R. v. F.W.C. Date:, 2011 BCPC 32

Citation: R. v. F.W.C. Date: 20110126 2011 BCPC 0032 File No: 81936-5C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FWC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE ST. PIERRE Counsel for the Crown: T. Iandiorio Counsel for the Defendant: D. Schultz Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: January 26, 2011 Date of Judgment: January 26, 2011 [ 1 ] THE COURT : FWC is being sentenced with respect to count 2 on Information 81936-5C, that on May 22nd, 2009, he did without lawful authority, confine Robert James Churchwell, contrary to s. 279(2) of the Criminal Code . [ 2 ] Crown submits that the appropriate sentence in this case is six years in custody. [ 3 ] There is an agreement that he has now spent 28 days in custody on this matter, so essentially a month. [ 4 ] The trial had commenced some time ago and proceeded in somewhat fits and starts but eventually it came down to FWC pleading guilty to count 2, and then the other two accused on the Information, Ms.

Lockhart and Mr. Lavallee, have to be dealt with. [ 5 ] On May 21st, 2009, Mr. Churchwell had apparently won some money through gambling, or a casino or bingo. FWC's co- accused, Mr. Lavallee, found out about this apparently and wanted to extricate those funds from Mr. Churchwell. Mr. Lavallee had pulled up his vehicle to Mr. Churchwell that day and had actually chased him around for a bit. Mr. Churchwell managed to lose him apparently and then the following morning, Mr. Lavallee was over at a residence and there is some disagreement about what happened at the residence where Mr.

Churchwell was eventually taken from and put into a vehicle. [ 6 ] FWC says that there was an argument and that he helped Mr. Lavallee get Mr. Churchwell out so the other residents would not

be upset about that. [7] There is no real disagreement in the facts of what happened; there is a disagreement in the inference to be drawn and thecharacterization and extent of FWC's involvement.

I was not quite clear when counsel said we are now down to only having adisagreement on the text message that occurred later. [8] Whether there was an agreement about the characterization or that still it was just the facts that were agreed upon in that thecharacterization of the level of Chartrand's involvement was something that was left up in the air, or was up to me to infer, or that Mr.Schultz's representations were the ones that were going to be relied upon. [9] In some respects the facts of what happened at that scenario are not in my understanding essentially in dispute, but it seems to bethe Crown's theory that FWC was in full cooperation with Mr.

Lavallee on essentially kidnapping this person. Now, he is not beingsentenced for that but that is the umbrella under which all of this activity takes place. [10] FWC on the other hand as I understand it is essentially saying, "Look, I had no idea what their eventual intention was, but mineat the time was to simply get him out of there because he was causing a disturbance essentially." That is what I understand Mr.

Schultzto be saying. [11] I guess the question is whether the Crown is satisfied that that characterization is the one that FWC is to be sentenced on giventhat the Crown has a theory but there is no particular evidence supporting that theory other than an inference that is available on thosefacts. [SUBMISSIONS] [12] THE COURT: I guess what is left from that is that FWC says that he did not understand or know what the ultimate intention ofMr. Lavallee was and that could have some impact on his level of culpability. [SUBMISSIONS AND DISCUSSION] [13] THE COURT: Mr. Lavallee awoke Mr.

Churchwell and asked him for money, and what FWC has pleaded guilty to is assistingMr. Lavallee in getting Mr. Churchwell out of that building forcefully, assisting to tie him up, and to take him down to the garage whereFWC forcefully put Mr. Churchwell into the back of a vehicle when it was clear Mr. Churchwell did not wish to go. [14] It is unclear what happened after that. What is clear is that FWC no longer had any involvement in the incident. Mr. Lavallee,Ms. Lockhart and another person were in the vehicle and they were driving Mr. Churchwell around, assaulting him throughout hisjourney.

It is not clear what their motivation was in driving him around, but it is clear that they did want to extort or to obtain the moneythat he had won from him, and in doing so they had to try to avoid detection and tried to get away from the police who eventuallybecame involved and were following Mr. Lavallee's vehicle, not knowing at the time that Mr. Churchwell was essentially hog tired in theback of this SUV-type vehicle. [15] FWC was involved at the initial stage of assaulting Mr. Churchwell and getting him into the vehicle. Mr.

Lavallee I think hasconceded that he and others were the ones who were committing most of the violence on Mr. Churchwell. [16] I have had a chance to look at the photographs and it is clear that while FWC was not involved after the initial placing of Mr.Churchwell into the vehicle, Mr. Churchwell did suffer some injuries. It is not quite clear what injuries were suffered and at what time. [17] This was an incident that was very distressing and no doubt extremely frightening for Mr. Churchwell to be involved in. [18] While on bail, FWC had some difficulties.

He is alleged to have committed further offences which led to a breach of theconditional sentence order that he had been serving since May 5th, 2006 and that led to the termination of the conditional sentenceorder.

So he has only been in custody on this matter for a month but he has served out the conditional sentence order is myunderstanding. [19] The cases presented to me by the Crown to try to provide some kind of a range of sentencing and some kind of sense of what thepenalties are for the level of culpability of FWC because there is a very wide range of sentences in scenarios involving kidnapping andunlawful confinement, but I think that both the Crown and the defence are agreed it is important to try as much as is possible tocharacterize the involvement of the accused because of the range of sentence depends greatly on that level of involvement. [20] The Crown has provided R. v.

C.A.M., (SCC), [1996] S.C.J. No. 28; R. v. Deo, 2007 BCCA 626 ,[2007] B.C.J. No. 2726 which was a case where an individual was held three days at gunpoint and Deo was sentenced to seven years andhis primary role apparently was allowing the assailant and the kidnappers to use his garage to carry out the kidnapping. [21] In R. v. Hernandez, [2009] B.C.J. No. 695 where some other co-accused, one in particular named Vu, was convicted only of theunlawful confinement and was described as being essentially a foot soldier acting on instructions. He had no record; he was 21 yearsold.

He was sentenced to eight years imprisonment. Vu knew the deal that was going on there. The confinement there occurred forquite a substantial period of time, longer than the one in this case. [22] Also provided by the Crown were the cases of R. v. Hiltz, [1998] B.C.J. No. 2742; R. v. Twizzell, 2000 BCCA 181 which was asix year sentence for attempted kidnapping; R. v. Aulakh, [2007] B.C.J. 3018 where apparently Mr. Aulakh, by using the pretext of ameeting to discuss the purchase of a car, was the prime reason why they were able to get the victim into the vehicle and thus thekidnapping. Mr.

Aulakh was not involved later on in the incident but his involvement garnered three years incarceration for thekidnapping offence and three months for the assault to be served concurrently. [23] The defence says that while not taking any dispute with the facts of the matter, they characterize FWC's involvement as being

one of that was at the initial stages of the incident and short in duration. [24] FWC is 35 years old. He is part Métis and has come from a fairly unfortunate background and no doubt some of that led to himbeing on the other side of the law in many instances in his early life. His mother was an alcoholic and abusive. He was apprehended bythe Ministry of Children and Families at an early age.

He lived with foster parents for various periods of time in his youth and hisparents were not around very much. [25] In 1989 after living for three or four years with some foster families, he went back to his biological mother and at that time shewas working quite a bit. He was going to school at John Oliver Secondary. He quit high school in grade 9. He was using alcoholalmost daily at that time. [26] FWC's record indicates as I said earlier some involvement in Youth Court.

He had quite a significant involvement in criminalactivity early on in his life. [27] In 1996, he was married to a woman by the name of CH, and he became employed as a carpenter. He worked for PCLConstruction for a while. He was a foreman by the age of 25. He was able to buy a house in 2000. He has a son, Kyle, born in 1995from a prior relationship, and a daughter, Kaylee, born in 1998 and another daughter born in 2000. He coached football and lacrosse. [28] He was involved as a family man for quite some period of time and in fact there is a substantial break in his criminal record.

From 1995 to 2010, his only criminal conviction involved possession of stolen property under $5,000. That is the only offence he hasbeen convicted for at least between 1995 and 2010 when he was convicted of an offence after this incident. [29] That is a significant period of time when he was involved in regular society and being a productive member of society: familyman, job, paying taxes, homeowner. How he got himself into this mess is really quite difficult to understand except that he had somedifficulties after 2004 when his father died, and his cousin apparently died of a drug overdose, and his brother died.

I think he was aheroin addict. Things went down hill obviously for FWC in the past recent year or two. [30] I was presented with certificates for programs he completed in the time he has spent in North Fraser Pre-trial Centre. He hascompleted a violence prevention program and he has completed a substance abuse management program.

There is a letter from theChaplain confirming that he has participated in work programs, core programs, and received counselling during his remand at NorthFraser Pre-trial Centre, specifically he concluded those courses and received counselling every couple of weeks in the Chaplain's officeand he has been working at North Fraser Pre-trial. He is apparently well thought of there. [31] The defence has provided some cases as well that they say have some bearing on the sentence to be imposed including R. v.Schamehorn, 2009 Carswell 1992; R. v. D.G.B., 2009 CarswellBC 877 which was a B.C. Court of Appeal case.

There is also R. v.Leggo, 2003 BCCA 392 which I found somewhat helpful from our Court of Appeal in which it is noted that there is a range of sentencefor these types of offences and the involvement of the offender must be considered. The Court of Appeal in that case was dealing withan appeal of the cumulative sentence of eight-and-a-half years. In that case, the offender was 32 years old at the time; had a lengthycriminal record involving seven convictions for break and enter; and no mitigating factors.

He had equally participated in a robbery, aconfinement and an assault, and carried an imitation revolver and wooden bat. The victim was assaulted by a blow to the back of thehead with the revolver. The motive appeared to be profit. The other participant in that crime who had a more serious criminal recordwas given a sentence of 11 years. There was a mix of sentences in those cases with the most serious sentences being for the robbery. [32] Both counsel have referred to R. v Hiltz, supra, which was a robbery with the use of a firearm and carried a much longer penaltythan the unlawful confinement.

In that case the sentence of two years for the unlawful confinement was upheld on appeal. [33] Other cases provided by the defence were R. v. Post, 782 B.C.A.C. 312; R. v. Dorland, (BC CA), 56B.C.A.C. 224 which involved a robbery and intent to extort while driving an individual around. The conviction was for robbery,extortion and kidnapping and Mr. Dorland's sentence was reduced to two years in that case and that was Mr. Justice Wood. [34] Another case provided is R. v. Choquette, 2010 ONCA 327 a debt enforcer case.

There, the accused received a sentence of twoyears for the unlawful confinement part of that venture, two years for kidnapping, one year for theft. [35] I have also referred to the case called the R. v. Tse, 2010 B.C.J. No. 1769 where Justice Davies was dealing with multipleaccused on a kidnapping case for ransom for a lengthy period of time and over a million dollars was extorted. Justice Davies said this atpara. 115: [115] Under the provisions of the Code, the maximum sentence for unlawful confinement is 10 years in prison.

The range ofsentencing for cases of unlawful confinement is infinite because of the myriad of circumstances in which the offence may arise, thepersonal characteristics of the offender, the nature and length of the confinement and its purpose. Also as with extortion, it may in manycases be an included offence of kidnapping for ransom. [36] In that case, Justice Davies commented on the continuum of seriousness in these sorts of kidnapping scenarios. He quotes from acase called R. v. Mills (1998), 129 C.C.C. (3d) at 313 from our Court of Appeal where Mr.

Justice Donald said this at para. 17: [17] The classic form of kidnapping, that which attracts penalties in the 10-years-to-life range, usually involves a carefully plannedscheme for ransom with a period of confinement much longer than several hours and where the victim is bound, gagged, and sometimesblindfolded. This case [the case that he is referring to in Mills] is technically a kidnapping but in my opinion it is more like the secondgroup of cases.

It bears a greater resemblance to an extortion or a robbery accompanied by a relatively short period of confinement. ... [37] Justice Davies refers to that case and goes on to say that Justice Donald in Mills, supra, put the appropriate range at four to sixyears. That range of four to six years was not applicable in Tse, supra, because of the existence of some detailed planning, continuinguse of threats, the use of violence and torture and the total imprisonment of those three victims for approximately 25 days, but he doesrefer to Mills.

[ 38 ] R. v. Mills , supra , was an appeal by the Crown from a sentence for kidnapping for ransom with a firearm and the two accused there undertook to collect a debt of $7,000 for the landlord of one of the accused. They grabbed the victim outside his workplace, they forced him into a vehicle, jabbed a shotgun in his side and threatened to kill him if he did not produce the money.

They drove around for several hours and that was in a failed attempt to basically collect on the debt. [ 39 ] The two accused were jointly charged but separately entered pleas before different judges and the accused who owned and brandished the weapon was sentenced to five years. He was 22 years old with a record of weapons offences. He alleged that his criminal tendencies had been halted by a religious conversion. He was credited with double the time he had spent in pre-trial custody and that resulted in a sentence of two years less a day. The other accused was sentenced to four years.

He had a minor record and his prospects for rehabilitation were considered to be excellent.

In that case the Crown argued that the appropriate range of sentence was ten years to life. [ 40 ] Justice Davies in the Tse , supra , case went on to discuss when maximum penalties are appropriate and ultimately concluded that the range in his case was five to ten years for unlawful confinement and that was the 25-day confinement that I spoke about earlier, and he said essentially that he concluded a concurrent sentence of five years in prison for that unlawful confinement of those three victims was necessary to address the relatively short non-violent participation in that offence. [ 41 ] Defence and Crown counsel have different viewpoints on how this matter should be characterized, but in my mind taking into account the involvement of FWC, I conclude that the umbrella of this incident for him has a greater resemblance to an extortion or a robbery accompanied by a relatively short period of confinement.

In other words, putting it at the lower end of the range as opposed to those other classic forms of kidnapping that Justice Donald talked about in Mills , supra . [ 42 ] In my mind FWC has shown an ability in his recent past to be a productive member of society. He has gone 15 years with that one hiccup in 2003, the possession of stolen property under $5,000, and then without that he was crime free for 15 years prior to 2009 and 2010. He has shown the ability to be crime free, so this is not one of those situations where the only factor is deterrence and denunciation.

Rehabilitation is a real prospect in FWC's case and in my mind that has to be weighed as much any of the principles of sentencing. It certainly must have a strong consideration in the case of FWC who has shown some promise. [ 43 ] In my mind the sentence that is appropriate in the circumstances is the sentence that Mr. Schultz has suggested of three years. I therefore sentence him to 36 months.

He has done one month in custody and that means he is entitled to two months credit and his sentence will be 34 months of further incarceration. [ 44 ] There will be an order for a sample of DNA to be provided, and pursuant to s. 109 of the Criminal Code a ban on firearms for a period of ten years. [ 45 ] FWC, I have acceded to your counsel's request for sentence and that is because you have some promise in my mind for getting back to the state that you once were and it takes into account the limited involvement that you had in this very poorly thought out attempt to try to assist Mr.

Lavallee in extorting some money from Mr. Churchwell. You largely control how well you are going to do in jail and what programs you are going to be taking advantage of and how soon you can possibly get out with remission time. I hope you take advantage of all those opportunities and turn things around because you have some children that probably could use your help. [ 46 ] The victim fine surcharge is waived. (ORAL REASONS FOR SENTENCE CONCLUDED)