R. v. Mathieson

2021 BCSC 298 R. v. Mathieson IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Mathieson, 2021 BCSC 298 Date: 20210129 Docket: 107485 Registry: Kamloops Regina v. Justin William Daniels Robert James Rennie Michael James Albert Mathieson Before: The Honourable Mr. Justice N. Smith Oral Reasons for Sentence (Re Accused Michael James Albert Mathieson) Counsel for the Crown: M. Vojvodic Counsel for the Accused Michael Mathieson appearing by teleconference: D. Gagnon No other appearances Place and Date of Trial/Hearing: Vancouver, B.C. January 8, 2021 Place and Date of Judgment: Vancouver, B.C. January 29, 2021 [1] THE COURT: On October 9, 2020, following a 13‑day trial, Michael Mathieson was found guilty of kidnapping contrary to s. 279(1) of the Criminal Code, R.S.C. 1985, c. C-46, unlawful confinement contrary to s. 279(2), and two counts of robbery contrary to s. 344(1). He is now before the court for sentencing. [2] Mr. Mathieson was charged, along with two co‑accused, Justin Daniels and Robert Rennie. At the time of Mr. Mathieson's trial before me, Mr. Daniels entered a guilty plea before Mr. Justice Dley and was sentenced to seven and a half years in prison less credit for pretrial detention. Mr. Rennie did not appear for trial and his whereabouts at that time were unknown. [3] The details of these offences were set out in my oral reasons for conviction. The essential facts, briefly summarized, are as follows: [4] Early in 2019, James Walker was working as a driver for Mr. Rennie, who Mr. Walker described as a low‑level drug dealer. On the evening of February 13, 2019, Mr. Rennie instructed Mr. Walker to pick up Mr. Mathieson and another man identified to him as J.D., presumably Mr. Daniels, and bring them to a motel room in Kamloops, British Columbia. After arriving there, Mr. Walker was beaten by the three men and later found that his truck had been taken. He was treated in hospital for relatively minor injuries the following day. [5] Later, in the early morning hours of February 14, 2019, two men wearing masks and carrying rifles equipped with laser pointers entered a room at another Kamloops motel that was occupied by Burke Schulz and Susan Olson. One of them used a cellphone belonging to either Mr. Schulz or Ms. Olson to lure Mr. Schulz's friend, Shea Duncan, to the motel room on a promise that Mr. Schulz had money to repay a debt. [6] Mr. Duncan arrived at the motel with his girlfriend, Shelby Copping, and another friend, Steven Insua. The armed men forced Mr. Duncan and Mr. Insua to lie face down on the floor, while Ms. Copping was told to sit in a chair. Mr. Duncan was forced to hand over the keys to his truck, his cellphone, his wallet, and a silver necklace. He was also ordered to remove his pants, which he believed to be for the purpose of a search for concealed drugs. [7] Although I found the Crown had failed to prove beyond a reasonable doubt that the guns carried by the assailants were real, the victims clearly and reasonably believed them to be. The men tied up Mr. Duncan and Mr. Insua, and told Ms. Copping she could either be tied up as well or accompany them to Mr. Duncan's house, which had been the home of his recently‑deceased father. Ms. Copping was also threatened with gang rape if the police were called. [8] One of the men took Ms. Copping in Mr. Duncan's truck, while the other followed in the vehicle that had been taken from Mr. Walker. On arrival at Mr. Duncan's house, the two men ransacked it, taking a number of items of value. On all of the evidence at trial, I was satisfied beyond a reasonable doubt that Mr. Mathieson was one of those two men. That evidence included text messages on a telephone that was found in his possession, and Ms. Copping's evidence that after he removed his mask at Mr. Duncan's house, she recognized Mr. Mathieson from previous acquaintance. The other man was apparently Mr. Daniels. [9] After ransacking the house, Mr. Mathieson and Mr. Daniels took Ms. Copping with them from Kamloops to Kelowna. That evening, Mr. Mathieson arranged for Ms. Copping to be driven back to Kamloops by two other individuals who had no knowledge of the preceding events. [10] Police had by then initiated a search for Ms. Copping. The car was stopped near Falkland, B.C., on the road between Kelowna and Kamloops. [11] Mr. Mathieson was found guilty of robbery of Mr. Duncan and Mr. Insua, along with the earlier robbery of Mr. Walker, unlawful confinement of Ms. Copping, Mr. Schulz, and Ms. Olson, and kidnapping of Ms. Copping. On the kidnapping count, I found that Ms. Copping's choice to go with the men to Mr. Duncan's house rather than be tied up in the motel was not an exercise of free will. The offence of kidnapping was therefore complete with the departure from the motel, although I was not satisfied that Ms. Copping was still acting under compulsion when she accompanied Mr. Mathieson and Mr. Daniels to Kelowna. However, the police appear to have devoted significant resources to search for her. [12] In a victim impact statement, Mr. Duncan says his life has been turned upside down by anxiety, depression, and fear of retribution. He says that he never feels safe and he has trouble processing information. He also says his use of illicit street drugs went "through the roof" after the incident. [13] Mr. Duncan refers to a vivid recollection of seeing the red light from the laser pointer on Mr. Insua and knowing one was also pointed at him. He says, "I have never felt so terrified and totally helpless in my whole life. I didn't know if I was going to live another minute or even second. I don't think I will ever forget that powerless feeling." [14] Ms. Copping's victim impact statement also refers to anxiety and she attributes a recent onset of seizures to the trauma of this incident. She says she is constantly worried about her and Mr. Duncan's safety. [15] Both Mr. Duncan and Ms. Copping say their relationship has been damaged by trust issues. This is an apparent reference to suggestions, denied at trial, that Ms. Copping was somehow complicit in the robbery of Mr. Duncan or that Mr. Duncan was involved in staging the incident to escape paying drug debts. [16] Turning to the circumstances of the offender. Mr. Mathieson is 38 years old and has no criminal record. He told the author of a presentence report about a childhood that included physical and psychological abuse by a stepfather and emotional abuse by his mother. At around 11, he went to live with his natural father, but that relationship broke down after about two years. He then lived with each parent for short periods of time, but by age 17 he was living on his own and had been expelled from school, having reached only Grade 10. [17] In his late teens, Mr. Mathieson moved to Ontario and eventually entered into a relationship that produced two children, now aged 16 and 14. A subsequent relationship produced two more children, now 12 and 10, but that relationship ended in 2016. He has recently been living with a new partner and his 14‑year‑old daughter, but has limited connection with the other three children. His new partner, Ms. Lapointe, says they became engaged in April 2020, which is while Mr. Mathieson was awaiting trial. [18] Mr. Mathieson began using methamphetamine when he was about 13 and has a long history of drug addiction. One of the reference letters I have received comes from his sponsor in Narcotics Anonymous, who says he has been participating in that program for about five years. Although the sponsor is hopeful, the results so far have obviously been inconsistent. Mr. Mathieson says he was addicted to methamphetamine at the time of this offence, but says he has not used drugs since May 2020. He has also been treated for bipolar disorder. [19] Mr. Mathieson completed his high school education in 2008 in order to work in the mining industry where he was trained in underground drilling and blasting. He currently works as a construction foreman. A letter from his current employer describes him as a model employee, although he began working for that employer only in September 2020. The employer says he hopes to have him return to work in the future. A former supervisor in the mining industry also describes him as a responsible and diligent employee. [20] I have been given copies of income tax documents showing annual income ranging between $87,000 and $131,000 a year for the years 2011 through 2017. His income dropped to $37,000 in 2018, the year preceding this offence. [21] I will not go through all the letters of support I have received. It is apparent that Mr. Mathieson has a solid work history and strong family and community support networks. Although he has struggled with drug addiction for most of his life, it has not previously led him into criminal activity. That, along with his well‑established career and income‑earning ability, makes his involvement in this offence even more inexplicable. [22] He told the author of the presentence report that he was present on the day of the offences but took no responsibility for what had occurred. However, he is more forthright in a written statement provided on this hearing. He acknowledges his participation in the offence, but says he was led to believe the robbery was a "set up" to support a false insurance claim in which he would share. He states he now knows that was not the case and says he is "filled with regret". [23] The intention to participate in an insurance fraud rather than a real robbery does not reduce his moral culpability, but I accept that his remorse, although belated, is now genuine. [24] Mr. Mathieson has spent a total of 163 days in pretrial custody. That included 134 days from February to July 2019, plus briefer periods in November and December 2019 and April and May 2020. As noted, by the time of the trial, he had stopped using drugs, found employment, entered into a new relationship, and became engaged to be married. [25] The Crown agrees that any sentence should be subject to credit for pretrial custody in the usual one‑and‑a‑half-to‑one ratio, for a total of 245 days' credit. [26] Sections 718 to 718.2 of the Criminal Code set out the purposes and principles of sentencing. Section 718 says: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [27] Section 718.1 say a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, while s. 718.2 says, in part: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender . . . (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; . . . (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [28] Sentencing is therefore a highly‑individualized process, but the court's discretion in an individual case is constrained and guided by the Criminal Code, the range of sentences imposed in similar cases, and any specific directions from appellate courts. [29] I agree with the Crown that aggravating factors in this case include the planned and deliberate nature of the offence, at least up to and including the robbery of Mr. Duncan, the violence directed at Mr. Walker, the threats directed at the other victims, the use of what appeared to be firearms to terrorize them, and the wearing of masks. These events were also something of a crime spree, beginning with the robbery and beating of Mr. Walker at one motel, continuing to the unlawful confinement, robbery, and kidnapping at another motel, followed by the ransacking of Mr. Duncan's house. I agree with the Crown that that is a further aggravating factor. [30] Mitigating factors are the fact no one suffered serious physical harm, although there was significant psychological harm, and Mr. Mathieson's lack of a criminal record. [31] Although Mr. Mathieson has been convicted on four counts involving three different offences, both the Crown and the defence have based their submissions on a single global sentence. Both also treat the kidnapping count as the most serious offence that should guide the sentencing decision, although this case also had aspects of a home invasion and some cases dealing with that sort of offence have also been referred to. [32] The maximum penalty for kidnapping under s. 279 of the Criminal Code is life in prison, although no one suggests that sentence is necessary in this case. Because I did not find Mr. Mathieson guilty of using a real firearm and the Crown did not rely on provisions relating to imitation firearms, the minimum sentence provisions of that section do not apply. [33] The Crown says denunciation and deterrence are the key principles in this case and seeks a prison sentence at the upper end of an eight‑to‑10‑year range. The defence points to Mr. Mathieson's lack of a criminal record, his work history, and his sincere efforts to recover from his drug addiction. Although the defence agrees that denunciation and deterrence must be emphasized, it says any federal penitentiary sentence is capable of accomplishing those goals and says that a three‑year sentence would be sufficient and appropriate. [34] Previous cases involving similar offences provide useful guidance in at least identifying an appropriate range of sentences, although no two cases are identical and each must ultimately be decided on the basis of how its unique facts and circumstances apply to the relevant sentencing factors. [35] In R. v. Gower, 2019 BCSC 559, there was a home invasion in which two masked assailants, carrying what at least appeared to be guns, broke into a home, tied up the resident with wire, plastic straps, and duct tape around his head and mouth, threatened to kill him, and stole all of the contents of the safe. Both offenders had lengthy criminal records. One came from a family background described as severely dysfunctional, having grown up in a home where the sentencing judge said criminal activity was always present. The other had a background of being sexually abused as a child and suffered from both fetal alcohol syndrome and attention deficit disorder. Both were aboriginal and therefore subject to the special consideration required by s. 718.2(e) and the principles in R. v. Gladue, [1999] 1 S.C.R. 668. Each offender was sentenced to seven years. [36] The Crown says this illustrates how compelling the mitigating circumstances must be to justify a sentence below the range it is seeking. Unlike the offenders in Gower, Mr. Mathieson was a man with an established career and ability to earn income. He was not driven to crime by poverty or desperation. While Mr. Mathieson had a difficult childhood, it does not compare to what was before the court in Gower, and the Crown says the difficulties he describes are not in any way unusual in people who come before this court. [37] R. v. A.J.C., 2004 BCCA 268, involved guilty pleas to kidnapping, breaking and entering to commit robbery, unlawful confinement, and wearing masks while committing those offences. The offenders broke into a home armed with guns that turned out to be unloaded, bound members of the family, and remained in the house for three hours. One member of the family was taken away, bound, and blindfolded in the trunk of a car, and the perpetrators said he would not be released until they were paid $50,000. The scheme collapsed, but the kidnap victim remained in the trunk of the car for approximately an hour. The trial judge found that although the home invasion was planned and deliberate, the kidnapping was impulsive and not part of the initial plan. [38] The offenders were aged 19 and 22. The Court of Appeal reduced the sentences from the 14 and 16 years imposed by the trial judge to 11 and 13 years respectively. The differentiation in sentences was based in part on the fact one accused was found to have somewhat less moral blameworthiness, having shown some compassion for the victims during the events. He was also the younger with a less‑extensive criminal record. [39] R. v. Mann, 2012 BCSC 1266, also involved a kidnapping combined with home invasion and robbery. The male victim was forced at gunpoint into his vehicle and forced to drive to his home where he and his wife were confined and robbed. The perpetrators then took the male victim from the home, leaving the wife to collect a ransom that they demanded. He was not freed until the following morning and for much of that time had been handcuffed, blindfolded, and confined in the trunk of a car. Mr. Mann had no criminal record, but the court said at para. 16: [16] Despite the variations among kidnappings, the jurisprudence is clear: planned kidnapping for ransom is a very serious crime which will attract a lengthy penitentiary term in virtually every case, even if the offender is young and is without a prior criminal history. For such crimes the compelling need to impose sentences which emphatically denounce their commission is clear . . . [40] The sentence in that case was 10 years. [41] I interject here that the kidnapping aspects of this case are less serious than those in Mann or A.J.C. Ms. Copping was never bound and was not held for ransom. Nevertheless, her kidnapping accompanied the robbery of others, which somewhat limits whatever mitigating impact the lack of a ransom demand may have. The robbery of Mr. Duncan and the luring of him to the motel for that purpose was planned. It is not clear from the evidence whether Ms. Copping's arrival with him was anticipated. Her kidnapping may or may not have been part of the initial plan, but as Mr. Justice Bernard said in Mann at para. 21: . . . Once the crime is in progress, changes which are aimed at achieving the same objective will not [change] a planned event into a spontaneous one. [42] In Mann, Mr. Justice Bernard described the offence as being closer to "stupid and poorly planned" than to "relatively sophisticated". I would apply the same adjectives to this case. [43] In R. v. Hiltz, the victim was held at gunpoint in a vehicle and taken to his home where he was confined and forced to identify valuable objects the perpetrators could take. A friend, who the victim had telephoned during the drive and asked to leave the house, became suspicious and alerted police. They arrived while the robbery was still in progress. Mr. Hiltz was sentenced to nine years. [44] Among cases relied on by the defence is R. v. Mills (1998), 12 B.C.A.C. 283. There the victim was taken in a car and driven around for three or four hours in what the court described as a "hopelessly inept attempt to collect [a] debt". The court said at para. 17: [17] The classic form of kidnapping, that which attracts penalties in the 10 years to life range, usually involves a carefully planned scheme for ransom with a period of confinement much longer than several hours and where the victim is bound, gagged, and sometimes blindfolded. . . . [45] The Court of Appeal said the case before it did not fit into that category and was more comparable to a robbery accompanied by a short period of confinement. It upheld sentences of four and five years respectively to the two perpetrators, with the difference based in part on the fact that one had a worse criminal record. [46] An important difference between this case and Mills is that here the kidnapping of one victim was accompanied by robbery and confinement of others. [47] In R. v. Aulakh, 2007 BCSC 2004, the kidnapping victim was bound, beaten, and held in the trunk of a car. Mr. Aulakh had no criminal record and was found to have had a more limited involvement in the crime than his co‑accused. He was sentenced to three and a half years, while his co‑accused were tried separately and received sentences ranging from six to eight years. [48] In R. v. Brar, 2014 BCCA 175, Mr. Brar was found guilty of kidnapping, unlawful confinement, and extortion. The victim had been held overnight for a total period of approximately 17 or 18 hours. The trial judge found Mr. Brar to have played a relatively limited role in the offences compared to the others who had been involved, but the Court of Appeal found a sentence of three and a half years to be demonstrably unfit and increased it to five years. The court at para. 46 was critical of the decision in Aulakh, and while not explicitly stating that it had been wrongly decided, said it was not of great help in determining the range of sentence. [49] R. v. Berthelet, 2008 BCSC 999, involved an accused found guilty of kidnapping, robbery, unlawful confinement, and assault causing bodily harm. The victim had been taken from a street at knifepoint and forced to go with her assailants to two separate locations where she was robbed and beaten. At one of these locations, she was locked in a crawl space. The ordeal lasted a total of eight hours. Ms. Berthelet had no criminal record at the time of the offence, but had a problem with substance abuse. She was allegedly the victim of a sexual assault while in pretrial custody. She was sentenced to four and a half years. [50] R. v. Brossault, 2009 BCSC 464 is a case of a home invasion involving the use of an imitation firearm. There was no kidnapping involved. The occupant of the home was bound, beaten, and robbed. The incident lasted about an hour. Mr. Brossault pleaded guilty, but had a criminal record and was on bail at the time of the offence. The sentence was six years. [51] Finally, R. v. Langthorne, 2015 BCSC 304, involved a sentence of four years for a robbery accompanied by a brief kidnapping. That sentence was made consecutive with a four‑and‑a‑half-year sentence for a separate robbery. [52] Those cases suggest a range of possible sentences for this offence of approximately between five and nine years. Defence counsel's submission for a sentence of only three years is clearly not consistent with that range, and would not adequately recognize the impact of these offences on the victims and the community, and would not give adequate weight to the goals of denunciation and deterrence. [53] The three‑year sentence suggested by defence would also not be consistent with what is referred to as the parity principle. One of the principles of sentencing I have referred to is that a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. That goal of parity is particularly applicable when, as here, another person has already been sentenced for his role in the very same events. [54] Mr. Daniels was sentenced to seven and a half years following a guilty plea and on the basis of a joint submission by Crown and defence. There are some differences between the specific offences Mr. Daniels pleaded guilty to and the ones Mr. Mathieson was found guilty of. Mr. Daniels pleaded guilty and Mr. Mathieson was convicted of the robbery of Mr. Walker. Mr. Daniels pleaded guilty to using a firearm in the robbery of Mr. Duncan and Mr. Insua, and in the kidnapping of Ms. Copping. Mr. Mathieson was convicted of that robbery and that kidnapping, but I was not satisfied on the evidence the firearms used in those offences were real. On the other hand, Mr. Mathieson was convicted of unlawful confinement of Mr. Schulz and Ms. Olson, an offence not included in Mr. Daniels' guilty plea. [55] Those differences do not detract from the fact that Mr. Mathieson and Mr. Daniels were engaged in a joint enterprise. [56] The Crown says Mr. Mathieson should receive a greater sentence than Mr. Daniels because Mr. Daniels' sentence was mitigated by the guilty plea. It also says the evidence shows involvement by Mr. Mathieson in planning the offence. [57] The defence says a lesser sentence for Mr. Mathieson is justified because Mr. Daniels, unlike Mr. Mathieson, had a lengthy criminal record and was, on the evidence, the more aggressive of the two men in the second motel room. He was the one who made the explicit threats of further violence. [58] In R. v. Sidhu, 2011 BCCA 246, the Court of Appeal said at para. 20: [20] With respect to the principle of parity this Court has said that "fine distinctions are inappropriate when assessing the conduct of parties to a crime for the purposes of sentencing, but that when there is a clear distinction in culpability, differing sentences may well be in order. . . [59] In Brar, the court said at para. 31: [31] It is open to sentencing judges to view the actions of one accused as qualitatively different, and more or less egregious than the actions of co‑accused engaged in the same common enterprise. It is for the trial judge to assess the relative culpability of the offenders. Differentiation by a sentencing judge in a kidnapping case on the basis of the degree of violence engaged in by one of the offenders was not interfered with by this Court in R. v. Hiltz. . . [60] I am not persuaded that Mr. Mathieson's moral culpability is significantly less than that of Mr. Daniels. It is true that Mr. Daniels was the more threatening to Mr. Duncan and Mr. Insua, stating words to the effect that he wanted to kill them, but Mr. Mathieson was also holding a gun and did nothing to assuage the fear that Mr. Daniels was creating. The best that can be said of him is that, according to Mr. Duncan, Mr. Mathieson appeared to be more in control and more professional. [61] At the same time, I am not persuaded that Mr. Mathieson's moral culpability is any greater than that of Mr. Daniels. The Crown relies on evidence of Mr. Mathieson being involved in the planning of the offence, but I do not have the benefit of whatever details of Mr. Daniels' involvement in that planning were put before the court on his sentencing, and I am not in a position to compare it to that of Mr. Mathieson. [62] Mr. Mathieson's guilty plea was clearly a mitigating factor in his sentence. On the other hand, he had a lengthy record of offences dating back to 2006. I agree with defence counsel that for sentencing purposes, the mitigating effect of a guilty plea does not necessarily or entirely negate the impact of that kind of record. [63] I conclude that while Mr. Mathieson was no less morally culpable than Mr. Daniels, his lack of a criminal record does justify a modest difference in his sentence. [64] Taking all the circumstances into account, I find a global sentence, before considering the effect of pretrial detention, to be six and a half years. [65] As said earlier, Mr. Mathieson is entitled to reduction of 245 days, or approximately eight months, in recognition of his pretrial custody. Defence counsel seeks a further reduction based on the strict bail conditions that Mr. Mathieson has been under since his release from custody. He was essentially under house arrest, except for purposes of work, and restricted to living in the Lower Mainland. The awarding of credit in response to strict bail conditions is a matter of discretion: R. v. Tse, 2010 BCSC 1273; R. v. Nghiem, 2009 BCCA 170; and R. v. Hoelscher, 2017 ABCA 406. In Mann, for example, the sentence reduction included an amount of time equal to about one‑third of the time Mr. Mann had spent under house arrest. [66] While Mr. Mathieson's bail conditions were strict, they did not prevent him from finding employment, becoming engaged, and reconnecting with members of his family. He was able to turn his life around in many important respects. In light of that, I do not consider this an appropriate case for further credit. [67] Mr. Mathieson, please stand. I sentence you, after credit for pretrial custody, to an actual sentence of five years and 10 months. [68] You are required to provide a DNA sample pursuant to s. 487.051 of the Criminal Code. [69] Pursuant to s. 109, you are also prohibited for life from possessing any firearms or other weapons referred to in that section. [70] I have been given a great deal of information about your positive qualities, the productive life you led, and your efforts to combat your drug addiction. All of it suggests this very serious offence was out of character. If your conduct in custody is consistent with all of that, you may well be a candidate for early release on parole and be able to resume your productive life relatively soon, but that decision will be up to members of the National Parole Board, not to me. I wish you luck. [71] Thank you, counsel, for your assistance. [72] MR. VOJVODIC: Thank you, My Lord. [73] MR. GAGNON: Thank you, My Lord. "Smith J."