R. v. Stard Date:, 2016 BCPC 441

Citation: R. v. Stard Date: 20161011 2016 BCPC 441 File No: 82317-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON PUBLICATION S.486.5(1) CCC REGINA v. RYAN MICHAEL STARD ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E.M. RITCHIE Counsel for the Crown: T. Dotten Counsel for the Accused: J. Boxall Place of Hearing: Abbotsford , B.C. Date of Hearing: April 12, 2016

Date of Sentence: October 11, 2016 [ 1 ] THE COURT : These are my oral reasons for sentencing Ryan Michael Stard on one count of assault causing bodily harm, contrary to s. 267 (

b) of the Criminal Code . I think it is important that I deliver my decision today; accordingly, my reasons will not be as articulate as I may wish. I also note that I have considered all the circumstances, submissions and case law that were presented, even if I do not refer to everything in these reasons. [ 2 ] I also pause to note the interest of the public in this matter, and I want to thank everyone for attending, for showing an interest in the justice system. One of the reasons that our courts are open to the public in this country is to foster an understanding in society of how our justice system works.

I also thank counsel for their thoughtful, thorough submissions. It is clear that both of you have put considerable effort into presenting your views on what sentence or range of sentencing is appropriate. [ 3 ] The circumstances of this offence are troubling, first because of the profound harm suffered by the victim, but also because of the unexplainable actions of Mr. Stard who, prior to this offence, had no previous criminal history and no history of violence. [ 4 ] On March 1st, 2015, Mr. Stard attended at the Abbotsford Hospital in the early morning hours with his mother.

Approximately two to three weeks before his attendance at the emergency department, Mr. Stard's relationship with his long-time girlfriend had ended and he had become aware that she was seeing someone else. Mr. Stard was despondent over the break-up and had, according to his mother, been acting strangely for several days. Mr. Stard had barely eaten and had slept little, if any. I am told that although Mr.

Stard had been a regular user of marihuana, he had stopped using marihuana for approximately three weeks but had smoked a significant amount in the hours before he went to hospital. [ 5 ] The specific reason for the hospital attendance was that Mr. Stard thought he might be having a heart attack. Mr. Stard was seen by the complainant, J.P. an emergency room triage nurse. Mr. P was doing his job, doing what workers in the health care sector do every day in providing assistance to those in need due to physical and/or mental health problems. [ 6 ] Mr. P put a blood pressure cuff and an oximeter on Mr. Stard. Mr.

Stard objected and was chastised by his mother. Mr. Stard was not cooperative with Mr. P in the sense that he stopped answering questions. Mr. P indicated that Mr. Stard was "a bit off", and Mr. Stard asked Mr. P if his name was Bill. As the nurse turned away, Mr. Stard attacked him without warning and without provocation. Mr. Stard punched Mr. P at least two or three times before Mr. P was able to pin Mr. Stard against the wall and wait for security to arrive. [ 7 ] As a result of the assault, Mr.

P suffered injuries to his face, especially around his eye, a torn retina, bleeding in the eye socket, and a concussion. Mr. P underwent laser surgery to deal with the retinal damage. The damage to Mr. P's eye still causes concern and he has had to attend emergency twice because of floaters in his eye. Attending at emergency where the incident before me occurred is hugely stressful to Mr. P and causes severe anxiety. [ 8 ] Mr. P suffers from Post Traumatic Stress Disorder as a result of the attack. He cannot be in large crowds, has issues with his balance, has memory problems and has difficulty in focusing.

Although he is improving, Mr. P is far from the man he was prior to the attack. He is easily angered, prone to emotional outbursts and very sensitive to noise. The injuries to Mr. P have had a profound affect upon his family. He has not worked since the incident. [ 9 ] More importantly, or to be precise, more tragically, the changes to Mr. P resulting from the attack mean that he is a very different husband and father than he was before March 1st, 2015. According to Mr. P's wife and daughters, they are also bearing the burden of the aftermath of Mr. Stard's assault. The patient, adventurous, gentle man that Mr.

P was, has been replaced by an unpredictable, often angry individual who as yet has been unable to return to any type of employment. Therefore, in addition to the physical and emotional trauma caused, everyone in the household has, as his wife has said, changed forever through no fault of theirs. [ 10 ] Mr. Stard says that he was suffering from anxiety before asking his mother to take him to the hospital, and he thought he was having a heart attack. When he saw Mr. P, he, for reasons he cannot explain, did not trust the nurse and believed that Mr. P was pretending to be someone else. He thought that Mr.

P was out to get him so he hit Mr. P. [ 11 ] Mr. Stard was held in the psychiatric ward and examined. He was also examined by a psychiatrist as part of the pre-sentence report process. No one has an explanation for what happened. Various possibilities are raised, as was set out in counsel's submissions, but there is no definitive answer to why Mr. Stard "snapped", for lack of a better word. [ 12 ] The Crown submits that Mr. Stard should receive a suspended sentence and be placed on probation for three years. Mr. Stard seeks a conditional discharge with a probationary period of two years.

The major difference between a suspended sentence and a conditional sentence is that the former results in a criminal record while the latter does not. In Canada, a person convicted of a criminal record can seek a pardon after a prescribed period. The Minister of Justice has discretion to grant or deny a request for a pardon. Any probation order made as part of a sentencing order requires the accused to comply with various conditions.

A breach of any of these conditions can lead to further charges that may lead to conviction and a criminal record, regardless of whether or not the original sentence resulted in a criminal record. [ 13 ] The sentencing principles that I must consider in determining the appropriate sentence in this case are set out in s. 718 of the Criminal Code and the surrounding sections. The fundamental purpose of sentencing is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society. That general or fundamental purpose underlies six main sentencing objectives.

The principles most applicable to this matter are denunciation of the offending conduct, deterrence of Mr. Stard and other people from offending conduct, rehabilitation of Mr. Stard, and fostering Mr. Stard's acknowledgement of responsibility of the harm to Mr. P and the community in general. The relative emphasis to be given to the various objectives will vary according to the particular offence and the particular offender.

[ 14 ] In this case I have also considered s. 718.2(iii.1) which directs me to take into account evidence that offence has had a significant impact on Mr. P, considering his age and other personal circumstances, including his health and financial situation. [ 15 ] I have also considered that Mr. Stard is of Métis heritage, although there is no evidence that his parents or grandparents attended residential school. Mr. Stard's childhood was unstable. His mother had substance abuse issues.

He witnessed regular incidents of domestic violence when his mother was assaulted by first his father, then most of her subsequent partners. The only positive role model in Mr. Stard's life is with one of his mother's partners, a man named Brian, who did not abuse Mr. Stard's mother and who has maintained contact with Mr. Stard despite no longer being involved with his mother. [ 16 ] Despite the challenges of his youth, Mr. Stard, as stated, does not have a criminal record. He is employed and has a stable living arrangement, occupying a basement suite at his mother's house. Mr.

Stard's mother has overcome her addiction issues. [ 17 ] In addition to the applicable sentencing principles, I must also consider the mitigating and aggravating factors present. With respect to mitigating factors, Mr. Stard has pled guilty. That guilty plea has spared the Crown's witnesses, and Mr. P in particular, of the need to testify about the assault and to re-live the horrific events of that evening. Mr. Stard is also very remorseful. He wrote a letter of apology within hours of the attack on Mr. P. The letter is, as Crown acknowledged, clearly heartfelt. In addition to apologizing, Mr.

Stard acknowledged that his victim was simply doing his job and did not deserve the attack. [ 18 ] Mr. Stard has been living in the community under court-imposed conditions while awaiting sentencing. The pre-sentencing report from the probation officer says that Mr. Stard has been compliant with these conditions. The psychiatric assessment indicates that Mr. Stard saw a psychiatrist regularly for at least six months. Mr. Stard did not see a psychologist as recommended, but I note that it was not submitted that this was a breach of a specific condition. [ 19 ] With respect to aggravating factors, Mr.

Stard submits there are none. Crown submits that the aggravating factor present is that this was an attack upon a nurse, and nurses should be protected from such attacks as they are providing a service to the community.

The defence submits that I should not take judicial notice of attacks on nurses, and I certainly do not take judicial notice of the number or severity of attacks on nurses, but I am satisfied on the cases that it is appropriate that I take note of the fact that people that provide service to the public, and this would include taxi drivers, bus drivers, nurses, doctors, are in a position where they should be free from attack while doing their job. [ 20 ] I agree with counsel that a custodial sentence is not appropriate in this case. No sentence I impose can turn back the clock and reinstitute Mr.

P's health and situation to where it was prior to his being assaulted. Before granting a conditional discharge, I must be satisfied that it is in the interest of the accused and that it would not be against public interest. There is no disagreement that a conditional discharge would be in the interest of Mr. Stard. [ 21 ] In dealing with the issue of public interest I have considered, among other sentencing principles, the issue of general deterrence. As set out in R. v.

Tone 2003 BCSC 880 , the need for general deterrence militates against the granting of a conditional discharge in almost all cases involving violence resulting in an injury. However, conditional discharges have been granted in such cases where the circumstances of the case have warranted such a disposition. [ 22 ] Mr. Stard clearly acted out of character on the day of the assault. While he was acting very strangely, there was no indication that he would act violently. His past use of marihuana had never caused him to be aggressive. The doctors have speculated but are unable to confirm if the drug played a

part in his psychotic break. As submitted by the defence, this is not a case like R. v. Spencer 2005 BCPC 487 , where alcohol, which is known to sometimes lead to aggressive behaviour, was involved. [ 23 ] In all the circumstances of this case, I am satisfied that a conditional discharge with a probation order for three years will meet the goals of denunciation, deterrence and rehabilitation. In my view, a longer probation period can be as impactful, if not more so, on the accused and others than the stigma of a criminal conviction. [ 24 ] Mr.

Stard, please stand. [ 25 ] I am granting a conditional discharge in this matter and placing you on probation for a period of three years upon the following conditions:

a) The mandatory conditions, that you shall keep the peace and be of good behaviour.

b) You shall report in person to a probation officer no later than 5:00 p.m. on October 11th, 2016 at the office of Abbotsford Community Corrections, 2865 Cruickshank Street in Abbotsford, B.C., and you shall thereafter report as and when directed by your probation officer and in the manner directed by your probation officer.

c) You shall inform your probation officer of your present residential address and telephone number, and not change that address or telephone number without prior written notice to your probation officer.

d) You shall have no contact or communication, directly or indirectly, with J.P. or with any member of his immediate family.

e) You shall not attend at the residence, school or workplace of J.P. or of any member of his immediate family as may be known to you.

f) You shall not possess any weapon as that term is defined in s. 2 of the Criminal Code .

g) You shall not possess or consume any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act except as prescribed by a licensed physician.

h) You shall attend for, participate in and complete to the satisfaction of your probation officer, any counselling or program as

directed by your probation officer, including a full psychiatric assessment and any resulting treatment program as recommended through that psychiatric assessment. [ 26 ] You shall provide a sample of your DNA in the least intrusive means possible, and do that by reporting to the Abbotsford Police Department on a Wednesday between 9:00 a.m. and 10:00 a.m. at 2838 Justice Way, on or before October 26th, 2016. [ 27 ] Have I covered all the terms, Mr. Dotten? [ 28 ] MR.

DOTTEN: Did you address the firearms prohibition application? [ 29 ] THE COURT: I am not, in this case, given that there was no weapon involved, I am declining to grant a firearms prohibition. [ 30 ] MR. BOXALL: Victim fine surcharge, perhaps two months to pay? [ 31 ] THE COURT: That is the normal time, so you will have the regular time to pay the victim fine surcharge, which -- [ 32 ] THE CLERK: Your Honour, is that a secondary DNA? [ 33 ] MR. DOTTEN: It's a primary order. [ 34 ] THE COURT: Mandatory, or primary, yes. The Honourable Judge E.M. Ritchie Provincial Court of British Columbia