R. v. R.G.D. Date:, 2017 BCPC 329

Citation: R. v. R.G.D. Date: 20171108 2017 BCPC 329 File No: 78003 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.G.D. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: K. Paziuk Counsel for the Defendant: S.D. Taylor; K. Waugh Place of Hearing: Nanaimo , B.C. Dates of Hearing: February 1, April 10, 25, 26, May 4, 8, June 1, 7, 17, August 7, 15, November 8, 2017

Date of Judgment: November 8, 2017 The Issues [ 1 ] On March 7, 2014, Mr. D. committed a brutal assault of Mr. A. He has entered a plea of guilty to a charge of aggravated assault. It is my task to sentence him for that offence. The Crown seeks a 6-year jail sentence. Mr. D. submits that a 3-year jail sentence would be appropriate. The victim, Mr. A. seeks a restitution order. The Crown and Mr. D. both oppose the application for a restitution order. The Circumstances [ 2 ] Mr. A. suffers from Guillain-Barre Syndrome, a neurological disease which, over time, causes the patient to lose control over his muscles. Mr.

A. was rendered quadriplegic by the disease long before the assault. At the time of the assault, he could feed himself, but had no significant strength in his arms, and was unable to stand or walk. Mr. A. was separated from his wife, Ms. B., and divorce proceedings between them were in progress. Mr. A. lived in the matrimonial home with their daughter, M., who was then 9 years of age, and two care aides. Ms. B. lived with Mr. D., with whom she had an intimate relationship. [ 3 ] By March, 2014, Ms. B. had become dissatisfied with her relationship with Mr. D. On the morning of March 7, 2014, she told Mr.

D. that she was thinking of ending the relationship and moving to a separate cottage on the same property as the matrimonial home. Mr. D. was upset by this, made a noose from a piece of rope, and threatened to hang himself. Ms. B. called her adult daughter, Ms. L., to pick her up and take her away. As they drove away, she received a series of text messages from Mr. D. which caused her to fear for the safety of Mr. A. She telephoned Mr. A. at 12:48 p.m. to warn him, and called 911 at 12:57 p.m. to warn the police that Mr. D. might be on his way to Mr. A.’s home. [ 4 ] Mr.

D. arrived at the matrimonial home at 1:00 p.m. M. was playing with a young friend in her room, across the hall from Mr. A.’s room. She overheard the ensuing altercation between Mr. D. and Mr. A. Mr. D. was angry with Mr. A. for two reasons: a. Mr. D. thought that Mr. A. had treated Ms. B. badly during the course of their divorce proceedings. b. Mr. D. had been persuaded by Mr. A. to invest $40,000 in an investment which had been unsuccessful. He wanted Mr. A. to refund his money, and believed that there was at least $40,000 in a safe in Mr. A.’s bedroom. He demanded that Mr.

A. open the safe and give him the money. Mr. D. became enraged when Mr. A. summarily rejected that demand. [ 5 ] Mr. D. struck Mr. A. three times on the head with a shovel. The force of the blows was sufficient to cause a visible bend in the steel shaft of the shovel. As a consequence of those blows, Mr. A. suffered a traumatic brain injury, significant complex facial fractures, eye trauma, retinal detachment in the left eye, a laceration of the tear duct in the left eye and a fractured maxilla. There were no defensive wounds on his hands or feet. [ 6 ] M. saw Mr. D. in the hallway as he left Mr.

A.’s room, and also saw Mr. A., bleeding profusely, in his wheelchair. Mr. D. told her to stay in her room. [ 7 ] The police arrived at the matrimonial home at 1:20 p.m., procured emergency medical assistance for Mr. A., and set off in search of Mr. D. They arrested him in Port Alberni, about 40 minutes’ drive from the matrimonial home, at 3:45 p.m. and took him to hospital. Blood samples taken from him at the hospital tested positive for methamphetamine, and indicated that he had previously used other drugs. He may or may not have been under the influence of drugs at the time of the assault.

The police interviewed a friend of Mr. D., who said that he provided Mr. D. with drugs after the assault and before his arrest. [ 8 ] When interviewed by police, Mr. D. said: a. that he hoped that Mr. A. would die, and that he had done a good thing because he was protecting Ms. B. from Mr. A. b. “The guy was a prick. I don’t need a lawyer. I didn’t expect to get this far.” c. “I beat the fuck out of, maybe killed, an asshole. I don’t feel anything about it.

The guy’s a piece of shit.” d. “I don’t feel any remorse for him”. e. “As soon as I hit prison, I am dead for the money that I borrowed that he stole from me.” f. “I didn’t know M. was there. I would have never even went there if I knew she was there.” g. “He took my money. He took my relationship. He left me with nothing, so I left him with nothing.” During a telephone call to Ms. L. from jail after his arrest, Mr. D. said: h. “The good thing is, if he does die, your mom [Ms. B.] gets everything … the good thing is she’s rid of him …” i. “If he dies, he dies, I really got no remorse for that guy.

He fucking deserves everything he gets in life.” At the sentencing hearing, Mr. D. expressed regret for Mr. A.’s injuries. [ 9 ] Mr. A.’s jaw was wired shut on March 7, 2014 and unwired on April 8. He underwent surgery to repair the damage on March 17. The surgery lasted 11 hours.

[ 10 ] Mr. A. has not commenced any civil proceeding against Mr. D. Mr. A.’s Victim Impact Statements [ 11 ] Mr. A. attended the sentencing hearing, accompanied by a care aide and a social worker. He is very weak, physically, and cannot propel a manual wheelchair by himself. He appears to be cognitively impaired, although he was able to read his typewritten victim impact statement. The following is the full text of the document: I am M.’s father and I was there when she was born and I chose the name “Sunshine”.

Although I am not her biological father, I was awarded full custody of her and she lived with me fulltime. I worked hard as a parent in maintaining a solid foundation, routine, structure and discipline and love. M was my reason. I took my parenting responsibilities seriously, and not being able to be part of her life has scarred me forever. The assault happened on a Friday, and M. and her friend Kiera were at home. It sickens me to think that these children were exposed to the awareness of this level violence in their young lives. M. was 9 years old at the time, and she was put into foster care immediately.

The foster mother brought her to visit me once in hospital and her first question was “Why did [Mr. D.] do this to you?” Due to my injuries, I was unable to take care of my daughter, so I agreed that her mother [Ms. B.] should have shared custody as I wanted M. to have her mother at least. Now, I do not know my daughter M.’s whereabouts, I have only been told that “[Ms. B. and M.] are gone”. I have lost my little girl …, and my family life. I have lost the confidence to trust my decision-making abilities. In the aftermath, my ex-wife [Ms.

B.] sold my residence and through my lawyer intervening, I received half of the proceeds of sale of the house. However, all of my personal effects over a lifetime were sold off - I lost all of my antique Canadian furniture given to me by my parents, and this was very meaningful to me. I lost the art I have been collecting for years; it was all simply sold off as I was away in hospital struggling to recover from my injuries. Due to being incapacitated by grievous injury, I lost the power to have my wishes known in these matters.

I’ve lost the privacy and quality of life that comes with living independently, and now share a room with two other gentlemen. I’ve lost my wheelchair accessible vehicle that had a lift in it which fostered my independence and quality of life. My caregiver and I would go to the grocery store 1 – 2 times a week and I would choose the food I wanted to buy. Now, I have very little choice in what I eat, as residential care food services must cater to the tastes and needs of so many. The loss of my vehicle has left me restricted in my ability to go anywhere. It has handcuffed my freedom to come and go as I please.

I used to enjoy going out to shop, do my banking, occasionally to go to the movies and enjoy my favourite restaurants. I’ve lost my ability to earn a living, and I need to feel I can contribute in some manner. I need to look forward to positive events. How do I occupy my time in a positive manner? I had a full and meaningful life before the assault. I was busy parenting my daughter, working, managing a home and family life, as well as managing my life as a person with a disability. I have lost my wheel chair accessible residence, including my custom-made roll-in shower.

When I lived in my home with caregivers providing my care as I am a quadriplegic, I was able to shower in the morning and at bedtime. The showers helped me to know that I could get through another day as a person with a disability. Now, in residential care, I have one shower a week. My daily life and comforts have been drastically altered as a consequence of this assault. The impact of this assault, another person’s poor decision, has cost me so much. [ 12 ] Mr. A.’s social worker, Ms. Margetts, offered the following addendum to Mr.

A.’s victim impact statement: Gordon has suffered bouts of intense depression in the time he has been with us at the hospital. These have been so severe that he has not wished to go on living. His poor memory (as a result of the trauma suffered) has left him needing help with finances and day to day interactions. … His dependence on a long-term care system is so far from what he believed his lot in life would be that it has paralyzed his thought processes and his actions. He is very fearful of change and does not wish to access the outside world.

He has had to leave his home community and live in a strange environment in a different town. Ms. Margetts spoke at the sentencing hearing. She pointed out that the electric wheelchair now used by Mr. A. is an old model which the care facility happened to have on hand when Mr. A. was admitted, and that there is no source of funding to purchase a replacement when it wears out, as it will. Mr. A. will then be immobile because he cannot operate a manual wheelchair. She provided a quote for an electric wheelchair suitable for Mr. A.’s needs. The quoted price is $15,355.34. [ 13 ] Mr.

A. subsequently tendered a further written victim impact statement, in which he asks for a restitution order in the amount of $47,000, representing the cost of a new wheelchair ($30,000), the replacement value of his missing antiques and other property ($15,000) and the cost of moving to Vancouver so as to be close to his extended family ($2,000). No evidence was tendered in support of those figures. In that statement, Mr. A. said: If my request for restitution is granted, I respectfully request that [the] offender be induced to pay the entire amount in cash, by obtaining a loan or otherwise.

He has informed me that he earns up to $1000 a day from his logging activity. I believe that he has ample assets which he may have concealed with his family. He is eminently capable of making restitution in one payment. My family and I should not be put through the danger of collecting a monthly sum from an attempted murderer. [ 14 ] In October, 2017, Mr.

A. provided a further supplement to his victim impact statement, in which he informed me that the damage to his left eye which he suffered during the assault is not amenable to further medical intervention, and that the resulting impairment of his vision will be permanent. That assertion is corroborated by his doctors. He says that he is suicidal, but that his

doctors have rejected his request for physician-assisted suicide because his medical condition is not terminal. He says: “I am socially isolated, and I have no reason to go anywhere.” Mr. D. [ 15 ] Mr. D. is 47 years of age. He suffered physical and sexual abuse as a child, and left home at age 13 or 14. He describes himself in the following terms: For the past 26 years of my life, I’ve been working as a Coastal faller. I have my level 3 first aid and also am a certified Utility Arborist. I’ve been a boss and a trainer for many large companies and have had my own company as well.

With my tickets and experience, I am heavily in demand for work. He has five children, three of whom are independent adults, one of whom is a 16 year-old boy now living with Mr. D.’s mother pending his release from custody, and the last of whom is a 10 year-old daughter who lives with her mother. Mr. D. recognizes his obligation to support his children, financially and emotionally, and looks forward to doing so on his release from custody. [ 16 ] Mr. D. has not worked since his arrest, and describes himself as impecunious. [ 17 ] At Mr. Taylor’s request, I ordered a psychiatric assessment of Mr. D.

The assessing psychiatrist describes him as a “… moderate to high risk for future violence …”. [ 18 ] While in custody, Mr. D. successfully completed a number of programs directed to violence prevention and healthy relationships. His psychological counsellor provides the following assessment: Mr. D. was immediately responsive to therapy, showing an intense, emotional concern for the direction that he had taken as it related to the circumstances surrounding his current charges, significant others, his son and his unremitting drive for achievement.

He acknowledges that he acted out as a workaholic and he has been successfully practicing relaxing and calming himself which has resulted in a more thoughtful expression. In my opinion, Mr. D.’s present enthusiasm, compassion and practice of mindful interaction with others, bodes well for any disposition the court might grant him. [ 19 ] Mr. D. has only one previous conviction, for producing a controlled substance, in 2000, for which he received an 18-month conditional sentence. He completed that sentence without breaching any of its conditions.

He was on bail on the present charge from December 17, 2014 until February 1, 2017, and complied with his bail conditions during that period. On February 1, 2017, he voluntarily relinquished his bail and returned into custody to begin serving the sentence which I am to impose. [ 20 ] Mr. D. was initially charged with attempted murder, to which he entered a plea of not guilty. That charge was stayed in December, 2014 and the present charge of aggravated assault substituted. Mr.

D. entered a guilty plea to the charge of aggravated assault within a week after the new information was sworn, and so may be said to have entered his guilty plea at the earliest reasonable opportunity. The early guilty plea is particularly significant in this case because, as a result of his brain injury, Mr. A. has no memory of the assault, and the only eye witness who could place Mr. D. at the crime scene is M. His guilty plea relieved her of the need to testify. Range of Jail Sentences [ 21 ] Mr. Paziuk and Mr.

Taylor each referred me to a number of decisions in which offenders were sentenced for similar assaults. They invoke the principle that “… a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances …”: Criminal Code ,

section 718.2(b). [ 22 ] Mr. Taylor relied on the following authorities in support of his submission that 3 years imprisonment would be an appropriate sentence in this case: R. v. Turtle 2010 ABCA 334 ; [2010] AJ No. 1262 - a 32 month sentence; R. v. J.D. , an unreported decision of the Ontario Superior Court of Justice, pronounced orally on October 19, 2010 - a sentence of 2 years less a day; R. v. Saraj 2012 ONSC 4339 ; [2012] OJ No. 3554 - a 3 year sentence; R. v. Amador 2014 ONSC 4187 ; [2014] OJ No. 3566 - an 18 month sentence; R. v. Caster 2016 ONCJ 232 ; [2016] OJ No. 2141 - a 20 month sentence; R. v.

Nguyen 2016 BCCA 408 ; [2016] BCJ No. 2197 - a sentence of 2 years less a day. [ 23 ] Mr. Paziuk relied on the following authorities in support of his submission that the appropriate sentence in this case would be 6 years imprisonment: R. v. Johnson [1998] BCJ No. 2924 - a 5 year sentence; R. v. Forrester 2004 BCSC 1310 ; [2004] BCJ No. 2116 - a 5 year sentence; R. v. Kanthasamy 2007 ONCA 90 ; [2007] OJ No. 480 - a sentence of 7 ½ years; R. v. Cameron 2013 BCPC 283 ; [2013] BCJ No. 2314 - a 5 year sentence;

R. v. Larose 2013 BCCA 450; [2013] BCJ No. 2351 - a 7 year sentence; R. v. Newkingnak 2015 NUCJ 22; [2015] NuJ No. 23 - a total sentence of 3582 days, of which 2370 days were attributable to aggravatedassault; R. v. Sandhu 2015 BCSC 643; [2015] BCJ No. 782 - a 5 year sentence; R. v. Matheson 2014 NSSC 203; [2014] NSJ No. 295 - a 10 year sentence. [24] In considering the rather broad range of custodial sentences found in these authorities, I am mindful of the remarks of ChiefJustice Lamer in R. v.

C.A.M. (SCC), [1996] 1 SCR 500 @ paragraph 92: It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. .... Sentencing is an inherentlyindividualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be afruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree acrossvarious communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needsand current conditions of and in the particular community where the crime occurred. [25] In attempting to define the appropriate range of sentence for Mr. D.’s offence, I am obliged to give significantly greater weightto previous judgments of British Columbia courts than to those of courts in other provinces. That is true for two reasons: a.

I owe greater curial deference to British Columbia decisions than to decisions of courts in other provinces: R. v. Vu 2004 BCCA230; [2004] BCJ No. 824; 184 CCC (3d) 545 @ paragraphs 26 – 27. b. Because sentencing practices should, and do, vary across the country, the appropriate range of sentence is that prevailing in theprovince in which the offence was committed: R. v. Bui 2013 BCCA 168; [2013] BCJ 901 @ paragraphs 14 - 21. [26] When I compare the sentences imposed in the cases on which Mr. Paziuk relies to the recent judgment of the Alberta Court ofAppeal in R. v.

Walsh 2017 ABCA 2; [2017] AJ No. 3, it appears to me that the range of sentences for aggravated assault in Alberta ismuch less severe than that prevalent in British Columbia. When I compare the Ontario decisions on which Mr.

Taylor relies to R. v.Pangan 2014 ONCJ 327; [2014] OJ No. 3340, it appears to me that the range of sentences for such crimes is much broader in Ontariothan it is in British Columbia. [27] I think that I must be guided by the following remarks of Justice Frankel in Nguyen (supra) @ paragraph 47: The sentencing judge correctly described the range of sentences for aggravated assault as being between 16 months and six years: Craigat para. 10; R. v. Finlay, 2016 BCCA 299 at para. 48. In R. v.

Johnson (1998), (BC CA), 131 C.C.C. (3d) 274 at para.10 (B.C.C.A.) Madam Justice Prowse said this in regard to where within that range a case will generally fall: Sentences at the lower end of the range tend to be imposed in "fight" situations in which the altercation escalates and results in injuries tothe victim. Sentences at the higher end of the range tend to be imposed in situations where the victims are attacked with a weapon,without provocation and without any opportunity to defend themselves. [28] Mr.

D. committed an unprovoked assault with a weapon on a defenceless quadriplegic, which might easily have killed thevictim. He inflicted very serious injuries which seriously exacerbated the victim’s existing disability, and from which the victim willnever recover. It necessarily follows that, subject to the question of restitution, the six-year sentence proposed by Mr. Paziuk would beappropriate for this crime, and the three-year sentence proposed by Mr. Taylor quite inadequate. Restitution [29] However, the custodial sentence must be reduced, to some degree, if a restitution order is made.

The constitutional justification for a provision in the Code permitting restitution orders is that restitution is a part of the punishment. Where punishment is exacted in the form of a restitution order, there should be a corresponding reduction in other forms of punishmentwhich might be imposed. In some cases, a restitution order will be a significant factor, while in others it will be trivial, depending on thecircumstances, but it must be included as a factor in the totality of the punishment imposed. R. v.

Siemens (MB CA), [1999] MJ No. 285; 136 CCC (3d) 383 @ paragraph 8 [30] In this case, both the Crown and the accused oppose a restitution order. The victim asks for one. [31] Compensation for the tort of battery is a matter of property and civil rights, a subject-matter reserved to the exclusivejurisdiction of the provincial legislatures by section 92(13) of the Constitution Act, 1867. Restitution under

section 738 of the CriminalCode is constitutionally justifiable only as part of the punishment for a crime. In R. v. Zelensky [1978] 2 SCR 740, Chief Justice Laskinsaid: The constitutional basis of s. 653 [the predecessor of

section 738] must, in my opinion, be held in constant view by a judge called upon toapply its terms. It would be wrong, therefore, to relax in any way the requirement that the application for compensation be directlyassociated with the sentence imposed as the public reprobation of the offence. [32] A number of subsidiary principles flow from this constitutional constraint:

a. The purpose of a restitution order is to punish the offender, not to compensate the victim. If compensation were the purpose ofsection 738, it would be unconstitutional. Rather, a restitution order is a process for imposing a financial penalty as part of a criminalsentence, with provision for that penalty to be paid to the victim rather than the state. b. The measure of restitution is determined, not by the loss incurred by the victim, but rather by reference to the “fundamentalprinciple” of sentencing set out in

section 718.1 of the Criminal Code: A sentence must be proportionate to the gravity of the offence and the responsibility of the offender. The requisite proportionality can be achieved only by a subjective assessment of the gravity of the offence and the culpability of theoffender. For that reason, a restitution order, as an element of a sentence, cannot be the result of an arithmetic calculation: R. v. Spellacy[1995] NJ No. 215; (NL CA), 131 Nfld&PEIR 127. c. Parliament has chosen to impose an upper limit on the quantum of a restitution order.

In cases of bodily injury, the quantum ofthe restitution order must not exceed the “pecuniary damages” suffered by the victim: Criminal Code, section 738(1)(b). However, thatis an upper limit, not a measure of the monetary penalty to be imposed: Spellacy @ paragraph 88. Manifestly, Parliament intended thatvictims of crime not be over-compensated. d. Parliament has not directed that the quantum of a restitution order be equal to the damages which would be awarded in a civilaction.

If Parliament had done so, the restitution provision would be an undisguised federal intrusion into the field of compensation forpersonal injuries, and so unconstitutional. e. As a consequence, the starting point for determining the quantum of a restitution order is the total sentence (which mightcomprise one or more of a term of imprisonment, a fine, a term of probation and a restitution order) which would be proportionate to thegravity of the offence and the responsibility of the offender.

The quantum of the victim’s loss is relevant to that consideration onlybecause the quantum of the restitution order is limited by statute to the quantum of the loss. f. It would be an error in principle to begin the sentencing process with an assumption that a restitution order should be in anamount equal to the victim’s loss because that would convert a process whose only constitutionally valid objective is punishment into aprocess whose implicit objective is compensation. [33] Section 738(1) of the Criminal Code provides (underlining added): Where an offender is convicted or discharged under

section 730 of an offence, the court imposing sentence on or discharging theoffender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender,order that the offender make restitution to another person as follows: * * * (

b) in the case of bodily or psychological harm to any person as a result of the commission of the offence …, by paying to the person anamount not exceeding all pecuniary damages incurred as a result of the harm … if the amount is readily ascertainable … [34] In this case, there is no evidence to support the particular losses asserted by Mr. A. Mr. A. was not called to give evidence, anddefence counsel were offered no opportunity to cross-examine him. No expert was tendered to prove a causal connection between theassault and the subsequent decline in Mr. A.’s physical and mental condition. As Mr.

Taylor pointed out, such a connection cannot beassumed. Several divergent estimates of the price of a new wheelchair were provided. The value of the antiques are unproven. There isno evidence to support the assertion that Mr. A. was deprived of his property by Ms. B., or that the outcome of his marriage or hisrelationship with M. would now be any different if the assault had not occurred. If “pecuniary damages” are synonymous with “specialdamages”, there is no evidentiary basis upon which I could assess the quantum of Mr. A.’s pecuniary damages.

They would not be“readily ascertainable”, and so no restitution order could be made. [35] However, no similar impediment exists if “pecuniary damages” include general and/or punitive damages. As Justice Dicksonpointed out in Lindal v. Lindal (SCC), [1981] 2 SCR 629, general damages do not lend themselves to arithmeticcalculation. The facts admitted by Mr. D. in this case would be sufficient, without more, to allow a judge or jury to assess generaldamages in a civil action. The range of general damages would be of the order of $125,000 to $150,000: Vukelic v.

Canada [1997] BCJNo. 131; (BC CA), 29 BCLR (3d) 288; Thornber v. Campbell 2012 BCSC 1449; [2012] BCJ No. 2024. If punitivedamages were also awarded, they would likely be of the order of $10,000 to $20,000: A.C. v. Y.J.C. (ON SC), [2003]OJ No. 758; Thomson v. Friedmann 2008 BCSC 703; [2008] BCJ No. 1012 (affirmed @ 2010 BCCA 277; [2010] BCJ No. 1187);Baptiste v. Baptiste 2001 ABQB 910; [2001] AJ No. 1383; Herman v. Graves 1998 ABQB 471; [1998] AJ No. 452; [1998] 9 WWR 542;Anguish v. Daviault 2006 OJ No. 2833; Reddemann v.

McEachnie 2005 BCSC 915; [2005] BCJ No. 1374. [36] “Pecuniary damages” are not defined by the Criminal Code or by the

Interpretation Act RSC 1985, c I-21. The phrase appearsin a number of other statutes, and is used at common law to describe certain classes of damages. Its meaning depends on the context inwhich it is used. I must attempt to discern the meaning which Parliament intended it to have in the context of

section 738. [37] In personal injury cases, the phrase “pecuniary damages” has often been considered to be synonymous with “special damages”(as distinct from general and punitive damages). To oversimplify a complex body of jurisprudence, special damages are generally thoseconsidered to be capable of objective proof and arithmetic calculation, while general and punitive damages are assessed subjectively.

Justice Dickson described the concepts of pecuniary and non-pecuniary damages, in that context, in Lindal (underlining added): In the trilogy, this Court reaffirmed the basic principle that the purpose of awarding damages for personal injury is compensation notpunishment. The goal is to put the plaintiff in the position he would have been in had the injury not been suffered. * * *

A number of secondary principles flow from the basic precept of compensation. The first is that anything having a money value whichthe plaintiff has lost should be made good by the defendant. If the plaintiff is unable to work, then the defendant should compensate himfor his lost earnings. If the plaintiff has to pay for expensive medical or nursing attention, then this cost should be borne by thedefendant. These costs are 'losses' to the plaintiff, in the sense that they are expenses which he would not have had to incur but for theaccident. ….

The first and controlling principle is that the victim must be compensated for his loss. Different considerations are paramount in the matter of damages for non-pecuniary loss. The principle restitutio in integrum can findonly limited application in the matter of non-pecuniary losses. * * * Pain and suffering and loss of amenities are intangibles. They are not possessions that have an objective, ascertainable value. [38] In Worobel Estate v.

Worobel (ON SC), [1988] OJ No. 2066; 67 OR (2d) 151, Justice Yates considered aclaim under the Family Law Reform Act RSO 1980 c 152 by family members against a man who had killed his wife and entered a guiltyplea to manslaughter. Justice Yates allowed the claim in part, but dismissed the claim for aggravated and punitive damages. He said(underlining added): Aggravated or pecuniary damages are defined as a form of non-pecuniary damages whose purpose is to soothe the feelings of theplaintiffs due to the conduct of the defendant. Accordingly, any such claim for aggravated damages in this case cannot be sustained.

The punitive damages are non-pecuniary in that their purpose is to punish and deter. [39] However, in other contexts, “pecuniary damages” have been found to include general damages. [40] The phrase “pecuniary damages” appears in a number of provincial statutes which confer a statutory right of action in fatalaccident cases. In that context, the phrase has been held to include losses which are not amenable to arithmetic calculation, such as theloss of parental guidance by infant children: St. Lawrence & Ottawa Railway Co v. Lett (1885) 1885 CanLII 7 (SCC), 11 SCR 422;Agnew v.

Ellen [1936] BCJ No. 113; (BC SC), [1936] 3 WWR 337; Reeves’ Estate v. Croken [1985] PEIJ No. 57; (PE SCAD), 22 DLR (4th) 272. [41] In Re Bugghins (NWT SC), [1988] NWTJ 29; [1988] NWTR 234, Justice Marshall considered a claim bythe widow and infant child of a murder victim for compensation under the Criminal Injuries Compensation Act RSNWT 1974, c.-23. The statute provided for compensation for (inter alia) “… pecuniary loss or damages incurred by dependents as a result of the victim'sdeath …”.

Justice Marshall said: "Pecuniary damages" in Black's Law Dictionary, 4th edition, revised, p. 464, is defined as "not merely loss of money or saleable propertyrights, but all such loss, deprivation or injury, as can be subject of calculation and recompense of money." The matter, as this Court has stated on other occasions, is perforce somewhat arbitrary. It is difficult to place a money value on suchlosses. Though I do not purport to set down any rule, I am of the view that the wife and child should succeed. They should not bedenied a remedy, because the amount of the loss is incapable of precise ascertainment.

For the mother's losses through the death of the spouse and her injury, I would award the sum of $2,000.00. As for the child, the loss here is, in my view, more substantial. Darren Allan Bugghins has lost his father. He now lives, and it seemswill continue to live, with his grandparents, and has, in my view, been injured in the very real sense of having lost the guidance anddirection of a father. Again, the question of evaluating this loss is difficult, but here I would consider it considerable. Dickson J. (as he was then) provides asound precedent in this assessment in the case of Lewis v.

Todd (1980), (SCC), 34 N.R. 1 (S.C.C.). Here, he confirmedthe award of Henry J., of $20,000.00 for the loss of the moral education, guidance and training of three children, aged 5 to 9 years, whohad lost their father. In fact, this amount was awarded in addition to the basic damages: that is, "for the loss of moral education, guidanceand training." [42] For the reasons which follow, I conclude that, in the context of

section 738 of the Criminal Code, “pecuniary damages” includesboth general and punitive damages. a. If Parliament’s purpose in empowering the court to make restitution orders were to compensate victims of crime, Parliamentmight reasonably conclude that some types of losses should be compensable by a restitution order and others not. However, because ofthe constitutional constraint, that cannot be Parliament’s purpose. Parliament’s objective is constitutionally limited to punishment.

Ancillary to that purpose, Parliament has decreed that any monetary penalty must not have the effect of over-compensating the victim. There is no logical reason to disregard general and punitive damages when assessing the risk of overcompensation. b. The criminal sentencing process is remarkably ill-suited to the assessment of special damages. The victim is not a party to theproceeding, and is rarely represented by counsel.

The assembly and presentation of the evidence necessary to prove a claim for specialdamages in a personal injury case is a highly-skilled and time-consuming task which does not fall within the mandate of Crown counselas it is generally understood. If “pecuniary damages”, in the context of s. 738, are limited to special damages, restitution could not beordered in this case without an extended evidentiary hearing in which such issues are explored in depth. Inevitably, that hearing wouldtake on the character of an adversarial proceeding between the victim and the offender.

Such a hearing would be undesirable: R. v.Berner 2013 BCCA 188; [2013] BCJ No. 835; 297 CCC (3d) 69 @ paragraph 16. c. By contrast, in most cases (as in this case), general and punitive damages can be readily assessed by reference to undisputed facts. Because they are assessed subjectively, general and punitive damages are frequently readily ascertainable, as they are in this case. Bycontrast, there are many cases (and this is one) in which special damages are not readily ascertainable. So, if Parliament was looking for

classes of damages which are readily ascertainable, it is much more likely to have been thinking of general or punitive damages than ofspecial damages. c. It would be illogical to define “pecuniary damages” to include special damages (which are, by definition, compensatory) and toexclude punitive damages (which are, by definition, non-compensatory and punitive) from a statutory regime whose constitutional raisond’etre is punishment.

Indeed, the primary argument against the award of punitive and exemplary damages in civil cases is that theproper function of civil litigation is compensation, and that punishment is the function of the criminal law: Waddams: The Law of Damages (3rd ed), pages 483 – 484. [43] Considered as a matter of simple justice, there is much to recommend a restitution order as an element of Mr. D.’s sentence. There is no question of Mr. D.’s civil liability to Mr. A. - he has admitted the tort. However, Mr. A. faces significant challenges inpursuing a civil action for damages: a.

He is impecunious, and could not afford to retain civil counsel. Counsel might accept the case on a contingency fee basis, butmight also be deterred from accepting it on that basis because Mr. D. is, of necessity, uninsured for this liability: Acciona Infrastructure Canada Inc v. Allianz Global Risks US Insurance Co 2014 BCSC 1568; [2014] BCJ No. 2137; 71 BCLR (5th) 64 @ paragraphs 112 - 113 (affirmed @ 2015 BCCA 347; [2015] BCJ No. 1672; 77 BCLR (5th) 223). Mr. D.’s ability to pay a substantial judgment is in doubt. b. No civil action has yet been commenced.

The applicable limitation period has expired, unless Mr. A. has been under a disabilitysince the date of the assault: Limitation Act SBC 2012, c 13, sections 6, 19. The evidence before me is insufficient to determine whetherMr. A. is a person with a disability, as defined in the Limitation Act. c. Quite apart from the definition in the Limitation Act, Mr. A. would face physical, intellectual and emotional challenges ininstructing counsel and participating in a civil action against Mr. D. For those reasons, it may be that Mr.

A.’s only practical hope of obtaining the redress to which he is entitled is a restitution order in anamount comparable to the award of general and punitive damages in an action for battery. In this case, the total award under those headswould be of the order of $135,000 to $170,000. [44] It is necessary at this point to address an aspect of the jurisprudence which, on first reading, appears to give rise to aninconsistency. In R. v.

Devgan (ON CA), [1999] OJ No. 1825; 44 OR (3d) 161; 136 CCC (3d) 238 at paragraph 26,Justice LaBrosse, speaking for the court, said that a restitution order: (i) “… provides a convenient, rapid and inexpensive means ofrecovery for the victim …”; but (ii) “… should not be used as a substitute for civil proceedings”. I think that the apparent inconsistencyis resolved by the following sentence in Justice LaBrosse’s judgment; i.e. Parliament did not intend that compensation orders would displace the civil remedies necessary to ensure full compensation to victims.

I think that Justice LaBrosse meant to say that, in appropriate cases, a restitution order may be made to provide the victim withconvenient, rapid and inexpensive access to some immediate compensation, but that full compensation is not the objective of a restitutionorder because full compensation is an objective of the civil process and not of the criminal process. [45] A substantial restitution order would have a significant punitive effect because it would place Mr. A. in a better position than hewould occupy if he had obtained judgment against Mr. D. in an action for damages for battery.

The debt created by a civil judgmentcould be extinguished by bankruptcy proceedings, although a bankruptcy judge might require Mr. D. to make a substantial payment onaccount of the judgment debt before granting a discharge from bankruptcy: Re Smithson 2016 SKQB 334; [2016] SJ No. 563. Bycontrast, a discharge from bankruptcy does not release the debtor from his obligations under a restitution order: Bankruptcy & Insolvency Act RSC 1985, c B-3, section 178(1)(a); Re Chaytor 2006 BCSC 1742; [2006] BCJ No. 3037; 26 CBR (5th) 274; 44 CCLI (4th) 43. So, ifI make a restitution order, Mr.

D. will not be able to escape the obligation by bankruptcy. As noted, it appears that Mr. D. may have alimitations defence to a civil action by Mr. A., although that depends on the nature and extent of Mr. A.’s disability. That limitationsdefence is not a bar to a restitution order. [46] There is no evidence of Mr. D.’s ability to pay. He says that he is impecunious. Mr. A. says that he has substantial assets.

Neither of them gave evidence and neither was cross-examined. [47] There is a divergence of judicial opinion respecting the relevance of the offender’s financial circumstances when a restitutionorder is sought. In Spellacy, Justice O’Neil, speaking for the court, said @ paragraph 82: It is a basic principle in sentencing that the ability of an accused to pay must be considered before a fine is imposed and it is an error toimpose a fine greater than that which a person can pay or may reasonably be able to pay at some future time.

The same considerationsapply to the making of a restitution order which, as already indicated, is in the nature of a fine and part of the whole sentence. See also R. v. Prokofiew [2005] OJ No. 1824. However, the ensuing jurisprudence makes it clear that the passage quoted is much toocategorical: R. v. Lavalee 2016 QCCA 1655; [2016] QJ No. 13124. In R. v.

Wa 2015 ONCA 117; [2015] OJ No. 117, Justice Gillese,speaking for the court, said @ paragraph 12: … where the circumstances of the offence are particularly egregious, such as where a breach of trust is involved, a restitution order maybe imposed even if there does not appear to be any likelihood of repayment. So far as I have been able to determine, the financial circumstances of the offender have been held to be irrelevant only in cases ofcommercial frauds, but I am not aware of any principled reason to limit Justice Gillese’s comment to that class of cases.

It is obviouslyappropriate to describe the circumstances of Mr. D.’s offence as “… particularly egregious …”. In R. v. Hoyt (BCCA), [1992] BCJ No.2315; 77 CCC (3d) 289, Justice Wood said @ paragraph 34:

Where imprisonment is absolutely necessary, either because of the nature of the offence or because of the history of the offender, itcannot be avoided or replaced by a compensation order. On the other hand, where such an order is a particularly apt form of sanction, itcan and should be used either to replace or to reduce what would otherwise be a fit sentence of imprisonment in all of the circumstance. While recognizing that the offender's means to pay cannot be ignored, the key to a fair use of such orders will lie in taking a broadapproach to what constitutes such means.

In any such inquiry, the offender's future ability to earn will be at least as important, if notmore so, than his or her present means to pay. As noted in paragraph 15, above, Mr. D. expresses confidence in his future income-earning capacity. The Sentence in this Case [48] Mr. D.’s crime is horrifying. There is a compelling public interest in a sentence which provides an appropriate measure ofdenunciation and deterrence. That objective is served in part by a lengthy jail sentence. It is also served by a substantial restitutionorder, having regard to the matters mentioned in paragraph 45, above.

I think that I should also be mindful of the individual interests ofthe victim. Mr. A. will not benefit from Mr. D.’s jail sentence. He may benefit substantially from a restitution order. If a restitutionorder is made, the law requires a suitable reduction in the jail sentence which would otherwise be imposed. Balancing those factors, Ithink that the appropriate sentence comprises two elements: (

i) a 5-year jail sentence (being a 1-year reduction in the sentence which Iwould have imposed in the absence of a restitution order); and (ii) a $50,000 restitution order. [49] Mr. D. has served 567 days in pre-trial custody, and so is entitled to credit for 851 days served, leaving him with 975 days toserve. [50] Because his net sentence, after allowance for time served, is more than two years, I cannot impose a probation order: R. v.Mathieu 2008 SCC 21 , [2008] 1 SCR 723.

I regret that because I think that, in cases of this kind, it would be desirable andappropriate to impose a probation order with the primary objective of assisting the victim to enforce the restitution order. November 8, 2017 __________________________ T. Gouge, PCJ