R. v. Bohemier, 2020 MBPC 33

CITATION: R. v. Bohemier , 2020 MBPC 33 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) A. Smith, for the Crown ) - and - ) ) Paul Bohemier ) A. Hodge, for the Accused ) ) Judgment delivered: ) ) ) ) June 30, 2020 Reasons for decision delivered: July 30, 2020 C.A. DEVINE, P.J. Introduction and Factual Circumstances of the Offence [ 1 ] I sentenced Mr. Bohemier on June 30, 2020 for arson, assault and assault police officer, with reasons to follow. These are the reasons. [ 2 ] Mr. Bohemier pleaded guilty to the offences.

He is a vulnerable adult with long-standing mental illness and mental disability, 54 years of age, who is under the care of the Manitoba Public Trustee. He lives in a Manitoba Housing facility with many other vulnerable adults. On the night of July 21, into July 22, 2019, Mr. Bohemier was in a psychotic state brought about by his schizophrenia. He assaulted one of the other tenants of his building with whom he had a long-standing grudge, due to her bullying him. He punched Katherine Norris several times on the back of the head and back, while she hunched in her wheelchair. Other tenants witnessed the assault. Ms.

Norris did not suffer any injuries other than soreness. Mr. Bohemier went back to his apartment. Police were called and went to his door, but Mr. Bohemier would not let them in. He was afraid of being arrested and taken to jail. He told them to come back in the morning. Police contemplated obtaining an entry warrant but then they heard the smoke alarm in Mr. Bohemier’s apartment and sounds of him barricading the door. When they saw smoke coming from under his door, they forced entry. They immediately saw a bed comforter in flames. Police pulled the comforter into the hallway and stomped out the fire. Then Mr.

Bohemier pushed the burned bed towards the door. He yelled, “You’re never going to take me alive!” and brandished a butcher knife at the officers, advancing towards them. Police pulled the door of the apartment closed and were just outside the door when they saw a bright glow. Mr. Bohemier had set a larger fire on the mattress. Police entered again with the fire extinguisher and attempted to put out the mattress fire, which was completely in flames. By that time the building smoke alarm activated and there was smoke billowing into the hallway. Fire and paramedics were called. Police were worried that Mr.

Bohemier was going to harm himself. They could not see him. While the building was being evacuated, police remained at Mr. Bohemier’s apartment. Firefighters had to take him out a window because there was too much smoke to safely evacuate him through the building. [ 3 ] Additional emergency crews were required to evacuate the building. Many of the tenants were bedridden. Two city buses were deployed to take the evacuees. Mr. Bohemier was taken to hospital and had to be intubated due to smoke inhalation. Miraculously, it appears none of the other tenants were injured by the smoke.

The building sustained $98,000 worth of damage and the contents $2,000 of damage. [ 4 ] Mr. Bohemier caused a lot of mayhem that night. [ 5 ] Luckily, Ms. Norris was not injured in the assault, other than to experience soreness. The police were not injured with the knife. No one died or was injured due to the fire. The damage to the building, relatively speaking, was not major. Nonetheless, arson is potentially and often deadly. [ 6 ] The Crown was seeking a sentence of four years for the arson offence, with lesser, concurrent sentences for the assault and assault police officer with a weapon.

The defence sought a sentence of 18 to 24 months on the arson, with lesser, concurrent time on the other offences, plus a period of supervised probation of up to three years. Counsel agreed I could subtract from his sentence the time that Mr. Bohemier had spent in custody at an enhanced credit of one and a half days for every day he had spent in custody, which totaled 405 days in custody. [ 7 ] I sentenced Mr. Bohemier to two years for the arson, with concurrent sentences of six months for the assault on Ms. Norris

and nine months for the assault on the police officer by brandishing the knife. When his presentence time in custody was credited, thatamounted to 325 days remaining on his sentence, or almost 11 months.

His custodial sentence will be followed by three years ofsupervised probation with the following conditions: − Report to Probation Services within two working days of your release from jail and thereafter as required by your ProbationOfficer. − You will not possess any matches, lighters or other devices that can start fires. − You will take your prescribed medication as prescribed. − You will participate in any programing as required by your Probation Officer. − You will not attend to 125 Carriage Road. − You will have no contact or communication with Katherine Norris. − You will not attend Katherine Norris’ home.

I also made the following ancillary orders: − 10 year mandatory firearm prohibition (s. 109 mandatory per arson and assault police officer). − DNA (assault police officer, primary designated offence). Provide a sample of your DNA while in custody, or, if it is not takenwhile you are in custody, within 60 days of your release from jail.

The Purpose and Objectives of Sentencing [8] The purpose of sentencing in Canada is to contribute to a safe, peaceful and just society, by imposing a fair sentence that hasone or more of the following objectives: denunciation, deterrence, separation of offenders from society where necessary, rehabilitation,providing reparations to victims or the community, and promoting a sense of responsibility in offenders and acknowledgement of theharm done to victims and the community. The Supreme Court of Canada set out a framework for sentencing in the decision of R. v.Nasogaluak, 2010 SCC 6.

Writing for the Court, Justice LeBel stated clearly that no one sentencing objective trumps the others, and thatsentencing judges must determine which objective or objectives should have the greatest weight: . . . The determination of a "fit" sentence is, subject to some specific statutory rules, an individualized process that requires the judge toweigh the objectives of sentencing in a manner that best reflects the circumstances of the case (R. v. L. (T.P.), (SCC),[1987] 2 S.C.R. 309 (S.C.C.); M. (C.A.); R. v. Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (Ont. C.A.)).

No onesentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatestweight, given the particulars of the case…. (at para. 43) [9] In this case, the primary sentencing objective is specific deterrence. This was a crime committed by a person who is notcriminally-oriented. Nor is he an offender of whom the courts should make an example. Therefore, while denunciation and deterrenceare the objectives typically engaged when sentencing arson offences, they are not primary in this case. Mr.

Bohemier is mentally ill andmust comply with his pharmaceutical regime, which in turn mediates his emotions and moods such that he can take advantage of thecommunity and life skills supports available to him. [10] It is recognized that the objectives of denunciation and general deterrence play little or no role where the person has offendedbecause of mental illness. (R. v. Adamo, 2013 MBQB 225 at para. 31) In that decision, Justice Suche quoted Clayton C.

Ruby et al., Sentencing, 7th ed. (LexisNexis Canada Incl, 2008), which states: . . . general deterrence should be given very little, if any, weight in a case where an offender is suffering from a mental disorder becausesuch an offender is not an appropriate medium for making an example to others.(at 5.251, pp. 293-94) [11] Overarching the sentencing objectives is the fundamental principle of sentencing, proportionality – the sentence imposed mustbe proportional to the gravity of the offence and the degree of responsibility the offender had when they committed the offence.

InNasogaluak, the Supreme Court directed sentencing judges to ensure that the fundamental principle of proportionality is not sacrificed atthe altar of any of the relevant objectives in any particular case. Justice LeBel explained: The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be "proportionate to the gravity of theoffence and the degree of responsibility of the offender".

Thus, whatever weight a judge may wish to accord to the objectives listedabove, the resulting sentence must respect the fundamental principle of proportionality.. . . (at para. 41)(Emphasis added.) The Fundamental/Overarching Principle of Proportionality The Seriousness of the Offence [12] Arson is a serious offence. The maximum sentence where the arsonist knows or is reckless as to whether the property to whichthey set fire is occupied, is life imprisonment. In this case, no one other than Mr.

Bohemier was injured, although the evacuation andrescue must have been a harrowing experience for the residents and emergency personnel.

The Moral Culpability of the Offender [ 13 ] Mr. Bohemier’s moral culpability in committing the arson and the assaults was significantly reduced. He was experiencing a schizophrenic psychosis at the time of the offences. There is some evidence, and it would be consistent with his past suicidality and attempts, that this was a suicide attempt committed in a state of upset, agitation and impulsivity. Additionally, Mr. Bohemier has a significant intellectual disability, and he is extremely hard of hearing.

His diagnosed mental illness and disabilities and his traumatic background cumulatively, make him a vulnerable person who is under the trusteeship of the Manitoba Public Trustee where he receives supports for the tasks of daily living and lives in a specialized residence. His moral blameworthiness is severely compromised. [ 14 ] The law recognizes that mentally ill offenders have reduced moral culpability. Their level of “moral blameworthiness is necessarily lesser than that of a person who freely chooses to commit a crime.” ( Adamo , supra at para. 34 ) Similarly, in R. v.

Ayorech , 2012 ABCA 82 , the Alberta Court of Appeal stated: The gravity of the offence is not, of course, lessened by the personal circumstances of the offender. However, the mental disorder diminishes the degree of responsibility of the offender. Impaired reasoning, delusional disorders, and like mental conditions distinguish those afflicted from the ordinary offender who is fully accountable for his or her conduct: Resler at paras 9-10, 16; Belcourt at paras 7-8; and R. v. Muldoon , 2006 ABCA 321 (Alta. C.A.) at paras 9-10 , (2006), 401 A.R. 42 (Alta.

C.A.). [ 15 ] Both a forensic fitness assessment and not criminally responsible (NCR) assessment were court ordered in this case. Both reports were filed as exhibits in the sentencing. Mr. Bohemier was found unfit to stand trial at the end of October, three months after the offence. Dr. Rousseau recommended hospitalization to provide prescription medication to lead to a state of fitness, which eventually occurred. [ 16 ] Although Mr.

Bohemier was subsequently found fit to stand trial and his schizophrenic psychosis did not rise to the level where he did not appreciate the wrongfulness of his acts, it is very clear from the reports that his psychosis at the time contributed to the commission of the offences. [ 17 ] There was also a psychological assessment report done at the request of Mr. Bohemier’s community mental health worker, to enquire into a possible cognitive or intellectual disability due to the difficulties he was having in accomplishing the tasks of daily living. This report was written two days after the arson.

A social work assessment report from 2003 was also filed. [ 18 ] Cumulatively, the reports paint a picture of a man whose start in life was tough and whose life has been coloured by trauma, mental illness, intellectual disability and hardship. He was born with likely FASD and a congenital defect known as Crouzon Syndrome often associated with intellectual disability. He was severely beaten as a child by his father. He had language difficulties between French and English when the family moved from Winnipeg to Montreal when he was a young child. He had violent and suicidal outbursts as a young person.

It was not until he was in his teens that his severe hearing loss was diagnosed, after experiencing years of difficulty in school. He was raped in a remand centre in Toronto as an adult. He is of small stature. That and his intellectual disability and hearing disability have made him a target for bullying and physical abuse, including extreme physical assaults. He has been homeless. He has had numerous and lengthy hospitalizations in mental health facilities. [ 19 ] He has an intellectual disability. Mr. Bohemier’s intellectual disability was also apparent in court, in the interactions we had in the courtroom.

His hearing is extremely poor. Mr. Bohemier was agitated by not understanding the court proceedings because he could not hear me or the lawyers. When we recessed and brought in a headset for Mr. Bohemier to wear during the proceedings, he was able to hear and was apparently very pleased at being able to hear and was calm and no longer agitated. [ 20 ] When an offender suffers from a mental illness or disability, a sentencing judge must consider whether there is a connection between the condition and the offence for which the offender is charged.

Where there is evidence of a diagnosis and its impact on an accused, the sentencing judge can draw a nexus between the condition and the offence. That is, the judge should take it into account in assessing the offender’s moral culpability. [ 21 ] There was significant evidence about Mr. Bohemier’s conditions and how they impact on his behaviour. [ 22 ] The psychological assessment of Dr. Unger was undertaken upon referral from Mr. Bohemier’s mental health worker, because of his inability to accomplish basic living skills. It was being undertaken around the time of the offence. Dr.

Unger summarized the issues flowing from Mr. Bohemier’s mental illness, including a history of non-compliance with his medication: . . . Paul has current and lifelong struggles to manage activities of daily living and to adequately take care of his own physical and mental health needs.

This is evidenced by long-standing difficulties with medication compliance, maintaining household cleanliness and basic necessities (e.g. a working home telephone line), repeated experiences of being taken advantage of by others in the community, sporadic but long-standing difficulties with aggressive behaviour, a long history of requiring inpatient stays in order to maintain a baseline level of functioning and his most recent inability to keep himself safe in his home. It is apparent that Paul is need of a significant increase in daily living supports in order to maintain his own and others’ safety.

This has been recommended repeatedly in the various historical reports that were reviewed for this assessment. . . . These recommendations were developed prior to understanding the full implications and effects of Paul’s recent medical event. . . .it is recommended that Paul receive 24-hour care and supervision of some kind. It is important that his care program include staff who are trained and able to respond appropriately to his variety of symptoms including delusions, medication non-compliance and potentially aggressive behaviour. [ 23 ] Mr.

Bohemier was admitted into surgical intensive care in hospital due to inhalation burns after the arson. He remained there for two days and then was transferred to the psychiatric hospital for nearly two months. Dr. Rousseau saw Mr. Bohemier in custody approximately one month later on October 24, 2019, when Mr. Bohemier was in custody, for the purpose of a court-ordered psychiatric fitness assessment. He was experiencing hallucinations, paranoia and a disorganized thought process. He was found unfit to stand trial because of his acute medical disorder. Dr.

Rousseau recommended he be hospitalized and treated with antipsychotic medications,

anticholinergic medications, benzodiazepines, antidepressants and mood stabilizers. [ 24 ] Dr. Rousseau, along with Matt Dolloff (Community Forensic Mental Health Specialist) also conducted a court-ordered assessment to determine whether he was criminally responsible at the time of the offences. That report was complete April 20, 2020. It is a comprehensive report that details Mr. Bohemier’s mental illness and functioning prior to and subsequent to the offence, based on hospital and mental health records and Dr. Rousseau’s treatment of him. The report indicates that Mr.

Bohemier’s psychiatric illness had been problematic since his teenage years. It appeared he was medication compliant for about 10 years, when he had been living at the same specialized housing facility and receiving community support. But about a year leading up to these offences, he was starting to have some difficulties. It appears that he stopped going to the clinic that administered his psychiatric medications and he began to deteriorate. He was involuntarily admitted to the hospital “disheveled and malodorous with paranoia and disorganized thought process”.

He was in hospital between March 22 and April 10, 2019 and then referred to outpatient treatment for schizophrenia. His next hospitalization was after he lit the fire in his apartment three months later. A note from the admission report describes him as having auditory and visual hallucinations, although he denied them. [ 25 ] After he was found to be unfit to stand trial, he initially responded well to medication in hospital, but as his security status was reduced, he became impulsive and unpredictably aggressive.

New medication “sometimes used for decreasing impulsive aggression, particularly in people with intellectual disability” seemed to work. He was discharged from hospital and returned to jail; there were no longer any concerns about aggression when he returned to jail. When he was assessed for the purpose of the NCR assessment between March 27 to April 1, 2020, he was on “no security status” and had free range of the ward and exhibited no aggression. [ 26 ] It was Dr. Rousseau’s opinion that Mr.

Bohemier’s schizophrenic symptoms at the time of the offence “contributed to his increased aggressive tendencies towards the victim and police.” And that his mental illness contributed to his behaviour for the arson as well. Read as a whole, it is clear that the schizophrenic psychosis, along with increased aggression and impulsivity connected to his intellectual disability are interconnected and led to the commission of the offences: Based on the information available, it is likely that Mr.

Bohemier was experiencing symptoms of schizophrenia at the times of the events in question and that his symptoms contributed to his increased aggressive tendencies towards the victim and police officers. There is some evidence that preceding this time his medication adherence was poor. There is also collateral to indicate that when Mr. Bohemier is not taking antipsychotic medication, he behaves more impulsively and aggressively. This would suggest that his underlying mental illness did contribute to his behaviour for all three charges. However, the medications which Mr.

Bohemier was prescribed are helpful for treating aggression, agitation, and impulsivity, independently of their treating psychosis. Mr. Bohemier has some history of challenging behaviours that seem to be not always related to psychosis, and it is likely that the medication he was prescribed were reducing agitation, impulsivity, and aggression that is also related to personality style and intellectual disability. Mr.

Bohemier appears to have a history of aggressive behaviour, some of which does not appear to be specifically connected to delusional beliefs, paranoia, hallucinations, or disorganization of thought or behaviour. For the sake of this assessment, his own account provides a narrative that the motivating factor for his behaviour was anger and irritation towards his co-resident whom he believed to have spread rumours about his past criminal history amongst his co-residents in the building.

He then reported that in a state of agitation and emotional dysregulation he wished to avoid incarceration at all costs and this is why he reacted by barricading himself and starting a fire when police arrived to apprehend him. He indicated that he was aware police would coming and that he would be apprehended. He also on a different occasion reported that he was at the time feeling distraught and suicidal, and that a wish to die may have been a significant factor in his starting a fire in his blockaded room. . . . it does seem likely that psychotic symptoms contributed to increased aggression in Mr.

Bohemier at the time of the listed offences. . . . there is a significant mental health component to Mr. Bohemier’s behaviour. He is a man who I believe suffers from intellectual disability, and a very limited ability to cope with stresses or perceived bullying or insults. . . . he was likely experiencing untreated psychotic symptoms that contribute to increased agitation and aggression.

The evidence available indicates a deterioration of his mental health, with neglect of self-care, substantial neglect of his hygiene and environment, and a change to his behaviour with regular concerns about his agitation and aggression towards staff and co-residents at his building. (April 20, 2020 report at pp. 10-11) [ 27 ] I am satisfied that Mr. Bohemier’s moral culpability was significantly reduced at the time of these offences, due to the constellation of factors brought about by his mental illness and intellectual and hearing disabilities. [ 28 ] I also note that although Mr.

Bohemier has suffered from these issues for decades, he has only one previous criminal conviction, for an arson in 1998, for which he received a custodial sentence of 14½ months followed by three years of probation. There is no indication he breached any of the conditions of his probation order. Other Relevant Sentencing Principles, s. 718.2 Aggravating and mitigating factors (s. 718.2(a)) [ 29 ] The most aggravating factor in this case is that the arson was committed in a residence of high needs individuals, much like the offender, some with physical disabilities more significant than his. Ms.

Norris, the woman he punched, was in a wheelchair. [ 30 ] It is mitigating that Mr. Bohemier pleaded guilty and took responsibility for the offences. He expressed genuine remorse at the sentencing hearing. He demonstrated insight into his state of mind at the time of the offence, “I wasn’t even thinking about people in there that day.” [ 31 ] Mr. Bohemier has consented to psychiatric treatment and taking his medication as prescribed and to including this as a condition of his probation, because he knows that taking his medication will ensure he does not represent a risk to public safety.

This reduces his risk significantly. Mr. Bohemier has no record of probation breaches. He has significant medical, mental health and

community support in Winnipeg. His mental health worker, Ms. Kubay, monitors his compliance with his medication. Parity (s. 718.2(b)) [ 32 ] Subsection 718.2(2)(

b) requires that: A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 33 ] Both Crown and defence filed several cases. None of the cases are exactly like Mr. Bohemier’s case. The moral culpability of all the offenders other than one, was much higher than in Mr. Bohemier’s case. [ 34 ] The case that most closely resembles this one is R. v. Fehr , 2013 MBQB 226 , filed by the Crown.

In that case, the offender had a history of psychiatric problems, including schizophrenic psychosis and it was believed, similar to this case, that the arson was indicative of a possible suicide attempt. He had a more significant record than Mr. Bohemier, including two previous arson convictions. His risk was also higher because he had addictions issues, unlike Mr. Bohemier. Justice McKelvey sentenced him to two years less a day. [ 35 ] The offender in R. v. Maurice , 2012 CarswellMan 565 (Prov.Ct.) had a significant criminal record which the judge found to disentitle her to leniency.

The primary objectives that animated the sentence were denunciation and deterrence. While he considered a sentence of three years, because of the significant Gladue circumstances in the offender’s background, Judge Killeen imposed a sentence of two years for the arson. I note the offender also suffered from alcohol and drug abuse issues and it appears she was under the influence of drugs at the time of the offence. [ 36 ] In R. v. Sharun , 2017 BCPC 367 , Judge Brecknell suspended sentence where the undiagnosed mentally ill offender suffered a psychotic break and attempted suicide by committing arson.

He had no history of aggression and did not have a criminal record. After the event, Mr. Sharun received a mental illness diagnosis, was receiving treatment and had returned to his employment and volunteered in the community. He was a low risk to reoffend. [ 37 ] The defence pointed to a number of cases where the sentences imposed were less than or equal to what the Crown was seeking in this case, where moral culpability was not reduced due to mental illness. For example, in R. v. Hemmerling , 2017 BCPC 10 , the offender was in a violent, protracted alcoholic rage when he set numerous fires.

He was sentenced to two years less a day. (See paragraph 66 where Judge Morgan states that his moral culpability is not reduced due to mental illness.) In R. v. Rigby , 2017 ONSC 6049 , the offender poured gasoline around the family home and set it on fire after a domestic argument with his partner. The family’s cats died in the fire. The fire was set intentionally and there were no mental health or addictions issues. The offender was sober when he committed the offence. The sentence was three years. The worst case was R. v.

Bevacqua , 2014 ONSC 6279 , another case involving domestic violence, where the enraged husband started a fire while his wife and children slept. The humans luckily escaped; one of the family cats was killed in the fire. The offender had a history of domestic violence.

Justice Ricchetti sentenced him to four and a half years, referring to the offence as “a savage act of personal violence towards [his wife and children]” and “shocking.” The defence also filed cases where the arson was planned and deliberate for insurance purposes, again, to demonstrate that the sentence being sought by the Crown was not consistent with the sentencing jurisprudence: R. v. Gagnon , 2019 CarswellMan 401 (Q.B.) where six months was imposed; and R. v. Mirzakhalili , 2009 ONCA 905 where an insurance fraud arson explosion endangered the lives of employees in the adjoining commercial property.

Two years less a day was imposed. Conclusion [ 38 ] The cumulative sentence of two years (reduced by his time in custody) recognizes the relative seriousness of the arson and the assaults, ameliorated significantly by the psychotic, impulsive state that Mr. Bohemier was in that day. [ 39 ] The lengthy probation order will provide support and oversight to Mr. Bohemier and reduce his risk to the community. Mr. Bohemier’s risk is not taking his medications as directed. His consent to have pharmacological compliance as a condition of his probation order is not only an indicator of Mr.

Bohemier’s desire to maintain a stable and peaceful life, but also represents a significant reduction to his risk to behave aggressively in future. If he takes his medications and his medications are working to ameliorate his psychiatric illness and conditions, he does not represent a risk to the community. Mr. Bohemier will continue to be under the trusteeship of the Public Trustee and through Community Mental Health services, he will continue to receive specialized housing, programming, support and supervision. He will continue to be supported by his mental health community worker Ms.

Kubay. “Original signed by:” C.A. Devine, P.J.