Reconsideration of weight of mental illness on culpability results in successful sentence appeal

Law360 Canada (November 26, 2024, 10:52 AM EST) --

John L. Hill

Shortly after noon on Nov. 25, 2021, 35-year-old Paul Nicholas Russell drove his white pickup truck to the RCMP detachment in Vanderhoof, B.C. From inside the truck, he fired a rifle at two marked RCMP vehicles parked in the parking lot. A few moments later, he fired twice more at the window of the detachment, shattering glass. He drove his truck toward the front of the building and fired again. Thirty minutes later, the truck was spotted, and Russell was arrested.

After the trial in Prince George, B.C., Justice Francesca Marzari found him not guilty of attempted murder, dangerous driving and careless storage of ammunition. He was found guilty of reckless discharge of a firearm, possession of a weapon for a dangerous purpose, careless use of a firearm, flight from a peace officer, mischief causing danger to life and mischief over $5,000 (R. v. Russell, 2023 BCSC 1123). She imposed a global sentence of 10 years with credit for pretrial custody almost four months later, leaving seven years and seven days to serve (R. v. Russell, 2023 BCSC 2039). Although the sentence was less than the 10 to 12 years recommended by the Crown, Russell appealed his sentence. The British Columbia Court of Appeal released its decision on Oct. 22, 2024 (R. v. Russell, 2024 BCCA 353).

The appeal court reduced Russell’s global sentence to five years. The court’s decision was based on two flaws found in the trial judge’s reasons for the sentence: (1) the trial judge failed to afford sufficient weight to Russell’s mental illness after finding that his mental illness attenuated his moral culpability, and (2) the judge also erred by sentencing in the “upper range” based on an improper proportionality assessment.

The Court of Appeal considered that Russell had experienced psychotic episodes before the shooting in Vanderhoof. Two prior incidents resulted in his hospitalization. All parties agreed that Russell’s conduct at the RCMP detachment was dangerous and frightening. Even though he was a first-time offender, the sentencing principles of denunciation and deterrence had to be considered.

The trial judge had found that it was entirely speculative that any disruptive thoughts or delusional thinking before his arrest. He had acted intentionally. The trial judge stated, “Denunciation and deterrence are primary factors in firearms offences and offences against the police.” She also considered Russell’s “moral culpability in this case to be very high, and the gravity of the offences to be very weighty.” She did acknowledge mitigating circumstances: Russell was a first-time offender with family support; he has been of good behaviour and compliant with his medications and is a good prospect for rehabilitation; and he is remorseful.

Nonetheless, it has been established that “when imposing sentence in cases involving mental illness, a judge must determine whether it is more likely than not that the mental illness caused or contributed to the commission of the offence” (R. v. Ayorech, 2012 ABCA 82; R. v. Ramsay, 2012 ABCA 257).

The British Columbia Court of Appeal in R. v. G.J.M., 2024 BCCA 82, emphasized that generalizations are insufficient to establish a link between mental illness or cognitive deficit and offending conduct that attenuates an offender’s moral culpability. Here, the trial judge considered psychiatric evidence and found that unspecified psychiatric disorder and alcohol abuse likely had some contribution to Russell’s mental state when the offence occurred, and this attenuated his moral culpability.

Once the trial judge found the link between mental illness and the offending conduct, she failed to give that evidence sufficient weight in sentencing.

The evidence before the court was indisputable. Russell’s actions were the product of his mental illness. The evidence of psychiatrists, Russell’s parents’ observation of his conduct, a presentence report, and observations by police at the time of his arrest establish the finding of his disturbance. The psychiatric evidence was specific and compelling. However, after making the finding, the trial judge erred in placing little, if any, weight on it in terms of mitigation of the sentence.

By handing Russell a 10-year sentence, the trial judge set out a new “upper range” of 10 years rather than the five to six-year range the B.C. appeal court suggested in R. v. Oud (J.R.), 2016 BCCA 332. The trial judge ought to have considered R. v. Parranto, 2021 SCC 46, where it was held that “starting points” are set out to assist sentencing judges in achieving the objectives and principles of sentencing. Increasing the range from five or six years to 10 and rejecting the Oud analysis of culpability was an error in principle.

The trial judge, having found Russell’s moral culpability was attenuated by mental illness, did not give sufficient weight to that factor. Secondly, she fell into error by giving this first-time offender a crushing sentence by establishing a new upper limit that was not in line with the Oud decision, which she distinguished based on the facts of the two cases. These errors affected the proportionality analysis.

The new sentence imposed was five years, effective Nov. 7, 2023, with 1,067 days credit for pretrial custody. Russell will have served his full sentence by 2025 and will be immediately eligible for parole.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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