R. v. Forsythe Date:, 2016 BCPC 202

Citation: R. v. Forsythe Date: 20160616 2016 BCPC 202 File Nos: 60506-1, 60506-2, 60506-4-A, 60506-5-A Registry: North Vancouver File Nos: 17165-1-A, 17166-1-A Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. FORCE MCLELLAN FORSYTHE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: J. Krupa Counsel for the Defendant: D. Hopkins

Place of Hearing: North Vancouver , B.C. Date of Hearing: June 16, 2016 Date of Judgment: June 16, 2016 [ 1 ] THE COURT: Force McLellan Forsythe was found guilty after trial of committing an assault causing bodily harm to Philip Unger contrary to s. 267 (

b) of the Criminal Code . The events occurred on February 15, 2014. The trial occurred over several months and several days ending on March 6, 2015. Reasons for judgment were given on May 6, 2015. [ 2 ] Submissions on sentence were made April 14, 2016. The delay of the sentencing hearing was due in part to the offender wishing to obtain a psychological report. The Crown proceeded summarily. There is no minimum jail sentence prescribed by law and the maximum jail sentence is 18 months. A conditional sentence order is permissible. [ 3 ] The circumstances of the offence were detailed in the reasons for conviction.

I will briefly summarize my findings herein. Mr. Unger, his wife and daughter were in their vehicle having just left the grocery store at Park Royal Mall. Mr. Forsythe and his family had left a restaurant in the mall and were proceeding to their vehicles in the parking lot. The offender was behind his family in a crosswalk as Mr. Unger approached that crosswalk and stopped to let them pass. He was operating his vehicle in a prudent manner and the group passed safely in front of him. [ 4 ] Mr. Forsythe cleared the front of the vehicle and Mr. Unger began slowly moving forward. Mr.

Forsythe's perception of the manner in which Mr. Unger operated his vehicle and his actions after he stopped at the crosswalk was found to be delusory. The offender maintained in his evidence that Mr. Unger had intended to strike Mr. Forsythe's family with his vehicle, an assertion which was wholly unfounded on the evidence. [ 5 ] In my reasons for conviction, I found: Mr. Forsythe said when he looked at Mr. Unger, he appeared not to be acknowledging his poor driving which was something Mr. Forsythe expected he should do. To the contrary, Mr.

Forsythe perceived that he was grimacing and staring at him and his family as though irritated they were in the way. This caused Mr. Forsythe to swear and comment to his family about Mr. Unger being a "fucking asshole." Mr. Forsythe then perceived that Mr. Unger accelerated toward him intending to hit him. Mr. Forsythe described Mr. Unger as a "douchebag" to his family and walked over to the driver's side of the Unger vehicle and spat on the driver's window. He concluded that Mr.

Unger was a particular threat because he believed him to be Middle Eastern or South Asian in heritage and that people from these cultures "don't fight fair" and "are likely to carry knives to a fight." [ 6 ] Mr. Unger was taken aback by the offender spitting on his window. He stopped his vehicle and got out. Mr. Unger was upset, but was found to have done nothing to provoke the attack. To the contrary, he walked slowly towards Mr. Forsythe with his arms down at his sides and his hands forward in a questioning gesture. [ 7 ] The offender immediately ran at Mr.

Unger and punched him in the head with sufficient force to take him off his feet which caused him to fall backwards onto the pavement. Mr. Unger rolled onto his hands and knees and Mr. Forsythe kicked him with full force in the face. It was aptly described as a soccer kick by the witnesses. Mr. Forsythe and his family then left the scene. [ 8 ] Mr. Forsythe said his reason for assaulting Mr. Unger was because Mr. Unger had removed his jacket. I found the evidence did not support this belief. By the time Mr. Unger got out of his vehicle, Mr.

Forsythe was already enraged as a result of his delusory perception of Mr. Unger's manner of driving and because he felt he was being disrespected by Mr. Unger. I find one of the factors underlying Mr. Forsythe's sudden and extreme rage was that he felt he was being disrespected by someone with "brown skin." [ 9 ] The kick to Mr. Unger's face while he was struggling to get to his feet was utterly unwarranted and vicious. Mr. Unger was taken to the hospital where his nose was determined to be broken and had to be reset. He also received 28 sutures to a split to his lip. He has scarring and lumps in his lip area.

He suffered headaches for two weeks and bleeding from his nose for a month. He and his family have lost their sense of security in the community. In short, they were significantly traumatized by this sudden and inexplicable attack. [ 10 ] In my reasons for conviction, I observed: Mr. Forsythe's evidence was troubling. In particular, he demonstrated a lack of appreciation for the seriousness of his conduct. His perceptions appeared to be based on a view of our society as one in which physically able adult males pose a potential threat and violence must be the first resort to maintain one’s safety. Mr.

Forsythe referenced fictional depictions such as movies and television to explain why he reacted as he did. He was particularly demeaning of Mrs. Unger and their teenaged daughter who were understandably extremely emotional about Mr. Unger's welfare as he lay bleeding and nearly unconscious on the ground. [ 11 ] Mr. Forsythe has a criminal history for serious violence. His first conviction is for an offence of criminal harassment arising June 22nd of 2004. He was granted a conditional discharge on November 9, 2005. He committed a theft under $5,000 on February 21, 2005, which was dealt with on February 16, 2006.

He received a suspended sentence. [ 12 ] On April 18th of 2007, he committed a robbery. He was sentenced for that offence on July 2, 2008, and received a conditional sentence. That conditional sentence order was terminated in mid-October as a result of his commission of an offence. On September 4th of 2008, he committed a second offence of criminal harassment. On October 10th, he committed a sexual assault and, on October 11th, he uttered threats. On June 15th of 2009, he sexually interfered with a person under 16. On July 26th of 2009, he committed an assault and a third offence of criminal harassment.

On September 11, 2009, he committed the offences of unlawful confinement and assault with a weapon. All of these offences arose in the context of intimate relationships.

[ 13 ] On July 10, 2010, all of the above offences were dealt with and he received the equivalent of a two-year-less-a-day sentence time served and 18 months' further incarceration. He had served 13 months' actual time in custody prior to the imposition of sentence. While on bail for the above-noted offences, he uttered threats on March 19, 2010. On September 28, 2010, he received 45 days in custody and a three-year probation order. [ 14 ] On November 30, 2011, while still serving the 18-month sentence, he again uttered threats. On December 2, 2011, he breached a term of his bail.

On November 13, 2012, he was sentenced to 11-and-a-half months of time served and probation for two years. He was released into the community on his 18-month sentence in the fall of 2012. On October 10, 2013, he breached a term of his probation. On October 15th, he was sentenced and received a sentence of seven days in jail and probation for two years. The offender was on probation at the time of the offence before the court. [ 15 ] According to a psychological report from 2010, Mr. Forsythe is bright and creative. However, his personality and behavioural issues are deeply entrenched.

He was found to be disruptive, defiant, and sometimes aggressive or violent in school. He has completed to the grade 11 level. He has had sporadic employment since leaving school. [ 16 ] He engaged in early substance abuse of alcohol, excitatory drugs such as cocaine, and steroid use while bodybuilding. His parents have provided the means for him to attend good quality treatment programs which did not result in any lasting benefits at least to age 24. [ 17 ] In 2010, Dr. Robert Ley, described him as quite immature, self-centred, impulsive, and irresponsible.

He was noted to be very impatient and to have had great difficulty tolerating frustration, criticism, or rejection and would quickly become aggressive when confronted with such issues. He was found to suffer from powerful feelings of inferiority and worthlessness. He was found to have a personality disorder with antisocial and narcissistic traits with a weak conscience which allowed him to rationalize his criminal behaviour. He also had significant anger management problems. Dr. Ley also noted that Mr.

Forsythe's views had been powerfully shaped by excessive exposure to hard-core pornography, rap music, and violent or sexist computer games. [ 18 ] Dr. Ley provided a second report dated April 10, 2016. He has now been treating Mr. Forsythe for two-and-a-half years and has seen him for some 40 sessions. Mr. Forsythe's current circumstances are set out in the report. [ 19 ] The offender is now 30 years of age. He was 28 at the time of the offence before the court. He has been subject to strict bail terms including house arrest since being granted judicial interim release and has managed to comply with them.

He has been respectful toward the police who have doing curfew checks and towards his bail/probation officers. Dr. Ley notes a slow but steady maturational trend in Mr. Forsythe's behaviour and attitudes. The primary focus of the therapy has been the resolution of issues arising from the separation of his parents when he was a young child and his perception that he was alienated from his natural father by his mother. Mr. Forsythe has also gained some insight into the personality dynamics identified in a 2010 report which contributed to the offence before the court. He is seen by his family and Dr.

Ley to be making a good effort to change his ways and he has made excellent therapeutic progress. He has also developed a healthier relationship with his family. [ 20 ] He lived in Richmond until the summer of 2015 when he moved to Gibsons to live with his parents. He has a partner of some three years with whom he now resides in a separate residence. She presents as a law-abiding and stable person who is a positive support for the offender in the community. [ 21 ] After being released from custody, Mr. Forsythe was unemployed for three years.

He found employment doing labour for residential builders on the Sunshine Coast shortly after moving there. His employment is seen to be contributing to his emotional and psychological progress. [ 22 ] Dr. Ley opines that as a result of the offender's experiences of being attacked while incarcerated, he has been conditioned to respond immediately to any perceived threat, realistic or not, with interpersonal violence. I infer that if Mr.

Forsythe was attacked by both guards and inmates as frequently as he reports, it was likely due to his "arrogance and narcissistic bravado" as well as his insistence at being housed in general population even though he was a sex offender. [ 23 ] I accept the contents of the reports of Dr. Ley as being accurate and that the assessment of Mr. Forsythe's psychological and emotional condition and the progress he has made to date is properly founded and reliable. I also accept that Mr.

Forsythe's continued rehabilitation would be better served by a community-based disposition which would allow him to continue to pursue the more prosocial activities and relationships he now enjoys. I find that his risk to reoffend has been managed and, therefore, likely would continue to be managed by the imposition of similar terms as those he has been bound by on judicial interim release. It is the offender's intention to continue to receive treatment from Dr.

Ley for the foreseeable future. [ 24 ] However, the aforementioned factors must be balanced against the nature of this offence and the attitudes and beliefs that Mr. Forsythe evidenced in his testimony. I find that although he has made some progress in his therapy, little had changed from 2010 to the time of trial with respect to his basic psychological and emotional risk factors. Given how entrenched this offender's issues are, I do not accept that his risk to reoffend has been significantly reduced since the offence or since the time of trial. [ 25 ] Although the offender reported to Dr.

Ley that his arrest for this offence and period of incarceration before being granted bail had served as a "wakeup call," based on his testimony, I find Mr. Forsythe's motivation to change is one of self-preservation rather than a result of developing insight into his criminogenic beliefs, attitudes, and responses. This is so despite the ongoing assistance of an experienced, effective, and highly regarded psychologist. I find there continues to be a likelihood Mr.

Forsythe will reoffend violently should he perceive himself to be challenged or disrespected again by an adult male and, in particular, one he perceives to be non-white. [ 26 ] The Crown submitted that the offender should receive a period of incarceration of 14 to 18 months to be followed by probation for two years. They also ask the court to impose a weapons prohibition and require the offender to provide a sample of his DNA.

The Crown further submitted that the principles of sentence to be given the greatest weight are general deterrence and denunciation, specific deterrence of the offender, and protection of the public. It is also necessary to attempt to instil a sense of responsibility in the offender.

They argue that a conditional sentence will not meet the principles of sentence in the circumstances of this offender and offence. [27] Counsel for Mr. Forsythe submitted that a period of incarceration was appropriate given his client's criminal history and thenature of the offence. However, he asked the court to allow Mr. Forsythe to serve any jail time as a conditional sentence in thecommunity.

It is argued that the prospects for the rehabilitation of the offender are good. [28] The aggravating factors are the unprovoked nature of the attack, the racially-based beliefs contributing to the attack, and thepotentially lethal use of force by kicking Mr. Unger in the face while he was on his hands and knees. The punch to the head is alsoaggravated as it was unexpected and Mr. Unger had no opportunity to protect his head as he fell to the pavement creating the risk of aserious head injury or death.

The offence before the court must be viewed as more serious given the offender's prior history of violentoffences. [29] The mitigating factors are the length of time Mr. Forsythe has been in the community without reoffending or breaching theterms of his bail. He has stepped out of line only once when he went shopping and to a restaurant on his way to report to his bailsupervisor.

He is voluntarily attending for treatment with which is he is sincerely engaged and making some progress with his issues. [30] The primary matters in issue are the length of the period of incarceration and whether I am satisfied that the service of thesentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose andprinciples of sentence set out in s. 718 to 718.2 of the Code. I have carefully considered the decision of the Supreme Court of Canada inR. v.

Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, and the principles set out therein with respect to determining whether aconditional sentence is appropriate. I need not engage in the first stage of the analysis as there is no issue that in the circumstances ofthis offence and this offender a period of imprisonment is appropriate and that the maximum period of imprisonment allowed for is lessthan two years. [31] I find the overall circumstances and location of the offence call for the court to impose a sentence which will contribute torespect for the law and the maintenance of a just, peaceful, and safe society.

Unexpected and inexplicable violence such as thatperpetrated by Mr. Forsythe in the midst of a mall parking lot in the early evening hours as people are going peacefully about theirbusiness would shock and cause distress in the minds of most citizens. It was certainly impactful to the witnesses called by the Crown. This kind of offence creates a generalized sense of insecurity amongst community members and a belief that no one is safe in any placeat any time. [32] I find the court must send a strong message to the community that striking another person in the head or face will result in asignificant penalty.

In my experience as a judge in the Provincial Court, many people suffer significant brain injuries and/or lose theirlives from being punched and falling to the ground or being kicked or hit on the head with objects. Thus, the court must respond byimposing retributive consequences which properly reflect the offender's moral culpability, intentional risk-taking, the consequential harmwhich is caused, and the normative character of the offender's conduct; see M.(C.A.), (SCC), 1996 1 S.C.R. 500. [33] I further find that Mr. Forsythe's moral culpability for this offence is high.

He committed an unprovoked attack in benigncircumstances solely as a result of his own beliefs and perceptions. He was not suffering from any impairment of his faculties either byway of substance abuse or mental illness. The sudden punch followed by the gratuitous kick to Mr. Unger's face while he was on hisknees was the result of Mr. Forsythe becoming enraged and making the choice to attack Mr. Unger solely because he felt disrespected byhim.

In my view, the unlawful conduct involved in this offence requires that it be clearly and firmly denounced and that the sentenceimposed be one that will serve to deter others from engaging in similar conduct in the future. [34] I have found there has been no significant change in the beliefs, attitudes, and responses which contributed to Mr. Forsytheattacking Mr. Unger. In other words, he does not impress the court as having sincerely or fully accepted responsibility for his offence oras having developed insight into the harm he committed to Mr. Unger and to the community. [35] In my view, Mr.

Forsythe is not a youthful offender. He was 28 at the time of the offence. His prospects for rehabilitationmust, of course, be considered. However, the principle of restraint is of less significance for this offender in all the circumstances. [36] Pursuant to s. 718.2(a)(i), the sentence should be increased due to the evidence the offender was motivated by prejudice or bias. [37] As to the length of sentence, I find, in all the circumstances, that the maximum allowable sentence of 18 months is appropriate.

Such a sentence cannot be seen to be overly long or harsh given the criminal antecedents of this accused, the time he has spent in custodyin the past, and the nature of the offence; see R. v. Solowan, 2008 SCC 62. [38] The range of sentence for the offence of assault causing bodily harm is very broad and is dependent on the particularcircumstances of the offence and the offender. I find the maximum period of imprisonment available is at the low end of the appropriaterange in these circumstances; see R. v.

Janzen, 2015 BCSC 652. [39] For all of the reasons set out above, I find that a conditional sentence will not meet the principles of denunciation, generaldeterrence, and specific deterrence of Mr. Forsythe and therefore would not be consistent with the fundamental purpose and principles ofsentence. As such, Mr. Forsythe will serve his sentence in an institution; see R. v. Hurley, 2008 BCCA 461. [40] In coming to this conclusion, I have considered Mr. Forsythe's risk to reoffend if he is permitted to serve his sentence in thecommunity.

Although with appropriate conditions imposed and complied with that risk can be managed, it is nevertheless a risk of veryharmful future crime. [41] I am mindful of the efforts Mr. Forsythe has made to rehabilitate himself. I am aware that a return to custody may well result inhim engaging in further violence and, in turn, increase the likelihood of recidivism. If Mr. Forsythe has benefitted from his treatmentwith Dr.

Ley, he should be able to conduct himself differently while in custody, avoid conflict, continue his efforts at rehabilitation, andresume building a prosocial life when he returns to the community under supervision.

[ 42 ] Mr.

Forsythe, if you will stand. [ 43 ] There will be a sentence of 18 months to be followed by three years' probation. [ 44 ] You may be seated while I go through the terms of that sentence more specifically. [ 45 ] The sentence will take into account 45 days' actual time served and you will receive credit for 68 days. [ 46 ] The terms of the probation will be that you are to keep the peace and be of good behaviour, and appear before the court when required to do so by the court. [ 47 ] You must to report within 72 hours of your release from custody to a probation officer at 100, 233 West 1st Street in North Vancouver, and report thereafter as and when directed. [ 48 ] You must provide your current residential address to the probation officer and not change that address without their prior written permission. [ 49 ] You must have no contact direct or indirect with Philip Unger or any member of his immediate family. [ 50 ] You must not attend any residence, place of employment, or place of education at which you know Philip Unger or any member of his immediate family to reside, work, or attend. [ 51 ] You must not to possess any weapons or imitation weapons as defined by the Criminal Code of Canada. [ 52 ] You are not to possess any knives except for the immediate preparation or consumption of food, or such knives as are necessary to carry out the duties of your employment at your place of employment. [ 53 ] You are not to be found in possession of any firearms, crossbows, prohibited weapons, restricted weapons, imitation weapons, prohibited devices, ammunition, prohibited ammunition, explosive substances, or all such things, and any related authorizations, licences, and registration certificates until you are dealt with according to law pursuant to the Criminal Code . [ 54 ] Any such items to surrender? [ 55 ] MR.

HOPKINS: No. [ 56 ] THE COURT: You will attend for, accept, and complete to the satisfaction of your probation officer, any counselling to include, but not limited to, substance abuse management counselling or anger management counselling. [ 57 ] You must abstain absolutely from the possession or consumption of alcohol or any drugs or substances scheduled in the Controlled Drugs and Substances Act , save and except according to a medical prescription and then only according to the dosage prescribed. [ 58 ] You will provide a sample of your DNA on a primary-ground basis. [ 59 ] Mr.

Krupa, is this a s. 109 firearms? I did not have note of -- [ 60 ] MR. KRUPA: I believe so. I can check. [ 61 ] THE COURT: I think it is a 109 and would now be for life? [ 62 ] MR. KRUPA: Yes, that is my understanding. I am just checking. That is my understanding. [ 63 ] THE COURT: Mr. Hopkins? [ 64 ] MR. HOPKINS: No submissions. [ 65 ] THE COURT: Yes, all right. [ 66 ] So there will be a s. 109 firearms for life. I will not repeat the terms. They are the same as those in the probation. [ 67 ] Anything further?

Any other terms that the Crown wanted to see on probation? [SUBMISSIONS RE NO-GO CONDITION] [ 68 ] THE COURT: I am not going to -- [ 69 ] MR. HOPKINS: Thank you. [ 70 ] THE COURT: -- impose that sentence. So we can stand down and -- [ 71 ] THE CLERK: Your Honour, can I have the time going forward of the jail? [ 72 ] THE COURT: Eighteen months less 68 days. [ 73 ] THE CLERK: I am thinking it is 15 --

[ 74 ] MR. KRUPA: I can -- [ 75 ] THE CLERK: -- and 22 -- [ 76 ] MR. KRUPA: I can -- [ 77 ] THE CLERK: -- 15 months and 22 days. [ 78 ] MR. KRUPA: I can assist with the math, if you want. [ 79 ] THE COURT: Perhaps we use the app. [ 80 ] MR. KRUPA: I was also going to go lateral. [ 81 ] THE COURT: I do not have that figure offhand, Madam Clerk, but -- [ 82 ] THE CLERK: We need it on the record, if possible, please, and also Your Honour, there are four or five other Informations on the list today. [ 83 ] MR. KRUPA: If we could just -- I think we stood down those for two weeks and I -- actually, now, that is fine.

The Crown is going to direct a stay of proceedings on those. [ 84 ] THE CLERK: On all of them? [ 85 ] MR. KRUPA: All of them. [ 86 ] THE CLERK: Including the Sechelt Informations? [ 87 ] MR. KRUPA: Yes. [ 88 ] THE CLERK: Okay. [ 89 ] MR. KRUPA: My friend is calculating the time. [ 90 ] MR. HOPKINS: Eighteen months, times 30 days, minus the 68, 472. [ 91 ] THE COURT: That is what I have. [ 92 ] THE CLERK: Thank you. [ 93 ] THE COURT: I think Corrections may calculate that somewhat differently for the months with 31 days. [REASONS FOR SENTENCE CONCLUDED]