R. v. Zaworski, 2020 BCPC 46

Citation: R. v. Zaworski 2020 BCPC 46 Date: 20200124 File Nos: 9011-2-C,9013-2-C Registry: Mackenzie IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSEPH EDWARD ZAWORSKI ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. MALFAIR Counsel for the Crown: S.L. O'Connor Counsel for the Defendant: S. Catona Place of Hearing: Mackenzie , B.C. Date of Hearing: January 24, 2020 Date of Judgment: January 24, 2020 [ 1 ] THE COURT: These are my oral reasons. If a transcript is requested, I reserve the right to edit them, but the result will not change. [ 2 ] Mr. Zaworski has entered guilty pleas on two proceedings arising from events on October 29, 2018, and December 4, 2018.

[ 3 ] On Information 9011-2-C, Mr. Zaworski has pled guilty to theft under $5,000, two counts of possessing stolen trucks in values exceeding $5,000, and obstructing a peace officer. These events all occurred October 29, 2018. The Crown and defence jointly submit that a global sentence of 12 months' jail is appropriate. [ 4 ] On Information 9013-2-C, Mr. Zaworski has pled guilty to possession of a stolen truck in excess of $5,000, dangerous driving, flight from police, and assaulting a peace officer with a weapon. These events all occurred on December 4, 2018.

With respect to this file, the Crown and defence do not agree on sentence. The Crown seeks a global sentence of four years, while the defence seeks a conditional sentence order of 20 months, followed by probation. [ 5 ] The facts of Information 9011-1 were adduced pursuant to an Agreed Statement of Facts. [ 6 ] On October 11, 2018, Mr. Zaworski was released on a recognizance of bail from Abbotsford on charges of possession of stolen property, theft over $5,000 and mischief. He was on bail at the time of all of these offences.

It was a term of his recognizance that he not be in a motor vehicle without the registered owner present. [ 7 ] On October 29, 2018, at 2:35 a.m., T.S. was leaving his residence to go to work when he noticed two Ford F350 trucks parked at the McLeod Lake General Store. McLeod Lake is tiny village around 42 kilometres from Mackenzie. Mr. S. and his wife own the store and their residence is located right next to it. The store was closed at this time and Mr. S. did not recognize the vehicles. [ 8 ] A dark grey Ford F350 was parked at the back of the store and a white Ford F350 was at the front of the store. Mr.

S. noticed a male in a red hoodie, later identified as Mr. Zaworski, hooking up a snowmobile and sled trailer to the back of the grey F350. This snowmobile and sled trailer had been parked at the store and belonged to a friend of Mr. S., J.F. [ 9 ] Mr. S. confronted Mr. Zaworski about taking his friend's property. Mr. Zaworski made comments about having bought it. A physical confrontation and argument ensued, and Mr. S. punched Mr. Zaworski twice in the head before letting him go. [ 10 ] Mr. Zaworski jumped into the grey F350 truck. Mr. S. was able to take his phone out and video Mr.

Zaworski inside the grey F350. Mr. Zaworski fled north on Highway 97 in the grey F350 with the snowmobile and trailer attached. [ 11 ] Police were dispatched from Mackenzie and attended the scene 20 minutes later. Mrs. S. told the officers her husband had left in his logging truck in an attempt to find the grey F350, snowmobile, and trailer. Officers conducted patrols, but no one was located. [ 12 ] The officers returned to the store and viewed the video footage captured by Mr. S.

From that footage, they captured the licence plate from the white Ford F350 parked in the front. [ 13 ] The officers conducted queries in the police database and discovered the white Ford F350 was registered to Glenn Openshaw, who resided at 50205 Trench Road, Mackenzie Junction. Glenn Openshaw is married to Mr. Zaworski's mother. [ 14 ] Police attended that residence. There was no answer at the door and no sign of either Ford 350, snowmobile, or trailer, so they left. [ 15 ] Mr. S. later updated police that he saw a similar white Ford F350 in his neighbour's driveway.

He confronted the driver, Cynthia Openshaw, and she denied any involvement. Mr. S. reported he had followed her to 50205 Trench Road and that she had turned in to the property. [ 16 ] Officers reattended the residence and observed a white Ford F350 driving on the property, pulling a flat deck trailer behind it. The members drove on to the property and activated emergency lights, but the vehicle did not stop and kept driving around the property slowly, coming to a stop in front of the residence. [ 17 ] Officers observed a male, who turned out to be Mr.

Zaworski, exit the driver's side of the white F350 and run into the residence. Ms. Openshaw got out of the passenger side of the vehicle and asked the officers what was going on. She told the officers she did not know why her son had run, but that she would go into the residence and get him. [ 18 ] Ms. Openshaw came back out and told officers that Mr. Zaworski had fled into the forest. Glenn Openshaw permitted the officers to search the residence and his property for Mr. Zaworski. Mr. Zaworski was not located inside the residence. Police discovered the white Ford F350 was still running.

It had no licence plates and a damaged left door handle. [ 19 ] Police searched just beyond the property line and located a grey Ford F350 which matched the description from the McLeod Lake Store. The hood was still warm and the grey F350 did not have a snowmobile or trailer attached to it. Of note, other vehicles and trailers were located in the same area, covered in snow, which were later confirmed stolen. These were ultimately returned to their owners. [ 20 ] At 6:49 a.m., Mr. S. reported he had found the stolen snow machine and trailer. He guided police to the area and these items were recovered.

After reviewing his video footage from the theft from the store, Mr. S. confirmed he recognized the suspect as Mr. Zaworski, as he had gone to high school with him. [ 21 ] The white Ford F350 recovered from Ms. Openshaw's residence had been reported stolen from Prince George on October 28, 2018. The flat deck trailer attached to it had been stolen from Duz Cho logging. The grey F350 had been taken from the owner without his permission. The ignition did not appear punched out and no keys were found.

The registered owner of the snowmobile and trailer confirmed he was storing those items at the McLeod Lake Store and no one had permission to take them. [ 22 ] With respect to Information 9013-2-C, on December 4, 2018, Mr. Zaworski's sister called the police expressing concern that he was driving a stolen truck from Prince George to Ms. Openshaw's residence in Mackenzie. She feared he was suicidal and sought police assistance to safely apprehend her brother.

[ 23 ] Constable Hawco saw the stolen Ford F350 on Highway 97 near 42 Mile Creek, around 75 kilometres from Mackenzie. As the vehicle passed by his radar, it slowed down. He could see Mr. Zaworski's spouse, Jessica Epp, driving the stolen vehicle with a male passenger, who is admitted to be Mr. Zaworski. [ 24 ] Constable Hawco lost sight of the vehicle for around five minutes and did a U turn, and carried on with the intention of conducting a traffic stop.

He caught up to the vehicle and regained sight of it at McLeod Lake, which is around 46 kilometres from Mackenzie. [ 25 ] Meanwhile, Constable Grierson had been heading southbound from Mackenzie to intercept the vehicle. As he encountered the vehicle at McLeod Lake, he activated his lights to conduct a traffic stop, as did Constable Hawco in his vehicle heading northbound. It is admitted that, by this point, Mr. Zaworski was driving the stolen truck. [ 26 ] Mr. Zaworski proceeded to engage in a high risk flight from police.

He pulled out and passed a logging truck that was in front of him and sped off northbound towards Mackenzie, while police followed with lights and sirens, and his spouse in the passenger seat. [ 27 ] Constable S.P. set up a spike belt 10 kilometres to the north to intercept Mr. Zaworski. Upon confirming no other traffic was present he employed the spike belt as Mr. Zaworski approached. Mr. Zaworski tried to drive around the belt but still clipped the tires on the front and rear of the passenger side of the vehicle as he went by. [ 28 ] Ms.

Zaworski did not stop, but continued to flee with both tires on the passenger side of the truck deflated. He drove into the oncoming lane of traffic forcing vehicles onto the shoulder of the road to avoid a collision. As Constable Hawco pursued Mr. Zaworski threw items out of the truck window, such as a wrench. [ 29 ] Mr. Zaworski continued to flee to Trench Road where road construction personnel were working on the Parsnip Bridge. He drove on the shoulder of the highway, into the ditch area, and onto his mother's property with the police still in pursuit. [ 30 ] Mr.

Zaworski ran into his mother's residence with Constable Hawco in hot pursuit. Mr. Zaworski's mother, Cynthia Openshaw, is a strong advocate for Mr. Zaworski. Constable Hawco kicked in the door and followed Mr. Zaworski into the residence. He was confronted by Ms. Openshaw, who tried to prevent Constable Hawco from apprehending Mr. Zaworski by attempting to push the officer out of the house. Ms. Openshaw had to be taken to the ground and subdued by police as Mr. Zaworski continued into the back of the residence. During this struggle Ms. Openshaw attempted to grab Constable S.P.'s carbine rifle.

She grabbed the barrel with one hand and the trigger with the other hand, and at one point she released the magazine from the rifle. [ 31 ] Meanwhile, Constable Hawco was standing up against a wall in a hallway with his firearm pointed at Mr. Zaworski issuing commands in an effect to attempt an arrest. Mr. Zaworski did not comply with any of those commands. He picked up a hammer and threw it at Constable S.P. and struck him directly in the forehead. This stunned Constable S.P. and caused him so much pain he felt he was on the verge of passing out. [ 32 ] Constable S.P. was able to recover the magazine Ms.

Openshaw had taken out of his carbine and chased Mr. Zaworski down the hallway further into the residence. As he did, Ms. Openshaw grabbed at his leg to prevent him from arresting Mr. Zaworski. He had to kick her off to free himself. [ 33 ] Mr. Zaworski was ultimately discovered hiding behind a couch. He was ordered out at gunpoint, and only became compliant with demands when police produced a taser. [ 34 ] The truck driven by Mr. Zaworski had been stolen from the Lower Mainland five days earlier, on November 5.

While it was in mint condition at the time of the theft, valued at $20,000 to $25,000, it was significantly damaged when returned to the lawful owner. The fuse box had been ripped apart, and there had been body damage when Mr. Zaworski crashed into a trailer at his mother's residence. [ 35 ] Mr. Zaworski pled guilty to assaulting Constable S.P. with a weapon. In his presentence report, Mr. Zaworski attempted to resile from that plea by claiming he was not attempting to hit the officer with the hammer and had only done so by accident. Mr.

Zaworski told the author of the psychiatric report that he did not intend to throw the hammer at the officer, he threw the hammer at a light fixture and it got "hung up" there. [ 36 ] When this issue was raised at sentencing, defence counsel stated that Mr. Zaworski was pleading guilty to being "reckless" as to whether or not the hammer he threw might hit the officer, but that hitting the officer was not his intention. As a result, a Gardiner hearing had to be conducted to determine whether Mr.

Zaworski was or was not aiming for Constable S.P. when he threw the hammer at him. [ 37 ] Constable Hawco testified while, as I observed, Mr. Zaworski glared at him from the dock. He said that when he entered the residence, Mr. Zaworski was at the end of the hallway, yelling at him to "fuck off" and get out of his house. Ms. Openshaw then grabbed Constable Hawco's arms and told him to get out of her house and put his gun away. Constable Hawco threw her to the ground, and Constable S.P. then attempted to subdue her. [ 38 ] Constable Hawco yelled at Mr. Zaworski to put his hands up.

Constable S.P. was struggling with Ms. Openshaw in a position almost parallel to Constable Hawco. Mr. Zaworski had a hammer in his right hand, which he had picked up off the kitchen counter. He assumed a bladed stance, drew back the hammer, and threw it directly at the officers, striking Constable S.P. in the forehead. Constable S.P. was struggling with Ms. Openshaw and not looking at Mr. Zaworski when he threw the hammer. Constable Hawco yelled "heads up", and Constable S.P. turned his head at the moment of impact. No evidence was adduced by Mr.

Zaworski about this incident, other than what he told the author of the presentence report and psychiatric report. [ 39 ] The onus is on the Crown to prove an aggravating factor beyond a reasonable doubt. I am so satisfied, based on the evidence of Constable Hawco. Constable Hawco had continuous visual contact of Mr. Zaworski from the moment he drew back the hammer to the moment it hit Constable S.P. He was vigorously cross examined about the possibility the hammer was thrown at a wall or light fixture

and only hit Constable S.P. in the course of being ricocheted, but that was refuted by Constable Hawco. [ 40 ] The scenario argued by Mr. Zaworski defies the laws of physics and common sense. He argues the hammer hit the wall perpendicular to Constable S.P., ricocheted, and struck him in the forehead. Based on the layout of the officer's positioning, this would require the hammer being thrown down the hallway with great forward momentum, hit the wall, lose all forward momentum, change course nearly 90 degrees, then fly sideways to hit Constable S.P. in the head. I find that scenario most unlikely.

It also seems unlikely that Mr. Zaworski, after a prolonged flight from police and dramatic entry into his mother's residence, where he was angry and yelling at police officers and observing an officer struggling with his mother on the ground in front of him, picked up a hammer because he intended to benignly throw it at a wall or a light fixture. [ 41 ] I am satisfied beyond a reasonable doubt that Mr. Zaworski deliberately threw the hammer at Constable S.P. Victim impact [ 42 ] Constable S.P. had black eyes as a result of being hit in the head with a hammer, and possibly a mild concussion.

For six months following the incident, he experienced PTSD symptoms such as flashbacks, nightmares, and hypervigilance, and consulted a psychiatrist. He believes the injury could have been worse but for the folded up toque he was wearing which cushioned some of the blow of the hammer. This incident negatively impacted all members of the small Mackenzie police detachment, and reminded them of the dangers peace officers face trying to carry out their duties to protect the public. Background [ 43 ] A presentence report, Gladue report, and psychiatric report were all prepared for Mr.

Zaworski to assist in sentencing. [ 44 ] Mr. Zaworski is 40 years old. He told the author of the PSR that he had learning and social difficulties in school, began using marihuana, and was finally expelled in Grade 10. He told Dr. Ballance, the author of the forensic psychiatric assessment, that he had a Grade 9 education and left school at age 15 to work in the family business. He has eight children by three different mothers, including with his current partner, Ms. Epp. [ 45 ] Mr.

Zaworski believes he has FASD arising from his mother's consumption of alcohol during pregnancy, although this diagnosis is not confirmed and was not mentioned in Dr. Ballance's report. Mr. Zaworski was diagnosed as an adult with ADHD at age 35 and is medicated for that condition. [ 46 ] Mr. Zaworski was raised by his mother and maternal grandparents and moved often as a child due to his mother's employment. He says he witnessed domestic violence as a child and was sexually abused at age nine by a female cousin, and again between the ages of 10 and 12 by his stepfather.

He began exhibiting behavioural problems that led to his first incarceration at age 18, where he says he was sexually assaulted in prison. Mr. Zaworski says he never disclosed these abuses until he was in his thirties and wishes to address the post-traumatic effects from these incidents through programming. He also claims to have PTSD from his prior confrontations with police officers during his arrests. He admits he has "trust issues" with authority figures. [ 47 ] Mr. Zaworski has serious substance abuse issues. At age 17, he began a relationship with his cousin which produced four children. Both Mr.

Zaworski and his partner abused substances. In 2006, Mr. Zaworski engaged in criminal activity which resulted in the death of his then girlfriend, for which he was sentenced to 10 years in jail. He was paroled in 2009, but continued to be in and out of jail during his period of parole supervision. Mr. Zaworski was married after his release and had a child, but his wife divorced him due to his ongoing substance abuse and he has restricted contact with their child. [ 48 ] Mr. Zaworski is currently married to Jessica Epp with whom he has two children.

He met her while serving the federal sentence for his prior girlfriend's death in an institution where she was the corrections officer. She is addicted to methamphetamine and is currently in recovery. After Mr. Zaworski's release on parole in 2017, he relapsed into substance abuse and his children were taken into the care of the Ministry, although the children are now back with Ms. Epp. His mother and Ms. Epp observed Mr. Zaworski to exhibit signs of paranoia and insomnia and suicidal ideation leading up to his arrest in December 2018. [ 49 ] Mr.

Zaworski says he abuses substances to cope with the abuse and trauma he experienced in his youth. After his incarceration at age 18, he started using crack and methamphetamine, and he admits he has spent most of his life getting high to hide from his negative emotions. Mr. Zaworski completed substance abuse programs in 2009 and in 2012, but has continued to abuse drugs. He claims to have not used drugs while incarcerated since December 2018, and has attended relapse prevention programming while on remand. [ 50 ] Mr. Zaworski has a lengthy and serious criminal record.

Over the last 20 years, he has accumulated 21 convictions and spent considerable time in jail. He has four convictions for breaking and entering, two for breaches of court orders, two for being unlawfully at large, three for fraud, and three for possession of stolen property. He has convictions for failing to appear, dangerous driving, theft, assault with a weapon, assault causing bodily harm, flight from police causing death, flight from police causing bodily harm, as well as two convictions for driving while disqualified. [ 51 ] The author of the PSR notes Mr.

Zaworski has been compliant "lately" while on remand, but historically has a history of non- compliance with community supervision and court imposed orders. He has a history of committing new offences while on release or probation for other offences. He was on judicial interim release at the time of these offences. Mr. Zaworski attributes his non-compliance and re offending to his substance abuse and mental health issues. [ 52 ] Mr. Zaworski's criminal history includes convictions for the same conduct for which he is being sentenced today, only with fatal consequences. In October 2006, Mr.

Zaworski engaged in a high speed chase with police in a stolen vehicle in Alberta, with his girlfriend in the passenger seat. When speeds reached 160 kilometres police halted pursuit, but Mr. Zaworski crashed the vehicle a kilometre down the road. In the course of doing so he struck another vehicle or forced it off the road. That vehicle caught fire. Fortunately, police arrived in time to drag the innocent incapacitated driver of that vehicle from his burning car. Mr. Zaworski's vehicle ended up in the ditch. He was unharmed, but his girlfriend suffered severe head trauma and was killed instantly. Mr.

Zaworski attributes

this tragedy to his abuse of cocaine at the time. [ 53 ] In 2007, Mr. Zaworski was sentenced to 10 years' jail for flight from police causing death, flight causing bodily harm, possession of stolen property, and driving while disqualified. While serving his sentence, he met Ms. Epp. He was released in 2016 with ankle monitoring, but breached parole. He returned to abusing methamphetamines upon his release. [ 54 ] Mr. Zaworski was arrested on December 4, 2018, and detained in custody following a bail hearing on February 13, 2019. While in remand, Mr. Zaworski has engaged in programing.

He resides in the Right Living Unit at PGRCC, and has completing modules in Essential Skills to Success and Living Without Violence. Most of his progress has been made after May 2019. [ 55 ] Mr. Zaworski told the author of the PSR with respect to file 9013 that he did not engage in a high speed chase with police in December 2018. He attributed his behaviour to being in a "state of psychosis" from being "sleep deprived", although I take his guilty plea to be an admission he was not in a psychotic state such that he was not criminally responsible for his actions.

He admitted to the author of the Gladue report that he had to "detox" upon coming into custody, from which I infer the mental health issues he attributes to his commission of the offences were drug induced. [ 56 ] Mr. Zaworski says he evaded police only because he wanted to get to the safety of his mother's residence so there would be a witness to his arrest. [ 57 ] With respect to File 9011, possession of the stolen vehicles, Mr. Zaworski told the author of the PSR he was under the influence of methamphetamine at the time of the offences and suffering from financial pressures. He expressed remorse to Dr.

Ballance, claiming he is "not a violent person", and admitted historically he did not consider the impact of his actions on others. [ 58 ] Dr. Ballance assessed Mr. Zaworski for risk of future violence. She diagnosed him as possessing a methamphetamine use disorder in early remission in a controlled , and I emphasize controlled , environment. She concluded he was at risk to re-offend. She says: The most likely scenario would be that Mr. Zaworski relapses into drug use. He would then continue to steal vehicles to make money and continue to flee from the RCMP when they attempt to arrest or even question him.

When he steals a vehicle and attempts to evade capture, he drives dangerously and in his intoxicated state disregards the safety of others. The worst possible scenario would be that he harms someone accidentally during a high speed chase. This previously occurred when he killed a passenger in his vehicle as a result of crashing it while he was intoxicated and trying to evade the police. [ 59 ] Dr. Ballance said the "best case" scenario is Mr. Zaworski builds on the steps he has taken, maintains sobriety, and learns new skills to better cope with future stressors. She recommends that upon release Mr.

Zaworski follow through with his cultural specific treatment programming and find employment to add structure and financial benefit to his life. [ 60 ] Mr. Zaworski provided information about his personal circumstances leading up to the offence. Upon being released, he planned to start his own business and had purchased a vehicle for that purpose, but it burned and he did not have insurance. Mr. Zaworski also has a debt of $233,000 in unpaid child support dating back to 2004.

Because of this, his driver's licence was withheld, his bank account was frozen, and his wages were garnished by the Family Maintenance Enforcement Program. His child support debt is still unresolved. He says he was left in a position where he was destitute. He and Ms. Epp did not qualify for social assistance due to the value of family assets owned by the couple. [ 61 ] Mr. Zaworski also has a civil judgment against him from Alberta in the amount of $300,000, arising from his role in the 2006 driving offences that lead to the death of his former girlfriend. [ 62 ] Mr.

Zaworski says that due to these circumstances he and Ms. Epp were homeless and could not care for their two children. He was also unable to obtain medication for ADHD because he had no family doctor and could not procure a prescription. Mr. Zaworski says he attempted to commit suicide twice after his release. [ 63 ] Mr. Zaworski says his time on remand has enabled him to see the error of his ways, and he acknowledges his actions negatively affect the lives of his victims. He says he is "now ready to change" his old thought patterns and find "new tools" to cope with his mental health issues and life's stressors.

He told Dr. Ballance, the author of the psychiatric report, that he is now "passionate about his sobriety" and he sees the need for ongoing addictions treatment. He plans to move to Chilliwack and live with Ms. Epp, and connect with the Sto:lo health services to continue his addictions treatment. [ 64 ] While on remand, Mr. Zaworski has been on the Right Living Unit which requires offenders abide by schedules, meetings, sobriety, and participate in prosocial work and related functions.

The author of the Gladue report confirmed receipt of letters of support from counsellors and indigenous liaison officers stemming from their work with Mr. Zaworski at PGRCC and his expression of commitment to rehabilitation. Letters of support from the indigenous liaison officer and reintegration worker were also provided to the court. Mr. Zaworski also intends to access services for male survivors of sexual abuse. [ 65 ] Upon release, Mr. Zaworski plans to reunite with Ms. Epp and access services through the Sto:lo First Nation health services and justice programs in the Lower Mainland.

He plans to do further screening to see if he has FASD. He intends to work with a bankruptcy trustee to address his debts, and deal with his child support arrears through FMEP. He also intends to work with aboriginal employment organizations to obtain trades training to improve his employment prospects. [ 66 ] Mr. Zaworski apologized to the Mackenzie RCMP for his actions. He says he is now "clean" for the first time in his life and has many tools to assist him once released, including his family support network and counselling programs.

He has worked his way up in the Right Living Unit to being a team leader, and he has received praise from employees at the jail. He wishes to be a good father and continue his sobriety. Mr. Zaworski claims to have completed numerous employment certificates while in custody and that he has experience in numerous construction and forestry related fields. His partner, Ms. Epp, says she will financially support Mr. Zaworski upon his release to help him adjust to community life and to stabilize.

Issues [67] This sentencing proceeding raises the following issues: 1) What are the applicable principles of sentencing? 2) How does Mr. Zaworski's identification as an aboriginal offender impact the sentencing process? 3) What is the appropriate range of sentence for this type of offence? 4) What are the relevant aggravating and mitigating factors? 5) What is a fit and appropriate sentencing for Mr. Zaworski in all of the circumstances?

Issue 1: Principles of Sentencing [68] The principles of sentencing are set out at s. 718 of the Criminal Code, which says: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for thelaw and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

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. [69] Pursuant to s. 718.02, when a court imposes a sentence for an offence under s. 270.01, assaulting a peace officer, it shall giveprimary consideration to the objectives of denunciation and deterrence. A sentence must be proportionate to the gravity of the offenceand the degree of responsibility of the offender: s. 718.1. A sentence should be similar to sentences imposed on similar offenders forsimilar offences committed in similar circumstances: s. 718.2.

Principles Particular to Aboriginal Offenders [70] Mr. Zaworski identifies as indigenous through his father's side. His mother is of Polish descent. Growing up, Mr. Zaworski wasraised by his mother and her parents in their traditions and had no connection to his indigenous heritage. His father was not part of his lifeuntil he was an older teenager. He has started participating in indigenous culturally based programming while in custody. [71]

Section 718.1(

e) of the Code mandates that all available sanctions, other than imprisonment, that are reasonable in thecircumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particularattention to the circumstances of aboriginal offenders. The process for sentencing aboriginal offenders was articulated by the SupremeCourt in the seminal cases of R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, and restated in R. v.

Ipeelee, 2012 SCC 13. [72] As explained by Justice LeBel in Ipeelee, the law requires that a sentencing judge engage a different process for arriving at a fitsentence where the offender is aboriginal, not necessarily impose a different sentence.

Section 718.2(

e) of the Criminal Code does notrequire an automatic reduction of a sentence or warranted period of incarceration simply because the offender is aboriginal: Ipeelee atparagraph 71. Rather, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schoolsand how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates ofsubstance abuse and suicide, and of course higher levels of incarceration for aboriginal peoples.

These matters, on their own, do notnecessarily justify a different sentence for aboriginal offenders. Rather, they provide the necessary context for understanding andevaluating the case-specific information presented by counsel: R. v. Ipeelee, paragraph 60. [73] Gladue directs sentencing judges to consider: 1) the unique systemic and background factors which may have played a

part in bringing the particular aboriginal offender beforethe courts; and 2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of hisor her particular aboriginal heritage or connection. [74] Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence: Ipeelee at paragraph 72. Systemicand background factors are relevant to the extent that they may bear on the moral culpability of the accused, while the types ofappropriate sanctions may be relevant to the effectiveness of a proposed sentence. The seriousness of the offence itself does not relievethe court of its duty to consider s. 718.1(

e) of the Code when sentencing an aboriginal offender. [75] A Gladue report was prepared for Mr. Zaworski. He never met his father until he was 15 years old. Growing up, he lived withhis mother in off-reserve communities. He has three maternal half-sisters and seven paternal half-siblings. [76] Mr. Zaworski's father reported his own mother was Caucasian and his father was from the Nadleh Whut'en First Nation. His

own father, Mr. Zaworski's grandfather, attended Lejac residential school. Mr. Zaworski's father lived with his Caucasian mother in Vancouver until he moved to Fraser Lake to live with his father on the Nautley Reserve at the age of 12, where he remains to this day. He met Ms. Openshaw when she was 16 years old and he was 21. They lived together on the Nautley Reserve for four years and broke up shortly before Mr. Zaworski was born. Ms. Openshaw moved away with Mr. Zaworski and Mr. Zaworski's father was absent from his life. [ 77 ] Mr. Zaworski's father reports first meeting Mr.

Zaworski at a music festival when Mr. Zaworski was 15 years old. He describes his son as "good hearted", but complains his son has stolen from him and lot of other people to support his addictions. [ 78 ] Mr. Zaworski's mother, Cynthia Openshaw, told the author of the Gladue report that she drank heavily during her pregnancy. She recalls living with Mr. Zaworski's father on the Nautley Reserve in an environment of alcohol abuse, violence, and sexual abuse. After Mr. Zaworski was born, she lived with her parents in Fort Fraser, then Anahim Lake. She recalled that, growing up, Mr.

Zaworski was bullied by both Caucasian and indigenous children because of his mixed heritage and he struggled to fit in. He also had learning disabilities and was abused by the dysfunctional men Ms. Openshaw dated. [ 79 ] Mr. Zaworski told the author of the Gladue report that his childhood memories were of his mother and her boyfriends getting into drunken arguments that culminated in violence against him and his mother. At age eight, his mother commenced a relationship with a man who sexually abused Mr. Zaworski and his sisters for four years.

His sister complained to police, but he did not support her evidence and the perpetrator was acquitted. Mr. Zaworski's mother's family expressed racist comments about indigenous persons which he internalized as a child. [ 80 ] Mr. Zaworski started to abuse alcohol and manifest behavioural problems, leading to his temporarily being cared for by family members at the age of 13. He says while residing with that family he was sexually abused by their 17 year old daughter. [ 81 ] At age 15, Mr. Zaworski commenced a relationship with a woman from Nautley which produced four children.

He eventually went to live with her on the Nautley Reserve. There was a lot of addiction and violence in the relationship, which ended in 2004, and a restraining order was imposed against Mr. Zaworski. He says after this his life and drinking spiralled out of control as he started going in and out of jail. He had no contact with his children for the next 13 years. [ 82 ] At age 18, he was sexually assaulted by his paternal cousin and cellmate while on remand at PGRCC.

He was released on parole in 2009, following his conviction for flight from police causing death, during which time he met the mother of one of his children. He relapsed on drugs and returned to jail, his spouse divorced him, and he has had no contact with their child since 2016. [ 83 ] Mr. Zaworski commenced a relationship with Ms. Epp, who has two daughters from a previous relationship, in 2015 while she was working at the correctional institution as an aboriginal liaison officer. Their relationship was not supported by the institution and she quit her job in November 2016. Mr.

Zaworski was released after warrant expiry in October 2017. [ 84 ] Despite not being raised by indigenous caregivers or growing up in a First Nations community, some of the social and personal factors identified by the Supreme Court as contributing to the high incarceration rates for indigenous offenders are present in this case. Mr. Zaworski suffered from a fractured family and lack of stability occasioned by his mother's poverty, which required to her to move around a lot to find work. He endured racism and loss of cultural identity.

There was domestic violence and substance in his home, and he suffered childhood sexual abuse. [ 85 ] Many of the members of Nadleh Whut'en First Nation attended the Lejac Residential School, which was notorious in its ill- treatment of students and contributed to the rampant substance abuse, violence, trauma, and familial dysfunction suffered by Nadleh Whut'en people, which continues to afflict that community. [ 86 ] Mr. Zaworski did not grow up Nautley, but did move there as a much older teen to live with his spouse.

While there, he was exposed to the substance abuse, poverty, high unemployment, and the violence endemic in that community. Mr. Zaworski has little connection to his cultural traditions and ancestral community and feels he was the child of two worlds, not really fitting into or being fully accepted by the Caucasian or indigenous community. [ 87 ] While Mr. Zaworski's childhood and personal background are not as tragic as those contemplated in Gladue and Ipeelee , I find Mr.

Zaworski's childhood alienation from his father, alienation from his culture, and loss of identity relevant in assessing his moral culpability. I further consider his experiences of witnessing domestic violence as a child, sexual abuse, and exposure to alcohol in utero also relevant, although these childhood experiences do not strictly arise from his background as an indigenous person. [ 88 ] Alternative sanctions related to Mr. Zaworski's indigenous identity are not appropriate in this case and no culturally specific sentence has been proposed for Mr.

Zaworski, other than he intends to connect with the Sto:lo indigenous health services and justice program upon his release in the Lower Mainland. This is more properly characterized as a rehabilitation plan, as opposed to an alternative justice plan, as it does not involve a formal process by which an offender is required to participate in a culturally based proceeding in which he is sanctioned and held accountable to his community. Mr. Zaworski does not appear to have reached out to his band, the Nadleh Whut'en, in this process. Range and principles of sentence – dangerous driving and flight [ 89 ] In R. v.

Briet , 2018 BCSC 1576 , the accused, who was a prohibited driver, took a vehicle without the owner's permission and engaged the police in a high speed chase after being caught attempting to break into a property. The accused collided with a police vehicle and carried on, eventually being subdued by the deployment of a spike belt. No one was injured. The accused had been sexually victimized as a child, lost an eye in a childhood accident, and lost his best friend in a car accident at age 18 for which he was responsible. He suffered from ADHD and FASD, but did not have any substance addictions.

He had six prior convictions for dangerous driving, two for causing bodily harm, and one for causing death. However, he had only been convicted of four of those offences at the time the index offence was committed. He also had convictions for flight from police, property offences, and one unlawful entry to a dwelling house. The accused had lived successfully in the community for a year preceding sentencing and had made great gains in his thought patterns

during that time. The justice remarked at paragraphs 38-39: [38] I have given consideration to Mr. Briet’s rehabilitation efforts. I agree with him, he might make better progress in the community where he is able to maintain those relationships of trust. Jail will expose him to the criminal element and could pull him back into criminality. I truly hope that that does not happen and that he continues with the therapy he started when he was in jail in 2017. [39] On these facts, I must give lesser emphasis to Mr.

Briet’s rehabilitation, given his criminal record and past opportunity for assistance through treatment and counselling with which he had not followed through. He has apparently gained some recent insight into his prior offending patterns. These are early days after a criminal history that spans 23 years. People can change, and I am forever hopeful that they do. But of course, actions do speak louder than words. Mr.

Briet is to be commended for not getting in trouble for the last 11 months, but I would certainly need to see a much longer pattern of pro-social behaviour than 11 months to emphasize rehabilitation. [ 90 ] The defence sought a conditional sentence order. The accused had multiple convictions for driving disqualified and was disqualified at the time of the offence. The justice imposed two years' jail on that count, one year for dangerous driving to be served consecutively, and six months' jail for flight from police to be served concurrently.

The total sentence for the driving offences was 3.5 years' jail. [ 91 ] In R. v. I.J.W.C. , 2008 BCCA 373 , the 18 year old accused led police on a high speed chase while driving a stolen SUV. He rammed a police car blockade and accelerated to ram the police car again with the officer pinned inside. The officer responded by firing his weapon and inadvertently striking and killing the accused's passenger.

The accused pled guilty and was sentenced to a total of six years' jail: one year for possession of the stolen vehicle, two years for dangerous driving, two years for flight from police, and three years for two counts of assaulting peace officers with a weapon, namely the SUV. [ 92 ] The court upheld the six year sentence imposed by the trial judge. He had a troubled childhood and grew up in foster care. He had a lengthy youth record which included convictions for stolen vehicles and police pursuits. He stole vehicles in order to pay for a methamphetamine habit.

The court affirmed it was appropriate to sentence the accused to consecutive sentences for possession of the stolen vehicle, flight related conduct, and using the vehicle as a weapon against the officers, and that this did not offend the principle of totality. Notwithstanding the youth of the accused the court affirmed that "protection of the public had to be the dominant sentencing factor" in that case, saying at paragraph 25: [25] I am unable to find any error in the approach taken by the sentencing judge, or that the sentence she imposed is unreasonable.

Without question, protection of the public has to be the dominant sentencing factor in this case. As well, considerable weight has to be given to deterrence and denunciation. Those who pursue a lifestyle in which stealing vehicles, engaging in high speed chases, and putting the lives of others at risk is considered some form of sport, need to know that when they are apprehended and convicted, they will be punished severely. [ 93 ] In R. v. Lorenzetto , 2002 BCPC 582 , the accused had consumed drugs and fled from police in circumstances where the rubber had "burned off his tire".

He chased other people off the road with his reckless driving. The accused had a criminal record for many property offences and break and enters. The accused sought a conditional sentence order, however, Judge Point declined to impose a CSO on the basis that it was contrary to the public interest. He instead sentenced the offender to 12 months' jail for dangerous driving, three months for flight from police, and three months for possession of a stolen vehicle. I consider Ms. Zaworski's criminal history to be more aggravating than the offender's in Lorenzetto . [ 94 ] In R. v.

Cox , 2006 BCCA 112 , the accused had plead guilty to 13 offences. In 2005, over the course of five months, he was repeatedly before the court for property offences and breaches. On the last incident he was driving a pickup without a licence plate when police attempted to effect a traffic stop. The accused engaged police on a chase through several streets in Chilliwack, including driving over medians, driving up embankments, and jumping out of the moving car in a parking lot. He then stole a vehicle from its owner in the parking lot and continued the chase.

He rammed a police car blocking his escape and damaged four vehicles before hitting one on the overpass. He then fled on foot. He was eventually caught and arrested. [ 95 ] For the offences of breach of bail, dangerous driving, flight from police, theft of the vehicle, failing to remain at the scene of an accident, and assaulting a police officer by ramming his vehicle, the offender was sentenced to 32 months' jail, a three year driving prohibition under the Criminal Code , a 10 year prohibition under the Motor Vehicle Act , and restitution in the amount of $5,800.

He was sentenced to an additional 12 months for the property offences and breaches preceding that event. He appealed against sentence. The offender had a minimal dated criminal record for causing a disturbance and possession of a narcotic, and one recent conviction for possession of stolen property. He had incurred 26 Motor Vehicle Act infractions in the preceding four years. He was 44 years old and had led a prosocial life until five years earlier when his offending started commensurate with his introduction to drug use.

In upholding the 32 month sentence of the trial judge, the Court of Appeal said at paragraph 16: [16] The trial judge was aware that Mr. Cox’s circumstances were unusual in that he had not turned to serious crime until his mid- forties. He also recognized the value of the guilty plea as a step in Mr. Cox’s rehabilitation. However, in sentencing Mr.

Cox, the trial judge had to take into account the number of offences, the persistence of the offender, the fact that some of the offences were committed while he was on bail awaiting trial, and the danger and harm to which the offender recklessly subjected the public in his misadventures. [ 96 ] In this case, Mr. Zaworski does not have the benefit of the mitigating factor of previously generally leading a prosocial life and has a significantly more serious criminal record than the offender in Cox . [ 97 ] In R. v.

De Souza , 2011 ABCA 220 , the accused was sentenced to six months for dangerous driving and eight months consecutively for flight from police. The Court of Appeal affirmed its direction that sentences imposed for flight from police should normally be consecutive to sentences for the substantive offences for which the offender sought to avoid apprehension. The court observed a concurrent sentence may be available where there is an overlap in the actus reus of the dangerous driving and criminal flight offences, but it is not an error in principle to impose consecutive sentences.

Applying those principles to this case, at the very least, the sentence for the driving offences ought to be consecutive to the sentence for the possession of the stolen truck which preceded the

impugned driving. [ 98 ] In R. v. McNulty , 2017 BCCA 270 , the accused was sentenced to 20 months' jail for dangerous driving, flight from police, and possession of stolen property. Unlike Mr. Zaworski, her criminal offending was relatively recent, having only commenced 18 months prior in her early thirties. The accused took an acquaintance's car without his permission then fled an attempted police stop. During chase she drove at a high rate of speed, ran stop signs, and swiped other vehicles over the course of 50 kilometres.

The offender was indigenous but lost her connection to her culture as a result of her father being adopted to a Caucasian family at a young age. She suffered from a drug addiction and had remained sober while on remand. The Court of Appeal allowed the admission of a Gladue report prepared for the appellant but nonetheless affirmed the 20 month sentence imposed by the trial judge, noting that in dangerous driving cases general deterrence is an important factor because of the danger caused to the entire community, as this kind of offence impacts the community as a whole.

Range and principles of sentence for assaulting a peace officer [ 99 ] In R. v. Leclerc , 2017 BCCA 228 , the Court of Appeal acknowledged that the range of sentence for a violent assault on a police officer is one to five years' jail: paragraph 48. [ 100 ] In R. v. Chaston , 2017 BCCA 430 , the Court of Appeal confirmed primary consideration shall be given to the objectives of denunciation and deterrence in cases involving assaults on police officers, as set out in s. 718.02 of the Criminal Code .

In that case, the appellant had pepper sprayed a police dog and the police dog handler when the officer attempted to arrest him. Similar to the case at bar, in Chaston , the appellant argued that his five month stint of sobriety at VisionQuest warranted a more lenient sentence and emphasis on the principle of rehabilitation, as this represented a break in his longstanding addiction and criminal behaviour.

In response to that submission, the court said at paragraphs 32 to 38: [32] As the Crown submits, in some circumstances it may be appropriate for a sentencing judge to “attempt to break the chain of escalating sentences” and give primacy to rehabilitation of the offender. This should only be done when the protection of the public will not be compromised: R. v. Kopmann . . . [33] The offence of assaulting a police officer with a weapon while the officer is in the execution of his duty gives rise to serious concerns for the protection of the public.

Thus, I cannot accede to the position that a suspended sentence is fit in this case for that offence. [34] The role of police officers is to protect the public. The officer was engaged in this very role when called to the break and enter committed by Mr. Chaston. Police officers are routinely required to place themselves in danger and to take serious risks to keep the public safe. Police officers hold a position of trust and high regard in the community.

Their serious function and vulnerability must be recognized by the courts so those who cause them harm are held accountable with severe sentences. [35] I do not consider this case as one that justifies giving primacy to rehabilitation over deterrence and protection of the public. Parliament has statutorily recognized that assault of a police officer is an aggravating factor for which “the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence” ( Criminal Code , s. 718.02 ). [36] Nor was this Mr.

Chaston’s first offence against a peace officer: he was convicted of obstruction of a peace officer in January 2007, and of flight while pursued by a peace officer in June 2005. Mr. Chaston has been favoured many times with the leniency of conditional sentences or probation to acknowledge his repeated attempts to address his addiction. He has also breached those court orders many times. Such offences are serious: court orders are the means by which our society maintains the Rule of Law. [37] As is often said, the cases are helpful for their general principles and as suggesting a range of sentence.

As this Court stated in Leclerc (at para. 48 ), a wide variety of circumstances falls within the general broad description of the offence of assaulting a police officer using a weapon. A sentence of incarceration is required in this case but it must take into account the apparent benefits from Mr. Chaston’s almost five months at VisionQuest addressing his addiction. Incarceration now need not interfere with Mr. Chaston’s rehabilitation.

Instead, he can continue to pursue treatment through programming in the provincial corrections system. [38] Violations against police officers are unacceptable and must be denounced. [ 101 ] The court stated that the circumstances of the assault of a police officer with a weapon would justify a 12 month sentence "at the lower end of a fit sentence", but reduced that by two months to reflect the offender's immediate apology as reinforced by the very significant efforts at rehabilitation. Mr.

Zaworski has expressed an apology to the Mackenzie police officers, but simultaneously has attempted to minimize responsibility for his actions by claiming he did not intend to throw the hammer at the officer. [ 102 ] In Leclerc , the Crown appealed against conditional sentences imposed on two offenders who assaulted a police officer during a traffic stop. The officer sustained a concussion which caused him to be off work for one month. The accuseds had no criminal records and were otherwise of good character.

The Court of Appeal found the conditional sentences to be demonstrably unfit and imposed sentences of 12 and 15 months' jail. The court emphasized that the primary consideration in sentencing for assaults on police officers is denunciation and deterrence, and that while there is no presumption against the imposition of a conditional sentence order for this offence, and there were a few cases with unique circumstances in which such sentences were imposed, the principles of parity will typically result in sentences of incarceration.

As a "general proposition", the violent assault of a police officer will lead to terms of imprisonment in all but exceptional circumstances: paragraph 29. The court stated at paragraph 27: [27] I take Pontcorvo and Marsman as correctly recognizing that police officers hold positions for the protection of the public and are exposed to frequent and significant dangers in the course of their work. By s. 718.02 it is announced to the world what we may have long recognized, that offences against police officers are considered particularly egregious offences against the community itself. In R. v. Nielsen . . . Mr.

Justice Wallace approved this approach by the sentencing judge in that case:

. . . he considered it necessary that the sentence convey a message, to those who might be inclined to break the law and cause officers injury, that the courts will unquestionably protect officers acting properly in the course of their duty. [ 103 ] In R. v. Schur , 2015 BCSC 1406 , the accused struggled with the officer during his arrest and pepper sprayed the officer in the face. Another perpetrator struck the officer once in the back. The officer was off work for a month and required multiple treatments to remove the noxious spray from his eyes.

The accused had a troubled childhood, was subjected to alcohol and physical abuse in the home, and was in foster care for four years. He became addicted to methamphetamines in his twenties and had attended treatment four times without lasting success. He had a criminal record for property crimes and breaches of court orders and a weapons offence. He was on bail for a conditional sentence order breach at the time of the offence.

The trial judge held that the range of sentence in the circumstances of the offence before him was nine to 18 months' jail, concluding that in cases of violent assaults on police officers, a substantial term of imprisonment is usually necessary, though much turns on the nature of the assault and weapon used: paragraph 60. The judge found that pepper spray, while noxious, is not a potentially deadly weapon like a gun or knife, and found the accused's expression of remorse and desire to turn his life around to be "sincere".

Justice Blok found a sentence of 14 months' jail would have been appropriate for that offence, but reduced it to 12 months to reflect the totality principle in light of that sentence being imposed consecutively to a 12 month sentence for break and enter. Mitigating and aggravating factors [ 104 ] As set out in s. 718.2 of the Criminal Code , in sentencing an offender the court must also take into account any aggravating or mitigating circumstances relating to the offence or the offender, which includes evidence that the offence had a significant impact on the victim: s. 718.1(iii.1). [ 105 ] In this case, Mr.

Zaworski's guilty plea is a mitigating factor, although the mitigating aspect of it is somewhat diminished by Mr. Zaworski's denial of intentionally throwing the hammer at Constable S.P. which necessitated the conduct of a Gardiner hearing. The court also accepts that Mr.

Zaworski's childhood and family life were impacted by some of the detrimental socio-economic factors identified by the Supreme Court in Gladue and Ipeelee , which is relevant in assessing his degree of moral culpability, including the division of his family and loss of identity associated with being separated from his indigenous culture. [ 106 ] Mr. Zaworski has also expressed remorse and a desire to change. [ 107 ] Mr. Zaworski has the support of his family, but this mitigating factor is not overwhelming, given his family was implicated in the offences to some degree. Ms. Epp is Mr.

Zaworski's partner and would presumably know whether or not he had bought a new $25,000 truck in Vancouver. She was initially driving that truck, then switched seats with Mr. Zaworski after driving by Constable Hawco, following which Mr. Zaworski proceeded to flee from police. His mother, Ms. Openshaw, behaved egregiously and dangerously when officers attempted to arrest Mr. Zaworski, obstructing them and putting everyone at risk by grabbing at the officer's gun. While Ms. Openshaw and Ms. Epp may support Mr.

Zaworski, I am not satisfied, on a balance of probabilities, the onus of which lies upon the defence, that they are supporting him solely to the extent of assisting his rehabilitation and deterring his criminal conduct. [ 108 ] Mr. Zaworski alleges he has recently been diagnosed with a brain injury, although no reliable medical records were adduced in support of that claim. Mr. Zaworski adduced a letter from Colleen Booth, a nurse from the Blue Pine Medical Clinic; however, I ascribe it little weight. On its face, Ms. Booth is relying on what Mr.

Zaworski or his family have told her, as opposed to her review of bona fide medical records. Ms. Booth offers opinions beyond her expertise without an evidentiary foundation and makes unnecessary disparaging comments about police officers. All of this undermines her credibility as an independent source of medical information about Mr. Zaworski. The Crown does not admit the alleged brain injury. I invited Mr. Zaworski to adjourn the sentencing hearing to obtain more credible medical records relating to his alleged injury, but he declined.

I find this mitigating factor has not been proven on a balance of probabilities. Mr. Zaworski thinks he may have FASD but, again, there is no independent medical evidence or diagnosis to support that assertion. [ 109 ] There are compelling aggravating factors, most particularly Mr. Zaworski's prior conviction for having engaged in similar conduct which resulted in the ultimate tragedy of the death of his passenger.

One would think that someone who had caused the death of their girlfriend on a previous occasion by engaging police in a car chase may have a glimmer of apprehension when faced with the exact same scenario. Instead, he again engaged police in flight with his girlfriend in the passenger seat. [ 110 ] The significant collision occasioned by his earlier conduct should have alerted Mr. Zaworski to the seriousness of his addictions and the potentially fatal risks associated with dangerous driving. The comments of Mr. Justice Schultes in R. v. Healey , 2014 BCSC 1645 at paragraph 27 are especially apt.

The aggravating factor is found in Mr. Zaworski's failure to heed the warning to conduct himself in a way that his tendency to abuse drugs did not present a danger to the public on the roads. [ 111 ] In addition to his prior similar conduct, the following are aggravating factors: • Mr. Zaworski has a lengthy and serious criminal record spanning 20 years for all manner of crimes – violence, property offences, driving offences, and offences against the administration of justice; • at the time of these offences Mr.

Zaworski was on bail, which included prohibitions on his being in a motor vehicle without the registered owner present; • in the course of his dangerous driving and flight from police, Mr. Zaworski put other motorists at imminent risk by driving in the oncoming lane of traffic, thereby forcing them to the shoulder of the road to avoid collision; • at the time of the offences, Mr.

Zaworski had no licence and was on orders prohibiting him from driving; • I find the flight was an attempt to evade police investigation into possession of the stolen vehicle while he was driving; • the vehicle he stole was significantly damaged as a result of the dangerous driving;

• Mr. Zaworski did not surrender peacefully, but engaged in a dramatic showdown with police in his mother's residence andhad to be taken down at gunpoint, in circumstances where his mother and stepfather were present and exposed to the high tensionsituation of being in the midst of a high risk takedown. While Ms. Openshaw certainly made her own bad choices, she was put in thatsituation because, rather than surrender himself outside, Mr. Zaworski opted to run inside her residence with police in hot pursuit; • when confronted by Mr. S. about stealing the truck and sled trailer at the general store, Mr.

Zaworski persisted in his crimeto the extent Mr. S. had to try and use force to prevent him from completing the theft; • Mr. Zaworski persists in stealing or possessing stolen Ford trucks, demonstrating a preference for a particular type ofvehicle. This suggests his crimes are not simply impulsive and opportunistic, he is choosing his quarry; • the harm suffered by the victim, Constable S.P., was significant and traumatizing; • Mr. Zaworski has a history of confrontations with police, as demonstrated by his prior convictions for obstructing a peaceofficer and flight from a police officer; and • Mr.

Zaworski is a risk to reoffend. Are there "exceptional circumstances?" [112] Mr. Zaworski says his commitment to sobriety bring him within the realm of exceptional circumstances. It is not uncommon foroffenders charged with serious crimes allegedly committed under the influence of drugs or alcohol to express their commitment tosobriety at sentencing. Mr. Zaworski says his circumstances, however, are unique because he has been on the Right Living Unit at thecorrectional centre since March. [113] Mr.

Zaworski submits his commitment to treatment amounts to "exceptional circumstances" warranting a departure from the jailterm which would otherwise be warranted in this case. "Exceptional circumstances" were considered in R. v. Voong, 2015 BCCA 285, [2015] B.C.J. No. 1335, where the Court of Appeal said: . . .

Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towardsrehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of theoffences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, theremust be circumstances that are above and beyond the norm to justify a non-custodial sentence.

There must be something that would leada sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public wassubsequently better served by a non-custodial sentence. . . [114] In Leclerc, the court found the trial judge erred in imposing a conditional sentence order for assaulting a peace officer on thegrounds of "exceptional circumstances".

The court characterized "exceptional" as follows: [30] It may be that different language such as unusual (used in Ponticorvo) or special (used in Marsman), rather than exceptional, theword chosen by the judge and not disputed on this appeal, better describes the type of circumstance relevant to this inquiry, provided weare speaking of a factor with significant heft.

Whichever word we use, these are circumstances that mitigate with particular strength, andthey are likely to be factors that relate to the moral culpability of the offender. [115] The Court found that the accused's remorse, lack of prior criminal record, family obligation, and the negative impacts of hisincarceration on his business were not exceptional, unusual, or special. [116] I view Mr. Zaworski's claims of transformation and rehabilitation with guarded optimism. His progress only seemed to gaintraction after he was detained in custody.

He had spent years in a federal institution where there is a wealth of available programming,which seemed to have no lasting ameliorative effect on his conduct once he was released into the community. He attributed much of hisoffending to being under stress – financial stress, homelessness, losing his children to MCFD. Unfortunately, stress is a normal part oflife. Mr. Zaworski has been dealing with stress for most of his life by using drugs. While he has been sober in custody, he has beeninsulated from many of life's typical stressors. Once released, Mr.

Zaworski will again be faced with the demands of finding work, ahome, paying child support, raising children, and being a husband. He says things are now different because he will be eligible to collectdisability benefits when he is released and has a lifetime prescription for his ADHD medication. Those are small fixes to only a couple ofthe issues he faced, and will likely face again, once released. [117] To date, Mr. Zaworski has not demonstrated any ability to maintain sobriety while living in the community. His record showsthat upon release he quickly relapses into drug use and criminal behaviour.

He is in an even less mitigating position than the accused inR. v. Briet, who had demonstrated 11 months of prosocial behaviour in the community at the time of sentencing, which the justice foundwas still inadequate to warrant the conditional sentence order sought by the defence. [118] I do not find Mr. Zaworski's claims of rehabilitation to be of significant force that they rise to the level of "exceptionalcircumstances". Like the offender in R. v.

Ponticorvo, cited in the aforementioned authorities, he has been to treatment before, was awarehe had relapsed, and that his criminal behaviour was escalating, as evidenced by his theft of the truck in October 2018, yet he continuedto abuse drugs and not seek any intervention before the December incident.

When he was out in the community with the opportunity topursue treatment, he did not seek it or adopt a sober lifestyle. [119] In Voong, the Court upheld the sentencing judge's findings that three of the accused convicted of low end dial a dope drugtrafficking fell within exceptional circumstances warranting non-custodial sentences. The court found two of the accused's successfullengthy periods of treatment and sobriety and subsequent employment in the community constituted exceptional circumstances.

Theother offender was of good character with no criminal record who otherwise lead a prosocial life. [120] By contrast, Mr. Zaworski has not demonstrated that he is capable of living a sober, productive, prosocial life in the community

for any sustained period. He has demonstrated that while in a controlled structured environment like jail, he is able to make gains in achieving his sobriety, education, and prosocial adaptation. [ 121 ] While I applaud Mr. Zaworski for the efforts he has made and encourage him to remain on that path, it is not a situation where an unusually lenient sentence is warranted on the grounds of exceptional mitigating circumstances.

To the extent it is argued I should impose a sentence at the very lowest end of the range, or below the range, because the root cause of his offending behaviour has now been addressed, I cannot make that finding on the evidence before me. Mr. Zaworski has not demonstrated he is capable of maintaining sobriety and living a prosocial life in the community. Given his history of relapses after parole and the fact he relapsed after completing two rounds of treatment in 2009 and 2012, I cannot assume there will be continuity of his sobriety upon his release. [ 122 ] In short, while I find Mr.

Zaworski's rehabilitative efforts in prison to be commendable, I do not find they have sufficient traction or depth to rise to the level of "exceptional circumstances". I am not satisfied on a balance of probabilities that if released now, the changes he has made while on remand would endure in his transition into the community. Fit and appropriate sentence [ 123 ] Mr. Zaworski seeks a 20 month conditional sentence order for the flight from police and assault with weapon convictions. He points to his rehabilitative efforts in custody and that he now has a plan to address own trauma.

He is receiving ADHD medication and has expressed a desire to change his ways. It is suggested a strict curfew and prohibitions on weapons and driving, as well as orders that he attend counselling, would be adequate to protect society. Mr. Zaworski says he wrote an apology letter to the Mackenzie RCMP. He argues that a conditional sentence order is appropriate, given systemic factors affecting his moral culpability which relate to his identification as an indigenous person [ 124 ] In my view, Mr. Zaworski fails to meet the criteria for a conditional sentence order.

Section 742.1 provides that a CSO may only be imposed where the sentence is less than two years, and the court is satisfied the imposition of a CSO would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718.2 . [ 125 ] Given Mr. Zaworski's criminal record and the all of the aggravating circumstances, a sentence of less than two years is unfit and I would not impose it. Mr.

Zaworski has a serious and continuous criminal record for violence and repeated reckless conduct endangering the lives and safety of the community at large, especially anyone on or near a highway. Orders designed to keep him out of a motor vehicle have been ineffectual. I have no confidence, based on his history of breaching court orders, that he would obey any restrictions on his liberty such as a curfew, abstention, or driving prohibition conditions. He is a risk to reoffend. I find as a fact that allowing Mr.

Zaworski to serve his sentence in the community would endanger the safety of the community. [ 126 ] In R. v. Gill , 2016 BCCA 355 , the Court of Appeal denied the appellant's application for judicial interim release pending the appeal of his conviction for dangerous driving on the grounds of protection of the public, which is a similar consideration when assessing whether placing Mr. Zaworski on a CSO would "endanger the safety of the community". Like Mr. Zaworski, the appellant had a lengthy, serious, and continuous criminal record.

The court said at paragraphs 25 to 26: [25] First, I will consider protection of the public. Mr. Gill’s criminal record is serious, not historic and there have been no significant gaps between convictions prior to those under appeal include dangerous driving, flight from police and assault (November 2009); forcible entry (July 2014) and breach of undertaking or recognizance (August 2014). His driving record is vast, enduring and consistently troubling. [26] Mr. Gill's record reveals that he has repeatedly shown a flagrant disregard for road safety.

He has ignored numerous driving prohibitions in the past and poses a significant risk to other road-users. I am not at all confident that if released from custody, Mr. Gill will abide by the conditions imposed and refrain from driving. Evidently prior legally imposed requirements that he abstain from driving have not prevented him from getting behind the wheel. This is true in both the distant and recent past. Public protection considerations favour denial of bail. [ 127 ] I find those comments equally apt in this case with respect to Mr.

Zaworski. [ 128 ] Further, the imposition of a CSO would undermine the purpose and principles of sentencing in this case, which ought to emphasize deterrence, denunciation and, in Mr. Zaworski's case, separation of offenders from society. [ 129 ] Dr. Ballance's opinion was that Mr. Zaworski's methamphetamine use disorder was "in early remission in a controlled environment". I am not convinced Mr. Zaworski's prosocial, sober lifestyle in prison is solely the product of internal changes which can endure without the support of the external controls imposed upon him in a controlled environment.

Those controls would evaporate if he served his sentence in the community. [ 130 ] The current allegation before the Court on 9013 involves Mr. Zaworski driving dangerously while in a flight from police in a stolen truck with a passenger. That identical conduct caused his girlfriend's death in 2009. It would seem that experience and its penal consequences has not deterred Mr. Zaworski from repeating the very same dangerous behaviour. Mr. Zaworski's sentence for that offence had just completed in 2017. A year later, he was repeating the very same conduct.

It is highly aggravating and raises the validity of separating offenders from society as a compelling principle of sentencing. [ 131 ] The reality is that as long as Mr. Zaworski can physically access a vehicle, the public is at serious risk. No measure of controlling his access to vehicles is possible because Mr. Zaworski is adept at stealing them, particularly trucks. He was already on driving prohibitions and court orders not to be in a motor vehicle without the registered owner at the time of the flight offences.

It is pure luck that no one was seriously injured or killed in his latest campaign of terror on the highway. Because the nature of the risk he poses is so concerning, a "release on community supervision and hope for the best" approach is simply not feasible. Notwithstanding he has a measure of reduced moral culpability due to his personal background, that cannot justify a sentence which is totally inadequate at protecting the public from an acute risk of death or serious bodily harm.

Sentence [ 132 ] Mr. Zaworski has been in custody since December 4, 2018, a period of 416 days. After Summers credit, he is entitled to pretrial credit of 624 days, or 20.5 months. [ 133 ] In all of the circumstances, while the proposed sentence on 9011 is at the low end of the range, given Mr. Zaworski's criminal record, taking into account all of his personal circumstances and the principles in Gladue and Ipeelee , I cannot say the proposed sentence would be contrary to the public interest or bring the administration of justice into disrepute, as contemplated in R. v. Anthony-Cook .

As such, I will accede to the joint submission. He is sentenced to a total of 12 months' jail, time served, as follows: On Count 1, theft under five - Madam Clerk, on Count 1 - Madam Clerk, could I just have the informations for a moment, please? [ 134 ] THE CLERK: Yes, Your Honour. [ 135 ] THE COURT: Thank you. [ 136 ] On Count 1, theft over $5,000, the sentence is 12 months' jail, time served, calculated as eight real months, 12 after enhanced credit is given, no new time. [ 137 ] Oh sorry, Madam Clerk, I need 9011. Oh, I do have it here.

Sorry, Madam Clerk, it is theft under, it is 606(4), a plea to theft under $5,000, is that correct? Can you just check on Count - 9011. [ 138 ] THE CLERK: Your Honour, on 9011 2 C, Count 1 is [indiscernible/voice low]. [ 139 ] THE COURT: It should be a plea to a lesser included offence of theft under, I believe. Just make sure that the record reflects that. [ 140 ] THE CLERK: Yes, Your Honour. [ 141 ] THE COURT: All right, good.

So on Count 1, theft under $5,000, the sentence is 12 months' jail, time served, calculated as eight real months, 12 after enhanced credit is given, no new time. [ 142 ] On Count 2, possession of stolen property, the Ford truck, the sentence is six months' jail, time served, concurrent to Count 1, calculated as four real months, six after enhanced credit is given, no new time. [ 143 ] On Count 4, possession of stolen property in a value in excess of $5,000, the second Ford truck, the sentence is six months' jail, time served, concurrent to other counts, calculated as four real months, six after enhanced credit is given, no new time. [ 144 ] And on Count 5, obstructing a peace officer, the sentence is three months' jail, time served, concurrent to all other counts, calculated as two real months, three after enhanced credit is given, no new time. [ 145 ] So do you have all that, Madam Clerk?

I know I went fast. Let me know if you want me to go back. [ 146 ] THE CLERK: Yes, Your Honour. [ 147 ] THE COURT: Okay. With respect to Information 9013, the four year global sentence proposed by the Crown is generous, given Mr. Zaworski's criminal history and all of the aggravating factors. In this case, given the need for protection of the public, denunciation and deterrence, I find a sentence of five years would have been appropriate, after taking into account the principle of totality.

Specifically, I would have imposed one year for the stolen vehicle, two and a half years for the driving offences, and one and a half years for assault of the peace officer with a weapon. [ 148 ] However, I find Mr. Zaworski has somewhat reduced moral culpability arising from the kinds of factors identified in Gladue and Ipeelee , including family fragmentation, loss of identity and culture, exposure to substance abuse at a young age, childhood sexual and physical abuse, poverty, and low educational attainment. [ 149 ] Further, while I am cautious as to Mr.

Zaworski's prospects for rehabilitation, given his lengthy and serious criminal history, I accept that he has made efforts while on remand to address the myriad of substance abuse and mental health issues that contributed to his offending and that he has connected with indigenous organizations to assist him in his efforts. There is a wealth of culturally based programming available in the federal system which can support Mr. Zaworski in his rehabilitation. I find the principle of rehabilitation is still relevant, although a much less significant sentencing objective, after taking into account Gladue factors, Mr.

Zaworski's reduced moral culpability, and his self-driven rehabilitation efforts while in custody. [ 150 ] I find a global sentence of 44 and a half months is appropriate. After applying enhanced credit, the net new jail time will be 36 months, or three years. The jail time shall be apportioned as follows: [ 151 ] So for possession of the stolen vehicle, Count 1, 8.5 months or 260 days' jail, time served, calculated as 173 real days, 260 after enhanced credit is given, no new days. [ 152 ] Dangerous driving, Count 2, 24 months' jail, consecutive, all new time.

This offence is a distinct and separate offence from possession of the stolen vehicle. [ 153 ] Flight from police, Count 3, 24 months' jail, consecutive to the possession of stolen property, Count 1, but concurrent to the dangerous driving on Count 2, all new time. [ 154 ] Assault peace officer with a weapon, Count 4, 12 months' jail, consecutive to all other counts. This ought to be served consecutively as it was a distinct offence as contemplated in Schur . All new time.

[ 155 ] That should total 36 new months or three new months [sic] in custody. [ 156 ] Further, there will be ancillary orders. [ 157 ] Assaulting a peace officer, Madam Clerk, is a primary designated offence. Just let me know when you are ready. [ 158 ] THE CLERK: Yes, Your Honour. [ 159 ] THE COURT: All right, Count 4 on Information 9013 is a primary designated offence. Pursuant to s. 487.051(1), I make an

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