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Mother of Powell River shooting victim feels court system was insensitive

Inability to read victim impact statement a disappointment, says Nichelle Guignard
nichelle guignard
REMEMBERING SON: Nichelle Guignard holds a photograph of her son Braxton Leask, who was shot to death two years ago. Maneuvering through the judicial system in the aftermath has been a difficult process that has at times brought frustration. Paul Galinski photo

Nichelle Guignard, the grieving mother of shooting victim Braxton Leask, feels let down by the criminal justice system.

Guignard’s son was shot and killed in Lund along with Dylan Buckle on June 17, 2017. A third young man, Zane Hernandez, was also shot in the incident and survived. The shooter, Jason Timothy Foulds, was found not criminally responsible due to a mental disorder (NCRMD) for the shootings during a Supreme Court hearing in Powell River on Tuesday, June 12.

“We had no rights from the very day I was told my son was murdered,” said Guignard. “Braxton was erased and he had no rights whatsoever. Jason, got every right.”

Guignard said she has been careful to be measured in everything she has said publicly that is related to the case but feels it is time to be heard.

For example, she said she is disappointed with how the court proceedings took place. Foulds elected to have his case heard by judge alone, which is his right under Canadian law.

“Jason requested it be by judge only and he got what he wanted,” said Guignard. “When I looked at all the cases I’ve been researching, when there was a jury involved alongside a judge, the determined verdicts were mostly not NCRMD because you have multiple people’s opinions.”

Powell River lawyer David Garling said it is a gold standard practice to take a case like Foulds to a judge and not a jury. On a serious crime such as murder, the accused can elect whether their trial will be heard by judge alone, or judge and jury. An accused’s right to elect judge-alone or judge and jury trials for indictable offences is a fundamental principle of justice in Canada, added Garling, who was not involved in the Foulds case but was consulted by the Peak to explain the concept of jury election by an accused.

Guignard was also disappointed the accused appeared in court by video link rather than in person.

“I wanted to see him,” she said. “I don’t know this boy. I wanted to look him in the face. I wanted to see his reactions.”

Guignard has dealt with mental illness professionally as a psychiatric nurse, but in the case of the killing of her son, struggles for answers.

“This is such a rare case,” she said. “Most people don’t act on these things, and when they do, it’s usually toward family members. He was judge, jury and executioner, all on his own.”

Guignard said she also struggles with the fact that she did not have the opportunity in the legal proceedings to read her victim impact statement to the court to outline how the incident has affected her life, her family’s lives and the lives of many in the community.

“Because of the process, there was no opportunity for me to stand up in court and provide my victim impact statement,” said Guignard. “The community’s voice, as well, will not be heard. That also got taken away from us.”

Foulds is now under the control of the BC Review Board, which is an administrative tribunal that makes decisions and orders concerning the liberty of individuals whom courts have found to be not criminally responsible for acts committed while they were suffering from a mental disorder. Foulds will appear before the BC Review Board on Friday, July 26, at the forensic psychiatric hospital in Coquitlam.

“Now, when it goes to the review board, you will see how crazy it is,” said Guignard. “Jason could be out in a year. If he starts to show improvement, next year he could have conditions of release. I doubt he would get an absolute discharge in a year but he could have a discharge with conditions.”

BC Review Board chairperson Bernd Walter said an individual typically comes before the board, which is a tribunal, within a 45-day period of their verdict.

“Our focus is very much on future risk to the public,” said Walter. “We are experts, not only in terms of having psychiatric expertise on the board. The board is a court of competent jurisdiction, so it has all of the powers of a supreme court.

“Our focus is mainly on the prediction of an accused person’s future risk to public safety, and then making an appropriate disposition, which accords with maintaining public safety, but which also maximizes the person’s liberties.”

Walter said it is a balancing act between not restricting the person too much, but also making sure the paramount consideration of public safety is not in any way compromised.

Once the tribunal has considered the evidence at the initial hearing, a disposition is made. Walter said there are three options. A person can be absolutely discharged if they are not a threat to public safety in the board’s opinion. They can be conditionally discharged, to be allowed to reside in the community under psychiatric supervision. The third disposition is that the individual can be detained in custody.

Cases are generally reviewed on an annual basis, although the board can review on different intervals if there is some change in the person’s presentation, according to Walter.

The code governing the review board does contain amendments since 2014 that allow an accused to be designated as a high-risk accused, but that has to be taken by the crown back to the original court. Walter said none of that would be relevant at this particular hearing.

Guignard is emphatic that she is her son’s voice as the case moves forward.

“I am the only one who is probably going to be left to make sure change happens,” she said.

Guignard wants to see Foulds designated as high risk to reoffend, which, she said, changes the criteria for the offender.

“What we are saying at this time is Jason is a huge high risk for reoffending,” she said. “We can ask for this. They determine if Jason fits this category.”

Guignard said that typically, people designated NCRMD have a review board hearing every year, but with a high-risk designation, the hearing interval could be up to three years.

“This puts the onus on them to prove he is better,” she said. “We are seeking that right now.”

The court process does not necessarily give closure but knowing someone is accountable for the crime is so important, said Guignard.

“For your beautiful son to be murdered and for no one to be accountable for it is the harshest thing,” she said.

Guignard is frustrated that nothing was brought up about Buckle and Leask at trial, how good they were and how sweet they were to other people. The only thing brought up about them was accusations of wrong-doings, she said.

The court system did not prove to be sympathetic or empathetic to the surviving victims during the judge’s oral reasons for judgement, read on July 12, 2019, according to Guignard. The last statement the judge made was to wish Foulds luck. Guignard said the judge did not say sorry for the families’ losses and the victims left.

“Wish them luck in getting past the PTSD they are possibly going to have for the rest of their lives,” she said. “That was the final slap in the face at the very end of the trial. I totally feel victimized. I feel hopeless. I feel frustrated and powerless.”

Guignard has developed coping mechanisms since losing her son. Organizing the celebration of life was important for her.

“The celebration of life for my boy and Dylan was miraculous,” said Guignard. “We started a scholarship and last year was the first year in memory of Braxton and Dylan. It goes to someone who is possibly going into the trades program and/or sports, like soccer. Braxton played for [Powell River] Villa soccer team and his whole life was sports. The only thing that got me through and distracted me was preparing for this award.”

Villa now has designated a day each year for a memorial tournament for Braxton and Dylan, who both played on the team.

“We had the game last year,” said Guignard. “Half the proceeds go to Villa and half go to the scholarship fund. Every year that fund is topped up. Without that I don’t know what I would have done.”

Guignard said one of the things that has been a comfort for her in the aftermath of the shooting is nature.

“My gardening has really helped me through this because it’s hope, it’s life, it’s that little piece that you can’t see in anything else,” she said. “I have no hope or peace in anything else, other than I know Braxton would kick my ass if I didn’t go on, and that’s the point.

“I have many loved ones and much support. They help me, but at the end of the day, the only person keeping me to stay sane and to continue is Braxton. I love my partner and all my kids and I have to stay sane for them. I can’t put them through another thing of just giving up. I will go on but I’m not the same person.”

Guignard’s hope now is that there can be a process where people who feel victimized by the shooting can write victim impact statements for the review board.

The Criminal Code of Canada defines a victim as a person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as a result of the commission or alleged commission of the offence. The Review Board of BC has stated it would not refuse a community victim impact statement if submitted, but that all disposition material can be discussed for admissibility by the parties at the hearing.

Community members wanting to write victim impact statements can contact victims services at 604.485.3415.