R. v. Geisbrecht, 2020 BCPC 77

Citation: R. v. Geisbrecht 2020 BCPC 77 Date: 20200211 File No: 66941-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT MATTHEW GEISBRECHT ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A. ORMISTON Counsel for the Crown: J. Lester Counsel for the Accused: S. Williams Place of Hearing: Chilliwack , B.C. Date of Hearing: January 29, 2020 Date of Sentence: February 11, 2020 [ 1 ] THE COURT: Robert Geisbrecht is before the court having entered a guilty plea to one count of aggravated assault against James Shea. The agreed facts have been marked as an exhibit but I will summarize them as follows.

[ 2 ] On the 3rd of March, 2018, just after midnight, Mr. Geisbrecht drove his car to downtown Chilliwack. He stopped partly on the sidewalk near Yale and Nowell Streets. There is a business at this location with an awning. A group of four or five people were sitting under that awning, including the complainant Mr. Shea and a woman named Ms. Gauthier. [ 3 ] Mr. Geisbrecht got out of his car and asked the group if he could buy some crack cocaine. The group gathered on the sidewalk were often on the streets of Chilliwack and had, at most, limited previous interactions with Mr. Geisbrecht. [ 4 ] Mr.

Shea indicated that he might be able to help Mr. Geisbrecht getting cocaine but Ms. Gauthier stood up and verbally confronted Mr. Geisbrecht about his attitude towards the group. She took exception to him having asked them for drugs. [ 5 ] From that point, the tension escalated between Ms. Gauthier and Mr. Geisbrecht with both of them being verbally aggressive. Ms. Gauthier and Mr. Geisbrecht began pushing each other and Mr. Shea stood up to assist Ms. Gauthier. [ 6 ] During the altercation, Mr. Geisbrecht grabbed Ms. Gauthier's sweater and bra causing some bruising to her.

The altercation continued for a couple of minutes and ended when Mr. Geisbrecht got back into his car, revved the engine, and drove aggressively away. [ 7 ] Mr. Geisbrecht stopped a short distance away, got out of his car, and returned to the group in the same location under the awning. Once again, pushing ensued between him and Ms. Gauthier and after a short time, Mr. Geisbrecht went back to his car where he grabbed an X-Acto knife with a three to four-inch blade. [ 8 ] Mr. Geisbrecht returned to the group at the awning and swung the knife several times at Ms. Gauthier and Mr. Shea. Mr.

Shea tried to use a skateboard to block the knife, strike Mr. Geisbrecht and his vehicle. [ 9 ] While swinging the knife, Mr. Geisbrecht continued to approach Mr. Shea, who was moving backwards to avoid the knife. Mr. Shea backed into some hedges which blocked him in and at that point, Mr. Geisbrecht slashed at Mr. Shea causing a large cut to the left side of his throat and face. [ 10 ] Mr. Shea fell to the sidewalk and Mr. Geisbrecht quickly got back in his car and drove away. Mr. Geisbrecht threw away the knife which was not recovered by police and he was arrested shortly after the offence. [ 11 ] Mr.

Shea was treated in hospital. His injury is described in the medical reports as a laceration extending from the midline of the left side of his cheek extending around to cross the mandible and onto the left cheek. The wound luckily avoided nerve and neurological damage. There was profuse bleeding at the scene and the medical report notes that there was superficial injury caused to Mr. Shea's jugular vein. [ 12 ] Once at hospital, the wound was stapled and sutured. Mr.

Shea was in stable medical condition but he remained in hospital for several days due to concerns that he would be unable to properly manage the injury. [ 13 ] Mr. Geisbrecht has remained in custody since this offence. As of today's date, with time and a half credit, he has spent approximately two years and 11 months of time served in jail. [ 14 ] Counsel for Mr. Geisbrecht submits that with consideration of this time served, Mr.

Geisbrecht should be released today to a two-year probation order. [ 15 ] Crown submits that further custodial time is required and seeks a sentence going forward of two years less a day, to be followed by three years' probation. [ 16 ] Given that counsel essentially agree that a lengthy term of probation is required, the primary issue on this sentencing is the length of the jail sentence to be imposed. [ 17 ] Sentencing is an individualized process where the court must take into account not only the circumstances of the offence but also the specific circumstances of the offender.

I must consider all of the principles of sentencing set out in the Criminal Code . The paramount purpose of sentencing is to protect the public. [ 18 ]

Section 718 of the Criminal Code says this is to be achieved where necessary by separating offenders from society, denouncing unlawful conduct, general deterrence, rehabilitation, and promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community. [ 19 ] In considering how to meet these objectives of sentencing, I am mindful that s. 718.2(

e) requires me to consider all available sanctions other than imprisonment that are reasonable in the circumstances. [ 20 ]

Section 718.2(

b) states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This provision requires an analysis of what is commonly referred to as the range of sentence for a specific offence. Counsel have provided authorities to assist with establishing this range which I will refer to later in these reasons. [ 21 ] The fundamental principle of sentencing is found at 718.1 which states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In R. v.

Ipeelee , 2012 SCC 13 , the Supreme Court of Canada noted that this fundamental principle of proportionality is tied to the purpose of sentencing, which is the maintenance of a just, peaceful, and safe society through the imposition of just sanctions. [ 22 ] The proportionality principle ensures justice for victims and offenders. The former by requiring that a sentence reflects the gravity of the offence and denounces unlawful conduct and ensures public confidence in the justice system.

The proportionality principle also acts as a restraint to ensure justice for the offender by ensuring that the sentence does not exceed what is appropriate given the moral blameworthiness of the offender.

[ 23 ] In the words of the Supreme Court in R. v. Ipeelee : In the Canadian criminal justice system, a just sanction is the one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. This Offence [ 24 ] Aggravated assault is a serious offence under the Criminal Code with a maximum penalty of 14 years jail. This particular assault involved a deadly weapon, a knife. While victim impact from Mr. Shea is not available to the court, the wound as pictured and described in the medical reports is serious and resulted in facial scarring. [ 25 ] We know that Mr.

Shea was hospitalized and treated relatively quickly but not what kind of other impacts this offence may have had on him physically or psychologically. [ 26 ] I take it, from the medical reports and submissions of Crown, that Mr. Shea is a person with other challenges in his life, including homelessness. No doubt, these injuries would have added to his struggles. While I would certainly not describe the extent of the injuries suffered by Mr.

Shea as superficial in the general sense of the word, the injury to his external jugular was, luckily, superficial. [ 27 ] The gravity of this offence is rooted in the persistent and purposeful manner that Mr. Geisbrecht backed Mr. Shea into the bushes and then slashed at his face and neck, making such a significant wound to that area. He struck in a vulnerable place and I am satisfied that a more serious result was avoided by sheer luck. [ 28 ] Counsel for Mr. Geisbrecht urges this court to consider the attack, while not justified in any way, was not entirely unprovoked. I accept that the altercation with Ms.

Gauthier likely launched Mr. Geisbrecht into an elevated emotional state and motivated him to return to his vehicle for the knife even after having initially left the scene in his car. [ 29 ] The offence did occur in the course of a shoving match and a confrontation with Ms. Gauthier, who was part of Mr. Shea's group. As such this case is distinguishable from ones where the attack lacks any comprehensible motivation or is seemingly random. However, it is notable that the actual victim of this slashing was not the aggressor and was backing away from Mr. Geisbrecht using defensive measures to protect himself.

This Offender [ 30 ] Mr. Geisbrecht is a 35-year-old man. He was 33 at the time of the offence. He was adopted to Canadian parents when he was nine years old, and his youth in a Haitian orphanage, as described by a treating psychiatrist as, "suboptimal". [ 31 ] His adoptive parents found Mr. Geisbrecht difficult to manage as a child and fairly quickly, after his arrival in Canada, sent him to live with other members of their family where he was often isolated. Mr. Geisbrecht has some support in the community of other Haitian children adopted in the same city and he maintains those supports today. [ 32 ] Mr.

Geisbrecht is single and has no dependents. He trusts and at times feels supported by his adoptive family and other supports but he is not able to live with them. Mr. Geisbrecht is motivated to be financially independent and he worked hard to find and maintain full-time employment around the time of this offence. [ 33 ] Mr. Geisbrecht has no prior criminal record but he does have a relevant history of violence or threats of violence. He entered a s. 810 recognizance in 2009.

I am told the grounds for that recognizance involved an altercation with a woman on a bus. [ 34 ] He has also spent a significant part of his adult life under the supervision of the Review Board as a result of two charges of assault with a weapon, which occurred in 2010. He was found not criminal responsible for these offences in 2012 and deferred to the Review Board at that time. [ 35 ] In this 2010 incident, Mr. Geisbrecht brandished a knife in a dispute with fellow tenants. At the time of the offence, Mr.

Geisbrecht was considered not criminally responsible by reason of a mental disorder because he had experienced some symptoms of schizophrenia, including hearing voices. [ 36 ] Mr. Geisbrecht's diagnosis now is more complicated. In relation to this aggravated assault, Mr. Geisbrecht was assessed by Dr. Widajewicz shortly after the offence. He recommended that Mr. Geisbrecht was not NCRMD when he committed this aggravated assault. That defence has not been raised in relation to this charge. [ 37 ] A psychiatric assessment was ordered to assist with this sentencing, however, Mr. Geisbrecht declined to participate.

The author of that report, Dr. Riley, happened to have been Mr. Geisbrecht's treating psychiatrist in the past and he has provided the court with helpful background of Mr. Geisbrecht's mental health. [ 38 ] Counsel for Mr. Geisbrecht admits as evidence at this hearing the reports of Dr. Widajewicz, Dr. Riley, and the related assessments that have been filed, including the Review Board disposition discharging Mr. Geisbrecht absolutely in November 2017. [ 39 ] Dr. Riley and Dr. Widajewicz conclude that Mr.

Geisbrecht does not currently meet the diagnosis for schizophrenia given how long ago he last reported symptoms of that disease. [ 40 ] The Crown submits that for the sentencing on this aggravated assault, mental illness does not diminish Mr. Geisbrecht's moral culpability. The Crown grounds their position in the doctors' conclusion that Mr. Geisbrecht is not schizophrenic and that his violence is more likely a product of developmental factors, which the Crown characterizes as a personality issue. [ 41 ] Defence counsel submits that Mr.

Geisbrecht does have a mental illness and while it may not be schizophrenia and it may not have been such that it rendered him not criminally responsible, it should play a mitigating role in this sentencing because it attenuates

Mr. Geisbrecht's moral blameworthiness. [ 42 ] Counsel rely on R. v. Quash , 2019 YKCA 8 , where at paragraph 55 the court confirms the test established in R. v. Okemow , 2017 MBCA 59 at paras. 72-73 . This directs judges to keep separate and properly assess the following three questions when ascertaining the moral blameworthiness of an offender with a mental illness or some other form of cognitive limitation: 1. Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation? 2.

Is there evidence as to the nature and severity of the offender's mental circumstances such that an informed decision can be made as to the relationship, if any, between those circumstances and the criminal conduct? 3.

Assuming the record is adequate, the sentencing judge must decide the offender's degree of moral responsibility for the offence taking into account whether, and if so, to what degree his or her mental illness or cognitive limitation played a role in the criminal conduct. [ 43 ] To answer the first of these questions, based on the psychiatric reports that have been filed, I am satisfied there is cogent evidence that Mr. Geisbrecht suffers from a mental illness or some other cognitive limitation. [ 44 ] In December 2019, Dr. Riley diagnosed Mr.

Geisbrecht with an unspecified psychotic disorder, as well as, "cognitive impairment which is likely developmental in origin". The doctor notes Mr. Geisbrecht also has anti-social personality traits and Dr. Riley outlines a long history of treatment Mr. Geisbrecht has undergone for his mental health, including years spent in a forensic psychiatric hospital. [ 45 ] Mr. Geisbrecht committed this offence a short time after being discharged from their care and there were two occasions when Mr. Geisbrecht's behaviour destabilized while he was in custody awaiting sentencing on this matter.

Injections of long-lasting anti- psychotic medication ultimately improved his behaviour while in custody. [ 46 ] To answer the second question, despite Mr. Geisbrecht's lack of cooperation with preparation of reports for this sentencing, the material that is available allows this court to make an informed decision regarding the relationship between this offence and Mr. Geisbrecht's illness. While the information before this court is not perfect, given Mr.

Geisbrecht's lack of cooperation and also the complexity of his condition, the reports reveal that the kind of frustration and impulse control apparent in this offence were primary risks during the time that he was connected to Forensic Services. [ 47 ] Third, when it comes to the degree to which Mr. Geisbrecht's mental illness played a role in this offence, I have concluded on a balance of probabilities that Mr. Geisbrecht's mental illness played a role, although not a singular role, in this offence. [ 48 ] When he was assessed by Dr.

Widajewicz shortly after the offence, specifically for the purpose of determining whether he qualified for an NCR defence, the doctor concluded that Mr. Geisbrecht appreciated what he was doing was wrong but blamed the provocation of the victim. [ 49 ] Dr. Widajewicz observed that Mr. Geisbrecht was not suffering from a mental disorder at the time and it was unlikely that he was influenced by symptoms of psychotic mental illness that would exempt him from criminal responsibility. The doctor also compares Mr.

Geisbrecht's violence in this offence to previous acts of violence that were responses to minor frustration and not driven by the presence of mental illness. [ 50 ] However, just because Mr. Geisbrecht's mental illness did not rise to the level of rendering him not criminally responsible, it does not mean that it did not play any role in this offence. While Dr. Riley seems to agree with Dr. Widajewicz that the sources of Mr. Geisbrecht's impulsive violence are not exclusively the result of psychiatric pathology, the doctor recommends maintaining psychiatric treatment to help manage his condition.

In particular, he recommends anti-psychotic medication to, among other things, "help manage his reactivity and impulsivity". [ 51 ] The reports do not draw a clear causal connection between Mr. Geisbrecht's illness and his conduct, but they do highlight how Mr. Geisbrecht's reactions during this offence are typical of his poor impulse control and that to some degree, the doctors have been able to manage that kind of symptom with the use of anti-psychotic medication. [ 52 ] The reports lead me to find that it is more likely than not that Mr. Geisbrecht's mental illness contributed to this offence.

The way that it appears to have contributed is by compromising his ability to control impulsive violence, more than it compromised his ability to appreciate what is morally right or wrong about his actions. [ 53 ] Mental illness was one of the factors in Mr. Geisbrecht's offending but I am also satisfied that it was not the only one. Mr. Geisbrecht disclosed to Dr. Widajewicz that at the time of this offence, he was a regular crack cocaine user. He was craving more drugs and was in search of crack cocaine that day. Mr. Geisbrecht told the doctor that his angry outburst was brought on by withdrawal. [ 54 ] Mr.

Geisbrecht's voluntary drug use does not decrease his moral culpability. Mr. Geisbrecht relapsed into drug use despite the supports put in place that led to his absolute discharge from the Review Board only a few months prior. [ 55 ] Criminal liability is imposed on those who are responsible for the state they were in when an offence is committed: R. v. Bouchard-Lebrun , 2011 SCC 58 , at paragraphs 48 and 68 . [ 56 ] When Mr. Geisbrecht was assessed shortly after this offence by Dr. Widajewicz, he denied being influenced by any delusions or hallucinations before or at the time of the alleged offences.

He was reportedly working on a daily basis. [ 57 ] While Mr. Geisbrecht is deeply distrustful of most people, he does express a trust in his adoptive mother and says that when she tells him not to fight and not to do drugs, he will comply but, despite this support and despite knowing that illegal drugs exacerbate his

mental illness, Mr. Geisbrecht was not successful in abstaining. [58] Dr. Riley notes his concern that Mr. Geisbrecht, "appears to have promptly ceased to taking his medication", upon beingdischarged from the Review Board nor did he attend any doctors' appointments to maintain his mental health. [59] Dr. Riley identified this failure to maintain psychiatric treatment and the escalation in Mr. Geisbrecht's illegal drug use frommarihuana to cocaine as a significant risk factor for future violence. [60] On his conditional discharge from the Review Board in the summer of 2017, Mr.

Geisbrecht addressed his substance abuse byliving in a residential recovery house. This was short-lived and Mr. Geisbrecht was returned to hospital after a violent altercation withanother resident. [61] Ordinarily, Mr. Geisbrecht's moral blameworthiness for this kind of offence, committed at least in part because of his voluntaryuse of illegal drugs, would be high. Given that he suffers from mental illness that contributed at least in part to the offence, I find that hismoral culpability is reduced to some degree.

However giving consideration to all the circumstances, I still consider his moralblameworthiness to be elevated. [62]

Section 718.2(

a) directs that a sentence should be increased or reduced to account for any relevant aggravating or mitigatingcircumstances relating to the offence or the offender. As I have stated above, I have considered Mr. Geisbrecht's moral blameworthinessto be somewhat reduced by his mental illness. [63] The primary mitigating circumstance in this case is that Mr. Geisbrecht entered a guilty plea to a serious offence and he sparedthe witnesses having to testify.

That has real weight in a case such as this where the witnesses and victim are transient people whowould have been difficult to bring to court. [64] I also accept Mr. Geisbrecht's plea as a demonstration of some remorse, although his own comments to this court were anacknowledgement that he had made a mistake, but not of remorse or contrition. [65] I have also considered the following aggravating circumstances. [66] The people that Mr. Geisbrecht accosted, including Ms. Gauthier and Mr. Shea, were relative strangers.

Though he may havehad some passing acquaintance with them, the only reason he was in contact with them that day was to find drugs. There is nosuggestion of any prior conflict between them. [67] The degree of Mr. Geisbrecht's anger towards the group appears untethered to any rational reasons, particularly since thevictim, Mr. Shea, was the person who told Mr. Geisbrecht he may be able to help him find the drugs he was looking for. [68] Secondly, there is the use of the knife, which is a deadly weapon, particularly in the manner Mr. Geisbrecht was using it toslash at such a vulnerable area of Mr. Shea's neck.

It is further aggravating that this use of the knife was deliberate. Mr. Geisbrecht didnot just happen to be armed with a weapon. He quit the altercation with Ms. Gauthier, returned to his vehicle, reached in, grabbed theknife, and swung at both Ms. Gauthier and Mr. Shea. [69] Third, I have considered the history of Mr. Geisbrecht's violence. While he has no prior criminal convictions, the reports reliedon by counsel disclose a similar history of impulsive violence. [70] Mr. Geisbrecht wielded a knife when he became angry at fellow tenants in 2010.

He was found not criminally responsible forthose actions because of a mental disorder and, as such, his moral culpability for them is significantly less than for someone who comesbefore the court with criminal convictions. Nevertheless, his history cannot be disregarded by the court in assessing how to best protectthe public going forward, particularly since this offence happened just four months after his discharge from the Review Board. [71] Counsel have assisted this court by providing similar cases that situate this offence on the spectrum of sentences available foraggravated assault.

The often cited case, R. v. Craig, 2005 BCCA 484, articulated a range of 16 months to six years incarceration foraggravated assault and this was endorsed more recently in R. v. Nguyen, 2016 BCCA 408. [72] Justice DeWitt-Van Oosten when sitting as a Supreme Court judge, reviewed the appellate authority governing sentencing forthis type of offence in R. v. Billing, 2017 BCSC 1107. At paragraph 65 of Billing, the court cites R. v.

Johnson, (BCCA), 1998 131 C.C.C. (3d) 274 at paragraph 10: Sentences at the lower end of the range [for aggravated assault] tend to be imposed in "fight" situations in which the altercation escalatesand results in injuries to the victim. Sentences at the higher end of the range tend to be imposed in situations where the victims areattacked with a weapon, without provocation and without any opportunity to defend themselves. [73] In this case, Mr. Shea was attacked with a weapon. Attempts to defend himself proved unsuccessful and Mr. Shea was blockedfrom retreating from the attack by some hedges.

It was at this point that Mr. Geisbrecht slashed at him causing the injuries and thesefactors weigh in favour of a sentence at the higher end of the range. [74] On the other hand, this offence cannot be said to be entirely without provocation. Mr. Geisbrecht engaged in an altercation withMs. Gauthier and it is unclear who was the physical aggressor. Mr. Geisbrecht injured Ms. Gauthier in this altercation and there is nosuggestion that she injured him. Regardless, I cannot say that Mr.

Geisbrecht was the only aggressor in this situation. [75] In considering the weight to attach to this factor that pulls the sentence towards the lower end of the range, I note that the,"fight", was not with Mr. Shea, it was with Ms. Gauthier. While Mr. Shea stood up to assist Ms. Gauthier during the altercation, hisdirect involvement in the fray was to try to protect her from the knife that Mr. Geisbrecht was swinging at her.

[ 76 ] The provocation in this case is also tempered by the fact that on two occasions in the course of the altercation, Mr. Geisbrecht left the scene and then returned both times and continued the violence. [ 77 ] Sentencing is an inherently individualized process and ranges of sentence are always subject to the unique constellation of factors that make a sentence fit in the circumstances. This principle was reiterated in R. v. Larose , 2013 BCCA 450 at paragraph 17 , where the court commented on the range established in R. v.

Craig : While that description is helpful in narrowing the range that may be considered, it is to be remembered that the circumstances of aggravated assault are variable and difficult to organize into categories. [ 78 ] Stabbing cases with multiple victims or more random circumstances resulting in more serios injury have attracted even higher sentences than six years. While I am bound by the benchmarks established by the appellate authorities, in a Provincial Court decision, R. v.

Butz , 2015 BCPC 75 , my brother Judge Skilnick reviewed the jurisprudence where knives are involved in aggravated assaults and identified the range of sentence as three to six years incarceration. [ 79 ] As is often the situation in sentencing, case law filed by counsel has been very helpful in identifying the factors that define the range of sentence but none of these cases are exactly the same. The appellate authority that has been most instructive in determining a fit sentence are R. v. B.G.P. , 2006 BCCA 215 ; R. v. L.D.W. , 2005 BCCA 404 ; R. v. Craig , 2005 BCCA 48 ; and R. v.

Larose , 2013 BCCA 450 . [ 80 ] In this case, there is a tension between the need to address Mr. Geisbrecht's rehabilitation and the need to protect the public from this kind of dangerous and impulsive violence. I must conclude that despite not having a prior criminal record, there are concerning indications that Mr. Geisbrecht's violent conduct is resistant to rehabilitation. [ 81 ] It took many years before the Review Board could find that Mr. Geisbrecht did not pose a significant threat to others.

Following the 2010 incidents where he wielded a knife, he spent most of the time he was under the jurisdiction of the Review Board in hospital, with the longest period in the community being seven months. [ 82 ] The returns to hospital were related to concerns about his mental health, drug use, and imminent use of violence. That is from Dr. Riley's report, page 2 of 4. [ 83 ] Mr. Geisbrecht's moral culpability for this protracted period of rehabilitation is very low given the connection to his mental illness. The reports prepared in relation to this offence do not suggest that identical factors motivated Mr.

Geisbrecht in 2018. In other words, he was not NCRMD and he is not believed to have been suffering symptoms of schizophrenia or psychosis. Nevertheless, Dr. Riley does identify a common thread in Mr. Geisbrecht's history of violence. He points to Mr. Geisbrecht's difficulties with group dynamics and being prone to misinterpreting the actions of others, which he says appears to be, "developmental in origin, rather than a symptom of his mental illness". [ 84 ] For example, Mr. Geisbrecht was in an altercation with a fellow patient at the forensic hospital that resulted in the patient breaking his leg when he fell.

There was also a violent altercation with a fellow resident in a recovery home that led to his discharge. [ 85 ] At times, Mr. Geisbrecht is able to comply with treatment and he has some insight into the fact that the anti-psychotic medication makes him feel more calm and controlled. However, Mr. Geisbrecht poses a number of challenges as a patient. He is not always willing to engage. Most recently, he did not cooperate in the preparation of reports for this sentencing. Dr. Riley says he is not a reliable historian and that he is not inclined to follow direction of his care team. [ 86 ] When Mr.

Geisbrecht was conditionally discharged, he failed to comply with the terms of that discharge in less than two months. When released again, he breached the terms in less than two weeks. [ 87 ] The circumstances of this offence are a strong statement on how Mr. Geisbrecht was able to manage his mental health and illegal drug use once the restrictions on his liberty had been removed. This aggravated assault occurred within months of being absolutely discharged. Mr.

Geisbrecht's illegal drug use had started some months before that. [ 88 ] While it is unusual for specific deterrence to apply in a case such as this where Mr. Geisbrecht had limited involvement with the criminal justice system, the seriousness of this offence and the similarity with past violence, where a knife was used in an explosion of impulsive anger is something that needs to be deterred. [ 89 ] When Mr. Geisbrecht wielded the knife at his fellow tenants in 2010, he was bound by a condition not to possess knives as a result of the 2009 810 recognizance. [ 90 ] This case at bar is distinguishable from R. v.

Badhesa , 2019 BCCA 70 at paragraphs 39 through 44 where specific deterrence was not required when the offender was mentally healthy. In that case, the offender was described as normally a peaceful loving man who, once medically stabilized, fully appreciated the gravity of his actions and was strongly motivated to maintain his positive mental health. [ 91 ] The central focus of any sentence must always be the protection of the public and this can be achieved in different ways. In this case, there is good reason to not entirely discard Mr.

Geisbrecht's prospects for rehabilitation. [ 92 ] He is still a relatively young man who is hard worker and was resourceful in finding employment when he was released from hospital. He faced obstacles when he was in the workforce for that time without anger and violence. He knows that medication helps him and sometimes he is able to be compliant with a treatment regime that benefits him. [ 93 ] His moral culpability is reduced to a degree because of the role mental illness played in this offence. People who struggle with mental illness are not inherently dangerous but in this case, there are features of Mr.

Geisbrecht's condition that raise serious concerns for

public safety. The reports do not support the inference that Mr. Geisbrecht would plan to be violent but rather he reacts to some situations with quick and explosive anger. [ 94 ] Dr. Riley notes that Mr. Geisbrecht has a complex mix of developmental, personality, mental health, and substance abuse concerns. The psychiatrist recommends continued psychiatric treatment to manage him in the community. However, he also says that Mr. Geisbrecht is unlikely to engage with treatment without court order and that Mr.

Geisbrecht responds best to long-acting injections of medication. [ 95 ] In proposing a lengthy probation order, both counsel have suggested that a Roger's order condition would assist Mr. Geisbrecht. He is prepared to consent to this type of order and says he will follow it. Counsel submit it will provide some assurance that he will be compliant with his medication and treatment regime. This is true, however, the obvious limitation is that a probation order cannot mandate that a person take medication. [ 96 ] Counsel have also proposed conditions requiring Mr.

Geisbrecht to attend residential treatment and abstain from illegal drug use since it played a role in this offence and exacerbates his mental health issues. I cannot find that Mr. Geisbrecht's prospects for success in residential treatment are good, given his last experience in that setting. Dr. Riley notes that Mr. Geisbrecht does not tend to succeed in group settings for any kind of treatment. [ 97 ] Mr.

Geisbrecht's plan when he is released from custody is to live in a particular residential recovery home, however, the plan is incohate and there is no information about how this residence will accommodate his unique needs. He is not able to return to the home of his adoptive parents. [ 98 ] In all the circumstances, I have no confidence that if Mr. Geisbrecht, if released today, would comply with the terms and conditions of a probation order aimed at curtailing his use of drugs and violence. I agree with Dr. Riley that there are, "no simple solutions for treating Mr. Geisbrecht's substance abuse disorder".

The doctor writes at page 4 of his December report that, "external controls may need to be maintained for an extended period of time before Mr. Geisbrecht can be safely managed in the community". [ 99 ] I find that a sentence of time served for Mr. Geisbrecht for this offence would be an unfit sentence and would not give full effect to the principles of deterrence, denunciation, and protection of the public. I find that a fit sentence is one in the mid to upper range of sentences established by the appellate courts for this type of offence.

This period of further incarceration should be in a provincial facility where there are substance abuse management and violence prevention programs available. [ 100 ] This will also allow for a probation order that will assist at efforts at rehabilitation preferably in a one-on-one setting, if that is available, as well as extending protective conditions regarding weapons and illegal drug use well into the future. [ 101 ] I am going to begin the sentence, Mr. Geisbrecht, with the ancillary orders.

The first of those is an order for DNA, since this a primary designated offence. [ 102 ] You can stand, sir. [ 103 ] Pursuant to s. 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you for registration in the DNA National Databank and those samples will be taken from you while you are in custody and you must submit to the taking of those samples. [ 104 ] I am also imposing a weapons prohibition.

That is pursuant to s. 109 of the Criminal Code , for life, and that is that you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. [ 105 ] There will be a probation order in this case that is going to follow the period of incarceration and that period of probation will be for a period of two years, and these are the conditions. [ 106 ] Keep the peace and be of good behaviour.

You must appear before the court when required to do so by the court. [ 107 ] You must have no contact or communication, directly or indirectly, with James Shea and Tanisha Gauthier. [ 108 ] You must not go to any place where James Shea or Tanisha Gauthier lives, works, attends school or happens to be. If you see them, you must leave their presence immediately without any words or gestures. [ 109 ] You must report in person to a probation officer at Chilliwack Community Corrections. The address will be inserted in the order.

And you will report there within two business days after your release from custody unless you have obtained, before your release, written permission from your probation officer to report elsewhere or within a different timeframe. After that, you must report as directed by your probation officer. [ 110 ] You must live at a residence approved in advance by your probation officer and provide them with your phone number.

You must not change your address or phone number without prior written permission from your probation officer. [ 111 ] You must not possess or consume alcohol, drugs or any other intoxicating substance except with a medical prescription. [ 112 ] You must attend, participate in and complete any intake, assessment, counselling or education program as directed by your probation officer. [ 113 ] Having consented, you must attend, participate and complete any intake, assessment, program, treatment or a full-time live-in treatment program as directed by your probation officer.

That may include programming or treatment for drug addiction or your psychiatric health.

[ 114 ] Having consented in court, you must do the following: (1) report to Forensic Psychiatric Services or elsewhere for intake, assessment, counselling or treatment as directed by your probation officer; (2) attend all scheduled appointments with the professionals in charge of your mental health care; (3) take all medications and medical treatment prescribed to you by those professionals; (4) provide your probation officer with the names, addresses, and phone numbers of those professionals; (5) give those professionals a copy of this order; and (6) if you decide not to follow these directions, you must immediately report that fact to your probation officer.

You have consented in court to those professionals notifying your probation officer if you fail to attend for an appointment or refuse to take the prescription treatment or medication. [ 115 ] You must not possess, directly or indirectly any weapon as defined by the Criminal Code , including: (

a) firearms and ammunition; (

b) crossbows, prohibited or restricted weapons or devices, or explosive substances; (

c) anything used, designed to be used or intended for use in causing death or injury to any person, or to threaten or intimidate any person; (

d) any imitation of all of the above, including any compressed air guns or BB pellet guns; or (

e) any related authorizations, licences and registration certificates, and you must not apply for any of these. [ 116 ] You must not possess any knife outside your residence except for the immediate preparation or eating of food except while you are at your place of employment and if asked, you must provide your probation officer with details or location and hours of employment. [ 117 ] Those are all of the conditions on the probation order. With respect to the sentence, I find that a fit sentence of incarceration going forward is two years less a day, or 729 days.

The sentence I would have imposed before credit for time served is 1,794 days, which is just less than five years. As of today, you have served 710 actual days in custody. With time and a half credit, that is 1,065 days. That leaves 729 days or two years less a day to be served from today's date. (REASONS FOR SENTENCE CONCLUDED)