R. v. J.A.P. Date:, 2011 BCPC 333

Citation: R. v. J.A.P. Date: 20111021 2011 BCPC 0333 File No: 81262-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.A.P. BAN ON PUBLICATION 486.4(2) CCC; 486.5(1) CCC ORAL REASONS FOR LONG TERM OFFENDER APPLICATION OF THE HONOURABLE JUDGE FRAME Crown Counsel: B. Caffaro Defence Counsel: J. Gustafson Place of Hearing: Kamloops, B.C. Date of Judgment: October 21, 2011 [ 1 ] THE COURT: This is an application by the Crown to have J.A.P. declared a long-term offender and subjected to a long-term supervision order.

The Crown and defence are agreed that he should be declared a long-term offender with a maximum 10 year supervision order. In that sense it is a joint submission. [ 2 ] At issue is the length of term for the determinate sentence in custody, including the transitional time. He has been in custody since December 2006. The Crown says the appropriate credit is four to five years, the defence says the appropriate range is three to four years.

It is agreed by both that in the circumstances of this case an additional transition period is required over and above this sentence to permit Correction Service Canada to put a plan in place for Mr. P.'s safe reintegration into the community. The issue is how long that transitional portion of the sentence should be.

Both Crown and defence have also asked that I prepare recommendations to the National Parole Board for the supervision terms of that order. [ 3 ] Even where counsel are agreed that a long-term supervision order ought to be made, I cannot make the determination without there first being grounds for such an order. The test I must consider to impose an LTSO is whether the offender's risk of future offending can be brought within tolerable limits using sanctions available pursuant to the long-term offender provisions. [ 4 ] The key purpose of the long-term supervision order is protection of the public.

This test requires more than a mere possibility that the sentencing sanctions available are sufficient to reduce the risk of threat to an acceptable level. There must be a reasonable possibility that such sanctions are available and that they will thereby reduce the threat. To find there is a reasonable possibility that there will be eventual control of the risk to the community, there must be evidence of treatability that is more than mere speculative hope and indicates that the offender can be treated within an ascertainable time frame. [ 5 ] This does not mean that I must be satisfied Mr.

P. will be cured through such treatment or rehabilitation, but that his risk can be sufficiently contained in the community. It is an error of law to make a long-term offender designation without a firm evidentiary basis concluding that the treatment will work even if it is conceivable that in some cases the treatment may never end: R. v. Goodwin , 2002

BCCA 513 . It is also necessary that there be evidence that the means to control the risk are, in fact, available. This means that I must consider resourcing limitations and that these resources are not uncertain. [ 6 ] In this case the original application was for a designation of dangerous offender. That designation was made by Judge Rohrmoser, although he noted a paucity of evidence with respect to some allegations of sexual offending and related stalking, and a similar lack of evidence with respect to Mr. P.'s overall performance in the community while on release.

The designation was overturned by the Court of Appeal noting that same crucial shortcoming in the evidence. [ 7 ] When the matter was returned for a new hearing, it was learned that the evidentiary gaps could not be filled and therefore certain assumptions, particularly of past sexual assaults and stalking behaviour, were insupportable. Equally importantly as Crown and defence explored the evidence respecting Mr.

P.'s performance in the community, particularly with respect to his reporting to parole, attending his counselling and largely being forthright in his disclosure about his marihuana use, counsel rightly determined that this was no longer appropriate for a dangerous offender application. [ 8 ] Based upon the significant change in assumptions, Crown proceeded with the consent of defence with a replacement application for a long-term offender designation relying upon the conviction for an assault causing bodily harm of a corrections officer on December 7, 2006.

I emphasize that while a number of the assumptions about sexual offending are now impugned, Mr. P. is still a sex offender with convictions for these offences, including a very serious sex assault for which he has already been designated a long-term offender. Mr. P. has not acknowledged culpability or guilt and is, as of today, an untreated sex offender. However, his risk to reoffend with the impugned history removed is reduced from high risk to moderate to high risk. This still poses a threat to the community.

His risk to reoffend violently remains on the high end of high which is an even greater threat to the community. [ 9 ] The challenged history is as follows: a conviction in his youth for a sexual assault for which there were no circumstances to enlighten the court as to its nature; a 1990 sex assault that did not end in the charges being dropped, but in fact in an acquittal; and the alleged stalking incident in January 2000 which had no supporting evidence, although Mr.

P. was certainly at the scene of the latter and was then charged with a weapons offence. [ 10 ] There has been an extensive judgment prepared by Judge Rohrmoser following the trial and by the Court of Appeal on the dangerous offender hearing, as well as extensive reports, records and other documents put into evidence. There is strong evidence supporting the application sought by Crown.

Because the long-term offender designation is conceded by defence and supported in this vast array of evidence before me, I do not find it necessary to set out all of the facts supporting that finding. [ 11 ] I am satisfied on the considerable evidence before me that it is appropriate to designate Mr. P. a long-term offender and impose a long-term supervision order for a period of 10 years. His record and his largely unsupervised conduct in the community clearly establish that he is a risk to the community.

His latest offences leading up to the convictions supporting this application arose from reactionary aggression and threats against staff at Christmas Amalgamated on December 5, 2006, culminating in an assault causing bodily harm of a corrections officer on December 7, 2006, which is the predicate offence of this application. [ 12 ] However, the interventions seen in 2006 over a brief period of time with the parole officer, Mr. P. and the counsellor, Mr. B. show that if a carefully crafted plan is put in place to address the specific issues Mr.

P. struggles with, then there is a real possibility that there can eventually be a control of the risk he poses to the community. The progress made in 2006 was not significant on the grander scale, but it showed that proper structures, supervision and treatment makes it appropriate to designate Mr.

P. a long-term offender and permit him the opportunity to be reintroduced to the community in a very gradual and very controlled manner. [ 13 ] The second half of that issue is whether such resources are available in the community to establish that there is a reasonable possibility the risk he poses can be managed in the way that is required for him. In other words, are the appropriate resources available? [ 14 ] In Mr.

P.'s case there must be at the commencement of his supervision and for as long as necessary a secure residential facility with 24-hour a day monitoring to ensure that he does not have access to potential victims, he has the appropriate supports in the event that his triggering behaviour emerges, he abstains from substance abuse and takes his prescribed medications, and to intervene in triggering events so to enforce the use of tools he will learn through counselling. The facility must also provide the needed psychiatric and other counselling which will give Mr.

P. not only rehabilitative resources for his mental health and intellectual challenges, but also provide him with the crucial tools needed to resist his reactionary and violent aggression. [ 15 ] With all of these components in place there is a reasonable possibility that the risk he poses to the community can be managed. Absent any one of these components, he poses a significant risk to the community as seen by his criminal record and his conduct both in the community and while incarcerated.

I must be satisfied in order to meet the requirements of a long-term supervision order that all of these components are, in fact, available to Mr. P. in the community. To do otherwise is to release Mr. P. into the community not only as an untreated sex offender, but as a man prone to violent reaction to both perceived and real slights however insignificant those slights may be. [ 16 ] By way of example, Mr. P.'s correctional records are replete with references to defying orders to comply with institutional rules. When he is pressed, he becomes aggressive and often violent.

He throws items, attacks people, and makes threats to kill or harm. This has not abated over the years he has been in the custodial setting. [ 17 ] Mr. P. was released into the community in 2006. The evidence is that no care facilities at the appropriate level would accept him. There are community correction centres providing extensive monitoring and supervision of the very nature Mr. P. needs. Only one of these exists in British Columbia and that is the Chilliwack Community Correction Centre.

There are also community residential facilities referred to as halfway houses and there are community-based residential facilities. These facilities range in the kind of staffing, monitoring and security available from the most extensive at community correction centres to the least at community-based residential facilities. [ 18 ] Light House is a community-based residential facility. This was the facility willing to take Mr. P. and that is where he was released. Light House does not have staff on for 24-hours per day. Their staff work a typical eight-hour workday. They have no

psychiatric or other nurses on staff. Medications are disbursed by staff, but Mr. P. was permitted to administer his own. There was no supervision of stockpiling or disposal of the medications. Light House had support workers who would assist the offenders in attending to their daily business. Light House also had no staff on at night to monitor the comings and goings of the residents, although a security company performed nightly random checks. There was no one to monitor the illicit use of street drugs either. In short, it was a completely inappropriate placement for Mr.

P. [ 19 ] I understand he was placed there because as each level of facility declined to take him, the Parole Board was asked to change the residency terms of his last release. This should never have occurred. We have the benefit of hindsight to realize that, but it came at a price to the community. Even though it did not have the psychiatric nursing, medication monitoring or extensive supervision required for Mr. P., he was still able to function for a short period of time with the supports he did have.

This was very promising for a more structured and supervised release. [ 20 ] While on release in 2006, he gained access to crack cocaine in August. He was breached. Subsequently, the records show his outbursts at Light House were escalating. In that time he obtained a prescription for Marinol, but was unable to fill it due to his financial constraints. Instead, he began using marihuana. This was discovered in a drug screening test. He also disclosed it to his parole officer and counsellor. He had developed a very good working rapport with both of them.

They both agreed that this transgression would not result in a breach because of the calming effect marihuana had on him. [ 21 ] Unfortunately, no one told his treating psychiatrist, Dr. C., about the Marinol or the marihuana use. Dr. C. was the person tasked with treating Mr. P. and prescribing the needed medications. He was responsible for modifying Mr. P.'s medication regimen and monitoring the reactions. His opinion was that marihuana and Marinol were entirely wrong for Mr.

P. because while the short-term effect was calming, the eventual effect was to increase his irritability. [ 22 ] There was also some confusion in this time about whether Mr. P. had been taken off one of his other drugs, Paxil, which Dr. C. maintains was not discontinued. With the addition of the Marinol, Mr. P.'s discontent with the Risperdal and the apparent discontinuation by someone of the Paxil, it is evident that there must be someone who is closely monitoring not only what drugs are prescribed to Mr. P., but that he takes them and that he takes no others.

It is equally clear that he cannot be left to manage his own compliance with taking his prescriptions. [ 23 ] This shows that it is a crucial component of Mr. P.'s plan that he have a support team who communicate well and are on the same page with respect to appropriate treatment and counselling. His team needs to be integrated well enough to understand the source of his offending, cope with his intellectual challenges and mental health issues, coordinate and monitor the medications he is taking and the counselling and treatment he needs, as well as knowing his triggers in the community.

I cannot stress enough how important it is that Mr. P. have such a team. [ 24 ] To summarize his needs, apart from being diagnosed as bipolar and having an antisocial personality disorder, Mr. P. struggles with illiteracy. Judging from the letter he wrote some years ago and that is in evidence, that illiteracy is not complete. Also, Mr. B. found his illiteracy was no obstacle to counselling him, and Dr. B. testified that a good counsellor will approach his counselling with this illiteracy in mind.

In short, both his mental health and intellectual needs can be met with resources present in the community and the programming present in the community. Determinate Sentence [ 25 ] Mr. P. has an extensive and violent record. He was on long-term offender status when the index offence occurred. Certainly in the absence of a long-term supervision order, a lengthy custodial sentence would be imposed. I am satisfied that such a sentence would range between the three and five years submitted by both counsel. I am satisfied that a sentence of four years falls within that acceptable range.

I fix the determinate sentence at four years and credit Mr. P. with all of that time, plus a transitional time I will impose. The transitional time is appropriate in circumstances like this where a plan is critical to the offender's release both in his interests and in the community's, and where the sentence has effectively been served before the long-term designation is made: R. v. Armistead , 2003 BCCA 699 ; and R. v. Trevor , 2003 BCSC 1154 . [ 26 ] It is critical in this case both to Mr. P.'s interests and the safety of the community that such time be taken to formulate the proper plan and placement.

The question is how much time. There must be a balance between the adequate time to properly prepare and the luxury of time desired by Correction Services Canada. It would not be an acceptable result if a deficient plan were put in place due to a lack of proper planning time. [ 27 ] Mr. F., on behalf of the Correction Services Canada, testified that it will take six to 12 months to put in place the appropriate plan and program for Mr. P. to be released into the community. The Crown seeks a sentence in that range in order to ensure that this can be achieved.

Defence says the evidence shows when pressed, Correction Services Canada can do the appropriate investigations and prepare the appropriate reports in a shorter period of time than the six months specified. [ 28 ] Mr. P. has been in custody since December 2006 awaiting the outcome of this hearing and has therefore spent enough time in custody. The focus should be to have him placed on his plan and program as quickly as possible so that he is released to the appropriate facility without further delay. In short, I must balance between imposing a determinate sentence which reflects the amount of time Mr.

P. has already been in Custody against the important imperative of affording Correction Services Canada the proper amount of time to complete its investigations and reports in order to ensure constructive recommendations are made to the National Parole Board. There must then be adequate time for the National Parole Board to impose its terms and for Correction Services Canada to then locate the appropriate facility to implement Mr. P.'s plan. [ 29 ] Having considered the extensive history Corrections has had with Mr.

P. and their very thorough record keeping, balanced against a reasonable amount of time to put a good plan in place, I am satisfied that three months is adequate. I sentence Mr. P. to three new months custody to achieve that end. The full sentence will be reflected as four years and three months with credit for four years or 48 months served.

[ 30 ] I also recommend that Mr. P. serve the period of incarceration at the Regional Treatment Centre where he will receive the support he needs not only to contain his aggression, but to prepare him for transition to the community corrections centre. Recommendations [ 31 ] With a view to the reasons set out above, I have been asked to make recommendations to the National Parole Board for the supervision terms. The recommendations sought based on the evidence heard and presented in the records and which I make by way of my reasons are: 1. There must be a residency condition requiring Mr.

P. to reside at a community corrections centre, preferably Chilliwack Community Correction Centre or equivalent facility where there will be 24-hour staff, onsite programming, onsite nursing, and proximity to the Regional Treatment Centre in the event that there should be emergent circumstances such as a deterioration in his condition requiring him to be moved to that centre. 2. It is preferred that British Columbia facilities be considered first, but there should also be a consideration of placement outside of the province, if necessary, rather than placement in a downgraded residency. 3.

It is imperative that he have the proper supports available and that his ventures into the community be closely supervised until there is a gradual and monitored relaxing of that supervision over time. 4. Such facilities for placement should not include Belkin House which, despite its great works, is in the downtown eastside of Vancouver in an area described by Dr. B. as rife with substance abuse and mental illness and as a disorganized community unsuitable for Mr. P.

Similarly, a community-based residential facility such as Light House does not have adequate monitoring support or medical presence to be a suitable placement for Mr. P. This is absolutely apparent from the escalation of his aggression commencing in October 2006 and culminating in the unsupervised incident on his daughter's birthday at Christmas Amalgamated. 5. He must be directed to take his medication and, until the medical professionals determine he is capable of administering his own medications reliably, the administration of that medication must be monitored for consumption. 6.

It is absolutely imperative that Mr. P. have an empathetic support team to plan, attend to and carry out his medication and counselling plan. He must have a team that communicates his progress as well as regression, monitors his medication and its changes, and coordinates all of his therapy as well as his supervision in the community. [ 32 ] It is unclear from the Court of Appeal decision whether the Criminal Code , s. 109, firearms ban was also set aside and whether the DNA order was set aside. I therefore impose a s. 109 firearms ban for life and I make the DNA order on Count 4.

Will there be any other counts that have a primary -- [ 33 ] MR. CAFFARO: Threatening is a secondary offence, so we would make the application for those counts, and s. 88, the weapons offence, is not a listed offence for DNA. [ 34 ] THE COURT: We will come back to that in a moment, then. I also order that a transcript of these proceedings and my reasons be produced to Correction Services Canada and the National Parole Board along with all of the exhibit before me on this hearing, the trial decision of Judge Rohrmoser and the Court of Appeal decision on the dangerous offender application.

I am told transcripts ordered on the usual basis take 21 business days. I therefore order them on an expedited basis. [ 35 ] I am waiving the victim fine surcharge with respect to this conviction. [ 36 ] I have been asked to impose disposition on Counts 1 to 3 and 6 which may have been overlooked in the process of the dangerous offender application. With a view to the record, which is extensive, I am imposing a concurrent sentence on the remaining four counts. [ 37 ] For Counts 1, 3 and 6, with a view to the appropriate step-up principle, I am imposing four months concurrent on each of those counts. Mr.

P., as I have indicated, has been in custody for more than enough time and I am going to credit him with that time as time served. [ 38 ] With respect to Count 2, the appropriate disposition given his previous weapons offences is six months and I am imposing a sentence of six months concurrent to the other counts and to Count 4. Again, he will be credited for that time in custody. [ 39 ] With respect to the DNA order on Count 1, 3 and 6, do you have any submissions to make? [ 40 ] MR. GUSTAFSON: No.

The only thing I would add, Your Honour, is if he's already in the database, if Your Honour can include an indication that a new sample doesn't need to be taken unless it's necessary, but I appreciate the DNA order is going to go. [ 41 ] THE COURT: All right. I am going to impose the discretionary DNA order on Counts 1, 3 and 6. I do note that Mr. P. has provided DNA samples previously. The authorities will determine whether it is necessary to take them again. [ 42 ] I think that is it. Oh, I know. [ 43 ] MR. GUSTAFSON: Sorry, Your Honour. [ 44 ] THE COURT: That is all right.

I am just going to waive the victim -- are the Sheriffs Services planning on taking the DNA? [ 45 ] THE SHERIFF: That was what I was just talking to Mr. Gustafson about. I didn't know, because we can now do it. [ 46 ] THE COURT: Yes.

[ 47 ] THE SHERIFF: But if you direct that it's not to be done or has already been done, they can [indiscernible/not near microphone] KRCC -- [ 48 ] THE COURT: I am saying that the appropriate authorities will determine whether it is necessary because sometimes they take another sample, sometimes they do not. [ 49 ] THE SHERIFF: Fair enough, but if you direct it has to be done, then either we'll do it ourselves or we'll -- I've seen some sort of - - I'm not trying to -- [ 50 ] THE COURT: It might be easier to have him give the DNA sample if I simply direct that it be done. Mr. P.? [ 51 ] MR. GUSTAFSON: Mr.

P. is indicating he'd like to just get it over with. [ 52 ] THE COURT: Okay. Well, then, I am just going to direct that the DNA samples be taken with respect to Counts 1, 3, 4, and 6. [ 53 ] I am waiving the victim fine surcharges on all of the counts. (REASONS CONCLUDED)