R. v. Porter Date:, 2015 BCPC 84

Citation: R. v. Porter Date: 20150401 2015 BCPC 0084 File Nos: 36414-1, 36049- 135920-B-3, 35920-B-4, 35930-B-7, 35920- 6BA Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. COREY CLINTON PORTER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: G. Merke Counsel for the Accused: M. Ritzker Place of Hearing: Port Aberni , B.C. Dates of Hearing: March 6, 19, 2015

Date of Judgment: April 1, 2015 The Offences [ 1 ] Mr. Porter has entered guilty pleas to: a. two charges of breaking & entering, contrary to

section 348 of the Criminal Code ; b. five charges of breach of probation, contrary to

section 733.1 of the Criminal Code , comprising four breaches of curfew and one breach by possession of methamphetamine. I am obliged to sentence him for those offences. [ 2 ] All of the offences were committed between August 27, 2014 and January 16, 2015. Mr. Porter has been in custody since January 16, 2015, when he was arrested for the second of the two b&e’s. [ 3 ] The first b&e was committed on December 2, 2014. Mr. Porter’s girlfriend, a trafficker in methamphetamine, asked him to assist her in collecting a debt. Mr.

Porter accompanied her to the debtor’s home, to which they forced entry, and demanded payment of the debt. During the course of the break-in, Mr. Porter assaulted the debtor. [ 4 ] The second b&e was committed on January 16, 2015. Mr. Porter was then living in a workshop ancillary to his father’s home, and broke into the home during the evening. Mr. Porter offered two explanations to the police: (

i) he said that he was feeling morose because of his mother’s suicide (which occurred in 2011), and that he broke into his father’s home to commune with his mother’s spirit; (ii) he broke in to get the keys to his truck. No one was at home during the break-in. As a result, no one was injured or threatened. Nothing of value was taken. [ 5 ] The probation order, from which the breach charges arise, was imposed on July 31, 2014, when Mr. Porter entered a guilty plea to a charge of mischief.

Among the probation terms were a curfew and a prohibition against possession or consumption of alcohol and controlled substances. Mr. Porter admits curfew breaches on August 27, November 1, and December 31, 2014, and on January 16, 2015. He also admits a breach by possession of methamphetamine on January 16, 2015, being the day of his arrest for the second b&e. Mr. Porter [ 6 ] Mr. Porter is 40 years of age. He committed his first offence, impaired driving, at age 24. He was sentenced to a $500 fine and a one-year driving prohibition. He committed his second offence, causing a disturbance, at age 31.

A $400 fine was imposed for that offence. At age 33, he committed his third offence, driving a motor vehicle without due care & attention. A $300 fine was imposed for that offence. At age 39, he committed the offence of mischief, for which a suspended sentence and one year’s probation were imposed. The six counts of breach of probation for which I must sentence him arise from that probation order. Mr. Porter has no other criminal record. [ 7 ] I have the benefit of a thorough forensic psychiatric assessment and presentence report in relation to Mr. Porter. [ 8 ] Mr. Porter advised the assessing psychiatrist, Dr.

Roth, that: a. He was using cocaine “heavily” in the late 1990’s, but stopped using that drug in 2004. b. In 2000, he participated in a residential treatment program, intended to be of 60 days’ duration, for cocaine and alcohol abuse, but left the program after two weeks. b. He began using crystal methamphetamine in 2011. His girlfriend was actively trafficking that drug. He used crystal methamphetamine daily until sometime in 2014. c. He also uses cannabis, but does not regard this as a problem. d.

He participated in some form of counselling after his mother’ suicide in 2011, but he does not recall the particulars. e. It is difficult to extract a coherent chronology from Mr. Porter’s report of his medical history in 2014 (as recounted in Dr. Roth’s psychiatric assessment report). Mr. Porter told Dr. Roth that he sought a voluntary admission to the psychiatric ward of the hospital in Port Alberni in February, 2014, because he was starving. He was discharged after two weeks, but was readmitted at the request of the police “… due to concerning behaviour in the community”.

He was tentatively diagnosed with bipolar disorder, but was feeling well, and was discharged three weeks later, to allow him to transfer to a treatment program known as “Inner Visions”, which assists people with addiction issues. He left the “Inner Visions” program after two weeks, and was then homeless in Vancouver. In or about March, 2014, he was arrested by Vancouver Police and taken to St. Paul’s Hospital, where his diagnosis of bipolar disorder was confirmed and medication was prescribed. He was then discharged.

He did not renew his prescriptions when his supply ran out. [ 9 ] Medical records consulted by Dr. Roth show that a. “Contrary to his report of a voluntary admission in February, 2014, Mr. Porter was in fact brought to hospital after his family physician issued a Mental Health Act certificate because of concern about psychotic symptoms, particularly paranoid ideation and reports that Mr. Porter had told family members that he was going to kill them.

Although he advised the doctor at the time of admission that he had … been clean for the entire year, in fact his urine toxicology tested positive for amphetamine, methamphetamine and cannabis. … he was offered a follow-up appointment for February 24, 2014 … but he did not attend this appointment or make arrangements to follow up.”

b. The police brought Mr. Porter back to hospital in Port Alberni on April 15, 2014, “… after having been found behaving in a disorganized manner, apparently aggressive to passers-by, and jumping in and out of the water …”. On that occasion, he tested positive for amphetamine, methamphetamine and cannabis. c. Mr. Porter was then referred to Mental Health & Addiction services, which approved funding for him to attend Inner Visions. d. Mr. Porter’ next contact with Mental Health & Addiction Services was in December, 2014, when he applied for emergency funding.

However, he declined to complete the necessary paperwork, and also declined to take medication, stating that the only medication he required was cannabis. [ 10 ] Dr. Roth offers the following comments: Mr. Porter has engaged in substance use and abuse periodically since his teen years and in recent years has struggled with crystal methamphetamine abuse which has clearly disrupted his mental and physical health and impacted his social and vocational performance.

What is not clear at this point is how much, if any, of his recent deterioration and subsequent legal difficulties are related to substance use and how much are related to primary psychiatric illness. * * * In mid-2014, Mr. Porter was diagnosed with Bipolar Disorder during an admission to St. Paul’s Hospital …. Records from St.

Paul’s Hospital note symptoms consistent with mania upon admission; however, I note there is no mention of whether a urine drug screen had been done on admission, and symptoms of mania can be similar to those of abuse of stimulants. * * * On balance, it appears that there is at least a reasonable chance that Mr. Porter has a primary psychiatric disorder, possible Bipolar Disorder, which is complicated by a co-morbid Substance Use Disorder. The definitive diagnosis will only be made longitudinally and in the meantime Mr.

Porter should be assessed and treated by psychiatry in order to minimize the risk to himself and others from a potential untreated mental disorder. [ 11 ] Mr. Porter exercised his right to speak on his own behalf at the sentencing hearing. He spoke clearly and rationally. He displayed no sign of mental illness. He presented as an intelligent person, thoroughly aware of his circumstances and in control of his emotions and actions. Mr. Porter’s detention since January 16, 2015 has been his first experience of jail.

He expressed, in strong and lucid terms, his belief that he will not receive in custody the medical care which he needs. He asks me to impose a sentence which will allow him to be released immediately. He offers to attend any residential or other treatment program to which he may be referred. [ 12 ] I expressed the view that it would be inappropriate to release Mr. Porter into the community now, and asked counsel to assist me in making enquiries respecting in-patient treatment programs which might be available to Mr. Porter if he were released. Such enquiries were made.

I was told that no such program is now available for Mr. Porter. Sentencing Principles [ 13 ] The Alberta Court of Appeal considered a similar case in R vs Maier 2015 ABCA 59 . In that case, the court considered the question whether contributory mental illness should be considered to be a mitigating factor in sentencing. At paragraph 40, the majority of the court held that: The appellant has in the past had the opportunity to comply with treatment and has consistently refused to do so. That being so, in our view, the mental health issue in this case is not a mitigating factor.

At paragraphs 53 - 54, Justice O’Ferrall, dissenting, said: The other complicating factor in sentencing the Appellant is his "extensive psychiatric history" of mental illness. Courts have treated mental illness as a mitigating factor, diminishing the responsibility or blameworthiness of the offender ….

However, where the offender's mental illness is treatable and the offender has persistently refused treatment, the courts have also treated the mental illness as an aggravating factor because the offender is taken to know from past experience that he or she is more likely to offend when not being treated .… On the face of it, the latter circumstances appear to apply to the Appellant. However, as Appellant's counsel pointed out, those suffering mental illness are not always capable of making rational decisions about their treatment or the effect of treatment on their behaviour.

Suffice it to say that prevailing judicial authority holds, at the very least, that the relative importance of denunciation and deterrence is attenuated when sentencing mentally ill offenders …. [ 14 ] I confess that I am unpersuaded by attempts to apply concepts like denunciation and deterrence to the past and anticipated future behaviour of a methamphetamine addict with a mental illness. The concept of specific deterrence is founded on the proposition that Mr. Porter will be deterred by a jail sentence from committing similar crimes in future.

The concepts of general deterrence and denunciation are founded upon the proposition that others similarly situate will be deterred from future offences if I impose a jail sentence on Mr. Porter. In relation to individuals suffering from a mental illness who are under the influence of a narcotic, I have seen no evidence to support either proposition. In my day-to-day work, I see a substantial, albeit anecdotal, body of evidence to the contrary. [ 15 ] It seems to me that the question whether mental illness is an aggravating or mitigating factor rather misses the point. The

primary objective of sentencing Mr. Porter must be to effect a change in his behaviour, and any lawful sentence which is likely to produce that outcome should be imposed. Assessment [ 16 ] In considering what sentence is most likely to be effective in altering Mr. Porter’s behaviour, I think it important to consider his mental condition when he committed the offences in question, his mental condition today and his probable mental condition in a variety of future scenarios. [ 17 ] At the time of the offences in question, Mr. Porter was using methamphetamine frequently.

Despite his protestations to the contrary, I have no doubt that he was under the influence of that drug when he committed each of the two b&e’s. It is likely that he also suffers from a mental illness which has never been properly diagnosed, and can only be diagnosed longitudinally. It is likely that he was not under the influence of methamphetamine when he appeared in court for sentencing. He did not present as a person disoriented or affected by a drug on those occasions.

His mental condition after release from custody (today or after serving a custodial sentence) will depend on what treatment is offered to him and whether he avails himself of those treatment opportunities. [ 18 ] It will be difficult to diagnose or treat Mr. Porter’s mental illness while he is using street drugs. I have no confidence that he would refrain from using street drugs, or follow through with an out-patient treatment program, if he were released now.

If there were an in-patient treatment program now available to him, I would seek to craft probation terms which would encourage him to remain in the program until he had been weaned off street drugs, properly diagnosed and stabilized on appropriate medications. However, that option is not available to me. I am told that psychiatric services are available to prisoners in the British Columbia Corrections system. Although a prison is clearly not the most desirable venue in which to deliver such services, it appears to be the only option which offers a real chance that Mr.

Porter will receive the treatment which he requires. [ 19 ] I do not think that the threat of incarceration would have deterred Mr. Porter from either of the two b&e’s. I say that because he was then under the influence of methamphetamine. However, Mr. Porter is now much more lucid than he was then, and may receive some psychiatric assistance while in custody. As a result, he is likely to be better able to make good choices, in his own interest, some months from now than he is now. It may be that a term of imprisonment will impress upon Mr.

Porter the importance of participating constructively in treatment programs and following up with Mental Health & Addictions upon discharge, both of which he has consistently failed to do in the past. My impression, from his presentation at the sentencing hearing, is that he is able to understand and act upon such an inducement, despite his mental health challenges. [ 20 ] The first b&e was very serious. The presence of the homeowner at the time of the forcible entry is a serious aggravating factor: Criminal Code ,

section 348.1. In this case, the avowed purpose of the b&e was to intimidate the homeowner. The homeowner was assaulted during the b&e. In those circumstances, the six-month sentence sought by the Crown is a reasonable one, and I impose that sentence. [ 21 ] The second b&e was much less serious. No one was in the house. The only damage was to a window broken by Mr. Porter in order to gain entry. The aggravating circumstance is that Mr. Porter committed the offence while he was on bail for the first b&e and while he was on probation for the mischief for which he was sentenced in July, 2014.

Having regard to those circumstances, I consider that a sentence of 90 days is appropriate. [ 22 ] Because the two b&e’s are distinct delicts, committed on two separate occasions, the sentences should be consecutive. [ 23 ] Mr. Merke submits that a sentence of 30 days on each of the breaches of probation would be appropriate, and that those sentences should be consecutive to each other and to the sentences for the b&e’s, but that the totality principle suggests that they should be served concurrently in this case. I think that Mr. Merke is correct on each of those points. [ 24 ] Mr.

Porter has been in custody since he was arrested for the second b&e on January 16, 2015, and is therefore entitled to credit for 74 days of pretrial custody. Because his bail (on the first b&

e) was revoked on January 19, 2015, credit for pretrial custody should be on a one-for-one basis: Criminal Code , section 719(3.1). No constitutional issue was raised in relation to that

section in this case. I observe that a constitutional challenge to the

section was dismissed in R vs Chambers 2014 YKCA 13 . [ 25 ] I have considered whether a period of probation should be ordered, to follow the custodial sentences in this case. On balance, I think not. Mr. Porter is a mature man, of capable intellect, well able to understand his position and to make mature choices in his own interest. He has been offered counselling and treatment in the past, and has walked away from each of those opportunities. Similar opportunities will be available to him, in custody, and on his release from prison.

He will benefit from those opportunities if, and only if, he chooses to take full advantage of them. Rather than subject Mr. Porter to the direction of a probation officer, I think it better to make it clear to him that it is up to him to avail himself of the opportunities offered to him, and that adverse consequences are likely to follow if he fails to do that.

Disposition [ 26 ] On information #36414-1, count #1, there will be a sentence of 180 days’ imprisonment, with credit for 37 days served, leaving 143 days left to serve. [ 27 ] On information #36049-1, count #1, there will be a sentence of 90 days’ imprisonment, with credit for 37 days served, leaving 53 days left to serve. [ 28 ] On each of informations #35920-B-4, count #1, 35920-B-3, count #1, 35920-B-6BA, counts #2, #5 and #6, there will be a sentence of 30 days’ imprisonment, concurrent to each other and concurrent to the sentences on informations #36414-1 and 36049-1. [ 29 ] I direct that a copy of these reasons be provided to the officer in charge of the corrections centre to which Mr.

Porter is assigned, in the hope that appropriate psychiatric assistance will be provided to him in custody.

April 1, 2015 __________________________ T. Gouge, PCJ