender's degree of responsibility for them.

Further, none of the objectives of sentence can be achieved by more jail. [ 33 ] There are only two remaining objectives of sentence which the court needs to address. They have been identified by counsel: namely, protection of the public and rehabilitation of the offender. [ 34 ] As emphasized by the opinion of Dr. Miller and his actions in completing the Form 4, protection of the public and the offender's rehabilitation is only possible if he receives effective long-term treatment contrary to his own wishes. The only potential remaining role of the court is to supervise him in the community, as noted by Dr.

Miller, by supporting his ongoing treatment needs and ensuring access to any further community support he may require. [ 35 ] Without effective treatment, further incarceration for these offences, or further incarceration for future breaches of court orders, would not be consistent with the purpose and objectives of sentence. It would simply be incarcerating him for his mental illness. [ 36 ] As his criminal behaviour is so connected to his mental illness, it is not possible for me today to determine what conditions, if any, are required to protect the public and support his rehabilitation.

In my view, I would be remiss in my duty by attempting to fashion an appropriate community disposition, as I did on the last occasion, without knowing what steps are going to be taken by mental health professionals in providing him the necessary treatment. [ 37 ] As I noted before, T.J.B.G.'s father is concerned and has contacted the judicial case manager to advise that he has important information he wishes to communicate to the mental health personnel that will be assessing their son.

I have passed his contact information on to the police and they have assured the court that they will provide it to the intake personnel at the mental health facility. [ 38 ] For these reasons, I have decided to defer sentencing and to release him on bail today with very limited conditions, bearing in mind that he is already on a comprehensive probation order. I am also ordering a forensic assessment update at a court hearing to be scheduled by the judicial case manager this Friday.

Defence counsel may appear without his client and the updated forensic assessment may be orally through Crown counsel or in a brief note to the court. [ 39 ] The purpose of this update is very simple. It will be to inform the court as to whether a second Form 4 has been completed and, if so, whether the offender has been admitted to a mental health facility for assessment and treatment.

If this occurs, and in my view it must occur, I will then order a further forensic assessment update approximately one month later to determine what the long-term treatment plan may be, and hopefully at that time be in an informed position to set a date for sentencing.