R. v. Agopsowicz, 2022 BCPC 27

Citation: R. v. Agopsowicz 2022 BCPC 27 Date: 20220215 File Nos: 39723-4; 40031-2-C; 241108-1; 179510-1; 179352-1 Registries: Campbell River; Surrey; Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANDREW EUGENE AGOPSOWICZ RULING ON APPLICATION FOR THE RELEASE OF RECORDS TO THE TYEE OF THE HONOURABLE JUDGE B. FLEWELLING Counsel for the Crown: J. Mickelson Appearing on behalf of The Tyee: H. Mansukhani and D. Beers Counsel for the Director, Adult Forensic Psychiatric Services K. Chewka Place of Hearing: Campbell River , B.C.

Date of Hearing: October 14 and 21, 2021 Date of Judgment: February 15, 2022 Introduction: [ 1 ] Mr. Andrew Agopsowicz was well known to this court. He had an extensive criminal record, which included many violent

offences. He also suffered from significant and severe mental health issues. Sadly, Mr. Agopsowicz’s considerable struggles resulted in his death from an overdose in 2021, shortly after his release on bail for new charges. [ 2 ] Mr. Hiren Mansukhani, an investigative journalist with The Tyee, has filed applications seeking release of various reports that were prepared for use in court proceedings involving Mr. Agopsowicz. Mr. Mansukhani could not have known, specifically, what reports were in the court files that relate to Mr. Agopsowicz.

Counsel for the Director, Adult Forensic Psychiatric Services (Director) located a number of reports from the BC Mental Health and Addiction Services, Forensic Psychiatric Services Commission, dated January 15, 2014, April 27, 2015, September 18, 2015, and December 10, 2020, that are relevant to the applications. [ 3 ] In addition, there is a pre-sentence report dated May 5, 2015. [ 4 ] At the commencement of the hearing, I heard submissions from Mr. Mansukhani, and Mr. David Beers, the editor-in-chief of The Tyee, as well as from Crown counsel.

Ultimately, I adjourned this application to allow Crown to contact the authors of the psychiatric reports and Forensic Psychiatric Services to determine if they wished to make submissions or be represented in this hearing. Crown also kindly agreed to attempt contact with Mr. Agopsowicz’s next of kin for the same purpose. [ 5 ] The hearing continued before me with Mr. Agopsowicz’s next of kin in attendance as well as counsel for the Director. They were afforded an opportunity to speak to the court and were supportive of the applications.

Subsequently, counsel for the Crown and the Director provided very helpful submissions. They are not opposed to the application, but seek a limited number of redactions to protect third party privacy interests. Crown counsel kindly contacted Mr. Agopsowicz’s next of kin about the suggested redactions and I am advised they are satisfied with the redactions proposed by both counsel. [ 6 ] Mr. Mansukhani and Mr. Beers advised the Court that Mr.

Mansukhani has devoted a considerable period of time – months, in fact – working on a journalistic piece about mental health issues in the community and how people struggling with mental illness intersect with the justice system. This is a very detailed investigation and they wish to use the story of Mr. Agopsowicz’s life as a window into the criminal justice system and the mental health system to provide context for their story.

The goal is to “spark a conversation about solutions that render the public more safe while providing more support to people who commit crimes tied to their mental illness.” [ 7 ] They have tried to put together a timeline of his life and have only been able to obtain a partial picture of his arrests, his incarcerations and his subsequent releases. They do not understand, and do not have a window into the decision-making with respect to his various releases, or the sentences imposed by the court. [ 8 ] They attempted to contact family members without success.

Either the individuals were not related, or those contacted did not respond. Mr. Beers was clear that they are not seeking any information that would name individuals specifically and understand the importance of the privacy interests of a number of individuals and professionals who may be named in the various reports or who prepared the assessments and reports. [ 9 ] As Mr. Beers stated, from their perspective, “there are many holes around the decision making process.” Mr. Beers and Mr. Mansukhani emphasize that this journalistic work is very much in the public interest. Their intention is to highlight Mr.

Agopsowicz’s life and experiences in the criminal justice system in the context of his severe mental health disorder. [ 10 ] I recently came across a decision of the Honourable Judge Koturbash in which he sentenced a young 18-year-old woman with severe mental illness. His opening remarks in R. v. Leer , 2017 BCPC 235 , are apposite to the applications before me and to Mr.

Agopsowicz, as I came to know him: [1] Name one of the largest providers of mental health in this province; if you guessed the criminal justice system and our jails you guessed right. [2] It remains a constant challenge for those involved in the Criminal Justice System in our de facto roles as Mental Health Workers to ensure those struggling with mental illness are treated fairly and appropriately by the system. [3] On November 22, 2016 Ms. Leer plead guilty to causing damage by fire to a townhouse complex that she and her mother were living in, contrary to

section 434 of the Criminal Code . The incident occurred on evening of October 13, 2016, five weeks after her 18 th birthday. The damage to the building was 1.1 million dollars. [4] Ms. Leer is mentally ill. [ 11 ] I agree with Judge Koturbash’s comments, at para. 22, that while it is easy to criticize the physician who discharged her from hospital the day Ms.

Leer set fire to the townhouse, he rightly points out that in Canada it is very difficult to hold someone in the hospital against their will and that a high threshold must be met before someone can be kept involuntarily. [ 12 ] Arson is one of the most serious offences in the Criminal Code . Ms. Leer was sentenced to three years of jail, although factoring in her time already served, she received two years of new jail time. This was followed by probation for three years.

A Brief History: [ 13 ] On February 27, 2015, Andrew Agopsowicz was charged with a number of offences including that on February 26, 2015, while in a medical clinic, he stole property (an iPhone) contrary to s. 334 (

b) of the Criminal Code , assaulted an individual contrary to s. 270(1) (

b) of the Criminal Code and failed to comply with a condition of a probation order dated December 4, 2014, that he not possess a knife outside his residence except for preparing or eating food, contrary to s. 733.1(1) of the Criminal Code . These offences all relate to Information 39723-1. It appears he remained in custody by consent and entered not guilty pleas. A trial was scheduled to proceed on June 30, 2015. On April 7, 2015, Mr. Agopsowicz, with assistance of counsel, entered guilty pleas to the aforementioned charges and pre- sentence and psychological reports were ordered. A sentencing hearing was scheduled to take place before me on June 3, 2015.

[14] To assist me in determining a fit and just sentence that reflected the objectives of our criminal justice system, I had the benefit apre-sentence report dated May 5, 2015 prepared by a probation officer, a previous psychiatric assessment report by Dr. Wang, datedJanuary 15, 2014, to assess fitness to stand trial on another earlier matter, and a forensic psychological assessment prepared by Dr.Darcangelo, dated April 27, 2015. [15] Mr. Agopsowicz received a custodial sentence and was placed on probation for two years.

Two of the probationary conditionsrequired that he attend and complete any assessment, counselling or program as directed by his probation officer including a full-timeattendance program or forensic assessment, counselling or treatment through the Forensic Psychiatric Centre in Victoria or anywhere elsein the province. He was not to possess a weapon as defined in s. 2 of the Criminal Code. [16] I recommended and directed that Mr.

Agopsowicz undergo assessment to determine the nature and diagnosis of his underlyingpsychiatric illness so he could be treated, because traditional custody and segregation, by itself, was not expected to achieve that result. Ialso expressed concern for Mr. Agopsowicz’s personal safety given a prior suicide attempt and allegations about Mr. Agopsowicz’s self-harming behaviour. [17] Approximately three months later, Mr.

Agopsowicz was charged with assaulting an individual with a weapon – a hammer – onSeptember 8, 2015, contrary to s. 267(1) of the Criminal Code, and for failing to follow a condition of my earlier probation order - not topossess any weapon as defined in s. 2 of the Criminal Code, contrary to s. 733.1(1) of the Criminal Code. These charges relate toInformation 40031-2-C. [18] He was arrested by the police and appeared before me on September 9, 2015, for a bail hearing. I ordered an assessment to takeplace while he was in custody, to determine whether Mr. Agopsowicz was unfit to stand trial.

A psychiatric report prepared by Dr.Miller, dated September 18, 2015, was provided. Dr. Miller’s opinion was that Mr. Agopsowicz was not unfit for trial and the criminalcharges proceeded. On September 28, 2015, following a bail hearing, Mr. Agopsowicz was detained pending his trial. [19] The trial was scheduled to proceed over two days on March 31, 2016, and May 18, 2016. [20] On May 18, 2016, the last day of trial, Mr. Agopsowicz was found guilty as charged by another judge of this court.

With creditfor time served, he was sentenced effectively to time served and placed on probation with conditions not to possess or consume alcoholor any controlled substance as defined in s. 2 of the Controlled Drugs and Substances Act, unless prescribed, and to attend anyassessment, program or counselling as directed by the probation officer. He was ordered not to possess any firearm, cross-bow, restrictedweapon, ammunition or explosive substance for life. [21] The remaining Informations that are the subject of Mr. Manuskhani’s applications are Informations 241108-1, 179352-1 and179510-1.

The latter two were filed in the Victoria registry. Information 179510-1 charged Mr. Agopsowicz with assault of an individualon or about January 29, 2020. On Information 179352-1, he was charged with uttering a threat to cause death or bodily harm to threeindividuals, one of whom was a physician, on or about February 10, 2020, contrary to s. 264.1(1) of the Criminal Code. [22] Information 241108-1 was filed in the Surrey registry. Mr.

Agopsowicz was charged with using or threatening to use a weapon inassaulting a peace officer on or about June 20, 2020, contrary to s. 270.01 of the Criminal Code. [23] On February 19, 2021, in Victoria, Mr. Agopsowicz was sentenced respecting all these offences, plus offences of uttering treatsto cause death or bodily harm on or about February 20, 2020, in Coquitlam (Information 103824-1), assault of three peace officersengaged in execution of their duty on or about December 24, 2019, in Saanich (Information 179645-1). A forensic psychiatric reportprepared by Dr.

Lessing, dated December 10, 2020, was provided to the court. Mr. Agopsowicz had been in custody during periodsthroughout this time and his sentence, as best I can tell, did not require additional jail time. He was placed on probation for two yearswith conditions to have no contact with several individuals including seven physicians, two police officers (as best I can tell), and threecorrectional officers. Other conditions of his probation required him to attend for a forensic psychiatric assessment and treatmentprogram as directed by his probation officer and to abstain from alcohol and drugs.

He was prohibited from possessing a wide variety ofweapons including firearms and the like, or knives outside his residence. The Legal Framework: [24] A fundamental principle of democracy in Canada is that courts are open and transparent to the public and is essential to themaintenance of public confidence in the administration of justice. This principle was recently revisited by the Supreme Court of Canadain Sherman Estate v.

Donovan, 2021 SCC 25, at paras. 1 and 2: [1] This Court has been resolute in recognizing that the open court principle is protected by the constitutionally-entrenched right offreedom of expression and, as such, it represents a central feature of a liberal democracy. As a general rule, the public can attend hearingsand consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of thecourts, all of which helps make the justice system fair and accountable. [2] Accordingly, there is a strong presumption in favour of open courts.

It is understood that this allows for public scrutiny which can bethe source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion intotheir private lives.

But this discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attendhearings and that court files can be consulted and reported upon by the free press. [25] An important aspect of our democracy and the open court principle is allowing access by the media who report on courtproceedings and thereby inform the public of matters of interest and importance in the community. This includes allowing public (and Iwould add, the media) access to trial exhibits: Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3 at para. 12.

This includes anydocumentary evidence referred to or relied upon by a judge during a proceeding: R. v. Bandura, 2011 BCPC 122, citing Province (The)Newspaper v. B.C. (A.G.) (1989), (BCSC): Generally all documentary evidence to which a trial judge refers should be available to both the public and media. Because of its

reporting role, the media has a right to full and detailed examination of documentary evidence. The principle of an open court and fulldisclosure of documentary evidence may be limited where necessary for a fair trial. However, such limitation is not warranted byembarrassment, fear, inconvenience, as the burden of proof is on the person opposing disclosure to establish some other overridingprinciple that defines the field of exception. [26] After Sherman, the two-part test established in Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 SCR835 and R. v.

Mentuck, 2001 SCC 76 , [2001] 3 SCR 442, was changed to a three-part test or inquiry that requires a person whoseeks to invoke the court’s discretion to limit the open court principle to establish three things: 1. court openness poses a serious risk to an important public interest; 2. the order sought is necessary to prevent this serious risk to the identified interest because reasonable alternative measures willnot prevent this risk; and 3. as a matter of proportionality, the benefits of the restrictions outweigh its negative effects.

Sherman Estates at para. 38. [27] Only when all three of these conditions are present, can limitations on the presumption of openness such as redactions or sealingorders, be made. Counsel for the Director referred to passages in Sherman Estates in which the Court recognized that privacy interests,including the protection of individuals from disclosure of information that threatens their dignity, is an important public interest whichwill be at risk “where the sensitivity of the information strikes at the subject’s more intimate self” or their “biographical core”: ShermanEstates at paras. 74-75.

Examples include stigmatized medical conditions, sexual orientation, or whether someone has been subject tosexual assault or harassment: Sherman Estates at para. 77. [28] Counsel for the Director also referred to a number of decisions in which the media successfully sought disclosure of pre-sentencereports and forensic psychiatric reports. The public’s ability to understand the court’s process and decisions was recognized as animportant factor in decisions upholding the open court principle.

In all those cases, the reports were released, but subject to redactions toprotect the privacy interests of other individuals, including innocent third parties. Courts have concluded that an accused person’sexpectation of privacy within the criminal justice system is low and forensic psychiatric reports are not the same as clinical medicalrecords which are recorded and kept by a patient’s own physician for treatment purposes, whereas the former are provided to assist thecourt with its functions: R. v.

Bandura, 2011 BCPC 122. [29] Whether release of pre-sentence and forensic reports could make it difficult to obtain personal information from future offenderscan be considered as an aspect of the court’s interest in receiving “the best quality reports and opinions that are essential to the decisionsand opinions it must make”. There should be evidence (Bandura, (infra)), but this concern can be attenuated by the appropriateredactions, including those to protect the identity and privacy of third parties: R. v.

Wellwood, 2011 BCSC 689. [30] Balancing of the two interests – right to freedom of expression and protection of innocent third parties – can be accomplished byallowing access to a pre-sentence report that has been redacted to protect the identities of former and current family members: R. v.Blackmore, 2018 BCSC 1225. Discussion: [31] In the circumstances before me, I am not concerned that release of these reports would undermine trial fairness. [32] I am satisfied that release of the requested reports would not pose a serious risk to an important public interest.

Protection of theprivacy of innocent individuals who were victims of Mr. Agopsowicz or who are family members can be safeguarded by removing allreference to their identity or any other personal information that may be contained in the reports. [33] It is clearly important that the public gain more understanding and knowledge about how people who struggle with, often severe,mental health illness, like Mr. Agopsowicz, intersect with and are treated by the medical system and the criminal justice system. I agreewith Mr. Mansukhani and Mr.

Beers that this is an important public issue and that the benefit to the public from increased understandingand awareness is substantial. Furthermore, the public need to understand the challenges that mentally ill individuals pose to thoseinvolved in the criminal justice system. [34] I am satisfied that the benefits of disclosure outweigh any negative effects. Conclusion: [35] I make the following orders: 1. The applicant, The Tyee and Mr. Hiren Mansukhani shall be provided with access to the following reports: a. Dr. E. Wang, MD, FRCP(C), Forensic Psychiatric Hospital, dated January 15, 2014; b. Dr. S.

Darcangelo, Ph.D., Forensic Psychiatric Services Commission, dated April 27, 2015; c. Dr. R. Miller, MB, FRCP(C), Forensic Psychiatric Services Commission, dated September 18, 2015; d. Dr. S. Lessing, MD, FRCP(C), Forensic Psychiatric Services Commission, dated December 10, 2020; and e. D. Travis, Probation Officer, Saanich Community Corrections, Pre-Sentence Report dated May 5, 2015; 2. Prior to providing access to these reports:

a. The names and other information that would reasonably identify names, place of work or residence of innocent third parties, including victims of the offences and family members of Mr. Agopsowicz, shall be redacted; b. Personal information related to family members of Mr. Agopsowicz who provided information to the report writers shall be redacted; 3. The redactions to the psychiatric/psychological reports, proposed by counsel for the Director, Adult Forensic Psychiatric Commission, are sufficient to meet the terms of my order; 4.

The redactions proposed by Crown counsel to the Pre-Sentence Report, as provided on February 9, 2022, are sufficient to meet the terms of my order; 5. Counsel shall release copies of the reports, redacted in the manner outlined above, to The Tyee and directed to the attention of Mr. Mansukhani. [ 36 ] Crown counsel shall also release a copy of Mr. Agopsowicz’s criminal record to the Tyee and Mr. Mansukhani. This does not need to be redacted because it does not contain any personal information relating to third parties or family members. [ 37 ] Finally, I wish to thank counsel, the applicants and Mr.

Agopsowicz’s next of kin for their very helpful submissions. _____________________________ The Honourable Judge B. Flewelling Provincial Court of British Columbia