R. v. Watt Date:, 2015 BCPC 343

Citation: R. v. Watt Date: 20150521 2015 BCPC 0343 File No: 80812 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL STANLEY WATT REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Crown: R. MacGowan Counsel for the Accused: L. Rankin Place of Hearing: Abbotsford , B.C. Dates of Hearing: January 20, 21, April 27, 2015 Date of Sentence: May 21, 2015

[ 1 ] THE COURT : I am sentencing Michael Stanley Watt for two offences on which he was convicted at trial. He has been convicted of an offence contrary to s. 139(2) that is the obstruction of justice offence being an attempt to pervert, obstruct or defeat the course of justice by attempting to dissuade a person by threats, bribes or other corrupt means from giving evidence.

He has also been convicted of an offence contrary to s. 423.1(3) of the Criminal Code , and that is an offence of without lawful authority and intent to provoke a state of fear in a justice system participant in order to impede him in the performance of his duties, threaten to use violence against that person. [ 2 ] I will not repeat the facts on which those convictions have been based; counsel are aware and written reasons for judgment have been filed in this matter and also appear on the Provincial Court database, so I will not repeat those circumstances. [ 3 ] There are a number of issues before me; the first is whether or not a conditional stay should be entered on one of the counts pursuant to what is called the Kienapple principle, in other words the double jeopardy principle, and the second is, what is the appropriate sentence for Mr.

Watt? [ 4 ] On the second issue, the Crown seeks a sentence of two years. Mr. Rankin says that it should be something less, perhaps something in the 18-month range. [ 5 ] Dealing firstly with the double jeopardy principle, I think Mr. Rankin states it fairly that it may be a distinction without a difference in the sense that regardless of how I decide that issue, it is not going to make a difference to Mr. Watt.

His sentence will be the same because even if I find that the convictions on both offences should stand, any sentence should be concurrent, one with the other. [ 6 ] The Kienapple principle in which a person ought not face double jeopardy for the same act has two underlying principles: The first is, of course, the same delict, is the legal term meaning the same fact pattern if the same act and intention constitute the same offence even though it captures different sections of the Criminal Code and that is one factor the court takes into account.

The other factor is whether the elements of the lesser offence are included entirely in the greater offence. And I should say I agree with Mr. MacGowan that Count 2 is the greater offence, in my view, simply because Parliament has given it a longer maximum sentence. [ 7 ] Now, in this case I find that the Kienapple principle does not apply, and the reason I say that is because there are separate elements of these two offences. In the case of Count 1, the underlying offence is an attempt essentially to derail the trial.

The purpose of the threats is that so the course of justice will not proceed, in this case the trial would not have proceeded because the witnesses would be too intimidated to testify. And I should say that goal can be achieved in a number of ways; it can be achieved by threats, bribes or other corrupt means. [ 8 ] Count 2, the element is the actual imposition of threat against a justice system participant, whether or not there has been a trial or whether or not it occurs after a trial.

So because they are separate elements, I find that the Kienapple principle does not apply in this case and that the conviction should stand on both counts. [ 9 ] Now, having said that, at the end of the day that really does not make any difference because in this case it was the same actions on which Mr. Watt has been convicted for that sustain both of those convictions and any sentence that I impose, he should not be sentenced consecutively for the two counts on this Information.

So, the sentences that I am going to impose on Counts 1 and 2 will run concurrent with the other, but consecutive to the sentence that he is now serving. I will speak on that in a little greater detail. [ 10 ] In sentencing Mr. Watt for these offences I am taking into account a number of factors.

Section 718 of the Criminal Code says that the fundamental purpose of sentencing is to contribute to respect for the law and maintenance of a just, peaceful and safe society, and it says that I ought to seek out the following objectives: 1. Denouncing unlawful conduct; 2. Deterring Mr. Watt and other like-minded persons from committing offences; 3. Separating offenders from society where necessary; 4. Assisting in the rehabilitation of offenders; 5. Providing reparation to victims or making amends to them; and 6.

Promoting a sense of responsibility in offenders and acknowledgement of the harm that they have done to victims and to the community. [ 11 ] Now, as the lawyers have pointed out in their submissions though, for this particular type of offence where it is an obstruction of justice, and the cases that have been cited have said it in different ways, denunciation and deterrence are the primary considerations because, of course, if the threatening of witnesses is not addressed with a strong response, then of course the whole system falls apart, so I am taking that into account in the sentences that I am going to impose. [ 12 ] The Criminal Code , s. 718.01, says that I ought to concentrate on denunciation and deterrence if the victim of an offence is a person under age 18, and in this case, of course, one of the persons who was meant to be intimated by Mr.

Watt's actions was the Campbell’s' granddaughter, who was 16 years of age at the time.

Section 718.1 says the sentence should be proportionate to the gravity of the offence and the degree of the responsibility of the offender, and again, as has been said a number of times, this is a very serious offence.

Section 718.2 of the Code says that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances.

[ 13 ] Now, Mr. MacGowan, on behalf of the Crown, says there really are no mitigating circumstances. I disagree, and I note some of those that Mr. Rankin has mentioned, I will mention those in more detail. There are, of course, a number of aggravating circumstances, not the least of which is that when this offence was committed, Mr. Watt was under a court order to have no contact with the Campbells; there was a flagrant breach of that order. I agree with Mr.

MacGowan that it is an aggravating circumstance, that this was not a spur-of- the-moment offence, that there was a significant degree of planning and an attempt to deceive, making it a very difficult offence to prove. As I have mentioned, there is the issue of the fact that one of the victims was a child, but it is also more significant to me that the victims were vulnerable witnesses who had already been the victims of violence and there is more significance to the fact that violence was threatened against them after they had already been victimized. [ 14 ] Crown also makes reference to Mr.

Watt's record, and I think everybody agrees it is an unenviable record. There are 33 property offences, there are six convictions for robbery, nine convictions for driving offences, eight convictions for assault or assaultive behaviour, two convictions for threatening, there is a conviction for a weapons offence, for unlawful confinement.

Remarkably, although there are some parole violations, there is only one conviction for breach of a court order, but nevertheless, it is a very severe record and that is certainly an aggravating circumstance. [ 15 ] The fact that this matter went to trial is not an aggravating circumstance; it is a neutral circumstance. It would be a mitigating circumstance if Mr. Watt had pled guilty, but he does not get a larger sentence simply because he chose to take this matter to trial. And I should note that it is also a neutral circumstance that in the pre-sentence report Mr.

Watt chose, as is his right, to say little about this offence, but I would note that his comments in court today certainly express remorse, and I would also note that it is not remorse just for how the result of this conviction is going to affect him, but there was remorse expressed as to how the offence had affected the Campbell family. [ 16 ] The other mitigating circumstances I glean from the pre-sentence report are that Mr. Watt shows some insight into the root cause of his offending. Mr. Rankin notes that his behaviour while in custody has been good, Mr.

Rankin uses the phrase "model prisoner", and I think that is certainly something that the court has to take into account as a mitigating circumstance. There has been a receptiveness to programs, and I also note in the report that the recidivism that exists in this case is rooted in

part in Mr. Watt's own past victimization, and I take that into account. [ 17 ] With respect to what is called the Gladue principles, in other words the fact that the court ought to give special considerations to persons with Aboriginal and First Nations heritage, I am mindful of those considerations, although those considerations have less impact in the case of offenders with significant records as in this case. [ 18 ] I also take into account the totality principle, but I also agree with the submission of the B.C.

Supreme Court in the Mavros case that I cannot consider a concurrent period of time because this is indeed a new offence and that this particular offence is one for which the court ought not impose concurrent time to any other sentence being served. It is a fresh offence and it is troubling that it is one that undermines the foundation of the system by threatening witnesses in this fashion. [ 19 ] It is against all of those factors that I am tasked with coming up with a fit sentence for Mr. Watt. [ 20 ] The Crown has requested a two-year sentence. I would note that given Mr.

Watt's record, given the facts of this offence which are aggravating for the reasons that I have mentioned, and given the potential maximum sentence that the offences carry, a two-year sentence is certainly within the range, but I would say also that these particular facts could justify a longer sentence than that being sought by the Crown. [ 21 ] I am mindful of the cases that the Crown and defence have both presented. I paid particular attention to the portions that counsel have referred to in their submissions.

I note that the cases seem to almost unanimously support the principle that any offence against the administration of justice in this nature, the nature that I am sentencing Mr. Watt for, requires a sentence of at least an 18- month sentence. The Court of Appeal of this Province in the case of R. v. C.E.B. cited by the Crown imposed a 15-month sentence for one appellant and an 18-month sentence for another. Now, those were persons younger than the accused with less significant records, and I take that into account. [ 22 ] In the case of R. v.

Crazybull , an Alberta Court of Appeal decision, a 23-month sentence was imposed for obstructing justice by the use of threats. I note that that was also a young person, a young adult, and I also note that that was an impulsive offence, and I believe that one may have been a case where the accused pled guilty as well, but I am not certain about that. [ 23 ] R. v. Thuraisingam , a decision of the Ontario Court of Justice, was again a two-year sentence imposed to a young person, an 18- year-old.

There was no previous record, although there was an actual physical assault in that case and I take that into account as well. [ 24 ] R. v. Emmelkamp, which was cited to me, concerned an accused who was given an 18-month sentence. That person had a bad record. I note though that there was a mitigating circumstance that the individual had pled guilty, the victims of the offence were not required to testify in that case. [ 25 ] The Crown referred to the R. v. Mavros , a decision of Mr. Justice Ehrcke of our B.C. Supreme Court, and again the Crown noted Mr.

Justice Ehrcke's comments both about the nature of the offence and the fact this is not an offence for which a sentence should be imposed consecutive with any other transaction. [ 26 ] I also note that Mr.

Rankin referred me to two decisions from Alberta courts, one, the decision of Thomas , a decision of the Alberta Provincial Court, and in that case a 16-month sentence was imposed in a case where the accused wrote a threatening letter to attempt to convince a witness not to testify, somewhat similar to this case. [ 27 ] Finally, there was the Viscomi case that was put before the court, a decision of the Alberta Court of Appeal, in which the Court of Appeal overturned a conditional sentence order for this type of offence and substituted a 14-month sentence of imprisonment. [ 28 ] Now, as I say, the sentences proposed by both counsel are within the range of sentencing, and I have noted that both the

aggravating and the mitigating circumstances, and I have also noted the considerations that I am required by law to take into account, including the fact that, for these particular types of offences, deterrence and denunciation are of significant importance because it is not only Mr.

Watt who has to be impressed with the sentence, but it is also like-minded individuals who weigh the risk of threatening other witnesses in other proceedings. [ 29 ] Under these circumstances, taking into account all of these factors that I have to take into account, both mitigating and aggravating, the authorities that counsel have submitted, and the provisions of the Criminal Code , in my view it is difficult to justify how these offences committed under these circumstances by an offender with this record, that under those circumstances how a sentence of less than the two-year sentence that the Crown is seeking would be justified. [ 30 ] I am not going to exceed the sentence suggested by the Crown, but I feel that the Crown's position on sentencing fits these facts and this offender better, and I am going to impose a sentence of two years on each count.

That will be concurrent, one with the other, but consecutive to any other sentence being served. [ 31 ] Because the accused is serving a sentence on other matters, his pre-sentence custody cannot be credited against the time pursuant to s. 719 of the Criminal Code , so there will be a sentence of two years concurrent, one with the other on each count, but consecutive to any other sentence. [ 32 ] I am also going to make an order pursuant to s. 109, a lifetime weapons prohibition prohibiting Mr.

Watt from possessing the items set out in those sections. [ 33 ] I am also going to make an order pursuant to s. 487.051 of the Criminal Code directing that a sample of his DNA be taken for the National DNA Databank. That sample is to be taken forthwith. Now, I would be very surprised, given the record, if Mr. Watt's DNA's is not already on record.

I will make that order and then the appropriate inquiries can be made as to whether or not that sample is required to be taken under those circumstances. [ 34 ] I am also going to make an order pursuant to s. 743.21 prohibiting the accused from having any contact directly or indirectly with Gordon Campbell, Mary Campbell or Skye Campbell, or with Terrence Willems. [ 35 ] Are there any other orders that either counsel are seeking? [ 36 ] MR.

RANKIN: No, Your Honour, other than there is the matter of the victim fine surcharge. [ 37 ] THE COURT: Right, and given that your client will not have the ability to pay that, I am just going to make that payable forthwith and direct that any time served in default be served concurrent with his other sentence. K.D. SKILNICK Provincial Court Judge