COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Gairdner,

 

2018 BCCA 97

Date: 20180302

Docket: CA43249

Between:

Regina

Respondent

And

Michael Gairdner

Appellant

Restriction on Publication: A publication ban has been mandatorily imposed under
s. 486.4 of the Criminal Code restricting the publication, broadcasting or
transmission in any way of evidence that could identify a complainant or witness.
This publication ban applies indefinitely unless otherwise ordered.

Pursuant to s. 16(4) of the Sex Offender Information Registration Act (SOIRA),
no person shall disclose any information that is collected pursuant to an order under
SOIRA or the fact that information relating to a person is collected under SOIRA.

Before:

The Honourable Madam Justice Newbury

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Willcock

On appeal from: an order of the Supreme Court of British Columbia, dated
April 20, 2015 (R. v. Gairdner, New Westminster Registry No. 202864)

Oral Reasons for Judgment

Counsel for the Appellant:

C. Darnay

Counsel for the Respondent:

S.E. Elliott

Place and Date of Hearing:

Vancouver, British Columbia

February 26, 2018

Place and Date of Judgment:

Vancouver, British Columbia

March 2, 2018


 

Summary:

Appeal against a sentence of five years (pre-credit)  for  assault causing bodily harm and choking to overcome resistance dismissed. Sentencing judge had not failed to consider the appellant’s aboriginal background; nor was sentence unfit given the violent nature of the assault and the offender’s circumstances, including previous criminal record and likelihood to re-offend.  

[1]          NEWBURY J.A.: Mr. Gairdner appeals a sentence of five years (before credit for time served) on a conviction by jury of sexual assault causing bodily harm. He was also convicted of choking the complainant, “T.D.”, to overcome resistance, for which he was sentenced to two years concurrent. His appeal from conviction was dismissed in November of last year.

[2]          The circumstances of the offences, which took place on or about November 22, 2013, were, indeed, serious. Mr. Gairdner, then aged 34, and weighing some 300 pounds, violently attacked T.D., who weighed 100 pounds and was age 22. There was in evidence a video of part of the assault in which she told him repeatedly to stop; he hit her in the eye, causing very serious injury to the eye area, as well as injuries to her neck and nose. Off camera, she was choked by him. She eventually escaped and was taken to hospital. She later had to have reconstructive surgery on her eye and had no vision in her left eye for about two months. Mr. Gairdner posted a photo of her buttocks to a friend, exhibiting, in the trial judge’s words, a “callous disregard” for her privacy.

[3]          At the sentencing hearing, the Crown sought a sentence of between five and six years, while the defence sought a sentence of about 3.5 years. I do not intend to recount the sentencing judge’s reasons in detail. In my view, they took into consideration all the relevant mitigating factors, including the fact of Mr. Gairdner’s aboriginal antecedents. Mr. Gairdner had not mentioned in prior assessments that his father (who lived apart from the appellant and his mother after the appellant was about aged 10) belonged to a band near Fort Nelson, but the Crown and the Court ultimately accepted this as a relevant factor and a Gladue report was prepared.

[4]          That report recounts an upbringing that was extremely unfortunate. Mr. Gairdner’s early life was characterized by frequent moves, exposure to abuse from various adults, violence, early sexualization, social detachment, depression, and spotty employment. These of course are many of the factors that characterize the lives of many of our indigenous people, and that Gladue seeks to have reflected in sentencing decisions under the Code.

[5]          Mr. Gairdner has 12 prior convictions, including four assaults, one of which caused bodily harm, in 2003. At that time, he received a conditional sentence order. He also had a conviction for assault in California in June 2002. There was a significant gap between his conviction in 2004 for a drug offence and an alleged offence in 2013. At the time of the offences in respect of TD, Mr. Gairdner was under a bail order from the 2013 charge, to keep the peace and be of good behaviour. I note that he has in the past received light sentences and, indeed, on an assault causing bodily harm in 2003 received an 18-month conditional sentence order. The fact his offences have escalated would suggest that hopes for rehabilitation may be unrealistic.

[6]          In addition to the Gladue report, the Court also had the benefit of a report from a psychologist, Dr. Lorenz, an earlier psychiatric report prepared in June 2000 by Dr. Semrau, and the results of a psychiatric assessment prepared in August 2003. Each of these concluded that Mr. Gairdner lacked insight into his own behaviour and was at high risk of re-offending in future. In particular, Dr. Lopes observed in the most recent report:

Is speculated that he may have limited social skills, with particular difficulty in interpreting the normal nuances of interpersonal behavior that provide meaning to personal relationships. His social isolation and attachment may serve to decrease a sense of discomfort that interpersonal conduct fosters. His thought processes are likely to be marked by confusion, distractibility, and difficulty concentrating, and he may experience or perceive his thoughts as blocked, withdrawn or somehow, influenced by others. He does present with a level of prominent hostility and a non-clinical level of paranoia. He seems to be someone who is hyper vigilant and who often questions and mistrusts the motives of those around him. He is extremely sensitive in his interactions with others and likely harbors strong feelings of resentment as a result of perceived slights and insults. He is quick to feel that he is being treated inequitably and often holds grudges against others.

As for his aggression towards women, it is not clear whether it is instrumental in the sense that he will use to get what he wants or reactive in the sense that he attacks when he perceives that he has been wronged. Either way, as with the previous assessors, the undersigned echoes that he is a high risk for future violence. He has a history of impulsivity, maladaptive behaviour, accepts no responsibility for his actions, shows no remorse or guilt (despite expressing the words of being sorry), and shows extremely poor insight in his denial of any past issues with anger or aggression. Mr. GAIRDNER is a poor problem solver with what seems to be narcissistic and antisocial traits and very poor coping skills.

[7]          With respect to Mr. Gairdner’s aboriginal background, Dr. Lopes also wrote:

… It is noted that despite having made allegations of a closer connection to a First Nations way of life, he demonstrated very little of any understanding of it, was unable to be specific about any fact, was unable to answer basic questions about First Nations tradition, and indicated that he felt that his First Nations connection is because he fishes and hunts. It is further noted that he has no previous mention of First Nations heritage claims in his previous reports. [At 144.]

This may be said to support the conclusion that the connection between the appellant and his aboriginal background was not a strong one.

[8]          In his reasons for sentencing, the judge below reviewed several cases cited by the Crown and by the defence. The judge noted in particular this court’s decision in R. v. R.L.W., 2013 BCCA 50 and stated:

[33]      I also accept that factually this case has some similarities to the facts set out in R.L. W. In that case, the offender was a First Nations person with a history of being sexually abused as a child. He and the victim had been in a long-term relationship which she had recently broken off. Enraged, the accused confined her, repeatedly attacked her, penetrating her anus with his penis on several occasions. He forced her to perform fellatio on him, threatened her with death, and forced her to view child pornography.

[34]      Unlike Mr. Gairdner, R.L.W. had no prior criminal convictions. A five-year prison sentence was upheld on appeal. On appeal, issues arose as to the extent to which sentencing judges should address Gladue considerations. The Court of Appeal in paras. 32 to 40 extensively reviews these issues. At bar, Mr. Gairdner has never in the past when being assessed by a court claimed First Nations heritage. Even today, his claim is somewhat tenuous and vague. Notwithstanding, I have considered his claim in respect to Gladue. In particular, as noted by Harris J.A. in R.L. W., at para. 35, I have considered the circumstances of the offender in assessing how the systemic and background factors associated with his ancestry bear on his culpability.

[35]      In J.F.P., (cited by defence) the offender was sentenced to time served and three years’  probation. In that case, the offender forced sexual intercourse on a 16-year-old girl. He was 38-year-old Aboriginal man with a datedcriminal record and none for sexual assault. He pleaded guilty and was not considered to be a high risk to re-offend.

[36]      Notwithstanding the joint submission, the trial judge imposed a longer term of probation than sought in the joint submission. I did not find this case of much assistance in respect to the facts at bar.

[9]          In this court, Mr. Darnay, in his able argument on behalf of Mr. Gairdner, has submitted that the court’s observation that Mr. Gairdner’s connection with his First Nations heritage was “somewhat tenuous and vague”, was unfair and incorrect. It was said that the very fact Mr. Gairdner had been taken away from his father by his mother when the child was 10, and then been subjected to the conditions I have described, could also be regarded as conditions that are typical for many people of aboriginal background in Canada. Counsel suggested that the sentencing judge had effectively required that a “causal connection” between Mr. Gairdner’s offences and his background, which of course would be incorrect.

[10]       In response, Ms. Elliott for the Crown urged us to look at the sentencing judge’s reasons as a whole and noted the many inconsistencies in what Mr. Gairdner has told various doctors and authorities over the years. Despite these inconsistencies, she emphasized, the court below still considered and gave weight to the Gladue considerations and expressly referred to this court’s reasons in R. v. R.L.W., which in turn referred to R. v. Ipeelee, 2012 SCC 13.

[11]       The sentencing judge here found the cases cited by the defence to be largely distinguishable. R. v. Leon, 2014 B.C.J. No. 217, for example, involved a 19-year old offender of aboriginal background who had expressed remorse for a somewhat similar attack on a woman. He was sentenced to only two years’ imprisonment. Mr. Gairdner in contrast has displayed absolutely no remorse and indeed has consistently minimized the nature and consequences of his offences and blamed others for them. I note, for example, Dr. Semrau’s assessment in 2000 that he had a “relatively extreme and unreasonable sense of entitlement regarding the resources that should be made available to him and the privileges he should be afforded, without a corresponding sense of responsibility for his own contribution and behaviour.” From the most recent assessments, this would still appear to be true.

[12]       As I have said, the sentencing judge arrived at a sentence of five years, which was then reduced to three years to reflect pre-trial custody. Counsel has said all that could be said on Mr. Gairdner’s behalf, but the sentencing judge was required to consider not only the circumstances of the offender but also those of the offence. Given the violence and physical and psychological consequences of this attack on T.D., and the appellant’s clear lack of remorse, I am not persuaded that a five-year sentence was unfit or that the court failed to give appropriate consideration to the appellant’s aboriginal background. The fact remains that denunciation and deterrence must be reflected more clearly in this case than they have in Mr. Gairdner’s past convictions.

[13]       I would grant leave to appeal but dismiss the appeal.

[14]       SAUNDERS J.A.: I agree.

[15]       WILLCOCK J.A.: I agree.

[16]       NEWBURY J.A.: The appeal is dismissed.

“The Honourable Madam Justice Newbury”