



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Olson,









2011 BCCA 8




Date: 20110106

Docket: CA038370

Between:

Regina

Respondent

And

Michael Bernhard
Olson

Appellant




Before:



The Honourable Madam Justice Newbury





The Honourable Mr. Justice Hall





The Honourable Madam Justice D. Smith




On appeal from:
Provincial Court of British Columbia, July 13, 2010
(
R. v. Olson
, Prince George Registry 30997-KC-3; 30997-A-2; 30258-K-2)

Oral Reasons for Judgment




Counsel for the Appellant:



J.M. Duncan





Counsel for the (Crown) Respondent:



J.M.I. Duncan





Place and Date of Hearing:



Vancouver, British
  Columbia

January 6, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 6, 2011








[1]

D. SMITH J.A.
: The appellant, Michael Bernhard Olson, applies for
leave to appeal sentence, and if leave if granted, appeals his eight-month
conditional sentence order in Provincial Court (plus the equivalent of 10
months pre-disposition custody) for the following
Criminal Code
offences
that were charged in three separate Informations and to which he pleaded
guilty:

a)

assault, contrary
to s. 266, and uttering threats to cause death or bodily harm, contrary to s.
264.1(1)(a), both on July 8, 2009, in regard to the first victim, and for which
the Crown proceeded summarily;

b)

assault, contrary
to s. 266, between October 22, 2009 and November 12, 2009; uttering threats to
cause death and bodily harm, contrary to s. 264.1(1)(a), on January 19, 2010;
obstruction of justice, contrary to s. 139(2), between January 19, 2010 and
January 24, 2010; and breach of an undertaking under s. s. 499(2), contrary to
s. 145(5.1), all in regard to the second victim and for which the Crown
proceeded by indictment; and breach of recognizance, contrary to s. 145(3), on
February 9, 2010, in regard to the second victim for which the Crown proceeded
summarily.

c)

breach of
recognizance, contrary to s. 145(3), on February 9, 2010, in regard to the
second victim for which the Crown proceeded summarily.

[2]

The appellants sentence further included a three year probation order,
a five year firearms prohibition, an order that he provide a sample of his DNA
for registration with the DNA national databank(a secondary or discretionary
order), and a restitution order of $847.32 to the second victim. None of these
orders are at issue in this appeal.

[3]

The appellants principal ground of appeal is that the sentencing judge
erred in law in rejecting the joint submission of the Crown and defence for a
global three month conditional sentence order for all of the above-noted
offences.

[4]

For the reasons that follow I would dismiss the appeal.

Background

[5]

The circumstances of the offences involved brutal attacks and threats of
death and bodily injury on two successive and unrelated live-in girlfriends,
two breaches of a no-contact court order made for the protection of the second
victim, and an attack on the administration of criminal justice by the
appellants intimidation of the second victim to drop her complaint to the
police. The appellants second breach of a no-contact order in regard to the
second victim (the February 9, 2010 breach of recognizance) resulted in the
appellants ongoing detention for five months until his guilty pleas on all of
the offences on July 13, 2010.

[6]

The sentencing judge summarized the circumstances of the offences as
follows:

[3]        The circumstances of these events are ... very
troubling to the Court because of the nature of the offences, the manner in
which they were committed, and who they were committed against.

[4]        Mr. Olson entered into a spousal relationship with
Candice Chadwick. They met through an online dating service. She moved into his
residence, and she agreed to pay $800 a month to live with him. She had two
children to support and, as a result, worked two jobs. She describes Mr. Olson
a being controlling. He had many rules. He was abusive when drinking, and there
were several incidents that occurred between them before July 8, 2009, which is
the date on which the criminal offences to which Mr. Olson had pled guilty
arose.

[5]        Prior to July 8, 2009, Ms. Chadwick felt it
necessary to leave the relationship but returned. On July 8, 2009, Mr. Olson
was drinking. He became angry over money issues. Ms. Chadwick was in the living
room, and according to her, Mr. Olson pounced on her, screamed at her, and told
her that she needed to learn a lesson. He pinned Ms. Chadwick down and began
licking her like a dog. He then began to bite her. He bit her in various places
on her body and particularly in her breast and nipple region. He eventually let
her up briefly but re-assaulted her, banged her head against the wall, and
pressed his thumbs into her temples. He then left her, returning soon after
saying he was sorry but that she needed to be taught a lesson. He told her that
if she tried to leave him, he would have her fired and have another woman, a
friend of his kick her ass.

[6]        Ms. Chadwick remained in the home for
approximately a week after that. After about a week, Mr. Olson became angry
again because Ms. Chadwick had done him the indignity of having her boss drive
her home after a late-night shift. On this occasion she fled, called the RCMP,
and they arrived at the residence; however, Mr. Olson refused them entry. They
did not enter the residence on that occasion because there was some concern
that he may be in possession of firearms. Later, they came, arrested him, and
released him on bail.

[7]        I have no doubt, although the bail documents were
not put before me, that the bail terms and conditions required him to stay away
from Ms. Chadwick, and thankfully he has.

[8]        That was in July. By the fall of 2009, Mr. Olson
had moved onto a new and different relationship, this one with Ms. Butress. He
moved into her residence. It is reported that he was controlling and abusive of
her as well. On one occasion, he became angry when they were in bed. He flipped
the bed over on top of her (it was a mattress) and began kicking it.

[9]        This type of behaviour continued between October
and December. In December, Mr. Olson became upset regarding Ms. Butresss
former boyfriend. He began to call every name in the phone book that had the
same last name as her former boyfriend. He assaulted her. He bit her ear. The
police came and arrested him. They released him, however, with a no-contact
provision, but that apparently did not stop Mr. Olson, who returned to Ms.
Buttresss residence and was there for some time. When he returned, he again
threatened Ms. Butress, threatened to kill her and her family, and he refused
to leave.

[10]      On January 19 of this year, they were arguing.
Again, Mr. Olson assaulted her in the bathroom, hitting her head striking her,
and said that he would kill her. He got a knife. He said he would keep her in
the bathroom. She pleaded with him to let her out. He disconnected the phone.
He threatened to stab her 100 times, cut off her head and put it in the toilet.
He said he would kill her cat; then he would kill his dog; then he would kill
himself.

[11]      Ms. Buttress says that during the time she lived
with Mr. Olson he had a terrible drinking problem, drinking at least a case of
beer a day.

[12]      The next day after that incident Ms. Butresss face
was swollen. Mr. Olson brought her some ice but in doing that kind gesture also
repeated the threats he had made the day before. He embellished on how he was
going to kill himself.

[13]      On January 24, the RCMP called Ms. Butresss
residence to discuss with her the previous incident that resulted in Mr.
Olsons arrest and his subsequent release. Mr. Olson was present when that call
was made, and because of the threats he had made against Ms. Butress, she
attempted to dissuade the police from proceeding with those charges. That is
the obstruction of justice to which he has pled guilty. She was afraid of Mr.
Olson. She was afraid that if she said to the police, Oh, by the way, he is
standing right here, that other violence would be visited upon her.

[14]      On January 25, 2010, Mr. Olson again began to the
threaten Ms. Butress, but she fled the home, called the police this time; they
came and arrested him.

[15]      He was released again. Again, I was not advised as
to whether that was as a result of a bail hearing or a simple police release.
If it was the former, I expect that one of my colleagues would have heard all
of the facts and duly considered the past history before deciding to release
Mr. Olson. If it was the latter, it is concerning because the police obviously
would not necessarily have had before them all of his history.

[16]      However, Mr. Olson was
not deterred in his contact with Ms. Butress. He went back near her residence
on February 9. That was in breach of his bail release documents. He walked
around the residence and then left. He was arrested and has been held in
custody ever since.

[7]

At the time of the sentencing hearing, the appellant was a 37-year old
unemployed logger. He had an admitted drinking problem but no criminal record.
A pre-sentence report was not sought or ordered.

[8]

The joint submission by Crown and defence for a three-month conditional
sentence order was broken down as follows:




(a) July 8, 2009 assault of Ms. Chadwick:



2 months





(b) July 8, 2009 uttering threats to Ms. Chadwick:



4 months (concurrent)





(c) October 22-November 12, 2009 assault of Ms. Butress,
  January 19, 2010 uttering threats to Ms. Butress, January 24, 2007
  obstruction of justice in regard to Ms. Butress, and January 24, 2007 breach
  of undertaking in regard to Ms. Butress:



a global sentence of 8
  months consecutive to (a) and (b)





(d) February 9, 2010 breach of recognizance in regard to
  Ms. Butress:



1 month consecutive to all
  of the other sentences






[9]

The proposed global sentence of 13 months was to be reduced by 10 months
based on the two-for-one credit the appellant was entitled to receive at that
time for his five months pre-sentence custody, resulting in a net global
sentence of three months to be served in the community under a conditional
sentence order.

[10]

The sentencing judge expressed concern about the joint submission, the
lack of victim impact information, and the lack of a pre-sentence report. He
acknowledged the import of the decisions of this Court in
R. v. Bezdan,
2001
BCCA 215, 154 B.C.A.C. 215 and
R. v. Nome,
2002 BCCA 468, 172 B.C.A.C.
183, and the need for a sentencing judge to give careful consideration to a
joint submission and not reject it unless he or she explains in what way it is
contrary to the public interest and would bring the administration of justice
into disrepute. However, he found the similarity between the nature and manner
of the offences between the two victims, both within a relatively short period
of time, to be of particular concern. He advised counsel that he was
considering rejecting the joint submission and adjourned the hearing to the
following day for further submissions and authorities from counsel that might
explain and support the joint submission.

[11]

The following day both counsel made further submissions. The Crown
acknowledged that the obstruction of justice offence would likely require a
consecutive sentence but maintained his position that the joint submission for
a global conditional sentence order of three month remained appropriate. In
support of his position he relied on the following authorities:
R. v.
Cooper,
2009 BCCA 208, 270 B.C.A.C. 247;
R. v. Maynard,
2008 ONCJ
445, 79 W.C.B. (2d) 63;
R. v. Rollins,
2006 Carswell Ont. 7998;

and
R. v. Fuentes
(1994), 51 B.C.A.C. 154, 84 W.A.C. 164. Counsel for the
appellant reiterated his submissions from the previous day, but submitted in
the alternative that if the sentencing judge rejected the joint submission he
could address his concerns by imposing a longer conditional sentence order with
more onerous terms.

[12]

The sentencing judge ultimately rejected the joint submission. He
distinguished the Crowns authorities on their facts, expressly referred to s.
718.2 (a) (i) and (ii) of the
Criminal Code,
which provide for an
increase in sentence where aggravating circumstances that include the abuse of
an offenders spouse or the abuse of a person by an offender in a position of
trust are established, and underscored the seriousness of the obstruction of
justice offence which strik[es] at the heart of the criminal justice system
and our societys norms, concluding:

[46]      ... When people attempt
to subvert or obstruct justice, they are attempting to subvert or obstruct the
very pillars of our civilization, and that requires, in my view, a very firm
sentence.

[13]

He then imposed an eight-month conditional sentence order (in addition
to the equivalent of 10 months pre-sentence custody), which he broke down as
follows:




(a) July 8, 2009 assault of
  Ms. Chadwick:



2 months





(b) July 8, 2009 uttering threats to Ms. Chadwick:



4 months concurrent to (a)





(c) October 22-November 12, 2009 assault of Ms. Butress:



6 months concurrent to (a)





January
  19, 2010 uttering threats to Ms. Butress:



6 months concurrent to (b)





January
  24, 2010 obstruction of justice in regard to Ms. Butress:



9 months consecutive to (c)
  and (d)





January
  24, 2010 breach of undertaking in regard to Ms. Butress:



2 months concurrent to (a)
  and (b)





(d) February 9, 2010 breach of recognizance in regard to
  Ms. Butress:



3 months consecutive to all
  other sentences






[14]

From the global sentence of 18 months, the sentencing judge credited the
appellant with the equivalent of 10 months pre-disposition custody, leaving a
net global sentence of 8 months. In acceding to the joint submission for a
conditional sentence order the judge stated:

[69]      I have given careful consideration to the
provisions of s. 742.6 and the provisions set out in the case of
R. v.
Proulx
[2000 SCC 5, [2000] 1 S.C.R. 61]

in coming to a decision as
to whether or not a sentence should be served in the community or not. I have
to consider a number of factors. First of all, is there a minimum term of
imprisonment? There is not here. Second of all, is imposing imprisonment less
than two years being sought? That is what is happening here, so you qualify on
that basis. The third and fourth tests are whether or not I am satisfied
serving the sentence in the community would not endanger the safety of the
community. I have to also be satisfied that serving the sentence in the
community would be consistent with the fundamental purpose and principle of
sentencing as set out in ss. 718 to 718.2.

[70]      I have considered those
terms, sir, and I have considered whether or not you are a suitable candidate
to serve your sentence in the community, and although unfortunately Ms. Butress
and Ms. Chadwick may disagree with my view on this, I have come to the
conclusion, in large part because you have already spent five months in custody
and in large part because of the terms and conditions I am going to impose on
you with regard to the conditional sentence, that you may serve your sentence
in the community rather than being held in jail further.

[15]

The difference between the joint submission and the sentence imposed
focused largely on the increase in sentence for the obstruction of justice
offence to nine months, and the increase in the breach of recognizance offence
from one to three months, both of which were made consecutive to the other
sentences. However, the sentencing judge appeared alive to the totality
principle by making the sentences for the assault, uttering threats, and breach
of undertaking in regard to the second victim concurrent with the sentences for
the assault and uttering threats in regard to the first victim.

Positions of the parties

[16]

The appellant submits that the sentence proposed by way of joint
submission was not contrary to the public interest, would not have brought the
administration of justice into disrepute, and was not unfit for any other
reason. He contends that the nine month sentence imposed for the obstruction of
justice offence was excessive and exceeds the sentences in all of the cases
cited by the Crown that involved offenders with criminal records in similar
circumstances. In that regard, counsel for the appellant places considerable
weight on this Courts decision in
Cooper
to support his position that a
two month consecutive sentence for obstruction of justice, in the circumstances
of this case, would have been appropriate and adequately reflected the
seriousness of the offence.

[17]

The Crown submits the sentencing judge was not bound to accept the joint
submission and that it was not an error in principle for him to reject the
joint submission by imposing a longer conditional sentence order. Moreover, the
sentence that was imposed, the Crown submits, was not unfit given the
seriousness of the offences and the appellants breaches of the court orders
made for the protection of the victims leaving it open to him to have found
that the appellant did not meet the requirements for a conditional sentence
order and instead to have imposed a conventional custodial sentence. In support
of its position, the Crown relied on the following authorities:
R. v.
Hunter,
2006 BCCA 433, 231 B.C.A.C. 55;
R. v. Frigenette
(unreported),
November 29, 1994, Vancouver Registry No. CA019359;
R. v. Hall,
2001
BCCA 74, 150 B.C.A.C. 313 and
R. v. Titchener,
2009 BCCA 554, 280
B.C.A.C. 23.

Discussion

[18]

The standard of review on sentence appeals is that absent an error in
principle, failure to consider a relevant factor, or an overemphasis of the
appropriate factors, an appellate court should only intervene to vary a
sentence if the sentence is demonstrably unfit:
R. v. M. (C.A.),
[1996]
1 S.C.R. 500 at para. 90.

[19]

It is common ground that a joint submission is not binding on a
sentencing judge who retains his or her discretion to impose a fit sentence
that may differ from the joint submission. However a joint submission should
not be rejected lightly and the sentencing judge should give reasons for doing
so. While the sentencing judge is not required to inform the offender that he
or she proposes to depart from the joint submission it is preferable for the
judge to articulate his or her concerns and provide counsel with an opportunity
to make further submissions and provide additional material where available to
address those concerns:
R. v. Grisson
(1997), 100 B.C.A.C. 249;
R. v.
Bezdan,
2001 BCCA 215, 154 B.C.A.C. 122;
R. v. Pretty
, 2005 BCCA 52,
208 B.C.A.C. 79;
R. v. Fuller,
2007 BCCA 353, 244 B.C.A.C. 158;
R. v.
Furey,
2007 BCCA 395, 245 B.C.A.C. 67 395;
R. v. Penney,
2010 BCCA
307, 288 B.C.A.C. 209.

[20]

These principles and recommended procedure for a sentencing judge who is
not inclined to accede to a joint submission were succinctly summarized by Mr.
Justice Low in
Pretty
at para. 2:

The appellant contends that the
appeal judge erred in not finding error on the part of the sentencing judge in
imposing a sentence greater than that proposed in the joint submission without
advising counsel and without having a good reason for the departure. It is
clear from the cases that a sentencing judge is not bound by a joint
recommendation from counsel as to the appropriate sentence. The judge can
reject the joint submission but ought to give reasons for doing so and not
disregard it or overlook it. The authorities in this Court state that it is
preferable for the judge to make plan the reasons for the concern with the
joint submission so that counsel can place any additional relevant material on
the record for a possible appeal. However, the fact that the judge does not,
before giving reasons for sentence, state concerns he has with respect to the
joint proposal does not mean that an appeal court must find the sentence to be
unfit and reduce it to that proposed in the joint submission.

[21]

An additional reason for the sentencing judge to advise counsel of his
or her concerns with a joint submission, as was noted by Madam Justice Saunders
in
Penney
at para. 8, is to permit the offender to consider whether he
or she should make an application for withdrawal of his or her guilty plea(s).

[22]

Ultimately, however, the sentencing judge has the duty of imposing what
he or she believes to be a fit sentence after considering the circumstances of
the offences, the circumstances of the offender, and the purpose and principles
of sentence as codified in ss. 718 to 718.2 of the
Criminal Code.

[23]

The appellant contends that s. 718.2(b) if the
Criminal Code
requires
that a sentence should be similar to sentences imposed on similar offenders
for similar offences committed in similar circumstances. In that regard, he
relies on
Cooper
in support of his position that this Court has endorsed
a sentence of two months for the offence of obstruction of justice (the
proposed sentence for that offence in the joint submission) and therefore the
proposed sentence was a fit one. With respect, I do not agree with that
analysis of
Cooper.

[24]

Cooper
involved an appeal of a six-month jail sentence that was
imposed by a provincial court judge in regard to seven offences committed by
the offender between June and December 2007. The offender had pleaded guilty to
criminal harassment, assault, mischief (wilful damage to a vehicle), attempting
to obstruct justice, breaches of an undertaking and breaches of a recognizance,
all in regard to conduct toward his estranged wife. He was also found guilty of
assault causing bodily harm to a stranger who had simply asked his wife for a
dance. Counsel made a joint submission for a 15-18 month conditional sentence
order for the six offences to which Mr. Cooper had pleaded guilty, and one day
for the offence of assault causing bodily harm for which Mr. Cooper was
convicted, based on the roughly double time he had spent in pre-disposition
custody that amounted to about seven months. Mr. Cooper, age 52, had a criminal
record dating back some years that included offences of violence, weapons
offences and breaches of court orders. The central issue on appeal in that case
was whether the sentencing judge had erred in principle by rejecting the joint
submission for a conditional sentence order and in imposing a jail sentence in
circumstances where the appellant alleged that he had a negotiated deal that
resulted in his guilty pleas on the first six offences.

[25]

The Court dismissed the appeal noting that neither counsel had advised
the trial judge that the appellants guilty pleas were the result of negotiated
admissions of guilty. In the result, the Court found no error in principle in
the trial judges rejection of the joint submission for a conditional sentence
order, stating:

[25]      The trial judge was not prepared to give effect to
the joint submission and gave his reasons for departing from the bargain. The
judge recognized, correctly in my view, that a sentence emphasizing
denunciation and deterrence was required in this case and to impose a
conditional sentence would not have been in accord with the purposes and
principles of sentencing to which he referred. Moreover, the appellants many
past breaches of probation and recognizance of bail demonstrated that, in any
event, the appellant was unlikely to adhere to the terms of a conditional
sentence if the terms did not suit his purposes.

[23]      In summary, I am of the
view that the trial judges rejection of a conditional sentence in this case
was not unreasonable and that the six-month sentence he imposed for various
offences to which the appellant had pleaded guilty was not unfit.

[26]

While the circumstances in this case were similar in some respects to
those in
Cooper,
they were also more serious in that they involved two
spousal victims. On the other hand, the appellants personal circumstances
were not as egregious as the offender in
Cooper,
in that he was a first
offender and potentially met all of the conditions for a conditional sentence
order under s. 742.2 of the
Criminal Code.

[27]

More significantly,
Cooper
involved a sentence appeal by an
offender. The Court was not asked to vary the sentence for the appellants
conviction for attempted obstruction of justice and given the limited
jurisdiction for appellate intervention as outlined in
M.(C.A.)
would
not have had any basis to interfere with the trial judges exercise of
discretion in that regard in the absence of a demonstrated error in principle.
Consequently, the dismissal of the appeal did not amount to an affirmation by
the Court of a sentence of two months for the offence of obstruction (or rather
an attempted obstruction) of justice but reflected a finding that the appellant
had failed to demonstrate any error of principle that would have permitted the
Court to intervene and vary the sentence.

[28]

While the crafting of an appropriate sentence is very much an
individualized process unique to the circumstances of each case and each
offender, the authorities relied upon by the Crown suggest that the global
sentence imposed in this case was well within the range of sentences imposed
on similar offenders for similar offences committed in similar circumstances.

[29]

In my view, the sentencing judge correctly followed the recommended
procedure outlined in
Pretty
and the other authorities on joint
submissions before imposing a sentence that the appellant has failed to
demonstrate was unfit. I would grant leave to appeal, but dismiss the appeal.

[30]

NEWBURY J.A.
: I agree.

[31]

HALL J.A.
: I agree.

[32]

NEWBURY J.A.
: The extension of time is granted. Leave is granted
and the appeal is dismissed.

The
Honourable Madam Justice D. Smith


