R. v. Balch, 2022 BCPC 337

Citation: R. v. Balch 2022 BCPC 337 Date: 20221121 File No: 48283-1, 48800-1 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. BLAIR ROBERT BALCH ORAL REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE G. KOTURBASH Counsel for the Crown: K. A. Froehlich Counsel for the Defendant: J.H. Pennington Place of Hearing: Penticton , B.C.

Date of Hearing: November 21, 2022 Date of Judgment: November 21, 2022 [ 1 ] THE COURT: Mr.

Balch pled guilty to making and possessing an improvised explosive device, mischief to school property, and driving while prohibited. [ 2 ] Crown seeks a sentence of six to nine months on the first charge, three months concurrent on the second, and one month consecutive on the driving while prohibited charge, for a total of seven to 10 months in jail, followed by 12 months’ probation with the first six months under 24-hour house arrest. [ 3 ] On the other hand, although conceding that a jail sentence is appropriate, the defence asks that it be a conditional sentence and suggests a range of 15 to 18 months.

Alternatively, they recommended intermittent sentence. Circumstances of the Offences [ 4 ] On March 6, at 2:30 a.m., the Penticton police received a complaint of a loud explosion at Kings Park, a local soccer field in the heart of Penticton. Family homes are near the area. Police conducted patrols and found nothing. Another explosion was reported the following day, March 7, just after 8:00 p.m. The complainant said someone was running from Kings Park. This time, police found the remnants of two explosive devices that damaged the metal bleachers in the field.

The first device was made from a metal conduit, and the second from a copper pipe. Police obtained surveillance footage from a residence near the location. It showed a person riding a bike from the area shortly after the blast. [ 5 ] A few days later, an employee -- I am going to be a while, Mr. Balch, so if you want to sit down -- [ 6 ] THE ACCUSED: Okay. [ 7 ] THE COURT: -- I am okay with that. Thank you. [ 8 ] A few days later, an employee of Carmi Elementary School found an explosive-like device near the school.

The device did not contain explosive material and was kept by the principal in the school office. [ 9 ] On March 10th, at 11:30 p.m., police received multiple complaints of a loud explosion from Carmi Elementary School. Like Kings Park, it too is very close to a residential neighbourhood. When police attended, they found another homemade explosive device near a baseball field adjacent to the school. The device was placed on top of an electrical junction box. It destroyed the lock on the box and put a significant dent in the box.

There was no damage to the inner workings of the box. [ 10 ] The explosive device unit of the RCMP from the Lower Mainland was asked to attend. They attended and examined all three devices and found consistency in how they were made but could not determine the type of explosive material used. [ 11 ] On March 11th, while conducting foot patrols near the school, police found two more devices near a walking path by the school. The area was cordoned off, and the explosive device unit was called back to Penticton. The devices sat along the creek by the walking path adjacent to the schoolyard.

Controlled destruction of the devices was done after school hours. Police obtained surveillance footage, which showed two people travelling through this area. One matched Mr. Balch's description, and he became the focus of their investigation. [ 12 ] On the 17th of March, police witnessed Mr. Balch leave Burdock House on the same unique bike seen in the video footage. He was arrested the following day, and police obtained a search warrant for his apartment. The only thing they located was a backpack that matched the gear worn by the person in the video. During his interview with police, Mr.

Balch initially denied involvement but eventually admitted to making the explosive devices by crushing sparklers into -- and placing them into pipes. He claimed he made the three devices, and one did not work. Mr. Balch said he acted alone and admitted detonating a device on March 6th at Kings Park and another on March 9th on the path by Carmi Elementary School. He said he tossed the non-operational -- non-detonated device in the creek.

He said he detonated the devices late at night or early in the morning to avoid people being present. [ 13 ] Through his counsel, he claims responsibility for the device detonated at Kings Park and now says the device exploded on the junction box was also him. He says the third device that did not work was thrown into the creek. Mr. Balch continues to deny involvement with the other devices found along the walking path.

He claims his sole purpose was to see how loud of an explosion he could create, and the devices were strategically placed on or near metal objects to enhance the sound. [ 14 ] I did comment earlier that it seems to stretch credulity that a second person would be detonating a similar explosive device at the exact location, Kings Park, the following evening. It extends the imagination even further to suggest that another person was leaving similar devices near Carmi Elementary School at the same time that Mr. Balch detonated a device and disposed of another.

It all seemed too coincidental to be a coincidence that Mr. Balch was not directly involved or at least a party. However, I do accept the submissions of the Crown that they are not in a position to say that Mr. Balch was involved, and they urge me to make such a finding, and I do so. I am sentencing Mr. Balch only for the devices he admits responsibility for. [ 15 ] The only explanation before the court as to why Mr. Balch made and detonated devices was to see how loud of a bang he could make.

There is no evidence that he was under the influence of alcohol, substances, or any other -- or suffering from any mental health issues at the time. During the incidents before the court, he was on a lifetime weapons prohibition, which prohibited him from possessing explosive substances and devices.

[ 16 ] Finally, concerning the circumstances of the charge of driving while prohibited on February 17th, Mr. Balch was stopped by police while operating an electric scooter on the main street -- on our Main Street. The scooter did not have pedals, meaning it fell within the definition of a motor vehicle. Mr. Balch was prohibited from operating any motor vehicle then, and his scooter was impounded for seven days. Mr. Balch said that he was unaware that the scooter fell within the definition of a motor vehicle if pedals were removed. It has not been uncommon for people in Penticton to make a similar mistake.

Circumstances of the Victim [ 17 ] Although no victims are named, Mr. Balch's crimes were not victimless. Following the first blast, there was a flurry of media reports and further reports about the second and third explosions. Although police diligently tried to quell community concerns by assuring them that they did not perceive a significant threat to the community, it still left people on edge, wondering who and what was behind the mysterious blasts. It was concerning that although the explosions occurred late at night, they were in places where children congregated during the day.

It is impossible to measure children's and parents' anxiety. What was the person's intention? What was the message that they were trying to convey? What were the risks of a child coming across one of the undetonated devices? [ 18 ] Last month, the School District made the difficult decision to lock the doors of Carmi Elementary School during the school day because of undesirable activity in and around the school. It was a sad day for the students and staff at the school and our community. Mr. Balch is not directly to blame for the doors being closed. The decision was made more than a year later.

However, the fact that the school has had to take such an extreme measure speaks volumes about the consequences of people engaging in unsavoury and criminal behaviour near schools or other places where children go. [ 19 ] Although I have not been told the cost of involving the bomb disposal unit, I am confident that the price can be measured in thousands and not hundreds of dollars. This is a cost that we, as taxpayers, will all bear. Finally, the soccer association in the City incurred costs to replace or repair the damaged bleachers and the electrical company to fix the electrical junction box.

Circumstances of the Offender [ 20 ] Mr. Balch is 50 years old. He receives persons with disability benefits and lives in supportive housing at Burdock House. He is single and has a grown son with whom he has never had contact. He is unemployed and receives $1,300 from persons with disability benefits. He says he can pay a fine and do community work service but cannot work because he has HIV and tires quickly because of his condition or ‘old age.’ [ 21 ] He spends his time riding his bicycle. Despite being unable to work because he tires easily, he estimates that he travels approximately 50 miles daily.

He also spends his time refurbishing bicycles for the Boys & Girls Club. According to the report, he goes to the casino and gambles approximately $100 weekly. He spends an additional $20 per day or $600 monthly for what he describes as a maintenance dose of his crystal meth. In other words, $1,000 of his $1,300 benefits goes to gambling and fuelling his addiction. [ 22 ] Mr. Balch's parents were heavy alcohol users, and he frequently witnessed both engage in domestic violence. When he was 11, Mr. Balch began drinking and eventually started using cocaine and crystal meth regularly.

At the height of his alcohol and substance use cycle, he consumed 20 to 30 beers and an eight-ball or 3.5 grams of crystal meth daily. [ 23 ] His alcohol and substance use led to frequent contact with the police. Between 1992 and 2014, he was convicted 87 times for breaking the law. For most of those 20 years, he was either on probation or jailed. The convictions included 18 for violence, three for mischief, and 18 for breaching court orders. According to Mr. Balch, when he was 38, he grew tired of his criminal lifestyle and decided to change.

Although homeless for several years, he managed to get by without stealing to feed his habit or engaging in violence. [ 24 ] Three years ago, he was accepted into Burdock House. It is a wet facility, means that as part of the provincial mandate to provide low-barrier housing, occupants can continue to use alcohol and drugs in their homes. As noted earlier, Mr. Balch continues to drink and use illicit drugs, albeit at a much lower rate than he did in the past. [ 25 ] The manager of Burdock House describes Mr. Balch as impulsive but a good tenant. Burdock House informed Mr.

Balch and the report writer that if he receives a jail sentence, given the demand for supportive housing, they will likely be unable to hold his place. Whether he can return will depend on availability upon his release. Although Burdock House is not the only supportive housing resource in the community, it has been home to Mr. Balch for three years. [ 26 ] As part of the sentencing process, Mr. Balch was assessed by a forensic psychologist. The psychologist opines that Mr. Balch suffers from moderate stimulant use disorder and alcohol use disorder in sustained remission.

The psychologist did not identify any other underlying disorders. After examining several risk indicators, the psychologist described Mr. Balch as a moderate/high to high risk for future violence. She opines that his risk level could quickly move into the high range if Mr. Balch is under the influence of substances. He also risks moving into the high range when he finds himself under stress.

Despite the large gap in his criminal record, the psychologist says that without treatment and counselling, even if he can manage his use of substances, he remains at a moderate to high risk of reoffending violently. [ 27 ] The psychologist characterized Mr. Balch as being in the moderate to high range for recidivism or risk of reoffending behaviours other than violence. Again, she sees the influence of substances and his living situation playing a critical role in determining whether his level of risk will increase. To reduce Mr.

Balch's risk of reoffending, the psychologist recommends programming, including individual psychotherapy, to address Mr. Balch's anger, emotional management, and substance use disorder. Unfortunately, this will be difficult to achieve because Mr. Balch lacks insight into his offending behaviour. [ 28 ] Despite acknowledging that his past criminal behaviour was directly correlated to substance use, he continues to use crystal meth and drink daily, albeit at a significantly lower rate. Mr. Balch is also unwilling to make any effort to obtain or accept the benefits of treatment.

According to the psychologist, he denies -- the psychologist writes he denied being interested in future substance use programming and stated, "I've got a handle on it, I'm okay with it." He remarked that his substance use has been "steady past little bit." He denied any abuse of prescription medications.

[ 29 ] Despite the significant gap in his record, the psychologist continues to express concerns about Mr. Balch's ability to follow court orders. In addition to a lengthy history of violating court orders, Mr. Balch violated a lifetime order prohibiting him from possessing explosives when he engaged in the activities before the court. His conviction for driving while prohibited is also, although to a much lesser extent, an indication that Mr. Balch's old behaviours and contempt for orders are starting to circle back into his life. On a positive note he has not breached any of his bail conditions.

Objective Seriousness of the Offence [ 30 ] The Crown has proceeded summarily, meaning the maximum imprisonment period for each Criminal Code offence is two years. Primary Objectives and Principles of Sentencing [ 31 ] Given the nature of the offending behaviour and Mr. Balch's circumstances, the sentence's primary objectives are the protection of the public, denunciation, specific and general deterrence, and rehabilitation. Ultimately, the punishment must be proportional to the gravity of the offending behaviour and Mr. Balch's moral culpability.

The circumstances of the offence and the offender must be considered to ensure the punishment fits the crime. I must also exercise restraint and consider the principles of totality and parity. [ 32 ] General deterrence takes on a heightened importance in the case for several reasons. First, the only logical conclusion I can draw from the circumstances is that another, if not others, engaged in the same type of activity at the exact locations as Mr. Balch. Second, we have learned that the School District has had to lock its doors to the school because of activities occurring in and around the school.

As I pointed out, Mr. Balch's actions are not directly responsible for the closure, but disposing of and detonating explosive devices near a school causes extreme risk to young students, and doing this in the future would not assist in those doors being unlocked. Mitigating and Aggravating Factors Mitigating Factors Cooperation with the Police [ 33 ] Following his arrest, Mr. Balch voluntarily agreed to speak to the police.

Although initially denied involvement, he eventually admitted to making explosive devices, detonating one each at Kings Park and Carmi Elementary and discarding a third that he claims did not work. Guilty Plea and Remorse [ 34 ] Mr. Balch entered an early guilty plea to all the charges before the court. The preparation of court-ordered reports resulted in delays, and further delays happened due to questions that the court had. His pleas demonstrate a willingness to accept responsibility and remorse. He also apologized in open court for his actions.

Cognitive Impairment [ 35 ] Cognitive impairment or mental health issues that affect an offender's capacity to control their impulses or appreciate the seriousness of the conduct or risk can reduce one's moral culpability, contributing to the offending behaviour. In this case, there is no evidence of any underlying mental health problems or substance use contributing to his behaviour. Collateral Consequences [ 36 ] Collateral consequences are not necessarily aggravating or mitigating under s. 718.2 (

a) of the Criminal Code as they do not relate to the offence's gravity or the offender's level of responsibility. Collateral consequences speak to the offender's circumstances and can be considered in determining an appropriate sentence. [ 37 ] Collateral consequences are consequences arising from the commission of an offence, a conviction for an offence, or the sentence imposed for a crime that impacts the offender. There is a limit on collateral consequences influence in formulating a proportionate sentence.

Where the result is obvious and inevitably flows directly from the commission of the offence, a conviction or sentence, the mitigating effect of the collateral consequence will be significantly reduced. Subjected to Verbal Abuse and Physical Violence [ 38 ] Mr. Balch was and continues to be the subject of intense media scrutiny following his arrest. Given the nature of his crimes, this was expected. He was also subjected to and continues to be subjected to verbal abuse, both directly and on social media. He was even assaulted by being spit on and having his hand broken.

That was not something to be expected. [ 39 ] In Suter , the Supreme Court of Canada said that violent actions against an offender for the role in an offence, whether by a fellow inmate or by someone acting as a vigilante, form part of the offender's circumstances and can be considered when determining an appropriate sentence. However, the court held giving too much weight to vigilante violence at sentencing also allows this kind of conduct to gain undue legitimacy in the judicial process. Loss of Reputation and Stigma [ 40 ] Mr.

Balch says that he has lost friendships and been ostracized by his community because of the media attention. There is no evidence before the court that the media attention was disproportionate, abusive, oppressive or outside what one would expect in this type of case. [ 41 ] Responsible crime reporting was an expected outcome of his crimes, as was the loss of acquaintances and friends. It should

come as little surprise that most law-abiding citizens tend to disassociate themselves from people who decide to engage in criminal activity. Loss of His Home [ 42 ] There is a strong likelihood that Mr. Balch will lose his home at Burdock House if incarcerated. The loss of a home can be a significant collateral consequence. [ 43 ] In Hansen , 2014 BCSC 625 , the offender was convicted of an aggravated assault, and the Crown sought a sentence of 26 to 30 months. The court imposed a sentence of 90 days intermittent with a lengthy probation period.

Among other mitigating factors, the collateral consequence of the offender losing her home weighed heavily in the analysis. The intermittent sentence allowed her to preserve her home and maintain stability. [ 44 ] Although it is almost certain that a jail sentence will result in Mr. Balch losing his home at Burdock House, what is less clear is what would await Mr. Balch upon his release. Because he is a candidate for supportive housing, options will likely be available, maybe not Burdock House, but other supportive housing options. However, Mr.

Balch's limited housing options are part of his own doing to some extent. Most places require people to abstain, which Mr. Balch refuses to do, limiting his options. They also need people to live a noncriminal lifestyle. Mr. Balch has demonstrated an ability to live crime-free but has recently shown an unwillingness to do so and a further unwillingness to address his substance use. It may be that a jail sentence would inspire Mr.

Balch to live a more prosocial lifestyle, enhancing the housing options available to him upon release. [ 45 ] Harm reduction and wet housing have an important role and place in helping our community address the issue of homelessness and addiction. However, for people like Mr. Balch, whose risk for violence increases when they use substances, one must question whether providing them with this type of shelter enhances or detracts from the stability necessary to keep our community safe. Even Mr.

Balch's counsel points out that for some, the safe injection rooms in these facilities can be a trigger, making it a difficult place to live while trying to maintain abstinence. [ 46 ] Regardless, the place Mr. Balch has come to know as a home for the past three years will not with almost certainty be an option if he receives a lengthy jail sentence, and this is a significant collateral consequence but also a result faced by many who are incarcerated for some time and are unable to maintain their rent or mortgage payments while in jail. Aggravating Factors Criminal Record [ 47 ] Although Mr.

Balch has a bad criminal record, he is being sentenced for the offences before the court and not for his history. He is not being resentenced for his past misconduct. However, this does not mean that his criminal record cannot be an aggravating factor used to increase the severity of a sentence as long as the sentence remains proportionate. A criminal record is aggravating because it rebuts good character and speaks to the need for specific deterrence, the chances of successful rehabilitation and the likelihood of recidivism. [ 48 ] There is a significant gap in his record. His last conviction was in 2013.

This gap triggers consideration of the gap principle. The gap demonstrates a sign that the offender's rehabilitation or that -- a sign of the offender's rehabilitation or that they do not represent a danger to the community. The nature of the offences, the circumstances of the accused, and the intervening events will affect the weight given to the accused's prior criminal record. Where the person has not had any criminal convictions for some years, their latest offence can be treated as a first or almost first offence. However, this is not always the case.

A gap in a substantial record loses significance when the offender reverts to committing a serious criminal offence. In other words, serious criminal offending gives new life to the previous record. [ 49 ] In this case, Mr. Balch is commended for leaving his criminal lifestyle behind for many years. However, the seriousness of the current offending behaviour reduces the impact that the gap in his record otherwise would have had to some extent. Lack of Insight Mr. Balch's Lack of Insight into his Offending Behaviour [ 50 ] When the presentence report writer questioned Mr. Balch, he said he was a -- it was

an act of stupidity, and he did not think through his actions and how it would impact others. He smirked and stated he was surprised at how loud the noise of the explosions was. This might have been so after the first, but not the second. [ 51 ] He still does not appreciate the fear his actions caused, especially by the location of the detonations and the risk inherent in disposing of undetonated devices along a path frequented by children.

At no point did he reflect and express any concern about the threat his actions posed to children, either impacted by the knowledge that a bomb was detonated near their school or the risk that one of them could have come across an undetonated device. [ 52 ] He fails to recognize how the use of drugs and alcohol increased his level of risk in our community and sees no benefit in treatment or counselling. Although there is no proof that drugs and alcohol played any role in his criminal behaviour, it did in the past and continues to remain a concern for professionals in the future.

It certainly tempers the prospects of rehabilitation. In other words, it remains relevant to the protection of the public. Planning and Premeditation [ 53 ] Although Mr. Balch is described as impulsive, his offending behaviour involved a degree of planning and premeditation. First, he had to find instructions on how to build the device; he had to purchase explosive material and find metal conduits and copper piping.

He then had to make the devices and detonate them on more than one occasion. This was not a momentary lapse of judgment or an impulsive act. This was not a high school prank. [ 54 ] Mr. Balch is 50 years old and was the subject of a lifetime prohibition imposed by this court because of his violent history. The prohibition expressly prohibited him from possessing explosive substances. Those who plan their crimes constitute a greater danger to society. Their planning gives them time to reflect before they act.

It also demonstrates a more wilful intention to move forward, especially in the face of a court prohibition. Location [ 55 ] Although Mr. Balch argues that it was mitigating that he chose to detonate the devices in an open soccer field and school playground, I see it differently. His argument might have gained more traction if he had detonated the devices in an open farm field, away from residential neighbourhoods and places children frequent. For someone who bikes 50 miles per day, there would have been many locations to detonate his device if his intent was not to alarm anyone.

Not a Single Isolated Incident [ 56 ] Mr. Balch's actions were not a single isolated incident. If, as he claims, he did not know how loud the explosion would be when he detonated the first device, he knew -- he knew when he detonated the second device what kind of impact it would have. Deliberate Risk Taking and Gratuitous Damage [ 57 ] It is aggravating when an offender intends more severe harm than what resulted from the offence. Mr. Balch placed the device on an electric junction box during the Carmi school detonation. He would have fully expected the bomb to damage it.

Impact on the Community [ 58 ] As mentioned earlier, it is difficult to measure the true impact of Mr. Balch's crime on the citizens of Penticton, especially on the families who had children attending Carmi Elementary School. However, I am confident that the impact was not inconsequential. In addition to the psychological impact, there is also the financial impact of Mr. Balch's actions. One would have to live under a rock not to understand how police in our community are a precious and finite commodity. Their resources are stretched to the max. Mr.

Balch's actions were irresponsible and costly to the police and the taxpayer. [ 59 ] Although Mr. Balch's actions cannot be characterized as swatting, there are some parallels when considering their impact. In this regard, Judge Janzen's comments in R. v. A.(B.L.) , 2015 BCPC 203 , in paragraphs four and five, have some application: [4] Swatting involves tricking an emergency service agency into dispatching an emergency response based on a false report of an ongoing critical incident.

Swatting can lead to the deployment of a range of emergency response teams, including police, fire and bomb squads and the evacuation of businesses, schools or other public institutions. [5] It is much more severe than a prank: the impact, ramifications and potential consequences of swatting range from inconvenient and wasteful to catastrophic. Any required evacuations are disruptive, costly, and traumatic for those involved. The deployment of emergency resources to a bogus incident is a waste of scarce public resources.

Such a deployment also means that those resources are not available to respond to an actual incident with potentially serious consequences. If swatting proliferates, limited public resources must be expended on responding and determining whether a call is real or a hoax, with the potential for reaching the wrong conclusion and failing to respond to an actual emergency with sufficient resources and promptly. [ 60 ] Like uniformed police officers, bomb disposal officers are a scarce commodity.

When pulled to locations like Penticton to investigate incidents like this, they become less available to deal with other potentially urgent matters in the province. In referring to Judge Janzen's comments, I am not suggesting that this was an incident of swatting or deliberately calculating to deploy the resources. Still, at the same time, his actions required the deployment of significant resources.

Breach of Weapons Prohibition Order [ 61 ] Breaching a court order suggests a reduced likelihood for rehabilitation, and the need to isolate an offender from society increases if the offender does not obey court orders designed to protect the public. Firearms, weapons, and explosive prohibition orders are vital in protecting our communities from possessing weapons by people who pose a danger. If they will have their desired effect, breaches of such orders need to be treated seriously. Sentence Ranges [ 62 ] The sentence range for this type of offence committed by Mr.

Balch is broad and depends on the underlying circumstances of the crime and the offender. Courts have imposed everything from an absolute discharge to lengthy periods of incarceration. [ 63 ] In R. v. A.D.B. , 2019 SKPC 60 , a young person pled guilty to not complying with a weapons prohibition and possessing methamphetamine and explosive substances. The substances included pyro and gunpowder, fertilizers, modelling clay, short pipes and a copy of the Anarchist Cookbook . He was serving a sentence for assault and possession of a weapon when he committed the offence.

The device was a homemade explosive device that he made and left in a library parking lot. He had been on a watch list because of previous convictions for making a pipe bomb. He was sentenced to 12 months’ custody divided equally among closed and open custody and supervision, followed by 12 months’ probation. [ 64 ] I do not refer to this case for the sentence imposed. The person was a young person. But like this case, counsel in A.D.B. expressed challenges in finding sentencing precedents.

Beginning at paragraph 15 of the decision, Judge Bazin conducts - Bazin is B-a- z-i-n - a comprehensive review of the cases as a -- a comprehensive review of the issues. As identified by Judge Bazin, the range for this

type of offence is very broad. In addition to the decisions reviewed by Judge Bazin, I would add the following cases. [ 65 ] R. v. McKee , 2003 BCPC 17 , the accused pled guilty to possessing ammunition explosive substances, contrary to a weapons prohibition and a breach of recognizance. The judge described the circumstances that gave rise to the charges as bizarre. Mr. McKee's friend barged into his house, dumped a pig carcass into his tub, and left quickly without saying a word. Mr. McKee called his son and told him a corpse was in his tub.

Alarmed, his son contacted police, who then attended and found ammunition and explosives in the residence. Mr. McKee was an experienced blaster from the United States and did not agree with the Canadian laws prohibiting their possession. His possession was described as one of civil disobedience without any sinister intent. He had been convicted previously for unlawfully storing ammunition and the careless use of a firearm.

In addition to the 15 days he spent in custody, the court imposed a 12- month conditional sentence order. [ 66 ] In Malang , [1982] CarswellOnt 53 , the Ontario Court of Appeal decision, the accused was found guilty of possessing three homemade pipe bombs. He was 19 and told the police he planned to detonate one device in the middle of the road and the other two in a creek near his home. He said he did not intend to destroy property but to make a loud noise. The police detonated the bombs and determined them to be operable and powerful.

The Crown conceded that the appellant was an excellent student and made the bombs as an experiment. The appellant was sentenced to six months’ probation. [ 67 ] In R. v. Daoust , an unreported decision of our Penticton Court registry, on December 2, 2013, the accused pled guilty to making a bomb for his brother, who then placed it on a car tire and detonated it. There was shrapnel embedded in a couple of adjacent homes. The offender was young and had no record. He was sentenced to 60 days in jail, and that sentence was to be served intermittently. [ 68 ] In R. v.

Sheppard , 2006 ABPC 220 , a 20-year-old accused pled guilty to possessing a Molotov cocktail, a knife for the purpose of a danger -- purpose dangerous to public peace and breaching his recognizance. The accused was arrested at an LRT station after brandishing a knife and entering a fight. When he was arrested, police found a Molotov cocktail in his backpack. The accused was on his way to a party. He received a six-month conditional discharge a few months earlier for possessing a weapon and was on probation then.

The accused was diagnosed with bipolar disorder and was sentenced to four months in jail and 12 months’ probation. The court rejected a conditional sentence as inconsistent with the fundamental purposes and principles of sentencing because he was already on a weapons prohibition and had been fighting with a knife during the possession. [ 69 ] Finally, in Leader , an unreported decision, Kelowna Provincial Court, June 23, 2022, the accused pled guilty to throwing a Molotov cocktail into a forested area in a residential neighbourhood during the fire season.

He was 37 years -- a 37-year-old Indigenous man who had been gainfully employed and married before falling into the throes of a crystal meth addiction. At the time of his offending behaviour, he was in a drug-induced psychosis. He had a very recent minimal and unrelated record. Mr. Leader was in custody for the equivalent of 17 months and took steps to deal with his substance use disorder and other underlying trauma. He was sentenced to two years less one day but allowed to serve the sentence as a conditional sentence.

That sentence of two years less one day was also reduced by the 17 months that he had spent in -- or the equivalent of 17 months that he had spent in presentence custody. [ 70 ] What is clear from the cases is that the courts have imposed a wide range of sentences, and the severity of the sentence, like any other sentence, is directly correlated to the culpability and moral blameworthiness of the offender. [ 71 ] Sentencing is not an exact science. It is a multifactorial and contextual process described as one of a judge's most challenging and delicate duties.

Determining the fair sanction for the accused while adequately expressing society's condemnation and preserving public safety requires a complex balancing exercise often involving competing values and objectives. As recognized by the Supreme Court of Canada, the relative weight and importance of the multiple factors will frequently vary depending on the crime's nature and the offender's circumstances. [ 72 ] The sentence I impose must protect the public.

When a person who is the subject of a court order not to possess explosives builds multiple pipe bombs and detonates them in locations where children frequent, denunciation and general deterrence loom large in determining a fit sentence. The sentence must deter Mr. Balch from committing further criminal offences and deter others from making, detonating and discarding pipe bombs. However, I must also exercise restraint and ensure the sentence I impose is proportional to the seriousness of the offence and Mr. Balch's responsibility. [ 73 ] Mr.

Balch has a higher moral culpability than most accused mentioned in the noted cases. He is not an immature high school student. He was not influenced by drug psychosis or a mental illness. Instead, he is a 50-year-old man with a horrendous record who was the subject to a lifetime weapons prohibition prohibiting him from possessing explosives or explosive devices who made and detonated relatively sophisticated pipe bombs near locations where children frequent. It was not a single isolated incident.

Although he could have chosen worse locations or times of day, the sites selected and his decision to leave a device behind heightened the risk to our community. [ 74 ] I am satisfied the range recommended by the Crown is appropriate. The sentence is less than two years, and neither count prescribes a minimum term of imprisonment. A conditional sentence is, therefore, an option that I must consider. However, before doing so, I must be satisfied that before imposing one, I must be confident that having Mr. Balch serve a sentence in the community would not endanger the safety of the community.

Even a small risk of a serious violent offence typically precludes a conditional sentence. This is particularly so for violent offenders. [ 75 ] The Supreme Court of Canada in Proulx , in paragraph 69, writes: 69 In my opinion, to assess the danger to the community posed by the offender while serving their sentence in the community, two factors must be taken into account: (1) the risk of the offender re-offending and (2) the gravity of the damage that could ensue in the event of re-offence. If the judge finds a real risk of re-offending, incarceration should be imposed.

Of course, there is always some risk that an offender may re-offend. If the judge thinks this risk is minimal, the gravity of the damage that could follow if the offender re- offends should also be considered. In some instances, the minimal risk of re-offending will be offset by the possibility of great prejudice, thereby precluding a conditional sentence.

[ 76 ] A gap in Mr. Balch's record and his behaviour on bail certainly weighs in favour of finding that Mr. Balch is capable of living a prosocial life and that a conditional sentence would not endanger the community. However, several other factors weigh against such a finding: Mr.

Balch's record of noncompliance with court orders, five bail breaches, 20 breaches of probation orders, three for being unlawfully at large and escaping lawful custody, including the fact that the offending behaviour before the court involved a breach of a lifetime weapons prohibition order. [ 77 ] Complying with court conditions is an essential component of any conditional sentence order. He has a serious, although dated, record for violent-related offences. A psychologist has recently assessed him as having a moderate to high/high risk of offending violently. Although there are ways to minimize the risk, Mr.

Balch poses to the community, including treatment and counselling for anger management and substance use and abstinence, both of which Mr. Balch categorically rejects the need for, the gravity of the damage and the risk to the community if Mr. Balch reoffends is high. [ 78 ] In Proulx , the Supreme Court points out that: 72 The risk of re-offence should also be assessed in light of the conditions attached to the sentence.

Where an offender might pose some risk of endangering the safety of the community, this risk may be reduced to a minimal one by the imposition of appropriate conditions to the sentence: ... [ 79 ] Unfortunately, the two things that could assist in minimizing Mr. Balch's risk to the community have been rejected by him: abstinence from drugs and alcohol and counselling or treatment.

Instead, the plan that is being proposed would have him live under house arrest in a facility that permits the consumption of alcohol and drugs. [ 80 ] In Hendy , 2014 BCCA 485 , in paragraphs 17 to 19 , the British Columbia Court of Appeal rejected a conditional sentence described as unhelpful to the defence's suggestion that the offender would reside at a specific location and be subjected to a curfew as a way to address his addiction and his rehabilitation. [ 81 ] In Elliott , 2004 BCCA 624 , in paragraph eight, Justice Finch of the B.C.

Court of Appeal, in upholding the termination of a conditional sentence, made the following observation: [8] In my respectful view, a conditional sentence was inappropriate in this case. There was no real plan of support for the appellant at the time of sentencing, having regard for his lifestyle and related record. It was a virtual certainty that he would, at some point, fail to comply with the conditions imposed. [ 82 ] In this case, there is no real plan to minimize the risk and prevent Mr. Balch from reoffending.

Even if I were to impose an order for counselling and treatment, which the professionals and I agree is necessary, I am not convinced he would follow it. Even if I am wrong and a conditional sentence would not endanger the community's safety, I am not satisfied that such a sentence, given the circumstances of the offence and the offender, is consistent with the fundamental purposes and principles of sentencing. [ 83 ] As stated in R. v.

Proulx , at paragraph 106, there are some circumstances in which the need for denunciation and general deterrence, ...is so pressing that incarceration will be the only suitable way to express society's condemnation of the offender's conduct. [ 84 ] This is where denunciation and deterrence are pressing and paramount objectives. Mr. Balch's level of moral blameworthiness is high. A strong message must be sent to Mr.

Balch that wading back into his criminal lifestyle will not be tolerated, and an even stronger message to others that engaging in illegal activity at places near schools, parks, and playgrounds risks both physical and psychological harm to our children will be met with severe consequences. [ 85 ] Because treatment or counselling is a nonstarter for Mr. Balch, a conditional sentence would mimic everyday life for him.

A house arrest condition might limit the miles he can put on his bike and the money that he can spend in the casino, but it will not stop him from consuming drugs and alcohol, both of which, according to the professionals, heighten his risk to re-offend. [ 86 ] What kind of message would I be sending to the community that a man like Mr. Balch, who does not believe he needs to be accountable to society in reducing his risk for violent recidivism by abstaining from drugs and alcohol and undergoing counselling, is deserving of a conditional sentence? Mr. Balch's return to crime was a significant transgression.

It constitutes a severe violation of his obligation to the court to follow its orders and a commitment to society not to engage in criminal activity. Therefore, I am rejecting that the sentence be served conditionally and imposing a traditional jail sentence. [ 87 ] I considered whether probation should follow a jail sentence in this case. Mr. Balch is steadfast in his position that he does not need counselling or must stop consuming alcohol and illicit drugs.

He has been on probation for most of his adult life, and I see little utility in expending further resources and taxpayers' dollars, which are better served on people who want to make a change. If Mr. Balch has an epiphany while serving his jail sentence, all of those resources will be free of charge. [ 88 ] Sentence on Information 48800, Count Number 1, is 180 days. On Count Number 2, the sentence is 90 days consecutive. The total jail sentence on that Information is 270 days. [ 89 ] I considered waiving the surcharges, but after learning about the amount of money Mr.

Balch spends gambling and on illicit drugs, I am not satisfied that requiring him to pay the surcharges would be an undue hardship and order him to pay a one hundred dollar surcharge on each of the counts for a total of $200. I will give him 24 months to pay those surcharges. [ 90 ] The sentence on Information 48283 is $500, with a 15 percent surcharge of $75. He will also have 24 months to pay. [ 91 ] He is also prohibited pursuant to s. 98 of the Motor Vehicle Act from driving any motor vehicle on any highway or industrial road in the Province of British Columbia for 12 months.

[ 92 ] The ancillary orders are as -- the ancillary order is as follows. On Count Number 1 on Information 48800, that is a secondary designated offence, and I am ordering that you provide a sample of your DNA, which will be taken from you in the institution, sir. [ 93 ] That is all, sir. (REASONS CONCLUDED)