R. v. Pyper, 2020 BCPC 246

Citation: R. v. Pyper 2020 BCPC 246 Date: 20201217 File No: 66322-KC-5 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. JOHN PYPER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: A. Flanders Counsel for the Defendant: M. Nohra Place of Hearing: North Vancouver , B.C. Date of Hearing: November 23, 2020 Date of Judgment: December 17, 2020 INTRODUCITON

[ 1 ] Mr. Pyper pled guilty to an assault that occurred in the context of an intense matrimonial argument. The Crown urges the Court to suspend the passing of sentence and place Mr. Pyper on probation. In contrast, counsel for Mr. Pyper urges the Court to grant an absolute discharge. CIRCUMSTANCES OF THE OFFENCE [ 2 ] On September 16, 2018, Mr. Pyper and his wife, Ms. Schuetze, became involved in an intense argument that escalated into a struggle. From Mr. Pyper’s perspective, the struggle started when Ms. Schuetze grabbed and hit him. Ms.

Schuetze disputes this perspective, but acknowledges a struggle. [ 3 ] During the struggle, Ms. Schuetze kicked Mr. Pyper in the groin and in his legs. She also chased him and at one point removed her tampon and threw it at Mr. Pyper striking him. At one stage, Mr. Pyper held Ms. Schuetze. Both suggest that they were acting in self- defence. [ 4 ] Following the above events, Ms. Schuetze took Mr. Pyper’s cellular phone and hid it. Mr. Pyper demanded that she return the phone indicating that he could not leave without it. Eventually, Ms. Schuetze retrieved the phone and she held it out toward Mr.

Pyper, who grabbed for the phone, however, Ms. Schuetze would not release the phone. Ultimately, Mr. Pyper yanked the phone from Ms. Schuetze’s hand causing her pain to her wrist and an injury to her finger. The pair then stumbled against the wall and the banister, ultimately, falling on the ground. [ 5 ] While on the ground, Ms. Schuetze kicked Mr. Pyper, who then restrained her. During the act of restraining Ms. Schuetze, Mr. Pyper used more force than was necessary. He eventually released her and left the home. VICTIM IMPACT [ 6 ] Ms. Schuetze read her Victim Impact Statement to the Court.

From her statement, I conclude that Mr. Pyper’s offence has impacted her security and confidence. It has also exacerbated her loneliness in that she feels isolated from her family who are in Germany and that as a result she feels increasingly depressed. I do note, Ms. Schuetze’s statement speaks to injuries, however, and by agreement of counsel, I have not considered these for the purpose of sentencing. MR. PYPER’S PERSONAL CIRCUMSTANCES [ 7 ] Mr. Pyper is 47 years old. He grew up in Vancouver, he enjoyed a happy and supportive upbringing and he does not have a criminal record.

He attended a local high school and thereafter he went to UBC where he obtained a Commerce Degree. Mr. Pyper continued with his studies receiving his designation as a Certified Financial Analyst. Thereafter, Mr. Pyper went on to become a Certified General Accountant and in 2011 he obtained his MBA. [ 8 ] Mr. Pyper has a 20 year continuous employment history. He commenced his professional career in the investment sector and then he transitioned to working as an accountant for the movie and television industry. In 2010, he again transitioned, and he started working as a director of finance for various corporations.

In 2019, Mr. Pyper started working as the director of finance with his current employer, who has operations in the Canadian Pacific Northwest and throughout the Unites States. It is expected that Mr. Pyper will be required to travel for his employment when the Covid-19 restrictions are lifted. Mr. Pyper aspirers to assume the position of CEO on the retirement of the current CEO. [ 9 ] In addition to his professional obligations, Mr. Pyper has been active in seeking out opportunities to volunteer.

In this regard, he has been accepted as a volunteer with a community group and he has had an orientation session with the Christmas Bureau where he is expecting to help with office duties and gift distribution. [ 10 ] In terms of his personal background, Mr. Pyper met Ms. Schuetze in 1998. In 2002, Ms. Schuetze immigrated from her home of Germany to Canada. The pair married in 2008, and they have two young children. After the assault, they separated, and they tried to reconcile, unfortunately, and despite their best efforts, they were not successful.

They are now living apart and engaged in a high conflict family law proceedings. [ 11 ] Mr. Pyper is in a new relationship. A letter from his new partner was filed with the Court. Within the letter, his partner confirms she has known Mr. Pyper for 32 years and that she has never known him to be violent or have disagreements. She noticed that he is a lifelong learner who has delved into learning about his feelings and emotional regulation. In fact, at Mr. Pyper’s suggestion, they have enrolled in a nine-week empathetic counselling program.

Their purpose in taking the program is to set a solid foundation for creating healthy patterns. [ 12 ] Mr. Pyper’s family also submitted character letters and while keeping in mind that they are from his immediate family, they are common in that Mr. Pyper does not have a history of violence or angry outbursts and that he is remorseful for his actions. His sister, Sheri Poulsen, also comments on her brother’s character and goes on to observe that since the offence, he has worked hard to foster healthy social dynamics and self-growth. [ 13 ] Since 2018, Mr. Pyper has completed over 170 hours of counselling.

He has completed a program in anger management and he has attended counselling with Dr. Pinaud, North Shore Family Services, Hollyburn Family Services and Moose Anger Management. As for his progress, letters from these entities confirm Mr. Pyper’s attendance and note that he was an active and engaged participant, who has grown in the areas of communication, and self-regulation. [ 14 ] From the materials, I conclude that the events of September 16, 2018, were out of character for Mr. Pyper, further, and without excusing his behaviour; I observe the highly charged circumstances in which he committed his offence.

I also note, that the offence prompted Mr. Pyper to take extensive steps in an effort to learn emotional strategies and self-regulation. In my view, Mr. Pyper has successfully taken charge of his rehabilitation.

POSITION OF THE PARTIES The Crown [15] The Crown argues that an assault committed against an intimate partner requires a sentence that focuses on denunciation anddeterrence. He opposes a discharge on the basis that a criminal record is necessary to achieve the requisite degree of denunciation anddeterrence. In support, the Crown cites, R. v.

T.E.C., 2015 BCCA 43, wherein the Court of Appeal dismissed the offender’s appeal of asuspended sentence that was imposed after the offender was convicted of assaulting his wife by throwing a plastic cup of water and apackage of crackers at her. [16] In the event that the Court grants a discharge, the Crown argues that the ongoing family litigation may tip Mr. Pyper’s emotionsand therefore a discharge with conditions is warranted. The defence [17] Counsel for Mr. Pyper submits that a careful consideration of all of the circumstances supports the granting of an absolutedischarge.

In this regard, counsel argues that a discharge would be in Mr. Pyper’s best interests. In support, counsel points to thecircumstances of the offence, Mr. Pyper’s extensive rehabilitative steps, his good character, his support, and the potential professionalramifications that could flow from a criminal record. In terms of the public interest, counsel argues that a discharge is not contrary to thepublic interest in that sufficient deterrence has already been achieved.

LEGAL PRINCIPLES Sentencing objectives [18] The purpose of sentencing is to protect the public by imposing sanctions on persons who are guilty of having committed acriminal offence. The protection of the public is advanced when the sentence imposed focusses on the objectives set out in s. 718 ofCriminal Code. This

section reads: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [19] Violence committed against partners in a domestic setting present dangers to the victim and to the community. Crimes ofviolence against women in domestic relationships requires a denunciatory sentence: R. v. Gill, 2014 BCCA 88 at para. 34. [20] Despite the need for a denunciatory sentence, I observe that the absence of mandatory minimum sentence for offences committedin domestic relationships means that discharges are available in appropriate circumstances.

Section 718.1 - fundamental principle of sentencing [21] Proportionality is a fundamental principle of sentencing. As such, the sentence that I impose must be proportionate to the gravityof Mr. Pyper’s offence and his degree of responsibility. In R. v. Ipeelee, 2012 SCC 13, Justice Label commented at para. 37 on theimportance of proportionality and its operation: [37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — themaintenance of a just, peaceful and safe society through the imposition of just sanctions.

Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of theoffence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justicesystem. As Wilson J. expressed in her concurring judgment in Re B.C.

Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, atp. 533: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentenceproportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishmenthe received and feel a confidence in the fairness and rationality of the system. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender.

In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [22]

Section 718.2 outlines additional sentencing principles that a court shall take into consideration when imposing a sentence.

Relevant to the instant matter are the following subsections: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, … (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family, … (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation; … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. ANALYSIS Objectives [ 23 ] The primary sentencing objectives are denunciation and deterrence. Despite this, Mr. Pyper’s continued rehabilitation must be considered. Specifically, his actions demonstrate a continued commitment to his development and improvement, consequently, any sentence imposed must not displace his gains and be proportionate.

Proportionality [ 24 ] The Crown proceed summarily against Mr. Pyper and in the result the maximum available sentence is 6 months imprisonment. It is noteworthy that there is not a minimum penalty for the offence of assault committed against an intimate partner and this reflects, in part, a recognition that the offence can be committed at a number of ways with varying degrees of seriousness. [ 25 ] In the instant matter, I find that Mr. Pyper’s conduct was in the low end of the spectrum of seriousness. Specifically, there is no evidence that he struck Ms.

Schuetze or that he was trying to inflict gratuitous pain, rather, he was protecting himself and trying to retrieve his property and it is in this context that he went too far. [ 26 ] As for Mr. Pyper’s level of responsibility, Mr. Pyper is responsible for how he conducted himself. Nevertheless, I observe his actions were momentary and within the context of a highly charged argument wherein he was the recipient of aggressive and highly provoking conduct. For these reasons, I conclude that his moral culpability was reduced when he committed the offence.

Aggravating and mitigating factors [ 27 ] Pursuant to s. 718.2 (a)(ii) it is aggravating that Mr. Pyper assaulted his spouse, Ms. Schuetze. [ 28 ] As for mitigation, Mr. Pyper’s guilty plea is substantially mitigating. This is because his plea is an acceptance of responsibility and symbolizes a degree of remorse. Additionally, Mr. Pyper’s plea has saved Ms. Schuetze the emotional discomfort and inconvenience associated with being a witness. Lastly, in entering his plea, Mr. Pyper has waived his constitutional right to insist that the state prove the case against him beyond a reasonable doubt.

Finally, Mr Pyper’s extensive rehabilitative steps and the support of his family are mitigating. Exceptional circumstances [ 29 ] In my view, Mr. Pyper’s personal circumstances and the circumstances of his offence are exceptional and justify a sentence that is below those typically imposed for like offences. As for his personal circumstances, Mr. Pyper has engaged, at his expense, in extensive counselling and from the material filed, it is evident that he has gained considerable insight and as a result he is better equipped to deal with volatile interpersonal conflict.

As for his offence, I note the unique facts of the interaction. Specifically, the kicking, the throwing of an item, the taking of the phone and the ultimate struggle over the phone. Availability of a discharge [ 30 ] The Crown opposes the granting of a discharge. In this regard, the Crown points to the decision of T.E.C. to demonstrate that violence committed against an intimate partner is serious. In that case a suspended sentence was upheld in circumstances where the offender threw a plastic cup of water and a sleeve of crackers at his wife. [ 31 ] Counsel for Mr. Pyper argues that a discharge would be in Mr.

Pyper’s best interests and not contrary to the public interest. In support, counsel highlights that a criminal record may impact Mr. Pyper’s ability to travel for work and would likely trigger inquiries from his governing professional body. As for the interest of the public, counsel argues that the engagement of the justice system has resulted in the objectives of sentencing already being achieved. SENTENCE

[32] In considering this matter, I acknowledge that denunciation and deterrence are the primary sentencing objectives for violentoffences committed against an intimate partner and that these types of offences are aggravating. I also acknowledge that any sentenceimposed underline be proportionate to the seriousness of the offence and Mr. Pyper’s degree of responsibility and that any sentenceimposed must be adjusted to account for any aggravating of mitigating factors. [33] As for the tension between a suspended sentence and a discharge, the Crown relies on the T.E.C. for support that a dischargewould be unfit.

In my view, T.E.C. does not stand for the proposition that the granting of a discharge for an offence of violence within anintimate relationship is unfit. Rather, the Court in T.E.C., concluded that the sentencing judge did not commit an error and that thesentence was not unfit. These conclusions are unique to the facts of T.E.C., specifically, the unique circumstances of the offender and hisoffence. [34] It is noteworthy that, T.E.C.’s personal circumstances and the details of the assault are dramatically different from Mr. Pyper’ssituation. T.E.C.’s offence was intentional, and not defensive or measured.

Noteworthy is, he was intensely angry and his offence was nota momentary lapse of control, but, “… akin to the eruption of a volcano that had been percolating”, at para. 8. In contrast, Mr. Pyper’soffence was committed in the context of defending himself. There is no evidence that he was intensely angry or out of control. Further,Mr. Pyper’s rehabilitative steps is also another significant distinction. Mr. Pyper has completed in excess of 170 hours of counselling andhe has engaged in reading and discussion to expand his insight and regulation of his emotional responses.

In T.E.C., the offender had nottaken counselling. [35] Turning to the appropriateness of a discharge, a discharge is available for any offence provided the offence does not have amandatory minimum or is punishable by imprisonment for 14 years or life:

Section 730 Criminal Code. [36] As per R. v. Fallofield, (BC CA), [1973] 13 C.C.C. (2nd) 450, the use of the discharge provision is not limitedto technical or trivial violations and there are two conditions precedent to the imposition of a discharge. First, a discharge must be in thebest interests of the accused and it must not be contrary to the public interest: At page 454. [37] Considering the above, I conclude that a discharge is in Mr. Pyper’s best interests.

In this regard, he has no previous criminalrecord and there is no evidence that a conviction is necessary to deter him or rehabilitate him. [38] I also note that a criminal record would likely impair Mr.

Pyper’s employment in that international travel would likely be moredifficult and because of likely involved his regulatory body. [39] As for whether a discharge is contrary to the public interest, the public interest in the deterrence of others does not preclude thejudicious use of the discharge provisions: Fallofield, at page 455. [40] In these unique circumstances, I conclude that a discharge would not be contrary to the public interest. Specifically, Mr.

Pyper’sarrest, his release on conditions, the forced separation from his children, his disclosure of the offence to his family, the financial costassociated with his conduct and having to appear in court wherein he publicly admitted to having violated the law combines to achievethe appropriate degree of denunciation and deterrence that Mr. Pyper’s offence requires. [41] In terms of whether the discharge should be conditionally or absolutely, I observe that Mr.

Pyper has been bound by restrictiveconditions for two years, that he has completed rehabilitative measures, and there is no reasonable evidence suggesting that he is a risk toMs. Schuetze. I respectfully disagree with the Crown’s assertion that the emotions and hostility associated with the ongoing family lawproceedings dictate the need for protective conditions. This is because Ms. Schuetze’s unilateral decision to prevent Mr.

Pyper fromseeing his children and the resulting litigation undoubtedly inflamed emotions and hostility, yet, and because of his rehabilitation, Mr.Pyper did not misconduct himself or cause harm to Ms. Schuetze. This indicates to me that Mr. Pyper is able to withstand the emotionalchallenges of ongoing litigation. As such, and pursuant to s. 730 of the Criminal Code, Mr. Pyper is discharged absolutely. ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia