R. v. Farrell, 2019 BCPC 191

Citation: R. v. Farrell 2019 BCPC 191 Date: 20190613 File No: 89643 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRANTE FARRELL ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE JUDGE E. M. BURDETT Counsel for the Crown: M. Nadon Counsel for the Defendant: C. Armour Place of Hearing: Kelowna , B.C. Date of Hearing: June 12, 2019 Date of Judgment: June 13, 2019 [ 1 ] THE COURT: Brante Farrell has entered a guilty plea to conspiring with Ethan Bain to commit an indictable offence; to wit, assault between September 2 and September 8, 2018. The circumstances of the offence are these.

[ 2 ] Mr. Farrell and his family were students of a woman named Atlanta Braley, who was the founder of the Equilibrium Philosophical Society. Mr. Farrell referred to Ms. Braley as his godmother and was deeply attached to her. Ms. Braley made many life decisions for her followers and had been doing that for decades. Mr. Farrell and the victim, Mr. Haynes, are second generation followers. Mr. Farrell was homeschooled in his community for his entire 12 years of education. [ 3 ] As Ms.

Braley’s health began to fail, with some symptoms of Alzheimer's, there came to be more in-fighting between several of her followers and students, with each blaming the other for the ongoing strife. These factions believed, and still believe today, that the other faction was after Ms. Braley’s money and property. Ms. Braley passed away in November 2018, at the age of 96. When she was 95, Mr. Haynes moved in with her and became her caregiver. This caused friction amongst Ms. Braley’s followers.

Between March 15 and September 7, 2018, one or the other faction called the police eight times to complain about the other group and the risk that group or a member of the group posed to Ms. Braley. [ 4 ] Mr. Farrell called the police on March 15 and told the police that Ms. Braley was 97 and claimed that Mr. Haynes was taking advantage of her. He described Mr. Haynes as having mental health problems and being aggressive. Mr. Farrell was not able to provide any particulars to the police of any harm being caused to Ms. Braley. The police investigated and found no evidence to support Mr.

Farrell’s allegations. [ 5 ] Mr. Farrell called the RCMP again on June 26, 2018, to report what he called elder abuse. Ms. Braley had fallen and allegedly Mr. Haynes was trying to persuade her not to call an ambulance. The RCMP investigated and Ms. Braley was eventually transported to the hospital, where she was diagnosed with a broken hip. [ 6 ] The next call to the police was from Mr. Haynes, who alleged Mr. Farrell was harassing him. Ms. Braley was now at home, although still suffering from the broken hip. The police liaised with Interior Health to have them monitor the situation to ensure Ms.

Braley was being properly cared for and was not being manipulated by anyone. Mr. Farrell, and others aligned with him, were angry that Ms. Braley had been discharged from an extended care home too soon at the behest of Mr. Haynes. [ 7 ] Mr. Haynes called the police again in August 2018 and told them that a group of people forced their way into Ms. Braley’s home and surrounded her while she lay in bed, without her permission. This group, including Mr. Farrell and his mother, took these actions because they thought Mr. Haynes was preventing their access to Ms. Braley. Ms. Braley was spoken to by the police.

She indicated her frustration with the situation, but did say she wanted to see Mr. Farrell and his group. Mr. Haynes called the police again the next day complaining that more visits were to take place that day against Ms. Braley’s wishes. He called the police again two days later to tell them that Mr. Farrell was outside with his mother. [ 8 ] Mr. Farrell retained a lawyer, Mr. Marriott, who met with Ms. Braley. Mr. Farrell and Mr. Marriott went to the RCMP on September 7, to try and get a peace bond against Mr. Haynes, again alleging elder abuse. Ms.

Braley was once again spoken to at her home by the police and she told them she wanted no further contact with Mr. Farrell and the members of his group. Interior Health also investigated and told the police that in their view Mr. Haynes was taking good care of Ms. Braley. She owned the house she was in and she wanted Mr. Haynes to be there. Mr. Farrell was frustrated with the responses he got from the police and Interior Health.

He obviously did not believe that they had investigated the situation properly. [ 9 ] It was in the midst of all of these events at the end of August he decided on a course of action which has resulted in the charges before the court. He discussed hiring a hitman to injure Mr. Haynes, with his then girlfriend Lauren Boyd. He drafted a lengthy advertisement entitled “Seeking help to remove elder abuser (Westbank)”, which is Exhibit 3 in these proceedings. He enlisted the assistance of Ms. Boyd, who posted the ad on Craigslist. [ 10 ] A 19-year-old by the name of Ethan Bain saw the ad and responded.

He did not think the ad was serious, but he wanted to see where it would go. Mr. Bain pretended to be older than he was and led Mr. Farrell to believe that he was somehow connected to the Hells Angels. When he spoke to Mr. Bain for the first time, Mr. Farrell told Bain that he wanted him to break Mr. Haynes’ kneecaps and he wanted the assault to look like a robbery rather than a targeted assault. Through further discussion, Mr. Farrell instructed Mr. Bain to bring another person with him and he said he wanted Mr. Haynes to have his legs, arms and jaw broken. They agreed on a price of $1,500. The following day Mr.

Farrell phoned Mr. Bain back and gave Mr. Haynes’ name, address, and physical description of him. [ 11 ] On September 8, there was a further conversation between Mr. Farrell and Mr. Bain, with Mr. Farrell telling Mr. Bain that he wanted to go through with the plan and that he would arrange to have the back door of Ms. Braley’s residence left open or unlocked. He agreed to make a down payment of $800 that day. Mr. Farrell then had his girlfriend withdraw $800 from a bank account. The money and a key to the bedroom, where Mr. Haynes was staying with Ms.

Braley, was put in a bag and dropped off with the money at an agreed location on September 8. The assault was to take place on or about September 17. Unbeknownst to Mr. Farrell, Mr. Bain had no intention of carrying out an assault. He just collected the $800 and did nothing. [ 12 ] Ms. Boyd then had significant regrets of her role in the plan. She told the police about the whole affair and mentioned that Mr. Bain was not the only one who responded to the ad, but they used him because his was the first response. [ 13 ] Mr. Farrell was arrested and eventually gave a full confession.

According to the police, he was visibly relieved when he learned that Mr. Bain was not a member of the Hells Angels and did not carry out the assault. [ 14 ] The impact on the victim Avery Haynes has been significant. Mr. Haynes read his victim impact statement, which is Exhibit 4, into the record. Although it has been eight months since the offence occurred, Mr. Haynes is still suffering from the stress of the situation. He was impacted emotionally and has felt a tremendous loss of personal safety. He feels that Mr. Farrell has destroyed his life in every conceivable way.

Because of the offence he sleeps little, has nightmares and has lost his appetite. He does not feel comfortable in his home and spends many days driving around in his car, because he feels unsafe. Mr. Haynes has experienced hostility from Mr. Farrell’s family and those around him. [ 15 ] Mr. Haynes’ mother has also filed a victim impact statement. There is limited use I can make of her statement, but she does corroborate the impact this offence has had on her son. Much of Mrs. Haynes’ victim impact statement contains allegations against Mr.

Farrell and his family regarding Atlanta Braley and certainly gives some context to the bitter dispute which has divided her followers. Itis clear this incident has continued to dominate the relationships of the followers of Atlanta Braley. The passage of time has not resultedin a lessening in the feelings each group has towards the other and I am told a lawsuit will be the next step in this ongoing saga. [16] A presentence report, which is Exhibit 1, was prepared. Mr. Armour, Mr. Farrell’s counsel, provided further detailedinformation about Mr. Farrell’s background as well. [17] Mr. Farrell is 35 years old.

He was raised by his mother, who, on the advice of Atlanta Braley, did not tell him who his fatherwas until he was in his 20s, despite the presence of his father in his life for many years. As I mentioned earlier, he was homeschooledand attended frequent study sessions with Atlanta Braley, along with his family. He has no substance abuse difficulties. He has had threelong term romantic relationships. His relationship with Ms. Boyd is now over. She told the probation officer that their relationship wasnot healthy and had elements of manipulation in it. [18] Mr.

Farrell has been operating his own juice business for the past 12 years and is a fixture at the various farmers markets in theCentral Okanagan. He reports his yearly income to be $60,000 to $80,000. It appears that his mother and father help him in this business.Mr. Farrell has also invested a lot of time and money into his father’s farm, where he plans to eventually build a wellness centre. [19] Mr. Farrell has significant support in the community. Exhibit 6 is a collection of 18 letters written by members of thecommunity. The letters uniformly speak of Mr.

Farrell’s good character, kindness, work ethic, creativity and generosity. He is an activeand engaged member of the community. Each writer expressed disbelief that Mr. Farrell would be involved in a situation where violencewas threatened and wrote how out of character this offence was for Mr. Farrell. I do note that many of the letters are from members ofMr. Farrell’s spiritual community, and while they all condemn his actions, almost every writer expresses a sympathy for why he felt hehad to commit the offence.

I have to agree with the Crown’s observation that there is a discernible and disturbing current of justificationin those letters. [20] Mr. Farrell has been on bail since September 17, 2018, and has not breached any of his bail conditions. He has no criminalrecord. Mr. Farrell addressed the court and expressed his remorse for his actions. I accept that his remorse is genuine. The Positions of Counsel [21] The Crown submits that the court should impose a sentence of two to two and a half years, citing the need for generaldeterrence and denunciation in an offence such as this. Mr.

Armour, for the defence, submits that any sentence I impose should be servedconditionally in the community; hence, the sentence must be less than two years. He urges the court to consider Mr. Farrell’srehabilitation as an important factor in sentencing him. Aggravating and mitigating factors [22] In my view, the aggravating factor in this case is that Mr. Farrell took substantial steps to carry out this serious offence. He is 35and not a youthful offender whose checks on impulsivity have not yet been developed. This was not an impulsive or hurried decision.Rather, it was well planned and deliberate. Mr.

Farrell drafted the advertisement, enlisted his girlfriend in the plan, hired someone tocarry it out, paid for that person’s services, and further assisted by providing a key to allow the assailant to enter Mr. Haynes’s bedroom.This was not a spur of the moment decision. Mr. Farrell could have cancelled his contract with the assailant at any time: after he placedthe ad, after the first few telephone conversations with Mr. Bain, or after he dropped off the money; but he, for all intents and purposes,carried on with it. Had Mr. Bain been whom Mr. Farrell thought he was, the plan would have been catastrophic for Mr.

Haynes.Mr. Farrell took the law into his own hands after rejecting the independent investigations of the RCMP and Interior Health. [23] The mitigating circumstances are that Mr. Farrell has entered a guilty plea, he is remorseful, he has no criminal record and hassupport in the community. He has been a contributing member of society for all of his adult life. The Law [24] The principles of sentencing are set out in s. 718, 718.1 and 718.2 of the Criminal Code. I have also considered the casesprovided by counsel: R. v. MacLellan, NSSC February 17th, 1998; R. v. Maliki, 2005 BCCA 495; and R. v.

Foreman, 2015 BCPC 104, [2015] B.C.J. 866. [25] The facts in MacLellan were that the accused hired someone to assault his ex-girlfriend. That person threw acid at the victim,who sustained serious injuries. The accused, after the incident, tried to commit suicide. He had a supportive family, had a goodemployment history, but had significant mental health problems. The offence was motivated by jealousy. The court imposed a sentenceof two years, but rejected a conditional sentence, finding that the accused’s mental health difficulties would endanger the communityshould he serve the sentence outside of a jail.

MacLellan also provides a useful survey of other sentences imposed for similar offences. [26] The facts in Maliki were that the accused hired an undercover police officer who was posing as a killer for hire. Maliki hiredhim to assault four people to varying degrees and rob one of them in return for a payment of $5,500. Maliki did not want any of thevictims killed, but wanted them badly beaten up. The accused was found guilty after a trial. He had one conviction for assault, where hereceived a suspended sentence.

The trial judge imposed various sentences, in particular two years for each of the counselling to commitan assault causing bodily harm. The Court of Appeal dealt with this case because of the issue of concurrent versus consecutive time andallowed the appeal only insofar as to make the time concurrent. The Court of Appeal did not interfere with the actual sentence lengths. [27] Regina v. Foreman gives a useful review of sentencing principles and sentencing decisions, particularly for youthful offenders. [28] The most important sentencing factors in this case, in my view, are general deterrence and denunciation.

Mr. Farrell’srehabilitation must be considered, but, given his lack of criminal antecedents and with no substance abuse or mental health difficulties,his rehabilitation cannot take precedence over general deterrence and denunciation. To denounce his unlawful conduct is tocommunicate society’s condemnation of Mr. Farrell’s actions. As the Supreme Court of Canada stated in R. v. M.(C.A.), 1 S.C.R. 500,

denunciation is a symbolic, collective statement, that the offender’s actions encroached on society’s basic code of values and should be punished. [ 29 ] General deterrence is also important in this case, given the gravity of the offence, the emotional harm caused to Mr. Haynes, and the degree of planning Mr. Farrell undertook to commit this offence. His moral culpability is high. [ 30 ] Taking into account all of the circumstances of the offence and Mr.

Farrell’s personal circumstances, a proper sentence for this offence is two years less a day. [ 31 ] I now turn to whether the sentence of imprisonment of two years less a day can be served in the community under strict conditions. As the Supreme Court of Canada noted in Proulx , 2000 S.C.J. 42 , serious consideration must be given to a conditional sentence where all the statutory prerequisites are met. The Supreme Court noted that conditional sentences may be imposed, even in circumstances where there are aggravating circumstances relating to the offence or the offender.

The Court stated in many situations, house arrest can adequately express society’s condemnation for the offending behaviour. [ 32 ] I must consider two factors in assessing whether a conditional sentence is appropriate: first, the safety of the community; and second, whether the fundamental principles of sentencing can be met by a conditional sentence. The safety of the community involves an assessment of Mr. Farrell’s risk of reoffending while serving a sentence in the community. In my view, that risk is relatively low; however, I do have concerns that the dispute between the two groups of Ms.

Braley’s students and followers continues, with emotions still running high. However, after considering Mr. Farrell’s lack of a criminal record, his remorse and his generally prosocial history, I find that a conditional sentence would not endanger the community. [ 33 ] I turn now to whether a conditional sentence can meet the principles of sentencing. I have found that denunciation and deterrence are the paramount principles I must address in this sentence. In Proulx , the Supreme Court held that it is possible to address these principles through a conditional sentence.

However, the Court also commented that there may be some circumstances where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct or to deter similar conduct in the future. [ 34 ] In my view, this is such a case. A conditional sentence would simply not adequately address society’s condemnation of Mr. Farrell’s conduct and his high moral blameworthiness.

A conditional sentence, no matter how restrictive, would not be capable of meeting the requirement that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of Mr. Farrell. I have come to this conclusion even after considering the sentencing principle of restraint. [ 35 ] The sentence is two years less a day, which will be followed by a probation period for 18 months with the following terms and conditions.

Sir, would you stand up, please. [ 36 ] You are to have no contact or communication, directly or indirectly, with Avery Haynes or Louella, also known as Lauren Boyd. You must not go or be within 50 metres of any residence, school or workplace, of Avery Haynes or Louella, also known as Lauren Boyd. You must report to a probation officer at 1355 Water Street, Kelowna, British Columbia, within two business days after your release from custody, unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by the probation officer. [ 37 ] You must reside at a residence approved of in advance by the probation officer. You must provide your probation officer with your phone number and you must not change your residence or phone number without written permission from your probation officer. You must attend, participate in and successfully complete, any intake assessment, counselling or program as directed by the probation officer.

Without limiting the general nature of this condition, the intakes, assessments, counselling or program may relate to mental health. [ 38 ] Further, there will be an order that you provide a sample of your DNA suitable for analysis, and there will be an order that you are prohibited from possessing any firearms, ammunition, explosive substances. For a period of five years, Mr. Nadon? [ 39 ] MR. NADON: Yes. [ 40 ] THE COURT: For five years. [ 41 ] THE ACCUSED: Yes, Your Honour. [ 42 ] THE COURT: Thank you. I want to thank counsel for their very helpful submissions in this matter. [ 43 ] MR.

NADON: Your Honour -- [ 44 ] MR. ARMOUR: Your Honour -- [ 45 ] MR. NADON: -- I am sorry. [ 46 ] MR. ARMOUR: -- just one point, the -- Ms. -- Atlanta’s full name is Atlanta Braley, not Brant. [ 47 ] THE COURT: Braley? Oh, I am sorry. I am sorry, and I apologize to your client and all of her students. [ 48 ] MR. ARMOUR: Okay. And just the length of probation to follow, was that -- [ 49 ] THE COURT: Eighteen months. [ 50 ] MR. ARMOUR: Eighteen months. Thank you.

[ 51 ] MR. NADON: And I am sorry, Your Honour. I am just looking for the -- I am going to ask that the warrant of committal be endorsed with a no contact as well, and I will just locate the section. Excuse me. [ 52 ] THE COURT: With the two people that I prohibited contact with? [ 53 ] MR. NADON: Yes. Yes. [ 54 ] THE COURT: Do you have any submissions on that, counsel? [ 55 ] MR. ARMOUR: No, Your Honour. [ 56 ] THE COURT: All right. So the warrant of committal will be also endorsed with no contact provisions for Avery Haynes or Louella, also known as Lauren Boyd, which means, Mr.

Farrell, you cannot have contact with those people while you are in custody. [ 57 ] THE ACCUSED: Yes, Your Honour. [ 58 ] THE COURT: All right. Thank you. [ 59 ] THE ACCUSED: Thank you. (REASONS FOR SENTENCE CONCLUDED)