R. v. Heltman Date:, 2017 BCPC 408

Citation: R. v. Heltman Date: 20171122 2017 BCPC 408 File No: 43980-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DUSTIN DANIEL HELTMAN ORAL RULING RE: DEFENCE APPLICATION OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: P. Schmit, Q.C. Counsel for the Defendant: J. Pakenham Place of Hearing: Prince George , B.C. Date of Hearing: November 22, 2017 Date of Judgment: November 22, 2017

INTRODUCTION [ 1 ] THE COURT (Orally): We are part way through the sentencing of Dustin Daniel Heltman on Prince George Information 43980-1. The sentencing proceeding commenced on June 16 of 2016, and it was adjourned from that date to November 9th for a continuation. [ 2 ] Mr. Heltman's counsel, Mr. Pakenham, has now raised an issue as to whether it was appropriate for the court to adjourn the sentencing in that manner. He has also raised an issue about the use, if any, that can be made of information about Mr.

Heltman's court history subsequent to the initial appearance on the sentencing on June 16th -- that is to say between then and now. Also, Mr. Pakenham takes the position that while the Crown, in his view, ought not to be permitted to advert to that court history for the purposes of sentencing, the adjournment having been unlawful, he nevertheless also takes the position that he remains free to refer to information about events that have transpired in the interregnum that are positive and favourable to Mr.

Heltman. [ 3 ] When this issue arose on November 9th, I considered it necessary to adjourn further to today's date so counsel could properly prepare to address the court on this question, because it had arisen with very little notice to either the court or to the Crown. Counsel needed an opportunity to review the authorities that Mr.

Pakenham places reliance on; Crown and defence needed to assemble their own cases to speak to the issue; and, of course, some attention had to be given to what was said on the record at the time the adjournment was granted. [ 4 ] All of that work has now been done; the authorities have been exchanged and the transcripts have been prepared and reviewed. I have heard submissions from Crown and defence, and I am now prepared to rule on what is in effect Mr. Heltman's application.

THE BASIS FOR THE ADJOURNMENT OF THE SENTENCING WHILE IN PROGRESS [ 5 ] I am going to turn first to the basis upon which the adjournment was granted. At the first phase of the sentencing hearing, the Crown and defence outlined their sentencing positions, and those sentencing positions differ from each other starkly. [ 6 ] Crown is seeking, among other things, a year in conventional custody concurrently on a number of counts. Defence, rather differently, is inviting the court to impose a conditional sentence, which would allow Mr.

Heltman to serve a prison term while still in the community. [ 7 ] So, on this sentencing, one factor that I am required to consider is whether a conditional sentence order would be an appropriate disposition for Mr. Heltman on this matter. In particular, I am required by s. 741.1 (

a) of the Criminal Code -- that is the

section that governs conditional sentence orders -- to consider whether service by Mr. Heltman of his sentence in the community would endanger the safety of the community. I am also required by that

section to consider whether to impose a conditional sentence order on Mr. Heltman would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code . [ 8 ] Based on submissions made by both the Crown and the defence, back on June 15th, I learned that around the time he committed the subject offences, and afterward, Mr. Heltman's life was in considerable disarray. He was struggling with addiction problems and not so long before he was convicted in May of 2017, he had experienced an extraordinarily tragic and traumatic event in the life of his family.

It was a murder-suicide. The father of Mr. Heltman's common law spouse murdered his wife, and then took his own life. That happened around Christmas of 2016, while Mr. Heltman was on bail for the present charges, but before a decision on a conviction had been given. [ 9 ] This issue came up first in Crown's submissions, when it was reviewing some of Mr. Heltman's very active court history since committing the offences for which he is answerable today. The emphasis in those Crown submissions was placed upon a number of breaches alleged against Mr. Heltman.

Naturally those alleged breaches being a recent part of Mr. Heltman's history are relevant to the question of whether or not a conditional sentence order would be an appropriate disposition on the subject charges. They say something about the efficacy of court orders in controlling Mr. Heltman's behaviour while he is in the community. [ 10 ] However, Crown counsel, Ms. Schmit, felt compelled when making submissions about those breaches to set them in context by alerting the court to what was going on in Mr.

Heltman's life at the time, that being the tragic murder-suicide to which I have just referred. [ 11 ] I am going to quote a couple of passages from the transcript of June 15th. Starting at page 13, toward the bottom of the page, this is the court speaking -- sorry, this is -- there is an error in the transcript, it says it is the court speaking but it is actually Ms. Schmit, starting at line 42: My friend is going to speak about some circumstances that were highly unusual. These circumstances involved the murder-suicide of Mr.

Heltman's -- I don't know if she was his girlfriend at the time, but [she had a child with her] he has a child with her. Common law -- my friend tells me that it was Mr. Heltman's common law spouse. So over the period Christmas of December '16 to '17, Mr. Heltman's common law spouse Stephanie Kilman's [phonetic] father murdered his wife, Stephanie's mother. [ 12 ] That is the quotation. [ 13 ] Later in her submissions Ms. Schmit referred again to that tragedy in Mr. Heltman's life that may explain, although not excuse, his numerous alleged breaches in the wake of conviction, and before.

She also added important new context, namely that more recently, in the time leading up to the sentencing hearing in June, Mr. Heltman had been performing much better. This improvement had indeed been recognized by Mr. Saitz, the probation officer with responsibility for Mr. Heltman's file. [ 14 ] I think it is fair to say that Ms. Schmit was being exceedingly fair in including mention of these matters in her sentencing submissions, and I will read another quotation from the transcript. This comes from pages 16 and 17, starting on page 16, at line 40:

My friend is seeking a conditional sentence in this case. I will leave it up to him to try and make that argument to you. I would say that, from the Crown's point of view, these are serious offences and Mr. Heltman's record does nothing to support his -- the idea that he -- a risk should be taken on him to comply with court orders, because clearly during the period from -- in 2016, he didn't comply with a lot of court orders. However, having said that, it does seem to me from discussions with Mr. [Saitz]... That is the probation officer: ...that Mr.

Heltman might be getting his act together, and that can only be a good thing. I do -- I -- I do -- the Crown is aware of these very difficult things that were going on in Mr. Heltman's life in 20 -- the Christmas period of 2016-17, and that is probably some mitigating circumstance. The question here is whether the court feels confident enough in Mr. Heltman to take a risk on him given his record. His record does not speak well for him. But... ...I leave it up to my friend to try to convince you that we should take a risk on Mr. Heltman.

The Crown's position is that his record is against him on this. [ 15 ] So from that quotation one can see that the Crown is acknowledging that while Mr. Heltman's history of breaching court orders is against him (as Ms. Schmit said) in his pursuit of a conditional sentence order, Ms. Schmit is also acknowledging that his most recent history, as of the June 2017 hearing, revealed an improving pattern. In that quotation Ms. Schmit acknowledged again that the traumatic events of and around Christmas 2016 -- the murder-suicide in Mr.

Heltman's close family -- contextualized the breach history that is otherwise "against him." [ 16 ] Ms. Schmit acknowledged that, as a sentencing judge, I will need to consider those factors in determining the appropriateness, or not, of a conditional sentence order. When she says in the part of the transcript I just quoted, "The question is whether the court feels confident enough in Mr. Heltman to take the risk on him, given his record," Ms. Schmit is referring to the first branch of the test in s. 741.1 (a), that is, whether service by Mr.

Heltman of his sentence in the community would endanger the safety of the community. She is acknowledging that what were then very recent changes in Mr. Heltman's behaviour could possibly cause the court to look more closely at a CSO than it might otherwise have been willing to do. [ 17 ] Mr. Pakenham, during his submissions in June, also spent a lot of time talking about positive developments that had occurred not long before the sentencing hearing that commenced in June. He referred to Mr. Heltman having gotten employment, and to the fact that his employer sees him as a valued and reliable employee.

He spoke of proactive steps Mr. Heltman had taken to get himself going with counselling to assist him with his addiction problems. This was all fresh and new, but promising. [ 18 ] Mr. Pakenham's submissions, and Ms. Schmit's before them, led me ultimately to make a suggestion to counsel that the sentencing be deferred. I will read directly into the record here -- or into these Reasons on Mr. Pakenham's application -- from the transcript where that suggestion is made. You will find that on page 21, starting at line 11: So Mr. -- Mr.

Heltman has had some considerable difficulty in complying with court orders and, of course, a conditional sentence order requires, in terms of the whole protection of the public aspect, the [indiscernible] and the compliance of the person who is serving a prison sentence in the community, and that means yielding to and being guided by and being scrupulously -- scrupulously compliant with court orders and a history like this is troublesome. The point I'm trying to make is what you're pointing me to in your other materials in Exhibit 3 shows some promise of a kind of change of direction for Mr.

Heltman, but it's very fresh and very early. For example, the position with the roofing company is very new. He only started it in April; it's now June. The involvement with the counsellor is relatively new. The letter that speaks of becoming involved with the... ...Interior Health, while it's an earlier letter, it only talks about doing intake and going to one appointment. So here's the suggestion I'm going to make for you and Ms. Schmit to consider.

Might it not make some sense to defer a -- this sentencing hearing to a continuation at a point some months down the road when it would be possible then to review Mr. -- Mr.

Heltman's performance on a number of... -- in a number of different areas, his -- his continued compliance with his bail conditions, for example, in the probation order he's on, his continued engagement with service providers aimed at assisting him with things like substance abuse, where there's more to work with? [ 19 ] Note that that suggestion is expressly grounded in the court's consideration as to whether a CSO would be an appropriate sentencing option, an option that even Ms. Schmit was prepared to acknowledge might possibly be on the cards, despite Mr.

Heltman's distressing breach history before his apparent change in direction. [ 20 ] That transcript extract clearly shows, in my view, that the point and purpose of the deferral of the sentencing was to gain a better sense of whether the positive signs that might be said to favour a conditional sentence -- that were, in June, still very fresh and very new - - might persist. [ 21 ] Importantly, the deferral as suggested was not a decision to simply give Mr. Heltman some time to show how he was doing generally, to "to see how the offender will behave," as it stated in one of the cases.

To the contrary, the deferral was anchored to the CSO option; it was intended to allow the sentencing of Mr. Heltman to come back at a time when a "proper sentencing hearing" could be conducted with a proper appreciation as to whether a CSO was truly a viable option. [ 22 ] Not surprisingly, after standing down briefly to take instructions, Mr. Pakenham, as Mr. Heltman's counsel, enthusiastically took up the opportunity presented by the proposed deferral, and Ms.

Schmit joined in with him in supporting the idea of a deferral, and I will read again from the transcript, we are now at page 22, starting at line 23: Yes. Your Honour, I've had... And this is Mr. Pakenham speaking:

Yes. Your Honour, I've had a chance to talk to my friend and my client and, in my respectful submission, it would be wise to adjourn thismatter to -- so that Mr. Heltman can continue on the very positive path that he's started and continue to show his -- that he's acontributing member of society and -- and attend counselling, and continue his -- his employment, which has been very positive. And I --and, of course, he's on very strict bail conditions at this time, so he would continue to abide by those in the interim.

And I believe that my friend and I are in agreement that the adjournment would be to the end of September, early October, is our -- is our-- is my respectful suggestion in terms of setting this matter back for sentencing. THE COURT: Okay. Ms. Schmit? MS. SCHMIT: I agree. Mr. Heltman is to show to the public and to the court that he has turned over a new leaf and is ready to get onwith his life as a productive member of society, then he -- it would be in the interests of justice to adjourn this to the end of September,the beginning of October. That would give him six months, which isn't a hugely long time...

And I pause to say Ms. Schmit's math is slightly off there: ...but in a 25-year-old's life perhaps longer than most, to prove these things. [23] Upon hearing counsels' views in support of the deferral I granted the deferral, referring again to the purpose for it, to learn moreabout Mr. Heltman's seemingly growing ability to address underlying issues and comply with court orders, an essential considerationwhen imposing a CSO. [24] Back to the transcript, page 23, starting at line 37, this is the court speaking: Okay. All right. And I would say to you, Mr.

Pakenham, it's up to you how you deal with this, but obviously the court is granting thisadjournment and has initiated the suggestion of the adjournment in the expectation that there will be something to show for the time thathas passed, in terms of reports from employers, counsellors and bail supervisors, probation officers and so forth, and I -- I leave with youthe suggestion that you arm yourself with documentary back-up for the kinds of submissions you're going to be wanting to make to showthat Mr. Heltman is worthy of serious consideration for a conditional sentence order. MR.

PAKENHAM: Yes, I understand, Your Honour, and I'll -- I'll impress that upon Mr. Heltman. Thank you. [25] So you see there that, in the clearest of possible ways, an unequivocal anchoring of this entire initiative of the deferral to theinquiry as to whether or not a CSO is a viable sentencing option. WAS THE ADJOURNMENT OF THE SENTENCING FOR CONTINUATION LAWFUL? [26] So that's how the deferral came about; that is how matters were left. The deferral took us to a continuation date on November9th, and then two days before that continuation Mr. Pakenham, on behalf of Mr. Heltman, provided the court and Ms.

Schmit with a copyof R. v. Urton (SK CA), [1974] 5 WWR 476, a decision of the Saskatchewan Court of Appeal. That case stands forthe proposition that it is an error of law for a sentencing judge to defer sentencing, "primarily to enable the judge to assess the conduct of[an offender] following conviction and that an assessment of his subsequent conduct would be a primary factor in her determination of anappropriate sentence." [27] As matters unfolded Mr. Heltman's apparent change of direction that was evidenced by positive developments at thecommencement of the sentencing hearing in June did not persist.

Rather, as Crown has shown, with his more recent court history therehas been a proliferation of new charges, many of them alleged breaches, and some of them relating to alleged substantive offencesbetween June and now. [28] Mr. Pakenham now wishes to persuade me on his client's behalf that, things having not gone as well with Mr. Heltman aseveryone had hoped in the interval between June and November, the court cannot take into account his most recent and troubling courthistory when imposing sentence now. I understand as well from submissions Mr.

Pakenham made today that he does intend to arguethat to the extent that there is positive news about what is involved, he may nevertheless press ahead to have the court take that intoaccount. [29] One might fairly describe this as being a surprising position for Mr. Heltman to take. To his credit, his counsel, Mr. Pakenham,acknowledges that he was not aware of the Urton authority when he enthusiastically embraced the opportunity provided to Mr. Heltmanto build a track record that would support a CSO. Nevertheless, now that the track record that has developed in fact is not helpful to Mr.Heltman, Mr.

Pakenham raises Urton as a shield to prevent the court from considering a proliferation of new charges that havematerialized since June. Indeed, it is a permeable shield that Mr. Pakenham raises to protect his client, because that shield would notallow any of the bad news that Crown has to offer about what has happened since June, but it would nevertheless allow through all of thegood news that Mr. Pakenham wishes the court to consider regarding what Mr. Heltman has been up to since June. On this approach thedeferral becomes a no-risk opportunity for Mr.

Heltman. [30] I will say again that to me that is a novel and surprising position for Mr. Heltman to take. However, at the end of the day I amquite convinced that the authority of Urton, and the other cases upon which Mr. Pakenham places reliance, have no application to thecase before me. [31] As has been made plain by the transcript of the proceedings in June, when the deferral came up, the purpose of the deferral wasnot "primarily to enable the judge to assist the conduct of [Mr.

Heltman] following conviction and that the assessment of his subsequentconduct would be a primary factor in the determination of an appropriate sentence," I am quoting there from Urton with slightadaptations at paragraph 3. Rather, the purpose of the deferral was to permit the court to conduct a proper sentencing hearing. That, inmy judgment, is a perfectly permissible exercise of discretion under s. 720 of the Criminal Code, which generally requires thatsentencing proceed as soon as practicable.

[32] We know that because another of Mr. Pakenham's cases R. v. Roy, 2011 ONSC 5097 says as much at paragraph 18. I ampausing there; the point was made during submissions that deferring sentencing to a future date to allow a presentence report to beprepared is a routine practice.

Those who practise in these courts also know that it is not uncommon for defence counsel to ask the courtto defer sentencing to allow their clients "to put their affairs in order." This all, in my view, has to do with the opening line, of s. 720(1),which requires me to consider: "When is it practicable to proceed with sentencing?" Sometimes things need to be done to make itpracticable to proceed in an informed way with sentencing. Sometimes an offender must be given some ability to put his life affairs inorder before sentencing proceeds.

Sometimes the court requires information that is not currently in hand to guide the sentencing processand make it fully and properly informed. That can come through a presentence report; it can come through other avenues. [33] Mr. Pakenham's case, R. v. Roy, which I just made mention, says this at paragraph 18: In a more recent decision of the Alberta [Court of] Queens Bench, the Court reviewed a number of judgments and held, in part, that s.720 of the Code allowed the court to adjourn the sentencing proceedings for a reasonable period of time for the purpose of conducting aproper sentencing hearing.

In reaching that decision -- [there is a citation to the Small-Buffalo case] -- in reaching that decision the Courtconsidered at paragraph 28 a number of judgments, including R v Fuller [cite omitted] a decision delivered by Dickson J.A. (as he thenwas). In Fuller, the Manitoba Court of Appeal held that it was improper to adjourn sentencing proceedings for a period of six monthsfollowing the receipt of a pre-sentence report in order to determine how the accused "would conduct himself during that interveningperiod." [34] And earlier in Roy, at paragraph 17, the court refers to R. v.

Brookes, [1970] 4 C.C.C. 397, another one of Mr. Pakenham'scases; that is a decision of the Ontario Court of Appeal, in which the court held that sentencing should not be delayed for a long period oftime for the purpose of seeing how the offender will behave. I agree entirely with that proposition. [35] Here, Mr. Heltman's sentencing was very plainly not delayed for a long period to begin with, it was delayed for five months --not nine and a half or other periods that are longer than the delay here that are noted in some of the cases.

More importantly, it was notdeferred in order that this court could simply see how Mr. Heltman would behave. It was deferred, as the transcript extracts I have readout amply demonstrate, so that the court could have additional information to assist it in determining and assessing a suitability of a CSOas a disposition for Mr. Heltman, a disposition that is urged strenuously upon the court by Mr. Pakenham. [36] Mr. Pakenham's cases, Brookes and R. v. Fuller, (MB CA), [1969] 3 C.C.C. 348 (Man. C.A.), stand for thesame proposition as do Burton and Roy.

In Brookes the court found that it was an invalid exercise of discretion for a sentencing judge toadjourn a sentence, quote, "To see how the respondent would conduct himself in the meantime," and additionally, "For the purpose ofawaiting certain amendments to the Criminal Code that he felt at the time would undoubtedly be introduced." Those are indeed invalidreasons for deferring sentencing, but they bear no resemblance to the reasons for the deferral granted here, a deferral that Mr. Pakenhamembraced wholeheartedly on behalf of his client. [37] In R. v. Fuller, Mr.

Justice Dickson, then of the Manitoba Court of Appeal, stated the following at paragraph 21: This Court recognizes that it may be necessary to postpone sentencing for the purpose of obtaining a pre-sentence report or additionalinformation concerning the offence or the offender. This Court is firmly of the opinion, however, that sentencing should not bepostponed for a lengthy period simply for the purpose of determining whether an accused will behave himself during the period ofpostponement. No such course of conduct is authorized by any provision of the Criminal Code. [38] That again is not this case here.

This case falls with the ambit of the first sentence of that paragraph. The deferral here wasgranted for the purpose of "obtaining additional information concerning the offender;" in particular, additional information relating to hispresent ability to abide by court orders so that his suitability for a CSO might be better assessed. [39] Another of Mr. Pakenham's cases, R. v. Small-Buffalo, [2009] A.J. No. 627, a decision of the Court of Queen's Bench, applies acase relied upon by Ms. Schmit, R. v. Wells, 2001 S.C.R. 2007.

In Wells, sentencing was deferred so the offender could attend at anAboriginal rehabilitation program to obtain an assessment of the extent of his underlying problem with alcoholism for the very purposeof considering the suitability of a CSO as a sentence. Small-Buffalo and Wells both acknowledge that the kinds of purposes fordeferring sentencing that are discouraged in cases like Burton and Roy and Fuller and Brookes are collateral purposes.

Adjourningsentencing to come to a better appreciation of the offender and the suitability of a CSO as a sentencing option is not a collateral purpose,but a permissible one, on the authority of Wells and Small-Buffalo.

I draw particular attention to paragraphs 20 through 26 ofSmall-Buffalo and I will read paragraph 25: Although the Wells decision dealt with whether a conditional sentence should be imposed, the case is instructive as the Supreme Court ofCanada confirmed that evidence of an accused’s completion of the programs at Poundmaker’s Lodge can assist in assessing whether anaccused poses a threat to the community if he or she abstains from alcohol use. [40] Remembering that Wells was a CSO case, why is the court there adverting to determining whether or not an accused poses athreat to the community?

Plainly, because that is one of the considerations that drives whether, or not, a CSO is an available disposition. [41] So, to summarize, I am satisfied that it was a reasonable exercise of the court's discretion to grant the deferral of sentencingfrom June to November so as to better assess the suitability of the CSO option, given Mr. Pakenham's apparent, though fresh and new,turning of a corner, so to speak, in June. Its purpose was not a collateral one of the kind discouraged by the distinguishable authorities onwhich Mr. Pakenham has placed reliance.

Having been prepared to take the potential benefit of the deferral, Mr. Heltman must also takethe burden.

Here the information that accrued over the interval regarding his court history does not confirm his having turned a corner,but rather shows numerous new charges, and thus militates against the choice of a CSO as the proper sentencing option. [42] Having regard to the purpose of the deferral, which the transcript shows was perfectly clear to all, and subscribed to by all, Iconsider it appropriate for me to consider the information that has accumulated during the course of the deferral, and I shall do so, and Ishall do so in a perfectly even-handed way.

[ 43 ] I will consider what Ms. Schmit has to say, and what she has to tender in terms of Mr. Heltman's activities that have come to the attention of the criminal justice system during that interval. I will also consider what Mr. Pakenham wishes me to consider that may be of a positive nature having to do with his activities in that interval. [ 44 ] So that is my ruling on the objection that the deferral granted in June was in some manner unlawful, or that I may not consider anything that the Crown tenders in relation to what happened during the interval. (RULING RE APPLICATION CONCLUDED)