R. v. Chiquette Date:, 2017 BCPC 404

Citation: R. v. Chiquette Date: 20170808 2017 BCPC 404 File No: 65736-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. ROBERT JUNIOR CHIQUETTE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.I.S. SUTHERLAND Counsel for the Crown: J. Blair Counsel for the Defendant: J. Boxall Place of Hearing: Chilliwack , B.C. Date of Hearing: August 8, 2017 Date of Judgment: August 8, 2017

[ 1 ] Mr. Chiquette has pled guilty to robbery of Max Zedler, contrary to s. 344 of the Criminal Code . The offence took place on October 13, 2016. He is now before me for sentencing. [ 2 ] The circumstances are these. Mr. Zedler, at the time of the offence, was 86 years of age. He was walking from a seniors' residence down the street with the assistance of his cane. He was approached by Mr. Chiquette, who demanded Mr. Zedler's wallet. Mr. Zedler gave it to him. Mr. Chiquette emptied the change and then took Mr. Zedler's cane and swung at Mr. Zedler's head. Mr.

Zedler fell to the ground and held up his arm to protect himself from more blows that Mr. Chiquette attempted to inflict on Mr. Zedler. Indeed, Mr. Zedler's arm did sustain injury as a result of blocking blows from Mr. Chiquette from the cane. I note that the injuries to Mr. Zedler's arm are depicted in photographs that will be marked as exhibits in these proceedings. Apparent from the photographs are significant cuts to his left arm, which demonstrate the force of the blows inflicted by Mr. Chiquette. [ 3 ] Several witnesses observed the initial encounter. One witness told Mr. Chiquette to stop. Mr.

Chiquette then chased that witness with the cane. After chasing the witness, Mr. Chiquette then returned to where Mr. Zedler was and continued the assault on Mr. Zedler. Mr. Chiquette was then taken into custody by people at the scene and then turned over to the police. [ 4 ] Mr. Chiquette has had his background and life history chronicled in a Pre-Sentence Report and a Psychiatric Assessment prepared by Dr. Lopes of the Forensic Psychiatric Services. As well, Mr. Chiquette's criminal record has been filed with the court, and it will be marked as an exhibit, as will the reports. [ 5 ] Mr.

Chiquette is 37 years of age, and he's had an unfortunate background in terms of his upbringing, the details of which I do not find particularly necessary to go into, other than to state generally that he has had an unfortunate background. Any further details that are required are contained in the reports. M r. Chiquette was a poor historian in terms of describing his background, his motivations, his challenges in the past, as he attempted to describe them to the author of the Pre-Sentence Report and the Psychiatric Report. [ 6 ] It is clear that Mr.

Chiquette has substance abuse problems, with alcohol as well as hard drugs. Indeed, he was diagnosed by Dr. Lopes as having Substance Use Disorder in cannabis and crack cocaine, as well as alcohol, that were active at the time of the assessment which was conducted in January 2017. [ 7 ] It appears Mr. Chiquette used robbery and other offences to help fund his drug abuse disorder, resulting in a criminal record, as well as other offending behaviour that is not reflected in the criminal record. At this point I wish to address Mr.

Chiquette's criminal record. [ 8 ] It comprises, in terms of relevant offences, these; and first I will just generally categorize it. There are 18 convictions, two for robbery, five for assault, so combined, seven previous violent offences, and six offences for breaches of court orders. These are significant, for reasons that I will go into shortly. [ 9 ] In 1999, Mr.

Chiquette was convicted of assault, and he received a six-month conditional sentence order and one year probation. [ 10 ] In 2001, in Calgary, Alberta, he was convicted of assault with a weapon, and received a one-day sentence, as well as a ten-year firearms prohibition. [ 11 ] April 10, 2006, he was convicted of robbery in Quebec and received a suspended sentence and three years probation. While he was on that probationary period, and in particular, approximately six months into it, on October 16, 2006, he committed another robbery, this one in Vancouver.

His sentence was imposed on November 10, 2006, and he received a conditional sentence of six months. [ 12 ] I wish to state that a conditional sentence is a jail sentence. It is a jail sentence that is served in the community, and it is important to bear that in mind. [ 13 ] March 25, 2008, Mr. Chiquette was convicted of assault, among other offences, and received 15 days jail, in addition to 28 days pre-sentence custody, and 12 months probation. He violated that probation order. [ 14 ] On the 24 th of June 2011, he committed an assault causing bodily harm.

That conviction was entered January 30, 2014, and he received a 60-day conditional sentence order and 12 months probation. That offence involved inflicting blows on someone who was prone on a gurney in a medical facility, resulting in a broken nose and cuts to that person's face. [ 15 ] Just backing up for a moment, the robbery conviction that was entered in Vancouver on November 10, 2006 included violence against a woman who was a store owner of a convenience store, and she sustained injuries to her face as a result. [ 16 ] The conditional sentence order that Mr.

Chiquette was placed on January 30, 2014 in conjunction with the assault causing bodily harm was revoked, and Mr. Chiquette had to serve the remainder of it commencing March 11, 2004, until the order terminated. Since then, he has four breach of probation convictions on his record that were all entered October 9, 2015, for which he received the equivalent of 21 days jail. [ 17 ] That provides context leading to the offence that he committed against Mr. Zedler, where he robbed Mr. Zedler and beat him with his cane, that being, of course it bears repeating, a vulnerable 86-year-old victim. [ 18 ] Mr.

Chiquette has a spotty work history, and as well, he has potential mental health challenges. According to Mr. Chiquette, he has schizophrenia. This is met with some skepticism by Dr. Lopes; nevertheless, it appears that some sort of pharmaceutical medication has been part of Mr. Chiquettte's treatment for any mental health concerns he has had. However, Mr. Chiquette has voluntarily been inconsistent and discontinued the pharmaceutical interventions that are designed to assist him. Furthermore, he has never done any treatment programs for his drug or alcohol abuse.

Consequently, when one adds up medication that is supposed to assist him, with drug

or alcohol programs that are designed to assist him as well, he has not followed through or had the benefit of any, some through his own actions, others because they have not been prescribed. He has a history of transient behaviour, even while on supervision in the community pursuant to court orders, such as probation orders, where he will voluntarily leave the jurisdiction, which then frustrates any attempts to assist Mr. Chiquette in his rehabilitation. It frustrates any attempts at consistency as well. [ 19 ] In the end, it appears quite clear from the characterization of Mr. Chiquette that Dr.

Lopes was unimpressed. It does not particularly matter whether Dr. Lopes was impressed or not, and I do note that no psychological testing was conducted on Mr. Chiquette in order to arrive at the conclusions that were drawn by Dr. Lopes. It is clear that Dr. Lopes draws conclusions and gives some very blunt characterizations of Mr. Chiquette. Some of those blunt characterizations are, and I am now referring directly to the psychiatric report, that Mr. Chiquette has very poor insight into his offending, and indeed Mr. Chiquette attempted to divert the topic of his offence against Mr. Zedler when asked about it.

Numerous attempts had to be made by Dr. Lopes, as well as the author of the Pre-Sentence Report, to have Mr. Chiquette discuss the offence. Nevertheless, Dr. Lopes found that Mr. Chiquette was inconsistent and unwilling to discuss it initially, and even when he did discuss it, it is clear that Mr. Chiquette lacked insight into his offending, and agreed with Dr. Lopes that there was no reason to believe that he would not offend again. Dr. Lopes then described Mr. Chiquette as being a person with no plan or direction in life, and who shows no regard for laws or rules.

Further, that he uses violence instrumentally; in other words, to gain something, but also appears to use it gratuitously when it is unnecessary. [ 20 ] I pause here to say that that is a feature I find exists on the offence against Mr. Zedler. There was absolutely no reason, it appears, for Mr. Chiquette to beat 86-year-old Mr. Zedler with his cane, just as there does not appear to have been any explanation or need to attack the person who was prone on the gurney back in 2011 that led to his assault causing bodily harm conviction. [ 21 ] Dr. Lopes, in the Psychiatric Assessment, goes on to note that Mr.

Chiquette does not use medication in the community and has a history of running away from treatment. Furthermore, when it comes to remorse, Dr. Lopes and the author of the Pre-Sentence Report both noticed an absence of remorse in Mr. Chiquette for his offences. [ 22 ] Mr. Bay, the probation officer, noted: He also offered no independent expressions of remorse or comment about the harm or distress he may have caused Mr. Zedler over the course of the interview for the purposes of this report. [ 23 ] Dr. Lopes wrote: When discussing his crimes, Mr. Chiquette showed no level of remorse or guilt.

Furthermore, when asked, he also indicated that when he is again in the community, he will return to the use of illicit drugs. [ 24 ] I will pause here in the course of my discussion of Mr. Chiquette's background to say that the absence of remorse it not an aggravating feature of sentencing. It does factor in in terms of assessing the degree of continued risk that an offender poses to the public, and it also is a factor in assessing the rehabilitation potential of an offender. [ 25 ] To finish with the Forensic Psychiatric Assessment, Dr. Lopes goes on to say that Mr.

Chiquette appears to use violence against weaker members of society and that there is no reason to believe that he would stop using violence. He goes on to say: Mr. Chiquette was not able to provide any additional information that would lead one to believe that he will make the substantial changes that he needs to make in his life. He indicated no interest in making any changes as well. Then continuing: He indicated that he will, in all likelihood, continue to use drugs and potentially violence again.

Finally, and this is on the last page: It is noted that, given his history of disregard for previous orders in the legal system, he is not likely to be compliant with community- based programs, making him a poor candidate for community access at this point.

Given that he has not yet addressed any of his risk factors and has admitted to the high likelihood that he will again engage in violent criminality where the community is in direct risk, his risk is deemed too high for recommendations in support of community release at this point. [ 26 ] Defence counsel argues that the reports, particularly the psychiatric report, are biased, that some information was not included, that other information was characterized in a misleading way, and furthermore, that actual testing designed to reach a diagnosis and a scale through recidivism and danger to the public and risk was not conducted because of language obstacles. [ 27 ] I accept that the report does not have the benefit of psychiatric testing.

However, I still find that Dr. Lopes was entitled to venture an opinion. The weight to be attached to it is based on the basis behind his opinion. I find that Dr. Lopes, it appears, drew inferences from the offending behaviour, also factored in Mr. Chiquette's past behaviour, which includes previous offending as well as rehabilitative steps, and as well, Mr. Chiquette's current attitudes in arriving at his blunt views regarding Mr. Chiquette. He is entitled to consider those factors.

However, as mentioned, I acknowledge that there are other sources of information that one customarily sees in reports that are not present here, such as the results of psychiatric testing. [ 28 ] I will now turn briefly to the sentencing process. Before doing so, I will simply acknowledge as well that at the time of the offence, apparently Mr. Chiquette had just been released from hospital at 3:00 p.m. that day, he had taken drugs voluntarily and was high at the time of the offending.

The offence appears to have been spontaneous, not planned and deliberate, and I accept that it may have been related to mental health and drug ingestion, as asserted by defence counsel. [ 29 ] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. This purpose is achieved by considering the objectives of

sentencing identified in s. 718 (

a) of the Criminal Code in the context of an offender's personal circumstances and in the circumstances of the offence. In this process, an assessment of the accused's moral blameworthiness for the commission of the offences, and a blending of the various objectives of sentencing to meet the individual case will take place. The purpose and principles of sentencing take into account the needs of the community and the offender. In the end, the sentence must balance these needs, giving weight to some more than others, depending on all the circumstances of the individual case.

This is the blending that I have just referred to. [ 30 ] In the present case, both Crown counsel and defence counsel emphasize concerns for general deterrence and denunciation. It is implicit in defence counsel's submissions that the court cannot ignore rehabilitative principles. Despite these various considerations and the balancing of objectives that must take place, the analytical process actually has a really narrow focus. In the end, the court is to arrive at a sentence that is proportionate to the gravity of the offence and the offender's degree of responsibility.

All of the objectives of sentencing remain important, including rehabilitation; however, for serious offences of the nature that Mr. Chiquette committed, denunciation and general deterrence require emphasis. [ 31 ] Furthermore, given Mr. Chiquette's personal circumstances, as I have outlined, specific deterrence also requires particular emphasis, as does the need, in my view, to separate him from society. [ 32 ] Relating the offence that Mr. Chiquette committed to the objectives of sentencing, society would wish to denounce in strong terms the offence perpetrated against Mr. Zedler.

The offence is extremely serious. [ 33 ] In terms of aggravating circumstances, the offence involved a vulnerable victim, gratuitous violence committed by someone with a criminal record for violence who appears to have a lack of insight into his offending behaviour and questionable rehabilitative prospects. [ 34 ] In mitigation, he entered a guilty plea, which, to a degree, contrasts with the views of Dr. Lopes and the author of the Pre- Sentence Report that Mr. Chiquette showed no remorse.

A guilty plea is an expression of taking responsibility for the offending behaviour and can be considered an expression of remorse as well. [ 35 ] According to Dr. Lopes, Mr. Chiquette presents a potential danger to the public if out in the community, which suggests a need to separate him from society for society's protection, but again, I cannot ignore rehabilitation or remove any hope that Mr. Chiquette may have in commencing a rehabilitative program. However, the importance of formulating a sentence that meets general deterrence, denunciation, and specific deterrence, overwhelms the influence of Mr.

Chiquette's rehabilitation in the sentencing calculus. I am also mindful that restraint must be exercised, and that a proportionate sentence ought to be imposed, and nothing more. [ 36 ] In conclusion, for Mr. Chiquette, I find that a proportionate sentence to the gravity of the offence and his degree of responsibility to be three years and six months. Deducted from the three years and six months will be 15 months, time spent in custody prior to sentencing. Three years and six months amounts to 42 months.

Deducted from that will be 15 months, which will leave a sentence of 27 months, which amounts to two years and three months as the remaining sentence. [ 37 ] In terms of a victim fine surcharge, I am guessing, Mr. Boxall, that he is unable to pay that if I were to order it forthwith? [ 38 ] MR. BOXALL: Yes. [ 39 ] THE COURT: All right. I will find Mr.

Chiquette in default and order that he serve his default time concurrent to the time he is serving. [ 40 ] No Victim Impact Statement was filed with the court or presented to the court; however, I do draw inferences from the offence itself, and what little has been presented with respect to Mr.

Zedler in terms of his age and his physical vulnerability, as someone who carries a cane and relies on one, to conclude that the offence must have been quite traumatic. [ 41 ] I have also considered caselaw that has been handed up that suggests a wide range of sentence for robbery offences that spans anywhere from months to years; two years to nine years, perhaps.

Although the cases that have been provided all have distinguishing features, I am grateful to counsel for providing them for consideration, and indeed I have considered those cases in arriving at the sentence that I have. [ 42 ] Any ancillary orders that you are seeking? [ 43 ] MR. BLAIR: Yes, Your Honour. I believe a s.109 is mandatory, as is a DNA order. Both are just -- [ 44 ] THE COURT: Yes, DNA is primary, and 109, I think, as well. [ 45 ] MR. BLAIR: Yes, they are both on indictable -- [ 46 ] THE COURT: Pursuant to s. 487.05(1) of the Criminal Code , I am ordering that you provide a sample of our DNA.

They will take that while you are in custody, and you may have already provided a sample in the past, given your criminal record. [ 47 ] Pursuant to s. 109 of the Criminal Code , is there a length that you are seeking for -- [ 48 ] MR. BLAIR: Well, I believe he has already had a ten-year. Let me just confirm that it is not a mandatory one. In this case, Crown would be asking for a lifetime. [ 49 ] THE COURT: Any submissions, Mr. Boxall? [ 50 ] MR. BOXALL: Let me just ask. No.

No, but he is on a five-year one already from 2014. [ 51 ] THE COURT: I find the appropriate length of prohibition order is a period of life, given the previous robbery convictions, as

well as when I factor in the other violent offences as well, and the circumstances around this offence, and consequently, Mr. Chiquette, you are prohibited from owning or possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, and any related authorizations and licences and registration certificates for life. [ 52 ] Anything further? [ 53 ] MR. BLAIR: No, Your Honour. Crown will be directing a stay of proceedings on the two remaining counts. [ 54 ] THE COURT: Okay, thank you, counsel.

Also, counsel, I am going to mark collectively the CPIC printout and the JUSTIN conviction list as an exhibit, the two reports, the Pre-Sentence Report and the Psychiatric Assessment, collectively as another exhibit, and the photos of Mr. Zedler's injuries as the third exhibit. [ 55 ] MR. BLAIR: Thank you, Your Honour. (REASONS FOR SENTENCE CONCLUDED)